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Judgment
Name of the appellant/s,Offences for which convicted,Sentence awarded
Jagdish Chand Mali,U/Ss. 302 and 120-B I.P.C.,"Death sentence with fine of Rs.
50,000/- and in default of payment
of fine to further undergo six
months additional rigorous
imprisonment.
,U/Ss. 460 and 120-B I.P.C.,"Life imprisonment with fine of Rs.
25,000/- and in default of payment
of fine to further undergo six
months additional simple
imprisonment.
,U/Ss. 394 and 120-B I.P.C.,"Life imprisonment with fine of Rs.
25,000/- and in default of payment
of fine to further undergo six
months additional simple
imprisonment.
Shimla W/o. Shri. Jagdish Chand
Mali",U/Ss. 302 & 120-B I.P.C.,"Life imprisonment with a fine of Rs.
50,000/- and in default of payment
of fine to further undergo six
months additional simple
imprisonment.
,U/Ss. 460 and 120-B I.P.C.,"Life imprisonment with fine of Rs.
25,000/- and in default of payment
of fine to further undergo six
months additional simple
imprisonment.
,U/Ss. 394 and 120-B I.P.C.,"Life imprisonment with fine of Rs.
25,000/- and in default of payment
of fine to further undergo six
months additional simple
imprisonment.
Charges were framed against the accused by the trial Court for offences punishable under Sections 302, 457, 460, 394, 397, 411 and 120-B of",,
Indian Penal Code.,,
Accused did not plead guilty to the charges framed against them and claimed trial.,,
In order to prove its case, prosecution examined as many as twenty-eight witnesses during trial. Accused when examined under Section 313 of",,
Code of Criminal Procedure, 1973 after the close of prosecution evidence, prayed that they were innocent and had been falsely implicated in the",,
present case.,,
Learned counsel appearing for the State as well as learned counsel appearing for the complainant have submitted that the death sentence and,,
other sentences awarded to the accused were liable to be upheld, as the accused had committed murder of Rajendra Agarwal and his wife Smt.",,
Geeta Devi. Accused had also committed offences punishable under Sections 460, 394 and 120-B of I.P.C. In support of their arguments, learned",,
advocates have also placed reliance on the judgment of Hon'ble Supreme Court in the case of B.A. Umesh Vs. Registrar General, High Court of",,
Karnataka (2011) 3 Supreme Court Cases 85, wherein, it was held as under:-",,
On the question of sentence we are satisfied that the extreme depravity with which the offences were committed and the merciless manner in which",,
death was inflicted on the victim, brings it within the category of rarest of rare cases which merits the death penalty, as awarded by the Trial Court",,
and confirmed by the High Court. None of the mitigating factors as were indicated by this Court in Bachan Singh's case (supra) or in Machhi Singh's,,
case (supra) are present in the facts of the instant case. The appellant even made up a story as to his presence in the house on seeing P.W. 2 Suresh,",,
who had come there in the meantime. Apart from the above, it is clear from the recoveries made from his house that this was not the first time that he",,
had committed crimes in other premises also, before he was finally caught by the public two days after the present incident, while trying to escape",,
from the house of one Seeba where he made a similar attempt to rob and assault her and in the process causing injuries to her. As has been indicated,,
by the Courts below, the antecedents of the appellant and his subsequent conduct indicates that he is a menace to society and is incapable of",,
rehabilitation. The offences committed by the appellant were neither under duress nor on provocation and an innocent life was snuffed out by him,,
after committing violent rape on the victim. He did not feel any remorse in regard to his actions, inasmuch as, within two days of the incident he was",,
caught by the local public while committing an offence of a similar type in the house of one Seeba.""",,
Learned counsel appearing for the accused-appellants has submitted that the prosecution had been unsuccessful in proving its case. Prosecution,,
witnesses had falsely involved the accused in this case. Accused had no motive to commit the murder of Rajendra Agarwal and his wife Smt. Geeta,,
Devi. Counsel has further submitted that no eye-witnesses have been examined, therefore, prosecution evidence is untrustworthy. Prosecution tried to",,
prove its case on the basis of circumstantial evidence and the alleged recoveries do not connect the accused with the alleged crime. Prosecution has,,
failed to complete the chain of circumstances leading towards the guilt of the accused. Counsel has prayed that this criminal appeal be allowed and the,,
impugned judgment of conviction and the order of sentence be quashed and set aside. Lastly, learned counsel has submitted that in case, the",,
conviction of the accused Jagdish Chand Mali was upheld then the sentence of 'death' was liable to be converted into 'imprisonment for life', as the",,
present case could not be described as 'rarest of the rare case' inviting death penalty.,,
We have given our thoughtful consideration to the rival submissions advanced by learned counsel appearing for the parties at bar and have gone,,
through the impugned judgment as well as material available on record.,,
It cannot be disputed that there is no eye-witness to the incident and the entire prosecution case is based wholly on circumstantial evidence in the,,
form of recoveries, motive and F.S.L. report etc.",,
After perusing the written-report (Exhibit-P/37) and the statements of Chandra Shekhar Chacha (PW-2) complainant, Sabir Hussain (PW-21)",,
Constable and Shaukat Khan (PW-28) Investigating Officer, it is proved that the written-report of the alleged incident was lodged without any undue",,
delay. Chandra Shekhar Chacha (PW-2) deposed that the chance print Exhibit-P/38 of the place of incident was prepared before him. He further,,
deposed that Exhibit-P/41 and Exhibit-P/42 are seizure memos of blood sample of deceased Smt. Geeta Devi and Rajendra Agarwal taken from the,,
place of incident. Exhibit-P/43 is a seizure memo of one pair of leather shoes. Exhibit-P/44 is a seizure memo of one pair slippers taken from the place,,
of incident. Exhibit-P/45 is a seizure memo of blood smeared clothes of deceased Smt. Geeta Devi. Exhibit-P/46 is a seizure memo of blood smeared,,
clothes of deceased Rajendra Agarwal.,,
Nikhil Gupta (PW-3) neighbour supported the deposition of complainant Chandra Shekhar Chacha (PW2). He alongwith Jayesh Gupta (PW-6) in,,
their deposition stated that Exhibit-P/50 is a seizure 'memo of one blood smeared 'lakdi-ka-musal', the weapon of offence used in the alleged incident.",,
Brajesh Agarwal (PW-7), who was the son of the deceased, deposed that Exhibit-P/46 is a seizure memo of blood smeared clothes of his father",,
deceased Rajendra Agarwal. He further deposed that he had given the list of stolen articles (Exhibit-P/52) to S.H.O. Jawahar Nagar, Kota City. He",,
also deposed that his father owned a car for which accused Jagdish Chand was employed as a driver. Lastly, he deposed about the salary receipts",,
Exhibit-P/53 to Exhibit-P/64 of driver Jagdish Chand. Exhibit-P/65 is an application of Jagdish applied for driving the car. Exhibit-P/66 is an application,,
of Jagdish Chand for advance payment with the stipulation that he would repay the said amount.,,
Shaukat Khan (PW-28), Investigating Officer deposed that Exhibit-P/122 is the marriage card.",,
From the appreciation of above evidence, it is evident that accused Jagdish Chand was employed and working as a driver for deceased Rajendra",,
Agarwal and Smt. Geeta Devi and the accused needed money for marriage of their son Narendra, hence, motive of accused to commit such a crime",,
was proved.,,
Dr. Arun Sharma (PW-4) and Dr. Sanjay Kharoliwal (PW-9), being Medical Jurist and Surgeon, on 16.04.2014 at about 09:00 A.M. had",,
conducted autopsy on the dead-bodies of Rajendra Agarwal and Smt. Geeta Devi. The Post Mortem Reports have been proved on the record as,,
Exhibit-P/51 and Exhibit-P/52. They further stated that the viscera was taken, sealed and handed over to the Police for HPE and CA Examination.",,
In the Post Mortem Report (Exhibit-P/51), following injuries were noted on the person of the deceased Rajendra Agarwal:-",,
Lacerated wound absorb right eyebrow 3.5 x 1.25 x cm. skin deep",,
Lacerated wound 2x½ cm on left temporal region above left ear pinna,,
Lacerated wound 5 x 2 cm bone deep on left occipital region lower part.,,
Lacerated wound 2 x 1 cm x skin deep on upper occipital region mid part.,,
Post mortem above right forearm.,,
Post operative scale on left lower abdomen.""",,
As per opinion of the Doctors, the cause of death was head-injury"".",,
In the Post Mortem Report (Exhibit-P/52), following injuries were noted on the person of deceased Smt. Geeta Devi:-",,
Lacerated wound 2.5x¾ cm skin deep on forehead just on lateral part of right eyebrow.",,
Lacerated wound 2x1/2 skin deep right side of forehead above medically right eye-brow.,,
Lacerated wound 6 x 3 cm bone deep on left posto past region laterally.,,
Lacerated wound 2x5 x 1 cm through left ear pinna,,
Old right master-many done.""",,
As per opinion of the Doctors, the cause of death was head-injury"".",,
Exhibit-P/120 is the Chemical Examination Report. The report of viscera of deceased Rajendra Agarwal and Geeta Devi reads as under:-,,
On chemical examination, portions of Viscera (1-5) & (8-12) and Blood sample (6) & (13) from six packets marked 1, 2, 1, 2, 3, and 3 respectively",,
gave negative tests for metallic poisons, ethyl and methyl alcohol, cyanide, alkaloids, barbiturates, tranquilizers and insecticides.""",,
From the appreciation of above evidence, the prosecution has successfully proved that the cause of death of deceased Rajendra Agarwal and",,
Geeta Devi was head injury.,,
Nikhil Gupta (PW-3), Jayesh Gupta (PW-6) and Shaukat Khan (PW-28) Investigating Officer deposed that Exhibit-P/50 is a seizure memo of one",,
blood smeared 'lakdi-ka-musal', the weapon of offence. As per Serological Examination Report (Exhibit-P/118), blood group 'A' was found on the",,
packet marked 'F' Musal and packet marked 'H' on petticoat and Maxi of deceased Geeta Devi.,,
Laxminarain (PW-15), Sumer Singh (PW-18) and Shaukat Khan (PW-28) deposed that Exhibit-P/75 is a seizure and recovery memo of various",,
articles and Rs. 1,03,378/- taken from the accused Jagdish Chand.",,
Devkaran (PW-17), Ravindra Yadav (PW-25) and Shokat Khan (PW-28) Investigating Officer deposed that Exhibit-P/82 is a seizure and",,
recovery memo of gold and silver jewellery and other various articles taken from the accused Jagdish Chand. Exhibit-P/83 is a seizure memo of four,,
gold bangles recovered from the accused Shimla.,,
Gajendra Singh (PW-27) Tehsildar deposed that Exhibit-P/100 is an identification memo of property and Exhibit-P/101 is an identification memo of,,
list of articles. It was mentioned in Exhibit-P/100 that witness Brajesh Agarwal (PW-7) identified the articles mentioned in the list and no other articles,,
were mixed up with the original articles.,,
Shokat Khan (PW-28) Investigating Officer, Chandra Shekhar Chacha (PW-2) and Nikhil Gupta (PW-3) deposed that Exhibit-P/38 is memo of",,
chance prints of the place of incident of House No. C/241 Talawadi, Police Station Jawahar Nagar, Kota City.",,
Shokat Khan (PW-28) Investigating Officer of case, deposed that Exhibit-P/119 is the opinion of the Director Finger Print Bureau, Jaipur. The",,
opinion of chance print report Exhibit-P/119 reads as under:-,,
II Chance print photograph marked A5 is similar & identical with the specimen right middle finger print photograph marked X 5 RM of Jagdish",,
Chand"".",,
Investigating Officer (PW-28) deposed that Exhibit-P/85 is a seizure and recovery memo of one 'Wheel-Pana' and one iron hammer taken from,,
the accused Jagdish Chand.,,
On perusal of the result of F.S.L. Examination Report (Exhibit-P/118), it reveals that human blood was detected from packets marked as B, C, D,",,
F, G, H, P, Q, R, and U. Blood group 'A' of human was detected on packets marked 'D' sleeper, 'F' Musal and 'H' petticoat & maxi.",,
Ram Lal (PW-13), Devkaran (PW-17) and Shokat Khan (PW-28) deposed that Exhibit-P/70 and Exhibit-P/71 are seizure memos of one Cycle",,
Hero Jet and one Car Ford Icon R/C. No. RJ-20-CA 3725 recovered at the instance of accused Jagdish Chand. Ram Lal (PW-13) is the owner of,,
the alleged Car.,,
Thus, prosecution has successfully proved the motive available with the appellants/accused to commit the crime. It is also evident that recoveries,",,
F.S.L. Report, chemical examination report, serological report, chance print and opinion of finger print bureau support the prosecution story.",,
Prosecution has also proved criminal conspiracy of both accused who are husband and wife in committing the alleged offence with motive, recoveries",,
and F.S.L. Report.,,
There is no reason to disbelieve the evidence adduced and the circumstances in which incident took place nor there is any reason to doubt the,,
commission of alleged offence committed by the accused-appellants and the recovery of the incriminating material on their disclosure statements. The,,
incriminating circumstances taken into consideration by the Court below can reasonably be inferred. Hence, we are of the considered opinion that the",,
learned trial Judge has rightly convicted the accused Jagdish Chand and Shimla for offences, stated herein above.",,
The next question that requires for consideration as to whether the trial Judge was justified in awarding 'death' sentence to the accused Jagdish,,
Chand. It is a settled position of law that the 'death sentence' must be imposed only when imprisonment for life appears to be an altogether inadequate,,
punishment. Having regard to the relevant circumstances of the crime, a just balance has to be struck between the aggravating and mitigating",,
circumstances before option is exercised to award death penalty. Imprisonment for life in a murder case is the rule and death sentence is an,,
exception. Death sentence is to be awarded in the 'rarest of the rare case' when the Court comes to the conclusion that other then death sentence, no",,
other sentence would be appropriate.,,
The learned Trial Judge, after considering the relevant facts and circumstances of the case, has opted to award the 'death' sentence to the",,
accused Jagdish Chand. However, we are of the considered opinion that after going through facts and circumstances of the case the present case",,
does not fall within the ambit of 'rarest of the rare case' inviting death penalty. The trial Judge noted that accused Jagdish Chand was employed as a,,
driver.,,
We also find that the prosecution has not proved the antecedents of the appellant Jagdish Chand. No criminal record of the appellant is available,,
on the file. He is not a previous convict.,,
Hon'ble Supreme Court in the case of Santosh Kumar Satishbhushan Bariyar and Ors. vs. State of Maharashtra, (2009) 6 SCC 49,8 observed as",,
under:-,,
The doctrine of proportionality, which appears to be the premise whereupon the learned trial judge as also the High Court laid its foundation for",,
awarding death penalty on the appellant herein, provides for justifiable reasoning for awarding death penalty. However while imposing any sentence",,
on the accused the court must also keep in mind the doctrine of rehabilitation. This, considering Section 354(3) of the Code, is especially so in the",,
cases where the court is to determine whether the case at hand falls within the rarest of the rare case. The reasons assigned by the courts below, in",,
our opinion, do not satisfy Bachan Singh Test. Section 354(3) of the Code provides for an exception. General rule of doctrine of proportionality,",,
therefore, would not apply. We must read the said provision in the light of Article 21 of the Constitution of India. Law laid down by Bachan Singh",,
(supra) and Machhi Singh (supra) interpreting Section 354(3) of the Code should be taken to be a part of our constitutional scheme.,,
Although the Constitutional Bench judgment of the Supreme Court in Bachan Singh (supra) did not lay down any guidelines on determining which,,
cases fall within the 'rarest of rare' category, yet the mitigating circumstances listed in and endorsed by the judgment gives reform and rehabilitation",,
great importance, even requiring the state to prove that this would not be possible, as a precondition before the court awarded a death sentence. We",,
cannot therefore determine punishment on grounds of proportionality alone. There is nothing before us that shows that the appellant cannot reform and,,
be rehabilitated.""",,
In the present case, we find that the Court has not considered various factors i.e. good conduct of the accused in custody, his age, social,",,
emotional and mental condition. The order of sentence is totally silent whether the accused can be rehabilitated in the society or not. The trial Judge,,
has not explored the possibility of reformation of the offender. The trial court has not applied its mind to the mitigating circumstances which were,,
available on record.,,
Taking aggravated and mitigating circumstances, we are of the considered opinion that death sentence is not called for. The present case cannot",,
be termed as one of the rarest of rare cases.,,
Consequently, by upholding the conviction of the appellant Jagdish Chand and Shimla for offences punishable under Sections 302, 460, 394 and",,
120-B IPC, we set aside the death sentence awarded upon the appellant Jagdish Chand. For offence under Sections 302 and 120-B IPC, we convert",,
the sentence of the death awarded upon the appellant Jagdish Chand to life imprisonment and uphold the sentence of fine and in default of payment of,,
fine. We uphold the sentence awarded upon the appellant Jagdish Chand for offences punishable under Section 460, 394 and 120-B IPC and Shimla",,
for offences punishable under Sections 302, 460, 394 and 120-B I.P.C. with affirming sentence of fine.",,
Accordingly, Death Reference sent by the trial Judge is declined. We uphold the conviction of the appellant Jagdish Chand Mali for offence under",,
Sections 302 and 120-B IPC by converting the death sentence to life imprisonment and uphold the sentence of fine, while maintaining the conviction",,
and sentence for offences punishable under Sections 460, 394 and 120-B IPC.",,
The appeal filed on behalf of accused-appellants, namely Jagdish Chand Mali and Shimla stands partly allowed accordingly.",,