Sandeep and Another vs State of U.P.

The above appeal has its genesis in S. T. No. 356/05 and by means of the judgment and order dated 2.6.2007, passed by the Sessions Judge, Muzaffarnagar in the aforesaid Sessions trial, the Appellants have been convicted and sentenced to death u/s 302 read with Section 34, I.P.C. and a fine of Rs. 30,000 and further convicted u/s 316/34, I.P.C. and sentenced to undergo 10 years R.I. with a fine of Rs. 10,000 and in default of payment of fine further imprisonment for one year.

The author of the F.I.R. is S. O. Police Station, Ratanpuri namely, D. N. Verma lodged on 17.11.2004 at 11.15 p.m. The deceased is one Km. Jyoti. It is alleged in the report that the aforesaid Station Officer, who is also the author of the F.I.R., alongwith S.I. Chandra Pal Singh, Constable Ram Veer Singh, Constable Sukhram, Constable Ashok Kumar and Driver Yashveer Singh were on patrol duty and at the relevant time, the police force headed by S.O., D. N. Verma, informant of this case, was on Khatauli Road. Constable Rajesh Kumar and Ram Autar who were deployed for picket duty, notified the Station Officer that they had seen one Indica Car on way to Fulat village in which they heard shrieks of a lady and all of a sudden, the shrieks also stopped. Hearing this, the Station Officer asked the constable to accompany him in the Jeep and the Jeep proceeded towards the road leading to Fulat village. After covering some distance, the police party saw in the headlight of the Jeep two persons pulling out a lady. The police force upon approaching nearer to the car caught hold of the aforesaid two persons and at the relevant time the lady though in precarious state, was alive and it was noticed that her head was singed with acid burn and there were marks of injuries on her head, neck and also on her right shoulder. On being queried, she gave her name as Jyoti daughter of Baljeet resident of House No. 56, Gali No. 16, Jagatpuri, P.S. Preeti Vihar, New Delhi. She also disclosed the name of her mother as Smt. Varsha and also gave her mobile number as 9871020368. She also disclosed that one of the accused persons was Sandeep and she was employed at the mobile call centre situated at Mayur Vihar, Phase I. She also told that during courtship, aforesaid Sandeep had access to her and she became enceinte. She also told that the aforesaid Sandeep had called her on telephone to meet him at Laxmi Nagar crossing near light and gave her to understand that he would marry her at Haridwar. It is further alleged that on being interrogated, the accused also told his name as Sandeep and resident of T-8 Sector 15, P. S. Sector 20, N.O.I.D.A. The co-accused also gave his name as Shashi Bhusan son of Shyam Singh resident of Kondali House No. D 147, P.S. New Ashok Vihar, New Delhi. The accused persons further told they purchased acid bottles and blade from Modinagar. It is further alleged that the deceased also told the police that Sandeep wanted her to agree to abort the child but when she declined, accused Sandeep started beating and assaulted her. She also told that when she threatened Sandeep to reveal the entire matter to his family members and also to the police, the accused persons took the car to a lonely place and were preparing to throw her in the sugar-cane field. She also disclosed to the police that she was assaulted by tools of the car namely Jack and Pana and acid was also thrown on her and they also assaulted with blade on her neck. It is further alleged that finding her conditions deteriorating, she was rushed to Muzaffarnagar Government Hospital but upon reaching the hospital, she breathed her last.

The post-mortem of the deceased Jyoti was conducted by Dr. B. S. Caudhary on 19.11.2004 and he noted following ante-mortem injuries on the person of the deceased.

Multiple lacerated wounds in an area of 22 cm. x 6 cm. ranging from 16 cm. x 3 cm. x bone deep 5 cm. x 0.5 cm. x muscle deep. Clotted blood present.

Incised wound 2.5 cm. x 1 cm. x bone deep left side of face from lateral to left eye. Clotted blood present.

Incised wound 3 cm. x 0.5 cm. x bone deep on left head 7 cm. below left eye brow. Clotted blood present.

Chemical burn injury from all over head hairs were charring and skin burnt chemically.

Multiple contusions on right side of face and neck in an area of 12 cm. x 5 cm. ranging from 5 cm. x 1.5 cm. to 2 cm. x 0.5 cm. Bluish and reddish colour present.

Multiple incised wounds in an area of 10 cm. x 12 cm. front of neck 10 cm. x 3 cm. x cartilage depth 7 cm. x 3 cm. x muscle deep. Clotted blood present.

Multiple incised wounds in front of inner part of right fore-arm above wrist joint ranging from 7 cm. x 1.5 cm. x muscle deep to 5 cm. x 0.8 cm. x muscle deep. Clotted blood present.

Abraded contusion extending from shoulder right wrist to hand ranging from 15 cm. x 7 cm. to 2 cm. x 2 cm. Clotted blood present.

Traumatic swelling on middle of right upper arm on opening humerus bone was fractured size 9 cm. x 5 cm.

Multiple abraded contusions from left shoulder to left hand ranging from 12 cm. x 6 cm. to 0.5 cm. x 0.5 cm. Clotted blood present.

Multiple linears abrasions sharp edges on below left front arm ranging from 5 cm. x 2 cm., Clotted blood present.

Multiple abraded contusions on whole back and gluteal region ranging from 21 cm. x 15 cm. to 3 cm. x 1 cm. Clotted blood present.

Multiple abraded contusions on front of umbilicus ranging from 10 cm. x 3 cm. to 3 cm. x 1 cm. Clotted blood present.

Multiple linear abrasions on back of neck 7 cm. x 2 cm. Clotted blood present.

Multiple abraded contusions on right thigh outer part ranging from 14 cm. x 10 cm. to 3 cm. x 1 cm. Clotted blood present.

Multiple abraded contusions on left thigh and foot on outer part ranging from 10 cm. x 5 cm. to 2 cm. x 1 cm. Clotted blood present.

Chemical burn injury all over body ranging from 12 cm. x 8 cm. to 2 cm. x 4 cm. except upper part of chest.

According to the opinion of the doctor causative factor of death of the deceased was ante-mortem injuries.

After completion of the investigation, charge-sheet was submitted against the accused persons and the case was committed to the Court of Session. The Sessions Judge framed charges against the Appellants under Sections 302/34 and 316/34, I.P.C.

The prosecution examined Dayanand Verma, Inspector as P.W. 1, S.I. Sri Chander Pal Singh as P.W. 2, Constable Ram Avtar Singh as P.W. 3, Head Constable Harendra Singh as P.W. 4, Shobir Singh as P.W. 5, Dr. B. S. Chaudhary as P.W. 6, Shamshad as P.W. 7, Baljeet Singh as P.W. 8, Jagdish Singh as P.W. 9 and Rajiv Girothi as P.W. 10.

We have heard Sri Gopal S. Chaturvedi, Sr. counsel for the Appellant Sandeep, Sri Raghuraj Kishore, learned Counsel for the Appellant Shashi Bhushan. We have also heard Sri D. R. Chaudhary, learned Government advocate and Sri S. N. Singh, learned Counsel for the complainant.

The learned Counsel for the Appellants began his submission arguing that regard being had to the nature of injuries inflicted on the deceased it was next to impossible that she could have survived to narrate the whole incident to the police and it was suggested that the whole statement has been concocted to lend cogency to failing prosecution case. The next submission advanced across the bar by the learned Counsel for the Appellant is that the D.N.A. report should not be countenanced as the blood sample was taken forcibly. It is further submitted that the blood sample was not properly taken from the accused Sandeep and D.N.A. based on such sample cannot be taken into reckoning. It is further argued that the part of foetus collected and preserved for D.N.A. test was also not properly kept. It is further argued that the prosecution did not prove as to how part of foetus was taken out and whether it was kept properly or not and how the same was sent to Forensic Science Laboratory, Chandigarh.

The counsel appearing for the Appellant Shashi Bhushan submitted that Shashi Bhushan was not shown to be imbued with any proximate motive or enmity for committing the murder of the deceased attended with the submission that he was simply a driver and he cannot be held as accomplice to the murder of the deceased. It is further submitted that his role, at the most, would not exceed to one covered u/s 201, I.P.C.

Per contra, Sri D. R. Chaudhary, learned Government advocate, and Shri S. N. Singh, learned Counsel for the complainant contended that the prosecution has proved its case beyond reasonable doubt ; that the eye-witnesses had no motive for falsely implicating the Appellants and further that the arrest of the Appellants on 17.11.2004 alongwith Jyoti has been proved beyond reasonable doubt. It is further contended that the D.N.A. report also lends ample corroboration to the statement of Jyoti that Sandeep was the father of unborn child and lastly, it is argued that the Sessions Judge has rightly convicted the Appellants.

In order to appreciate the rival submissions of learned Counsel for the parties it is necessary to examine the evidence on record.

P.W. 1 is D. N. Verma, Station House Officer of Police Station, Ratanpuri, district Muzaffarnagar. He is also the informant of the case and he has fully lent support to the version embodied in the report. He deposed that on 17.11.2004 he was on patrol duty alongwith S.I. Chandra Pal Singh, Constable Ram Veer Singh, Constable Sukhram, Constable Ashok Kumar and Driver Yashveer Singh which fact finds mention in G. D. entry No. 25 at 6.40. He further deposed that Constable Rajesh Kumar and Ram Autar who were deployed on picket duty near Khatauli notified to the witness that they heard the shrieks of a lady from a passing Indica car which took to the road leading to Fulat village. Thereafter, both the constables also boarded the Jeep and the Jeep was taken on to the road leading to Fulat village. It is also deposed that after covering a very short distance, they saw one Indica car in the light of the Jeep and also two boys who were pulling out a lady in injured condition from the car. He also deposed that both the persons were taken into custody on the spot. The girl had acid burn and there were serious injuries on her head, neck and hands but she was still in a position to speak. This witness further stated that he made queries from the girl and she told her name as Jyoti daughter of Baljeet R/o House No. 56, Lane No. 16,Jagatpuri P. S. Preeti Vihar, New Delhi and she disclosed her mother''s name as Smt. Versha and her mobile No. 9871020368. She further told that she had courtship with Sandeep. She was employed at a Mobile Shop situated at Mayur Vihar, Phase 1 and during courtship, accused had access to her and she became enceinte. It is further deposed that she told him that Sandeep had made a telephonic call to her to meet him at Laxmi Nagar Market at 6 p.m. on the pretext that he would marry her at Haridwar. Believing him, she accompanied Sandeep from Delhi. The witness further deposed that on being interrogated, the accused person disclosed his name as Sandeep and his companion as Shashi Bhushan. It is also deposed that the deceased also told her that when she was on way to Haridwar, Sandeep pressurized to agree to abort unborn child and when she showed her reluctance, Sandeep started beating and assaulting her from Modinagar. He further stated that she threatened Sandeep to expose his misdeed to the family members and also to the police. She is also alleged to have told that when they reached near Khatauli, the accused persons took her to a lonely place and were preparing to throw her in a sugar-cane field when they were caught. She is also alleged to have told that Sandeep and his companion assaulted her by Jack and Pana and also assaulted her with blade on her neck and poured acid on her body. The witness further deposed that looking to the deteriorating condition of the lady, she was sent to District Hospital, Muzaffarnagar through constable Ramveer Singh. It is further deposed that on being interrogated, both the accused persons spilled the beans and confessed to their crime. The witness also deposed that he arrested both the accused persons and took in possession Indica car, Jack, Pana, blades and two bottles of acid and also found blood on the body of the car and on foot steps. One pair of ladies leather sandle were also recovered and recovery memo Ext. Ka-1 was prepared. In Court he has also identified the accused persons and proved the report lodged on the basis of recovery memo at 11.15 p.m. on 17.11.2004.

P.W. 2 is S.I. Sri Chander Pal Singh who at the relevant time was accompanying S.O. D. N. Verma on patrol duty and P.W. 3 constable Ram Avtar Singh was also on duty when he heard the cries for help from a running car which was on way to the road leading to Fulat village. It is deposed that S.O., D. N. Verma alongwith picket happened to be there who was apprised and thereafter he also accompanied them in the Jeep and proceeded on the road leading to Fulat village. Both these witnesses who were accompanying the S.O. namely, D. N. Verma have also corroborated the prosecution case in all material details in their deposition. They have also deposed that they have seen the accused persons taking out the victim from the Indica car in injured condition and have also proved the statement made by the victim to the S.O. as well as the arrest of the accused persons on the spot. Since these witnesses have fully supported the version of the informant, which has already been enumerated in detail in this judgment, to avoid burdening this judgment we do not think it proper to repeat all over again the deposition of P.W. 2 and P.W. 3 in this judgment.

P.W. 4 H. C. Harendra Singh deposed that on 17.11.2004 he was posted as Head Moharrir at police station Ratanpuri and on that date S.O. D. N. Verma gave a written memo on the basis of which F.I.R. at Case Crime No. 63 of 2004, under Sections 307, 326, 324 and 323, I.P.C. was written by him and he proved Ext. Ka-5. He further stated that he had also prepared G.D. No. 31 at 11.15 p.m. on 17.11.2004 and proved the G. D. entry/Ext. Ka-6. He also proved G. D. of Case Crime No. 116/04 Ext. Ka-7. The case was altered to Section 302/34, I.P.C. on the basis of the post mortem report and he also proved the G.D. Ext. Ka-8.

P.W. 5 S.I. Shobir Singh deposed that he was posted at P.S. Ratanpuri and on that date about 11.15 p.m. case was registered in his presence. The investigation was entrusted to him on 18.4.2004 and he made an entry of the recovery of Indica car in G.D. and recorded the statements of Head Moharrir, Harendra Singh, accused Sandeep and Shashi Bhushan. He also recorded the statement of complainant D. N. Verma and constable Rajesh Kumar. He also prepared site plan, Ext. Ka-9 at the instance of constable Rajesh Kumar. On 18.11.2004, he collected plain and blood stained earth and one chunni burnt by acid and prepared its recovery memo Ext. Ka-10. He also recovered 11 hair from the rear seat of Indica car and prepared recovery memo Ext. Ka-11. He also collected blood stains from the seat cover and also plain seat cover and also prepared its recovery memo Ext. Ka-12.

P.W. 6, Dr. B. S. Chaudhary deposed that he conducted the autopsy on the dead body of Jyoti and proved the same. He further stated that deceased would have died on 17.11.2004 at about 9.30 to 10.30 p.m.

P.W. 7 Shamshad Ali S.I. deposed that on 18.11.2004 he was posted at police station Kotwali, Muzaffarnagar. He had received an information about the death of Jyoti. He prepared the inquest report, letter to R.I., letter to C.M.O. for analysis of hair and also letter for D.N.A. test which are Exts. Ka-15 to 21.

P.W. 8 is Baljeet Singh. He is father of the deceased. He deposed that he carries on the business of sale and purchase of auto three wheeler and his wife worked as a coordinator of Marriage Bureau. He had two daughters one Km. Jyoti and another Km. Dinni. Km. Jyoti was studying in B.A. as private candidate and was also doing course of electronics in Mayur Vihar, Phase-I at a mobile call centre where she came in contact with Sandeep. He also identified Sandeep in the Court. He also stated that Sandeep and Jyoti were on friendly terms and Sandeep used to come to his house and also stated that he wanted to marry Jyoti but he prevaricated the issue whenever he was asked to be agreeable to a date for marriage on the pretext that he was to seek permission from his parents but at the same time, he further deposed, Sandeep was unwilling to take him to meet his parents. He further deposed that on 17.11.2004 when he returned home at 9 or 9.15 p.m. he enquired from his wife about Jyoti. She told him that a phone call was received by her and she had gone to meet Sandeep. She further told him that after half an hour Jyoti made a call to her and informed that she was going to Haridwar where both would tie the nuptial knots. He further deposed that his wife asked his daughter to stop and wait for five minutes for her to come upon which it is stated that Jyoti informed her that Shashi Bhushan was also accompanying her and Sandeep and she would come back next day after marriage. He also identified Shashi Bhushan in the Court. He remained perturbed whole night and made a plan to go to Haridwar next day and in the meantime a phone call was received from police station Preet Vihar informing that his daughter Jyoti had been murdered within the circle of police station Ratanpuri, district Muzaffarnagar. He went to police station Ratanpuri where D. N. Verma met him. On 19.11.2004 the dead body of Jyoti was handed over to him and he came to know that Sandeep and Shashi Bhushan had committed murder of his daughter Jyoti.

P.W. 9 is Jagdish Singh, who was posted as Sub-Inspector at police station Budhana. He deposed that on 20.11.2004 while posted at Budhana Police Station, he was entrusted the investigation as per the direction of S. P. Dehat. He reached police station Ratanpuri. He collected post mortem report of Jyoti and recorded the statement of Baljeet and Smt. Versha. On 3.12.2004 he recorded the statement of S.I. Chander Pal Singh, constable Ram Autar of P.S. Ratanpuri. On 17.12.2004, he went in village Mandawli and recorded the statements of Digvijay Singh, S.I. Rajendra Singh and Ajay Kumar and also went to village Badsoo and recorded the statement of Ajay Kumar and Satish and came to the court of C.J.M. with Dr. Sanjiv Agnihotri. He obtained the permission to take blood of Sandeep for D.N.A. test. He went to jail where he called Dr. Rameshwar and also called accused Sandeep. The photographs of accused were taken and his blood sample was also taken. Dr. Agnihotri processed papers for D.N.A. test. He had affixed his thumb impression on the form. Dr. Agnihotri also affixed his signatures on form Ext. Ka-22. He went to Forensic Science Laboratory alongwith Sandeep on 18.11.2004 and also brought sample of blood stains and prepared memo Ext. Ka-23 and photographs materials Exts. 14 to 24. He also recorded the statement of Shamshad Ali and also made an entry of the inquest report in the C. D. On 18.1.2005, he obtained the report of Forensic Science Laboratory, Agra brought by constable Ramveer Singh. On 21.1.2005, constable Bhagwati Shankar deposited the blood obtained from foetus found in the womb of deceased Jyoti. On 29.1.2005, constable Shiv Kumar sent a sample of foetus and blood of Forensic Science Laboratory, Chandigarh. On 30.1.2005, he recorded the statements of S.O. Ratanpuri D. N. Verma, constable Ashok Kumar, constable Rajveer Singh and on 6.2.2005 he recorded the statements of the witnesses and after investigation submitted charge-sheet Ext. Ka-24 against the accused persons. He also submitted D.N.A. report obtained from Forensic Science Laboratory, Chandigarh in which it was found that foetus in the womb of the deceased Jyoti was of accused Sandeep and he is biological father of the foetus.

P.W. 10 Rajiv Giroti, Junior Scientific Officer deposed that on 27.1.2005 he was posted at Forensic Science Laboratory, Chandigarh and he received three sealed bundles from police station Ratanpuri. One sample was of the blood of Sandeep, another sample was of dry blood of Sandeep and the third sample was of foetus obtained from the womb of Jyoti at the time of her post mortem. On test, it was found that Sandeep was biological father of foetus. He prepared the report Ext. Ka-25.

The case of the defence was one of denial. Appellant Sandeep abjured the guilt pleading that he had no intimate relation with any girl named Jyoti nor he knew any girl by the name Jyoti. He also denied to have taken the deceased from Delhi to Haridwar by Indica car or to have assaulted Jyoti in the car as alleged at any place. He also denied to have been arrested by the police of Police Station, Ratanpuri on 17.11.2004 at about 9.30 p.m. with Indica car. He gave a version different from the version set up by the prosecution leading to his arrest. He pleaded that in fact on 17.11.2004, he went to purchase goods from Geeta Colony by Indica car No. DL- 3CR/6666 with his mother who happened to be the owner of the car and when he and his mother were on way back to home after purchasing goods from the market, he found his car missing. He searched for the car and thereafter, he lodged a report at P. S. Geeta Colony. He further stated that on 18.11.2004, police of police station Ratanpuri, Muzaffarnagar informed his mother on phone that the car was standing at police station Ratanpuri and called her to come over to the police station for identifying the same. He and his mother went to police station Ratanpuri where he was arrested and falsely nominated in the case. He also pleaded that he had been suffering with fits since 1998 and his right hand was dislocated. He was also operated upon in the year 2006 in Safdarjang Hosptal, New Delhi and thus, he is not able to drive the car due to the disease.

The defence has also examined D.W. 1, Dr. Ashwani Kumar Sharma, who deposed that on 18.11.2004, Dr. Rameshwar had examined Sandeep and found that there was no mobility in the right hand of Sandeep and there was dislocation and he was advised X-ray. The defence has also brought on record certain papers to prove that earlier an F.I.R. was lodged by Jyoti against Manoj Kumar and others for committing rape on her and that case culminated in clean acquittal of the accused persons.

The Appellant Shashi Bhushan stated in his defence that he has been falsely implicated in this case at the behest of S.S.I., Ratanpuri, D. N. Verma, and his arrest has falsely been shown. He pleaded that he has nothing to do with the murder of deceased Jyoti.

The Sessions Judge after reckoning with the evidence on record, recorded the findings that evidence on the record establishes the presence of witnesses at the time of occurrence. The deceased had made a statement to P.W. 1 D. N. Verma, P.W. 2 S.I. Chandrapal Singh and P.W. 3 constable Ram Autar, in which she had disclosed about the involvement of the Appellant in the commission of crime. It was further held by the Sessions Judge that the testimony of Dr. B. S. Chaudhary completely support the prosecution case. The Sessions Judge further held that P.W. 8 Baljeet had proved that Sandeep had intimacy with his daughter Jyoti and he used to visit his house and wanted to marry Jyoti after obtaining permission from his parent. It was further held by the Sessions Judge that the testimony of P.W. 10 Rajiv Giroti proved that the foetus recovered from the womb of Jyoti tallied with the blood of Sandeep and further proved that the Sandeep was father of foetus which was collected from the womb of Jyoti. It was further held that the F.I.R. has been lodged with all promptitude which lends cogency and strength to the prosecution case. Lastly, while awarding death sentence, this Sessions Judge converged to the view that the case is one of the rarest of rare case.

Now, we proceed to discuss the submissions advanced across the bar by learned Counsel for the respective parties in the light of the evidence brought on record by the prosecution as well as defence.

First of all, we take up the testimony of defence witness who has been examined as D.W. 1 namely, Ashwani Kumar, for scrutiny. He deposed that Dr. Rameshwar had examined Sandeep on 18.11.2004 and he found that there was no mobility in his shoulder and by this reckoning, it is submitted that the accused could not be said to be in a position to assault any one. We are afraid, we do not find the submission to be loaded with substance, considering that the nature of injuries and the weapon of assault clearly testify to the fact that the injuries sustained by the deceased could be caused from the left hand also and assault by blade, jack and spanner (pana) or pouring of acid does not require much physical efforts. In this view of the matter, the evidence of P.W. 1 is unavailing to the Appellant.

The first submission of the learned Counsel for the Appellant Sandeep is that the statement given by Jyoti to the witnesses cannot be accepted because she had sustained large number of injuries which were of serious nature and after receiving such injuries, it was not at all possible for her to speak and her detailed statement is nothing but a mere concoction to bolster up the prosecution case.

We have perused the record which no doubt manifests that large number of injuries were sustained by the deceased but there is nothing on record to show that anyone of them was of a very serious nature so as to render her speechless or result in her instantaneous death. It is worth noticing here that the statement of the deceased was recorded on 17.11.2004 wherein she stated in clearer terms that she had become enceinte as during courtship, Sandeep had access to her. This version of the deceased finds corroboration from the D.N.A. test report which in unequivocal terms reveals that Sandeep was the biological father of the foetus. It is also significant to notice here that Sandeep categorically denied his acquaintance or intimacy with Jyoti. In his statement filed alongwith Section 313, Cr. P.C. statement he stated that

mera kabhi bhi kisi Jyoti naam ki larki sey koi sambandh kisi bhi prakar ka nahi raha na hi main kisi aisi larki ko janta hu. The above statement of accused Sandeep stands falsified by the D.N.A. examination report. He has also denied his arrest on 17.11.2004. The evidence of prosecution witnesses clearly indicates that he was arrested on 17.11.2004. P.W. 4 H. C. Harendra Singh was posted as Head Moharrir in Police Station, Ratanpuri on 17.11.2004. He had prepared the F.I.R. and he had also entered the presence of Sandeep and Shashi Bhushan in the G. D. alongwith Indica car No. DL-3CR 6666. It is also worthy of mention that the report of the occurrence was registered under Sections 307, 326, 323 and 324, I.P.C. and not u/s 302, I.P.C. The first informant after recording the statement of Jyoti rushed her to hospital where she was declared brought dead on 17.11.2004 at 10.55 p.m. The statement of the deceased and the D.N.A. report clearly establishes that the accused was imbued with strong motive and also points to participation for the Appellant Sandeep in the commission of crime. Therefore, in our considered opinion, the submission of the learned Counsel for the Appellant is not loaded with any substance and therefore does not commend to us for acceptance.

The next submission of learned Counsel for the Appellant is that the D.N.A. report should not be countenanced as the blood sample was taken forcibly. It is further submitted that the blood sample was not properly taken from the accused Sandeep and D.N.A. based on such sample cannot be taken into consideration. It is further argued that the part of foetus collected and preserved for D.N.A. test was also not properly kept. It is further argued that the prosecution did not prove as to how the part of foetus was taken out and whether it was kept properly or not and how the same was sent to Forensic Science Laboratory, Chandigarh. The manner as done by the prosecution in obtaining blood sample constitutes violation of Article 20(3) of the Constitution of India. Article 20(3) of the Constitution of India reads as under:

20 (3) No person accused of any offence shall be compelled to be a witness against himself.

We have considered the submission of learned Counsel for the Appellant and also perused the evidence in this regard.

The testimony of P.W. 10 Rajiv Giroti, Junior Scientific Officer is to the effect that he examined the blood sample of Sandeep and also the blood found on filter paper and also part of foetus taken out at the time of post mortem of the deceased and it was stated that from the D.N.A. profiling results, he came to the conclusion that Sandeep was the biological father of the foetus. His evidence and the D.N.A. report clearly and amply shows that accused Sandeep was the biological father of the unborn child. P.W. 1 D. N. Verma also stated that blood sample and part of foetus which he received were within norms and sealed. From this statement also it is evident that the sample of blood of Sandeep and part of foetus were kept and sealed in proper condition and the same were properly produced before the Scientific Officer. The learned Counsel has not adverted our attention to any pointed lapse or omission on the part of the prosecution in preserving or keeping the foetus or in taking the blood samples etc. It is not borne out that the trial court had uncritically and too easily accepted the report. The report of the D.N.A. cannot be jettisoned or discarded.

Before we proceed further, it would be useful to advert to an article published in 2004 (5) SCC 6 DNA TECHNOLOGY AND ITS APPLICATION IN THE ADMINISTRATION OF JUSTICE, PROBLEMS AND PROSPECTS by Jyotirmay Adhikari which is about the importance of the D.N.A. technology. Few lines of the article being illuminating are quoted below:

D.N.A. technology is a latest tool of forensic science, is the by-product of modern genetic science. The said science established the belief that the pattern of chemical signals, i.e., the genetic structure which may be discovered with the D.N.A. molecules in the cells of each individual, is unique and different in every individual. As such the chemical structure of the D.N.A. in the cells of each individual is the sole determining factor to identify one separately from another except the "genetically identical twins". The discovery of modern genetic science can be used in identification of the criminals in criminal cases by analyzing various objects recovered on the crime spot like any body fluid, hair root, saliva, fibres etc. which are associated with the crime and accurately linked to the perpetrator of the crime. Actually, this technology is utilized as a new form of circumstantial evidence, which is placed on a higher footing than the direct and ocular evidence because of its objectivity, scientific accuracy infallibility and impartial characters. Moreover, this new technology is also extensively applied in civil cases in order to determine paternity or maternity disputes, baby-exchanging cases, succession cases, maintenance proceedings and matrimonial disputes etc. For instance, in case of disputed paternity of a child mere comparison of D.N.A. obtained from the body fluid or body tissues of the child with his father and mother can offer infallible evidence of biological parent within a short time. No other evidence of corroboration is required because timely medical examination and proper sampling of body fluids followed by quality forensic examination can offer irrefutable evidence, circumventing the need of prolonged arguments in the court of law.

In connection with the submission, we also feel called to refer to Section 53, Cr. P.C. which postulates examination of the accused by medical practitioner at the request of the police officer. An Explanation to this Section is also provided which envisages that: "in this section and in Sections 53A and 54(a) "examination" shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including D.N.A. profiling and such other tests which the medical practitioner thinks necessary in a particular case ;

The Apex Court in the case of Sharda Vs. Dharmpal, , held in paragraph 62 as under:

By way of example, we may refer to Sections 185, 202, 203 and 204 of the Motor Vehicles Act, Sections 53 and 54 of Cr. P.C. and Section 3 of Identification of Prisoners Act, 1920. Reference in this connection may also be made to Sections 269 and 270 of the I.P.C. The constitutionality of these laws if challenge is thrown, may be upheld.

In view of the above, the submission advanced across the bar by the learned Counsel does not commend to us for acceptance.

Learned Counsel for the Appellant Shashi Bhushan submitted that Shashi Bhushan had no motive or enmity for committing the murder of the deceased. He was simply driving the car and he cannot be held liable for the murder of the deceased. It is further submitted that his role, at the most, can be covered u/s 201, I.P.C.

The case of the prosecution from the very inception is that the deceased was taken to a lonely place in Indica car by both the accused persons. The statement of the victim leaves no manner of doubt that co-accused was present all alongwith accused Sandeep. The Sessions Judge having evaluated the evidence on record has convicted the Appellant Shashi Bhushan with the aid of Section 34, I.P.C. The evidence on record clearly testifies to the fact that co-accused kept company of the accused Sandeep throughout the journey in the car. He was also seen by the witnesses pulling deceased out of the car while at a lonely place. It is not disputed that the deceased suffered large number of injuries and at no point of time, he appeared to have dissociated himself and brought car to a stop. By this reckoning, there is no indicium on record that he at any stage dissociated himself from the occurrence. In the above conspectus, the conduct of Shashi Bhushan amply shows that he also shared common intention alongwith Sandeep and we have no hesitation to say that the learned Sessions Judge rightly convicted him with the aid of Section 34, I.P.C. In the perspective of above discussion, we do not find force in the submission of the learned Counsel for the Appellant Shashi Bhushan.

Lastly, it is submitted that the Sessions Judge was not justified in awarding the death sentence. It is submitted by learned Counsel for the Appellants that the case does not fall within the category of rarest of rare case where death sentence should have been inflicted. It is submitted that deceased sustained multiple injuries and except one injury all other injuries were simple in nature and none of the injuries were sufficient in the ordinary course of nature to cause death. The acid burns were also superficial in nature and there was no damage to any internal organ. Further it is submitted that the weapons which were alleged to have been used by the Appellants were spanner and wheel wrench and shaving blades and these weapons are not weapons of assault and accused did not seem intent to commit the murder of the deceased and it is not known as to which accused had caused injuries to the deceased.

In connection with this submission, we may usefully advert to the guidelines laid down in stream of decisions commencing from Bachan Singh Vs. State of Punjab, and thereafter reiterated in subsequent decisions namely Machhi Singh and Others Vs. State of Punjab, and Devender Pal Singh Vs. State National Capital Territory of Delhi and Another, . The guidelines laid down in Bachan Singh''s case (supra) may be culled out as under:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In Machchi Singh and Ors. v. State of Punjab (supra), the Supreme Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community may be shocked. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances. It was observed that "every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law enforced by it.... Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by killing, a member of the community which protects the murderer himself from being killed, or when the community feels that for the sake of self-preservation, the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so "in rarest of rare cases" when its collective conscience is so shocked that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime or the anti social or abhorrent nature of the crime."

In Dalbir Singh and Others Vs. State of Punjab, , the Apex Court put observed as under:

Counting the casualties is not the main criterion for sentencing to death, nor recklessness in the act of murder. The sole focus on the crime and the total farewell to the criminal and his social personal circumstances mutilate sentencing justice.

In Devender Pal Singh''s case (supra), the Apex Court regard being had to both the cases supra, expanded the formulation for imposing extreme penalty. The guidelines may be abstracted below as under:

(1) When the murder is committed in an extremely brutal, grotesque, diabolic, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. Murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-�-vis whom the murderer is in a dominating position or in a position of trust ; or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath ; or in cases of bride burning or dowry deaths or when murder is committed in order to re-marry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons or a particular caste, community, or locality are committed.

(5) When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-�-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

The Sessions Judge awarded death sentence holding that in the instant case it is established by the evidence adduced by the prosecution that accused Sandeep had established erotic relation with Km. Jyoti, when she was working at a Mobile Shop 7-8 months ago. It has also been established by D.N.A. test and other evidence that Km. Jyoti became pregnant and she was having six month''s old unborn child in her womb and accused Sandeep was the biological father of the child. It has also come in the evidence that he drew a plan to eliminate Km. Jyoti and for that purpose, he called Jyoti at Lakshmi Nagar market and assuring her to marry at Haridwar, he won her confidence and he took her in the Indica car which belonged to his mother. Sandeep also took with him his friend Shashi Bhushan. It has also come in the evidence that accused Sandeep insisted on Km. Jyoti in the way near Modinagar to agree to terminate the pregnancy to which she denied. It has also been established that accused purchased blades and two bottles of acid from Modinagar and started assaulting her by pana and jack. It has also come in the evidence that Sandeep assisted by his companion Shashi Bhushan caused several incised wounds on her face, head and neck and other multiple incised wounds in an area of 10 cm. x 12 cm. in front of neck, multiple incised wound in front of inner part of right forearm. He also caused chemical burn injuries all over body ranging from 12 cm. x 8 cm. to 2 cm. x 4 cm. besides multiple lacerated wound by pouring acid. The accused persons committed murder of Jyoti which by all means by gruesome, grisly and diabolical. In the process, they inflicted injuries on her face, head by blades and poured acid. It has also been established that the alleged incident did not occur on account of any sudden provocation from the side of the deceased.

We have traversed upon the submissions of the counsel for the Appellants and also reckoned with the aggravating circumstances mentioned by the Sessions Judge in awarding the death sentence to the Appellant. The Appellant Sandeep alleged to be father of the foetus which was in the womb of the deceased. He had called the deceased from her house on the pretext of marrying her and thereafter he caused injuries and also alongwith co-accused poured acid and while in the process of throwing the deceased in the jungle, they were apprehended by the police. The murder of the deceased was committed in a most brutal and diabolic manner with premeditation. What is disquieting that the deceased had reposed faith in Sandeep and she wanted to marry him while the accused seemed to be interested in amorous relation with the deceased. Considering the abominable conduct of the Sandeep and the brutal manner in which murder was executed, the case of Sandeep certainly falls within the category of the rarest of rare case. However, the case of Shashi Bhushan is quite distinguishable from the case of Sandeep and his case shall be discussed in the latter part of the judgment.

Taking into consideration the brutal, diabolical and gruesome manner of the attack, the age and infirmity of the victim Jyoti, a helpless girl and a strong motive ascribable to accused Sandeep and his act of perversity with a girl who had sacrificed everything for accused Sandeep for the sake of her love, if such person allowed to continue to live in the present society, there may be a great threat to the other persons of the society and there will be no safety and protection for the innocent and helpless unmarried girls of young age. By all reckoning, it is a fit case falling within the category of the rarest of rare case in which accused Sandeep should be awarded capital punishment u/s 302/34, I.P.C.

The weapon used by the accused in committing the crime, the manner in which the operation was carried out and the premeditation and determination with which the accused acted as well as the number of injuries inflicted on the unfortunate victim, give a clear picture of the cruelty and brutality with which the accused murdered the deceased. The accused Sandeep initially called the deceased on the pretext of marrying her and subsequently, when they were on way to Haridwar, the accused Sandeep exerted pressure on her to agree to abortion and when she declined, acid was poured on her head and she was also assaulted with blade, spanner and wheel wrench. It is also on record that the accused persons purchased acid bottles, and blade from Modinagar which shows their grim determination. All these facts and circumstances, to our mind constitute special reasons for award of capital punishment. The learned Sessions Judge has rightly converged to the conclusion that there are special reasons for award of capital punishment.

So far as the Appellant Shashi Bhushan is concerned, the Sessions Judge has given the following reasons for awarding capital punishment:

... He and co-accused Sandeep committed the brutal murder of Km. Jyoti. He also assaulted and caused painful injuries to the victim. Km. Jyoti was a helpless woman and the accused persons were in dominating position. This accused also caused brutal murder by inhuman act. It is also urged that accused Shashi Bhushan was a constable in Delhi police and he was posted in place of his deceased father under Dying-in-Harness Rules. This fact is admitted by accused himself during hearing on the point of sentence. A police person is expected to save the life of another and also to help the poor innocent and helpless man and woman, but in place of helping Km. Jyoti, he shared common intention with Sandeep and committed brutal murder of Km. Jyoti alongwith Sandeep. It is a case of murder committed in an extremely, brutal, grotesque, diabolical, revolting and dastardly manner. Both the accused persons were in dominating position and the victim was innocent helpless woman from whom there was no provocation. Under the above circumstances and in view of the law laid down by the Hon''ble Supreme Court in the case of Sushil Murmu v. State of Jharkhand (supra) and other case laws referred to above, I think it just and proper to award accused Shashi Bhushan also the capital punishment u/s 302/34, I.P.C.

Before dealing with his case, it would be useful to refer to a recent decision of the Apex Court rendered on 7.9.2007 in Criminal Appeal No. 648 of 2007, Des Raj v. State of Punjab 2008 (1) ACR 144 (SC). While dealing with the facts of the case the Apex Court held that the trial court and the High Court have persuaded themselves to award the death penalty by considering only the aggravating circumstances and to an extent, carried away by the fact that three died and four were injured. The mitigating circumstances have not been given their due importance. On a careful balancing of the aggravating and mitigating circumstances, we find that in-spite of the gravity of the crime involving triple murder, the aggravating circumstances noticed and enumerated by the High Court do not outweigh much-less overwhelmingly the mitigating circumstances. This is not that rarest of rare case which invites death penalty.

In the light of the above principles, we again recapitulate the events leading to occurrence in order to ascertain whether aggravating circumstances outweigh the mitigating circumstances in so far as Appellant Shashi Bhushan is concerned. It brooks no dispute that the Appellant Shashi Bhushan had no intimate relation with the deceased. He accompanied the Appellant Sandeep as driver of the Indica car. Even the deceased in her statement before the first informant did not utter even a single word against Shashi Bhushan except saying at one place that both the accused assaulted her with jack and pana. It may be worthy of notice that only one jack and only one Pana are shown to have been recovered. It has no where come that there were two jacks or two panas. In view of the recovery of only one jack and one pana, it appears to be improbable that Shashi Bhushan also actively participated in attacking the deceased. No doubt he was privy to the commission of the crime but he is not assigned any overt role either of assault. No other witnesses alleged anything against the Appellant Shashi Bhushan except saying that both the accused persons were pulling out the lady from the car. It may be remembered here that the entire case hinges on the statement of the deceased made before the first informant and other allied circumstances. As observed by the Sessions Judge in his judgment, Shashi Bhushan Appellant was a police constable in Delhi police. No doubt it is aggravating circumstance but at the same time, considering that he acquitted himself in the entire episode as mute spectator acting at times at the dictate of the prime accused Sandeep. In fact, it was Appellant Sandeep who masterminded the entire episode and from the very inception of making call to the deceased and thereafter, to pursuade her to accompany her to Haridwar and on way to Haridwar, he pressurised the deceased to agree to abortion and on her refusal, it was he who assaulted her. In my considered view, the mitigating circumstances outweigh the aggravating circumstances and therefore, we are of the view that in sentencing process, he deserves to be treated leniently qua the Appellant Sandeep.

Various decisions were read to us and we do not consider it necessary to refer to them except to acknowledge that we derived considerable assistance from them.

In the result, the appeal fails and is dismissed in limine in so far as Appellant Sandeep is concerned and the conviction and sentence awarded by the learned Sessions Judge is affirmed. In so far as Appellant, Shashi Bhushan is concerned, appeal is partly allowed. While affirming conviction recorded against him, we are inclined, considering the mitigating circumstances, to commute the sentence of death to one of imprisonment for life. Therefore, it is ordered that the sentence of death awarded to the Appellant Shashi Bhushan shall stand altered to one of imprisonment for life.

In so far as Appellant Sandeep is concerned, the criminal reference is accepted. However, in so far as Appellant Shashi Bhushan is concerned, the criminal reference shall stand rejected.

Let a copy of this judgment be sent forthwith to the Chief Judicial Magistrate, Muzaffarnagar for compliance.