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CASE NO.: Appeal (crl.)  454 of 2006

PETITIONER: Swamy Shraddananda @ Murali Manohar Mishra

RESPONDENT: State of Karnataka

DATE OF JUDGMENT: 18/05/2007

BENCH: S.B. Sinha

JUDGMENT: J U D G M E N T   

S.B. SINHA, J :  

1.      Appellant herein was convicted and sentenced to death for committing  murder of his wife on or about 28.05.1991 at their residential house situate at  81, Richmond Road, Bangalore.  The deceased was earlier married to one  Akbar Khaleeli who was in the diplomatic service in the Government of  India.  She had four daughters.  The deceased along with her children in the  year 1983 visited the Maharaja of Rampur.  There she was introduced to the  appellant.  Appellant at the relevant time was assisting the Rampur royal  family.  In regard to the management of her landed properties, the deceased  sought for his assistance.  She had inherited huge properties including House  No. 81, Richmond Road, Bangalore from her mother.  She had inherited  some other properties during her marriage.  Some litigations in respect of the  said properties had been going on.   2.      Mr. Khaleeli on his assignment as diplomat of Iran went to the said  country.  The deceased together with her daughters started living at  Bangalore.  Appellant came there.  He was also staying in the same house.   The deceased desired for a son and she was made to believe by the appellant  that he was capable of blessing her with a son.  Akbar Khaleeli and the  deceased separated in the year 1985.  The deceased thereafter married the  appellant on 17.04.1986.  They started living together at the said house.  She  had executed a General Power of Attorney and a Will in his favour.     However, despite her marriage with the appellant, the deceased was  maintaining her relationship with her parents and daughters.  Mrs. Sabah  Khaleeli, second daughter of the deceased (PW-5) had all along been in  touch with her.   3.      It is not in dispute that from 28.05.1991, the deceased was not seen.   PW-5 had been trying to contact her on phone.  She was informed by the  appellant that the deceased had gone to Hyderabad.  In June 1991, when  contacted, she was informed that her mother had gone to Kutch to attend a  wedding.  A week thereafter it was informed to her that the deceased had  been lying low owing to some income tax problems.  She, being exasperated  with the said explanations, came down to Bangalore.  She did not find her  mother there.  She was told that the deceased being pregnant had gone to  United States of America for delivery of the child.  She was told to have  been admitted in Roosevelt Hospital.  She made verifications thereabout  through her acquaintances and came to know that no such woman had ever  been admitted to the said hospital.  Appellant being confronted thereto,  informed her that the deceased had gone to London as she had wanted to  keep it as a secret.  However, in 1992, when she met the accused at Mumbai,  noticed the passport of her mother lying in the room of the hotel which  confirmed that the deceased had not visited USA or London as represented  to her by the appellant on earlier occasions.   4.      She ultimately informed the Ashok Nagar Police Station by giving a  written complaint about missing of her mother.  A missing complaint was  registered on 10.06.1992.  No serious effort, however, was made to find out  the whereabouts of the deceased.  PW-5 approached the higher authorities

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resulting in the investigation of the matter being entrusted to the Central  Crime Branch.  Apprehending arrest, Appellant obtained anticipatory bail  with a condition that he would attend the police between 6 p.m. to 8 p.m. on  every Monday and shall also make him available to the police.  He applied  for relaxation of the said condition and by an order dated 3.12.1993, it was  directed that the appellant shall appear before the police authorities on every  Monday once in three months. 5.      The investigation was entrusted to one C. Veeraiaha (PW-37).  He  suspected the appellant herein.  He was interrogated on 28.03.1994,  whereupon he made a voluntary statement which was marked as Ex. P-175.   He stated in great details as to the manner in which he had killed his wife  and disposed of her dead body.  He also disclosed as to how a wooden box  of size 2 x 7 x 2 was made, a pit was dug and how the dead body was buried  there.  He narrated that how with the help of Raju he had put the box into the  pit covered with mud and on the next day with the help of some masons  brought by the said Raju kadapa stone slabs were put on the pit and the  adjacent land and cemented the place.

6.      In the said statement, he stated: "If I am taken I will show the place where the  wooden box was prepared and the person who  prepared it, the persons who transported the box  and the people who helped in digging out the pit  and the crow bar, spade, pan used for digging pit,  the cement bags and the spot where Shakerah is  buried and I exhume the dead body of the deceased  and show you.  The statement what all I had earlier  given to Ashoknagar Police was a false statement  given intentionally just to escape myself."

7.     An Executive Magistrate Syed Ejaj Ahmad (PW-3) was called for  exhumation of the dead body.  He asked a doctor to conduct exhumation  proceeding.  On 30.03.1994, Dr. Nissar Ahmed (PW-14) came to the place  of occurrence for the said purpose.  Appellant was asked as to whether he  was ready to show the spot as per his earlier statement.    The entire  proceeding of exhumation of the dead body was video-graphed.  It took  place at about 10.30 a.m. on the said day.  Appellant with a chalk piece  marked the spot.  Coolies accompanying the party as per instructions of the  appellant himself, dug the earth of the said place whereupon a box was  noticed.  The plank of the lid of the wooden box was removed.  A bed, a  nighty, pillow and bed sheets were recovered.  Channaiah who had come  along with Dr. Nissar Ahmed removed the scalp, skull and hairs of the head  which were detached from the skull and other bone pieces.  He also removed  the pieces of the bones.  Another Doctor Shri Thiruvanakkarasu also came  there.  They joined the bones and fixed the skull and mandible in orderly  manner.  It was found to be that of a human skeleton.  The mother of the  deceased Smt. Gauhar Taj Namazie identified a ring which was embedded  with red stone and two other black rings as belonging to the deceased.  The  nighty which was recovered was identified to be belonging to the deceased  by the maid servant who had been working in the house.   8.      The post mortem examination commenced at 4.45 p.m. on 30.03.1994  which ended at about 6 p.m.   9.      Appellant was, thereafter, charged for commission of murder of his  wife.  Before the learned Trial Judge, 39 prosecution witnesses were  examined.  There was no eye-witness to the occurrence.  The prosecution  was based on circumstantial evidence.   10.     The learned Trial Judge, as noticed hereinbefore, found the appellant  guilty of commission of offence under Sections 302 and 201 of the Indian  Penal Code and sentenced him to death. 11.     Appellant preferred an appeal before the High Court.  A reference was  also made by the learned Judge in terms of Section 366 of the Code of  Criminal Procedure.   12.     The circumstances which were found to be existing by the High Court  for proving commission of the offence are said to be :

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"(a)    Motive \026 Murder for gain      (b)     The deceased Shakereh was last seen alive  in May 1991 when she was residing at No. 81,  Richmond Road, Bangalore along with accused  and his wife. (c)     Strange conduct of the accused after 28-5-91 (d)     A wooden box (MO.5) was got prepared and  brought to the house by the accused. (e)     Discovery of the wooden box containing a  skeleton and feminine articles buried in the  backyard of the said house of the accused and the  deceased in furtherance of information furnished  by the accused. (f)     Fixing the identity of the skeleton as that of  the deceased with the help of skull and the  admitted undisputed photograph of Mrs. Shakereh  by photo Super-imposition method. (g)     Fixing the identity of the skeleton as that of  the deceased on the basis of DNA finger printing. (h)     Identifying some of the articles like MOs. 5,  6, 8, 11 to 17 along with the skeleton in the box as  belonging to the deceased. (i)     The last circumstance put forth i.e., the  attempt of the accused to mislead or to give false  explanation."

13.     Before the High Court, a contention was raised that before imposition  of sentence, the appellant had not been granted adequate opportunity to  make a representation as was mandatorily required under Sub-section (2) of  Section 235 of the Code of Criminal Procedure, 1973.  The High Court gave  the appellant an opportunity of being heard.  Before the High Court, the  appellant accepted that he was instrumental in burying the dead body stating:

"The accused submitted that he is innocent and has  been illegally convicted.  He submitted that as the  family members of the deceased (parents and  daughters) had filed number of cases against the  deceased, she was mentally depressed and was  taking number of sedative pills/ drugs; that she  died naturally in May 1991 and as he feared  adverse consequences, especially repercussions  from her family members and community people,  he buried her body in the backyard of his house  without informing anybody.  He submitted that  though this fact was not stated by him in the trial  court, as he could not bear it any more and after  thinking over the matter for the last few years, he  has decided to come out with this truth.  He  submitted that as he is innocent, his conviction be  set aside and he be acquitted.  So far as the  sentence is concerned, he submitted that as now he  is 61 years old and suffering from serious ailments  like diabetes, hypertension and hernia and as he is  in custody for the last 11 years, mercy be shown to  him by reducing the capital punishment, if ever the  court decides to convict him."

14.     The High Court, however, affirmed the judgment of conviction and  sentence.

15.     Mr. Alok Vagrecha, learned counsel appearing on behalf of the  appellant raised the following contentions in support of this appeal:

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(i)     A First Information Report having been already lodged by PW-5, a  second report by the Investigating Officer \026 PW-37  lodged on  28.03.1994 (Ex. P-171) was illegal.   (ii)    The purported recovery of the wooden box containing some  articles and the bones which were not admissible in evidence under  Section 27 of the Indian Evidence Act as the location of the dead  body was already known, the purported statement made by the  appellant (Ex. P 175) being wholly inadmissible in evidence,  consequent recovery of the dead body would also be inadmissible.   In this connection our attention has been drawn to the fact that the  appellant was given an opportunity to have the services of a lawyer  during interrogation.   (iii)   If the prosecution case is true that the appellant had administered  sedative to the deceased on 28.05.1991 in the afternoon, the courts  below should have also taken into consideration that in view of the  statement of the investigating officer that the appellant at about the  same time on 28.05.1991 was found to be in the company of one  Rekha Handa, a former Miss India, the prosecution case must be  held to have not been proved as against the appellant.  (iv)    A Will and General Power of Attorney having already been  executed by the deceased, the appellant could not have any motive  to kill her. (v)     The purported circumstances on the basis whereof the judgment of  conviction and sentence have been rendered does not complete all  the links in the chain as there had been (a) no recovery of drug; (b)  motive had not been proved; and (c) there was no proof that she  died of poisoning. (vi)    The purported recovery of drug on 31.03.1994 by the Investigating  Officer was wholly inadmissible in evidence.   (vii)   The High Court having recorded that the deceased did not meet  any violent death, the impugned judgment cannot be sustained and  in any event the death sentence should not have been imposed. (viii)  The High Court committed a serious illegality in relying upon the  statement made by the appellant before it as being confession of  his guilt although the same was meant to be used for the purpose of  hearing on the question of sentence only.

16.     Mr. Sanjay R. Hegde, learned counsel appearing on behalf of the  State, on the other hand, supported the judgment.  The learned counsel  would contend that the court while analyzing the evidences brought on  records should keep in mind the following facts: (a)     The deceased was a beautiful woman.  She had a husband and four  daughter (b)     She was an owner of huge property  (c)     She met her death at the age of 40 years.   (d)     Appellant although could enjoy all the luxuries of life, he had greed  for more money and, therefore, hatched a plan to murder the deceased  wherefor he got prepared a wooden box, took advantage of temporary  absence of the two old servants and at the opportune moment  administered sedative to the deceased.   (f)     Despite her death, he had been operating the bank account which was  a joint account and had been acting on the basis of the General Power  of Attorney.   (g)     He kept to PW-5 at dark although she had been constantly making  enquiry in regard to the whereabouts of the deceased for one and half  years.   (h)     The manner in which the dead body was found categorically shows  the vicious mind of the appellant as the bed-sheet was found on her  face, her jewelery was found on the top of the body, the deceased had  nighty on her person and, thus, it was essentially principally a planned  murder.  17.     We have not doubt that the death of the deceased was homicidal in  nature.  The identity of the dead body has also been established.  The  circumstances in which the deceased married the appellant have also not  been disputed.  Their marriage was proved by PW-8 T.H.

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Lokeshminarayana.  Appellant also did not deny or dispute that he had been  living with the deceased at all material times at 81, Richmond Road,  Bangalore.  It has furthermore not been disputed that she had not been seen  on and from 28.05.1991. 18.     We have noticed hereinbefore the circumstances which are said to  have been found by the courts below.  The law in this behalf is now no  longer res integra.   19.     In Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC  1622], this Court held: "153. A close analysis of this decision would show that  the following conditions must be fulfilled before a case  against an accused can be said to be fully established: (1) the circumstances from which the conclusion of  guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the  circumstances concerned "must or should" and not "may  be" established. There is not only a grammatical but a  legal distinction between "may be proved" and "must be  or should be proved" as was held by this Court in Shivaji  Sahabrao Bobade v. State of Maharashtra where the  observations were made: [SCC para 19, p. 807: SCC  (Cri) p. 1047]

"Certainly, it is a primary principle that the  accused must be and not merely may be guilty  before a court can convict and the mental distance  between ’may be’ and ’must be’ is long and  divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only  with the hypothesis of the guilt of the accused, that is to  say, they should not be explainable on any other  hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature  and tendency,

(4) they should exclude every possible hypothesis  except the one to be proved, and

(5) there must be a chain of evidence so complete as  not to leave any reasonable ground for the conclusion  consistent with the innocence of the accused and must  show that in all human probability the act must have been  done by the accused."

20.     In regard to the circumstantial evidence in a case of death by  poisoning, this Court opined:   "So far as this matter is concerned, in such cases  the court must carefully scan the evidence and  determine the four important circumstances which  alone can justify a conviction:  (1) there is a clear motive for an accused to  administer poison to the deceased,   (2) that the deceased died of poison said to have  been administered,  (3) that the accused had the poison in his  possession,   (4) that he had an opportunity to administer the  poison to the deceased."

       [See also Aloke Nath Dutta & Ors. v. State of West Bengal 2006 (13)  SCALE 467]

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21.     We may proceed to consider the matter keeping in view the  aforementioned legal principle in mind. 22.     Dr. Nissar Ahamed who examined himself as PW-14 in his evidence  proved the exhumation of the dead body.  It, as noticed hereinbefore, was  conducted by the Taluka Magistrate PW-3.  Upon removal of the detached  skull, mandible, carpal and tarsal, palm and bones from the pit of feet, all the  said bones were assembled on plastic paper.  A Human skeleton was formed.   There was a foul smell.  According to him, all the bones were intact.  The  skeleton was that of a human body.  In the post mortem examination, it was  found: "Decomposed and Skeletanised body removed  from the wooden box described.  The body was  removed in piece meal from the box as the bones  were easily coming out from the joints and body  was assembled in anatomical position which  consists of skull with black hair measuring 25"  long."

       It was further noticed:

"The bones one below the other are: Skull bone  with mandible, two clavicles, two scapulae, bones  of upper limbs and lower limbs, vertebral column,  pelvis and carple and tarsal bones.  The  decomposed tissue were greish white in colour  emitting foul smell.  All bones were intact skull  shows female characteristic feature, articulate well  with were each other.  Skull suture completely  obliterated endocrenaly, partially obliterated  exocreinaly.  All teeth erupted showed attrition.   The stature was calculated from long bones and  average taken from the bones. Right Femur \026 46 cms. Right Tibia \026 39 cms. Left Humorus \026 32.5 cms and estimated stature is  5’4" to 5’6" Four Pieces of body of sternum fused."

23.     All the internal organs were found to be decomposed and liquefied.   He, however, reserved his opinion in regard to the cause of death pending  chemical analysis.  The doctor preserved skull and mandible for super  imposition and visera and hair for chemical analysis report and bone marrow  hair and soft tissues for DNA Fingerprinting.            24.     PW-14 on the basis of the said FSL report formed his opinion that the  cause of death cannot be furnished as the percentage/ amount of  Chlodiazepoxide consumed had not been furnished.  In regard to the effect  of Chlordizaepoxide on human body, however, his opinion was as under:

"The effect of Chlordiazopoxide on human body  depends upon the dosage.  They are weight gain,  as a result of increase appetite, anxiety, nausea,  vertigo, impaired sexual function, menstrual  irregularities, skin rashes, agramlocytosis etc."

       In regard to the effect of over dose of the said medicine, it was stated:

"Effects of over dose are rare, as the drug has got  remarkable safety margins.  A few deaths have  been reported at doses greater than 700 mgs as per  the literature.  The symptoms are respiratory and  cardiovascular, dis-function due to the suppression  of higher centers in the brain."

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25.     PW-14 in his cross-examination opined that the death of the deceased  was homicidal.  According to him, if the deceased had consumed only one or  two tablets of Equibrom and her body was put in a box and lid was closed  suddenly, an unexpected death may occur due to natural causes also.  It is  not a case where the dead body was not identified to that of the deceased.   Blood sample of PW-5 was taken.  Blood samples of Mirza Gulam Hussain  Namazie and Gauhar Taj Begum Namazie had also been taken.  PW-20  Srimannarayan, Chief Medical Officer of Bowring Hospital, in his evidence,  spoke about the result of the DNA analysis in regard to taking of the blood  samples.   26.     The bones were sent for DNA test to Hyderabad Forensic Science  Laboratory through Forensic Science Laboratory, Bangalore.  The test was  conducted by Dr. Laljit Singh, Scientist, who was examined as PW-24.   According to him, he and Dr. G.V. Rao (PW-17), another scientist in  Hyderabad together carried the process of DNA isolation and testing from  Exs. A to D, i.e., from blood of the father, teeth of the deceased, hair of the  deceased and blood of the mother in two tests being Polymerase Chain  Reaction (PCR) and HLA DQ typing both the tests confirmed that the  deceased was the offspring of the said Mirza Gulam Hussain Namazie and  Gauhar Taj Begum Namazie.   27.     PW-17 Dr. G.V. Rao categorically stated that in carrying out DNA  fingerprinting they followed the same procedure as in the case of blood  samples received earlier which were examined.  He proved the report  prepared by him and Dr. Laljit Singh on 4.10.1995 which was marked as Ex.  P-155.  28.    PW-1 Dr. T.R. Kumari was an Assistant Director of Forensic Science  Laboratory.  She gave her opinion on 15.09.1994 which was marked as Ex.  P-125 stating: "1. Presence of Clonazepam was detected in article  no. I(a) & I(b). 2. Presence of Alprazolam was detected in article  No. I(b) & I(f). 3. Presence of Diazepam was detected in article  No. I(c). 4. Presence of Chlodizepoxide was detected in No.  I(e), III & IV. 5. No poison was detected in article No. I(h)."

29.     Dr. T.R. Kumari (PW-1) conducted the Photo Superimposition  Method Test on the skull, which was marked as MO-1 along with the  admitted photograph of the deceased, which was marked as MO-3.   According to the said witness, anthropometric characters or land marks of  the skull and the superimposed admitted photographs matched.  She  prepared a report, which was marked as Ex.P-2.   Her qualification as an  expert to conduct the said test is not in doubt.  Even otherwise, she holds a  Ph.D. degree in Forensic Science.  She has been awarded a medal for her  research work by the Madras Forensic Society of India.  She has also  undergone special training in photo superimposition and has submitted a  number of papers thereon.  Her report as also the report of PW-17 are  relevant evidences. 30.     The qualification of the expert has not been questioned before us.  The  learned counsel appearing on behalf of the appellant has not raised any  contention which would point out that the methodology conducted by the  experts in carrying out the study was in any manner unscientific or raised  any suspicion as regards the correctness thereof.

31.     It is borne out from the records that even the photographs were  brought by PW-1 before the trial court.  Identify of the skull vis-‘-vis the  other parts of the body, thus, categorically goes to show that the same was  that of the deceased, Smt. Shakereh. 32.     It has also not been seriously disputed that the deceased was last seen  in the company of the company of the appellant.  The fact that she had not  been seen alive from May, 1991 also stands fully established.   33.     We will hereinafter notice the circumstances which existed in

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establishing the commission of the crime.   34.     PW-5 Sabah Khaleeli, was the daughter of the deceased through her  first husband.  She in her deposition categorically stated that she had spoken  to her mother on 19.04.1991.  She was not available on phone from May,  1991 onwards.  Gauhar Namazee (PW-25) was the mother of the deceased.   She in her deposition stated that she had last seen the deceased on  13.04.1991.  She had not been cross-examined on the said point.  It is also  not disputed that PW-18 and PW-19, who were husband and wife, were  engaged by the deceased.  They saw the deceased in the company of the  appellant in the morning of 28.05.1991, for the last time.  The said witnesses  were staying in a servant quarter in  the said premises.  PW-18 was working  as gardener-cum-handyman; whereas PW-19 was working as maid servant,  since 1988.  They stated in unison that they had seen the deceased  at about  07.30 A.M. on that day.  According to PW-19, she went to the kitchen to  prepare tea for the couple and kept the tea cups on the dining table.  She in  no uncertain terms stated that the cups of tea were taken by the appellant to  the bed-room where the deceased was reading a newspaper.  PW-19 while  sweeping the house was called by the deceased and was instructed to clean  the articles kept in the showcase instead of sweeping.  They, however,  received a telegram at about 10.00 a.m. whereby they were informed that the  sister-in-law of PW-19 was sick at Gudisuvarapally in the State of Andhra  Pradesh.  They sought for leave and some money.  They were permitted to  leave Bangalore and were asked to collect the requisite amount after some  time.  They came back to their quarters and started packing their goods.  At  about 1.30 p.m. they went back to the house.  PW-18, however, was said to  have been asked by the appellant herein to shift a wooden box kept in the  guest house to the bed room before leaving.  They together with some others  took a large wooden box from the guest house and kept the same inside the  bed room, where they found the deceased sleeping on the bed.  They were  thereafter paid a sum of Rs.1,200/- towards their salary and additional sum  of Rs.500/- towards travelling expenses.  They left for their home. They  came back after a couple of days, but did not find the deceased. The said two  witnesses in their depositions corroborated each other. 35.     We have noticed hereinbefore that the appellant had applied for grant  of anticipatory bail in July, 1992 i.e. after the missing complaint was filed by  PW-5.  In the said application for bail, the appellant himself disclosed that  the deceased had left for unknown destination in the month of May, 1991,  allegedly because of  her agitated mental condition. 36.     If it is proved that the deceased died in an unnatural circumstance in  her bed room, which was occupied only by her and her husband, law  requires the husband to offer an explanation in this behalf.  We, however, do  not intend to lay down a general law in this behalf as much   would depend  upon the facts and circumstances of each case.  Absence of any explanation  by the husband would lead to an inference which would lead to a  circumstance against the accused.  37.     We may, however, notice that recently in Raj Kumar Prasad Tamarkar  v. State of Bihar & Anr. [2007 (1) SCALE 19 : JT 2007 (1) SC 239], this  Court opined : "Once the prosecution has been able to show that at the  relevant time, the room and terrace were in exclusive  occupation of the couple, the burden of proof lay upon  the respondent to show under what circumstances death  was caused to his wife.  The onus was on him.  He failed  to discharge the same."         This legal position would appear from a decision  of this court in  Nika Ram v. The State of Himachal  Pradesh [AIR 1972 SC 2077] wherein it was held:

"It is in the evidence of Girju PW that only the  accused and Churi deceased resided in the house of  the accused. To similar effect are the statements of  Mani Ram (PW 8), who is the uncle of the  accused, and Bhagat Ram school teacher (PW 16).  According to Bhagat Ram, he saw the accused and  the deceased together at their house on the day of

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occurrence. Mani Ram (PW 8) saw the accused at  his house at 3 p.m., while Poshu Ram, (PW 7) saw  the accused and the deceased at their house on the  evening of the day of occurrence. The accused also  does not deny that he was with the deceased at his  house on the day of occurrence. The house of the  accused, according to plan PM, consists of one  residential room one other small room and a  varandah. The correctness of that plan is proved by  A. R. Verma overseer (PW 5). The fact that the  accused alone was with Churi deceased in the  house when she was murdered there with the  Khokhri and the fact that the relations of the  accused with the deceased, as would be shown  hereafter, were strained would, in the absence of  any cogent explanation by him, point to his guilt."

       In Trimukh Maroti Kirkan v. State of Maharashtra  [JT 2006 (9) SC 50], the law is stated in the following  terms:

"Where an accused is alleged to have committed  the murder of his wife and the prosecution  succeeds in leading evidence to show that shortly  before the commission of crime they were seen  together or the offence took place in the dwelling  home where the husband also normally resided, it  has been consistently held that if the accused does  not offer any explanation how the wife received  injuries or offers an explanation which is found to  be false, it is a strong circumstance which indicates  that he is responsible for commission of the  crime\005"

38.     We have noticed hereinbefore as to why the investigation was taken  over by the Central Crime Branch.  As the interrogation of the appellant,  while in custody of the police, revealed the possibility of the deceased  having been buried in the backyard of her residential house, the  Investigating Officer requested the Sub-Divisional Magistrate to conduct  exhumation proceedings, who in turn, authorized the Taluka Executive  Magistrate (PW-3) to do so.  Confession of the accused was not admissible  in evidence.  What was admissible only was that part of the confession  leading to the discovery of fact in terms of Section 27 of the Indian Evidence  Act.  The proceedings were conducted in the presence of the accused, which  were videographed and marked as MO-18.  The learned Trial Judge as also  the learned Judges of the High Court had the benefit of watching the said  videograph.  The High Court in its impugned judgment recorded  :

       "The videograph and the inquest proceeding  disclose that a large wooden box was found buried in the  backyard of the house of the accused and the deceased  and contained a skeleton.  The videograph recording  which is not disputed by the accused, clearly discloses  and shows that it was the accused who was pointing out  the exact spot to be dug up in the big backyard and in fact  marked the area with a chalk.  The videograph further  showed that the backyard flooring was of well laid  Cuddapah stones property cemented.  In such a situation,  in our view, nobody except the person who buried the  box could have the knowledge of its burial."

39.     Discovery of the last remains of the deceased was a relevant fact,  which was, thus, admissible in evidence.  Appellant had pinpointed the exact  place which was to be dug up.  He marked the exact area.  He also made an

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oral statement that the box was buried beneath the area so marked, location  whereof showed that it was a big area, flooring of which had been well  plastered with cement having Cuddapah stone slabs.  The video showed that  the slabs had been laid there much earlier and were not of recent origin.   

40.     In Aloke Nath Dutta (supra), in regard to applicability of Section 26  and Section 27 of the Indian Evidence Act, it was stated :

"The policy underlying behind Sections 25 and 26  is to make it a substantive rule of law that confessions  whenever and wherever made to the police, or while in  the custody of the police to any person whomsoever  unless made in the immediate presence of a magistrate,  shall be presumed to have been obtained under the  circumstances mentioned in Section 24 and, therefore,  inadmissible, except so far as is provided by Section 27  of the Act."

41.     Pulukuri Kottayya v. King Emperor [AIR 1947 PC 67] is an authority  for the proposition that "fact discovered" envisaged under Section 27 of the  Indian Evidence Act, 1872, embraces the place from which the object was  produced, the knowledge of the accused as to it, but the information given in  that behalf must relate distinctly to that effect, stating :                        

       "The condition necessary to bring the section into  operation is that discovery of a fact in consequence of  information received from a person accused of any  offence in the custody of a Police Officer must be  deposed to, and thereupon so much of the information as  related distinctly to the fact thereby discovered may be  proved."

               It was further observed :

       "In their Lordships’ view it is fallacious to treat the  "fact discovered" within the section as equivalent to the  object produced; the fact discovered embraces the place  from which the object is produced and the knowledge of  the accused as to this, and the information given must  relate distinctly to this fact."

       "Information supplied by a person in custody that  "I will produce a knife concealed in the roof of my  house" does not lead to the discovery of a knife, knives  were discovered many years ago.  It leads to the  discovery of the fact that a knife is concealed in the  house of the informant to his knowledge, and if the knife  is proved to have been used in the commission of the  offence, the fact discovered is very relevant."

42.     An attempt was made by the Bombay High Court to take a different  view in Shri Shankar Gopal Patil & Others v. The State of Maharashtra  [2000 (5) Bom. CR 360].  

43.     The legal proposition propounded in Pullukuri Kottaya (supra) has  been considered by this Court in Jaffar Hussain Dastagir v. State of  Maharashtra [(1969) 2 SCC 872], Shamshuk Kanwar v. State of U.P.  [(1995) 4 SCC 430] and State of Maharasthra v. Damu [(2000) 6 SCC 269],  wherein this Court reiterated it with approval.     44.     The learned counsel appearing on behalf of the appellant, in our  opinion, was not correct to contend that only because the investigating team

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having regard to the purported confession made by the appellant had already  known that a dead body had been buried in the house, Section 27 of the  Evidence Act would not be attracted.  In his statements before the  investigating officer, he made a confession; but what was admissible in  evidence his only that part which would come within the purview of Section  27 of the Evidence Act and not the rest.  The court while analyzing the  evidence and appreciating the same cannot take note of confession made  before the police.   

45.    The prosecution case must rest on the other materials brought before  the court.  It is also not permissible to start with the confession and find  corroborative evidence thereof and come back to the confession again for the  purpose of arriving at a conclusion of guilt.   46.     What was, therefore, relevant for the purpose of Section 27 of the  Evidence Act was that at the instance of the appellant himself a particular  place which had been pin pointed by him had been dug and remains of a  body and other articles were recovered. 47.     The various circumstances leading to the pointing out the guilt of the  appellant and appellant alone have been enumerated by us hereinbefore.   From our discussions, it is evident that each of the circumstances had been  established, the cumulative effect whereof would show that all the links in  the chain are complete and the conclusion of the guilt is fully established. 48.     We are not oblivious of the fact that there is a material difference  distance between ’may be’ and ’must be’ and furthermore in a case of this  nature the evidence must be considered with more than ordinary care lest the  shocking nature of crime induce an instinctive reaction against a  dispassionate judicial scrutiny of the facts and law.  [See Kashmira Singh v.  State of Madhya Pradesh - AIR 1952 SC 159].  49.     The question, however, is as to whether in a case of this nature death  sentence should be imposed.  In Aloke Nath Dutta (supra), this Court had an  occasion to consider a large number of decisions taking different views in  regard to the interpretation of the words "rarest of rare cases" as adumbrated  in  Bachan Singh v. State of Punjab [(1980) 2 SCC 684]. 50.     This Court had also the occasion therein to notice the growing  demand in the international fora and in particular the second Optional  Protocol to the International Covenants on Civil and Political Rights and the  Protocol to the American Constitution on Human Rights abolished that death  penalty should be abolished.  51.     Recently, the Privy Council in Reyes v. R. [(2002) UKPC 11 : 12  BHRC 219] and Hughes, R. v. (Saint Lucia)  [(2002) UKPC 12], noticing  the decision of this Court in Mithu v. State of Punjab [(1983) 2 SCR 6903],  opined that the mandatory death punishment is unconstitutional.  [See also  Fox v. The Queen (2002) 2 AC 284, Bowe v. The Queen (2006) 1 WLR  1623 and  Coard & Ors. v. The Attorney General (Grenada), (2007) UKPC  7]. 52.     Abolition of death penalty is not being and, in fact, cannot be  advocated; but what requires serious consideration is as to whether the  jurisdiction should not be invoked unless there exists an extra-ordinary  situation to find that it comes within the purview of "rarest of rare" cases.   The approach of the courts should not be to confine its thought process to  the identification of a "rare" case.  The expression "rarest of rare" case has  been evolved by a Constitution Bench of this Court and, thus, demands a  meaningful application. 53.     It is interesting to note that Bhagwati, J. in Bachan Singh v. State of  Punjab [(1982) 3 SCC 24], while expressing his dissenting opinion, noticed  as under : "\005This arbitrariness in the imposition of death penalty is  considerably accentuated by the fragmented Bench  structure of our courts where Benches are inevitably  formed with different permutations and combinations  from time to time and cases relating to the offence of  murder come up for hearing sometimes before one  Bench, sometimes before another sometimes before a  third and so on. Professor Blackshield has in his article  on Capital Punishment in India published in Volume 21

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ot the Journal of the Indian Law Institute\006 pointed out  how the practice of Bench formation contributes to  arbitrariness in the imposition of death penalty. It is well  known that so far as the Supreme Court is concerned,  while the number of Judges has increased over the years,  the number of Judges on Benches which hear capital  punishment cases has actually decreased. Most cases are  now heard by two-Judge Benches. Professor Blackshield  has abstracted 70 cases in which the Supreme Court had  to choose between life and death while sentencing an  accused for the offence of murder and analysing these 70  cases he has pointed out that during the period April 28,  1972 to March 8, 1976 only 11 Judges of the Supreme  Court participated in 10 per cent or more of the cases. He  has listed these 11 Judges in an ascending order of  leniency based on the proportion for each Judge of plus  votes (i.e. votes for the death sentence) to total votes and  pointed out that these statistics show how the judicial  response to the question of life and death varies from  judge to judge. It is significant to note that out of 70  cases analysed by Professor Blackshield, 37 related to the  period subsequent to the coming into force of Section  354, sub-section (3) of the Code of Criminal Procedure,  1973. If a similar exercise is performed with reference to  cases decided by the Supreme Court after March 8, 1976,  that being the date up to which the survey carried out by  Professor Blackshield was limited, the analysis will  reveal the same pattern of incoherence and arbitrariness,  the decision to kill or not to kill being guided to a large  extent by the composition of the Bench. Take for  example Rajendra Prasad case decided on February 9,  1979. In this case, the death sentence imposed on  Rajendra Prasad was commuted to life imprisonment by  a majority consisting of Krishna Iyer, J. and Desai, J.,  A.P. Sen, J. dissented and was of the view that the death  sentence should be confirmed. Similarly in one of the  cases before us, namely, Bachan Singh v. State of  Punjab, when it was first heard by a Bench consisting of  Kailasam and Sarkaria, JJ., Kailasam, J. was definitely of  the view that the majority decision in Rajendra Prasad  case9 was wrong and that is why he referred that case to  the Constitution Bench. So also in Dalbir Singh v. State  of Punjab, the majority consisting of Krishna Iyer, J. and  Desai, J. took the view that the death sentence imposed  on Dalbir Singh should be commuted to life  imprisonment while A.P. Sen, J. stuck to the original  view taken by him in Rajendra Prasad case9 and was  inclined to confirm the death sentence, It will thus be  seen that the exercise of discretion whether to inflict  death penalty or not depends to a considerable extent on  the value system and social philosophy of the Judges  constituting the Bench\005"    54.     We are not oblivious of a line of decisions of this Court where the  doctrine of proportionality has been applied, even in the matter of awarding  death penalty.  [See State of Rajasthan v. Kheraj Ram, (2003) 8 SCC 224,  Bablu @ Mubarik Hussain v. State of Rajasthan, 2006 (14) SCALE 15 and  Shivu and Anr. v. R.G. High Court of Karnataka and Anr. 2007 (3) SCALE  157]   55.     In this case we need not go into the correctness or otherwise of the  said view.  Although it is also not necessary to do so, we may notice some  development of law in this regard. 56.     Criminal Justice Act 1991 of England famously hailed doctrine of  proportionality as the guiding principle. But since the 1991 legislation, field  of sentencing has seen much reform and Criminal Justice Act of 2003

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presents a fresh set of sentencing objectives. Section 142  of the Act  delineates the following as the purposes of sentencing: "142    Purposes of sentencing (1) Any court dealing with an offender in  respect of his offence must have regard to the  following purposes of sentencing-   (a) the punishment of offenders,    (b) the reduction of crime (including its reduction  by deterrence),    (c) the reform and rehabilitation of offenders,    (d) the protection of the public, and    (e) the making of reparation by offenders to  persons affected by their offences."

57.     In this context it, a reference should also be made of the Halliday  Report of 2001 (Making Puncishments Work) which has some interesting  insights to offer on the sentencing structure in England and Wales. In the  same vein, a White Paper in 2002 has made a case of reforms and suggested  a shift from the proportionality principle. 58.     In fine, scholarship on sentencing which has been quite diverse in its  prescriptions certainly has consensus on the point that any decision on  sentencing aspect would require assessing more than one variables and  single minded pursuit of any one sentencing ideal would be discounting on  other equally urgent parameters and objectives.  59.     We do not have a sentencing policy, unlike some other countries.   England has the concept of "guideline judgments" which is considered as a  judge managed sentencing model rather than a statute induced one. Section  354 (3) suggests that Indian law furthers statute induced sentencing guidance  in part. Therefore it has to be given full colour.

60.     We have no practice of referring such matters to superior courts for  laying down the guidelines relating to imposition of sentence under various  situations.  [See The Queen v. Julie McGinley and Michael Monaghan,  (2003) NICC 1] 61.     In our country, therefore, each case may have to be considered on its  own merit.  62.    It may be of some interest to note that Furman v. Georgia  [408 U.S.  238 (1972)] ruled on the requirement for a degree of consistency in the  application of the death penalty.          Justice Stewart held that: "The penalty of death differs from all other forms  of criminal punishment, not in degree, but in kind.  It is unique in its total irrevocability. It is unique  in its rejection of rehabilitation of the convict as a  basic purpose of criminal justice. And it is unique,  finally, in its absolute renunciation of all that is  embodied in our concept of humanity.

***                     ***                     *** These death sentences are cruel and unusual in the  same way that being struck by lightning is cruel  and unusual. For, of all the people convicted of  rapes and murders in 1967 and 1968, many just as  reprehensible as these, the petitioners are among a  capriciously selected random handful upon whom  the sentence of death has in fact been imposed."

63.    Justice Brennan while interpreting Eighth Amendment (Amendment  VIII: (Excessive bail shall not be required, nor excessive fines imposed, nor  cruel and unusual punishments inflicted) of US Constitution observes in

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Furman: "In determining whether a punishment comports  with human dignity, we are aided also by a second  principle inherent in the Clause -- that the State  must not arbitrarily inflict a severe punishment.  This principle derives from the notion that the  State does not respect human dignity when,  without reason, it inflicts upon some people a  severe punishment that it does not inflict upon  others. Indeed, the very words "cruel and unusual  punishments" imply condemnation of the arbitrary  infliction of severe punishments."

64.    It is important to refer to Harbans Singh v. Union of India [AIR 1982  SC 849] at this juncture. In that case three people were sentenced to death by  the trial court for playing an equal part in jointly murdering a family of four  persons. The sentence of all the three was confirmed by the High Court.  Each of them moved to the Supreme Court by different Special Leave  Petitions before three separate benches. One of the accused’s petition was  dismissed and he was actually executed. Another’s petition was allowed and  his death sentence was commuted to life imprisonment. And the petition of  the third one was also dismissed. He filed a review petition, which was also  dismissed, and the Executive refused clemency. He then moved another  petition before the Supreme Court bringing to light this arbitrariness. The  Supreme Court recommended the President to commute his sentence.  Chandrachud J. while lamenting the death of dead accused said: "The fate of Jeeta Singh has a posthumous moral  to tell. He cannot profit by the direction which we  propose to give because he is now beyond the  process of human tribunals."

65.     Bentham’s discourse on determination of minimum punishment and  maximum punishment serves as a yardstick in this context. Bentham in his  landmark treatise Principles of Penal Law  propose to establish a proportion  between crimes and punishments. But he cautions against an oracular  understanding than an instructive one. We here further go in the details of  what doctrine of proportionality holds in the realm of sentencing. The first  rule of proportionality mandates:

"The value of the punishment must not be less in  any case than what is sufficient to outweigh that of  the profit of the offence."  

       While talking of minimum punishment Bentham observes: "Punishments may be too small or too great; and  there are reasons for not making them too small, as  well as not making them too great. The terms  minimum and maximum may serve to mark the  two extremes of this question, which require equal  attention.  With a view of marking out the limits of  punishment on the side of the first of these  extremes, we may lay it down as a rule:\027  That the value of the punishment must not be less  in any case than what is sufficient to outweigh that  of the profit of the offence.  By the profit of the crime, must be understood not  only pecuniary profit, but every advantage real or  apparent, which has operated as a motive to the  commission of the crime."

66.     It is to be appreciated here that statutorily decided minimum sentence  takes into account the basic value of the crime and suffice to outweigh the  profit of the offence. The moot question relates to parameters to decide the  maximum punishment. Setting the trail of caution on the side of

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determination of maximum punishment Bentham posits:

       "Punishment, whatever shape it may  assume, is an evil... The minimum of punishment is more clearly  marked than its maximum. What is too little is  more clearly observed than what is too much.  What is not sufficient is easily seen, but it is not  possible so exactly to distinguish an excess. An  approximation only can be attained. The  irregularities in the force of temptations, compel  the legislator to increase his punishments till they  are not merely sufficient to restrain the ordinary  desires of men; but also the violence of their  desires when unusually excited.  The greatest danger lies in an error on the  minimum side, because in this case the punishment  is inefficacious; but this error is least likely to  occur, a slight degree of attention sufficing for its  escape; and when it does exist, it is at the same  time clear and manifest, and easy to be remedied.  An error on the maximum side, on the contrary, is  that to which legislators and men in general are  naturally inclined\027antipathy, or a want of  compassion for individuals who are represented as  dangerous and vile, pushes them onward to an  undue severity. It is on this side therefore, that we  should take the most preparations, as on this side  there has been shown the greatest disposition to  err."

67.    On the same point Beccaria in his historic work Of Crimes and  Punishments denounced retributive basis of punishment.  

"The aim of punishment can only be to prevent the  criminal committing new crimes against his  countrymen, and to keep others from doing  likewise. Punishments,  therefore, and the method  of inflicting them, should be chosen in due   proportion to the crime so as to make the most  efficacious and lasting impression on  the minds of  men, and the least painful impressions on the body  of the criminal.  

For a punishment to be efficacious, it is enough  that the disadvantage of the punishment should  exceed the advantage anticipated from the crime;  in which excess should be calculate the certainty of  punishment and the loss of the expected benefit.  Everything beyond this, accordingly, is  superfluous, and therefore tyrannical."

68.    There is a clear and discernible necessity of caution to set the  maximum punishment in an offence. And also by implication there must be  intensive and exhaustive inquiry into accused related parameters before  employing the maximum sentence by a court of law. Therefore discretion to  the judiciary in this respect (to declare the maximum punishment) is of  utmost critical and seminal value. Reasons must be detailed setting clearly  why any punishment other than the maximum punishment will not suffice.  This is a general and age-old rule of sentencing which has been statutorily  recognized under section 354(3).  69.     Reference to the decision of other jurisdictions and/or the recent trend  in the international fora has not been referred to by way of precedents or  even a persuasive value but the court in this age cannot afford to put down  blinkers on its window to the outside world.

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70.     It is noteworthy to mention here the Law Commission in its Report of  1967 took the view that capital punishment acted as a deterrent to crime.  While it conceded that statistics did not prove these so-called deterrent  effects. It also said that figures did not disprove them either.  

71.    Tracing the judicial view on Death Penalty, one can start with the  Jagmohan Singh case (1973) where it agreed with the Law Commission that  capital punishment should be retained. But subsequent cases such as those of  Ediga Anamma (1974) and Rajendra Prasad (1979) saw dissenting voices  being raised in this court. These led to a hearing of the Bachan Singh (1980)  case by a Constitutional Bench.  72.    In Rajendra Prasad v. State of U.P. [(1979) 3 SCR 646], it was held  that the special reasons necessary for imposing a death penalty must relate  not to the crime but to the criminal. It could be awarded only if the security  of the state and society, public order in the interest of the general public  compelled that course.  73.    The death penalty was abolished in 1965 in the U.K. Member-states  of the European Union cannot have the death penalty. In Canada, after the  abolition of the death penalty in 1976, the homicide rate declined. In 2000,  there were 542 homicides in Canada \027 16 fewer than in 1998 and 159 fewer  than in 1975 (one year prior to the abolition of capital punishment). In 1997,  the Attorney-General of Massachusetts said: "there is not a shred of credible  evidence that the death penalty lowers the murder rate. In fact, without the  death penalty the murder rate in Massachusetts is about half the national  average." 74.     The South African Constitutional Court unanimously ruled in 1995  that the death penalty for murder violated the country’s Constitution. More  than 118 countries have abolished the death penalty either in law or practice.  The second optional protocol to the International Civil Covenant, which  came into force in 1991, mandates the abolition of the death penalty.

75.     Whatever may be the "merits", "demerits" or "criticism", one cannot  hope for unjustness in society.  Deterring  or preventive theory may not have  any application at all in respect of imposition of death sentence.  The law  itself mandates that for imposing death sentence, special reasons are to be  assigned.  Imposition of death punishment is an exception in terms of sub- section (3) of Section 354 of the Code of Criminal Procedure.  Whereas for  commission of other offences, one or other theory, justly or otherwise may  be taken recourse to, a large number of factors are required to be borne in  mind for awarding death penalty.   76.     In Renuka Bai alias Rinku alias Ratan and Another v. State of  Maharashtra [(2006) 7 SCC 442], Balakrishnan, J. (as the learned Chief  Justice then was) while imposing a death sentence in a case where the  appellants had kidnapped seven children and committed their murder in a  most dastardly manner also noticed:

"36\005We have carefully considered the whole  aspect of the case and are also alive to the new  trends in the sentencing system in criminology\005" (Emphasis supplied)

77.    Similarly in Bhimashya and Ors. v. Smt. Janabi @ Janawwa [2006  (14) SCALE 27], Dr. Pasayat, J. took into consideration the overall global  view imparting death penalty.

78.    This new trend, thus, must be taken into consideration only for  awarding appropriate punishment.  79.    We may also note that in Ram Singh v. Sonia & Ors. [2007 (3)  SCALE 106] imposition of a death penalty has been upheld in the case  where the accused had not only put an end to the life of her step brother and  his whole family which included three tiny tots of 45 days, 2 \026 = years and 4  years but also her own father, mother and sister in a very diabolic manner so  as to deprive her father from giving the property to her step brother and his  family.  It was, in the aforementioned extraordinary situation, held:

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"\005The fact that murders in question were  committed in such a diabolic manner while the  victims were sleeping, without any provocation  whatsoever from the victims’ side indicates the  cold-blooded and premeditated approach of the  accused to cause death of the victims. The brutality  of the act is amplified by the grotesque and  revolting manner in which the helpless victims  have been murdered which is indicative of the fact  that the act was diabolic of most superlative degree  in conception and cruel in execution and that both  the accused persons are not possessed of the basic  humanness and completely lack the psyche or  mind set which can be amenable for any  reformation\005" (Emphasis supplies)  

80.     Yet again, another Division Bench of this Court in Shivu (supra) has  upheld the death penalty where the accused was charged with Sections 302  and 376 read with Section 34 of the Indian Penal Code.  In that case, the  repeated attempts were made by two accused aged 20 and 22 years to  commit rape on Lakkamma, daughter of one Puttegowda (PW-7).  They  were caught but only had been admonished.  Yet again, they attempted to  commit rape on PW-10 who was the daughter of Jayamma (PW-1).  The  accused persons, however, escaped any punishment even then at the instance  of village elders and their family members and instead Panchayat of village  elders was called on each occasion and accused were directed to mend their  ways.  The court found that emboldened by the escapes from punishment in  those two incidents, the accused committed rape on the deceased a young  girl of hardly 18 years and to avoid detection committed heinous and brutal  act of her murder.   

81.    It would, therefore, appear that cases where death penalty is upheld  are those where murder was committed of a large number of persons or by  more than one person in a brutal or systematic manner. 82.     Bhagwati, J. in his dissenting opinion in Bachan Singh (supra) pointed  out one; Aloke Nath Dutta (supra) has also pointed out other instances.          83.     With utmost respect, I am of the opinion that the doctrine of  proportionality which is often referred to in the judicial pronouncements in  regard to the sentencing policy required to be judicially adopted should not  apply in a case of imposition of capital punishment.  Precedent should not be  contrary to Parliamentary law; far less the decision of a Constitution bench  of this Court

84.     We may, however, notice that the question in regard to the death  penalty again came up for consideration before this Court in  Acharaparambath Pradeepan & Anr. v. State of Kerala [2006 (13) SCALE  600] and Bishnu Prasad Sinha and Anr. v. State of Assam [2007 (2) SCALE  42] wherein Aloke Nath Dutta (supra) was reiterated.

85.     In Bishnu Prasad Sinha (supra), it was observed :

"The question which remains is as to what  punishment should be awarded.  Ordinarily, this Court,  having regard to the nature of the offence, would not  have differed with the opinion of the learned Sessions  Judge as also the High Court in this behalf, but it must be  borne in mind that the appellants are convicted only on  the basis of the circumstantial evidence.  There are  authorities for the proposition that if the evidence is  proved by circumstantial evidence, ordinarily, death  penalty would not be awarded.  Moreover, the appellant  No.1 showed his remorse and repentance even in his  statement under Section 313 of the Code of Criminal

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Procedure.  He accepted his guilt."

(See also Amarjit Singh v. State of Punjab,  AIR 2006 SCW  5712)

86.     We may, however, hasten to add that no universal rule is meant to be  laid down as even in Bishnu Prasad Sinha (supra), the word "ordinarily" has  been used.  There may be cases and cases where even on circumstantial  evidence, a death penalty may be imposed.  

87.     In Sahdeo & Ors. vs. State of U.P. [(2004) 10 SCC 682], this Court  opined :         "As regards the sentence of death imposed  on five accused persons by the sessions court,  which was confirmed by the appellate court, the  counsel for the appellants, Shri Sushil Kumar  submitted that in the absence of clear and  convincing evidence regarding the complicity of  the accused, these appellants could not be visited  with the death penalty, while the counsel for the  State submitted that this is a ghastly incident in  which eight persons were done to death and the  death penalty alone is the most appropriate  punishment to be imposed. Though it is proved  that there was an unlawful assembly and the  common object of that unlawful assembly was to  kill the deceased persons, there is another aspect of  the matter inasmuch as there is no clear evidence  by the use of whose fire-arm all the six deceased  persons died as a result of firing in the bus. It is  also pertinent to note that the investigating agency  failed to produce clear and distinct evidence to  prove the actual overt acts of each of the accused.  The failure to examine the driver and conductor of  the bus, the failure to seize the bus and the absence  of a proper ’mahzar’, are all lapses on the part of  investigating agency. Moreover, the doctor who  gave evidence before the court was not properly  cross-examined regarding the nature of the  injuries. Some more details could have been  collected as to how the incident might have  happened inside the bus. These facts are pointed  out to show that the firing may have been caused  by the assailants even while they were still  standing on the footboard of the bus and some of  the appellants may not, in fact, have had an  occasion to use the fire-arm, though they fully  shared the common object of the unlawful  assembly. Imposition of the death penalty on each  of the five appellants may not be justified under  such circumstances. We take this view in view of  the peculiar circumstances of the case and it should  not be understood to mean that the accused persons  are not to be convicted under Section 302 read  with Section 149 and the death penalty cannot be  imposed in the absence of various overt acts by  individual accused persons. In view of the nature  and circumstances of the case, we commute the  death sentence imposed on A-1 Sahdeo, A-4  Subhash, A-5 Chandraveer, A-7 Satyapal and A-10  Parvinder to imprisonment for life." 88.     In Raju vs. State of Haryana [(2001) 9 SCC 50], it has been opined by  this Court :         "However, the next question is whether this

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would be a rarest of rare cases where extreme  punishment of death is required to be imposed. In  the present case, from the confessional statement  made by the accused, it would appear that there  was no intention on the part of the accused to  commit the murder of the deceased child. He  caused injury to the deceased by giving two brick  blows as she stated that she would disclose the  incident at her house. It is true that learned  Sessions Judge committed error in recording the  evidence of SI Shakuntala, PW 15 with regard to  the confessional statement made to her, but in any  set of circumstances, the evidence on record  discloses that the accused was not having an  intention to commit the murder of the girl who  accompanied him. On the spur of the moment  without there being any premeditation, he gave  two brick blows which caused her death. There is  nothing on record to indicate that the appellant was  having any criminal record nor can he be said to be  a grave danger to the society at large. In these  circumstances, it would be difficult to hold that the  case of the appellant would be rarest of rare case  justifying imposition of death penalty."

89.     It has been a fundamental point in numerous studies in the field of  Death Penalty jurisprudence that cases where the sole basis of conviction is  circumstantial evidence, have far greater chances of turning out to be  wrongful convictions, later on, in comparison to ones which are based on  fitter sources of proof. Convictions based on seemingly conclusive  circumstantial evidence should not be presumed as full proof incidences and  the fact that the same are circumstantial evidence based must be a definite  factor at the sentencing stage deliberations, considering that capital  punishment is unique in its total irrevocability. Any characteristic of trial,  such as conviction solely resting on circumstantial evidence, which  contributes to the uncertainty in the culpability calculus, must attract  negative attention while deciding maximum penalty for murder.  90.     One of the older cases in this league dates back to 1874,  Merritt v.  State, 52 Ga. 82, 85 (1874) where  the Supreme Court of Georgia described  the applicable law in Georgia as follows:  "By the penal code of this state the punishment of  murder shall be death, except when the conviction  is founded solely on circumstantial testimony.  When the conviction is had solely on  circumstantial testimony, then it is discretionary  with the presiding judge to impose the death  penalty or to sentence the defendant to  imprisonment in the penitentiary for life, unless the  jury . . . shall recommend that the defendant be  imprisoned in the penitentiary for life; in that case  the presiding judge has no discretion, but is bound  to commute the punishment from death to  imprisonment for life in the penitentiary."

91.     Later case of Jackson v. State, 74 Ala. 26, 29-30 (1883) followed the  aforementioned case. [Also see S.M. Phillipps, Famous Cases of  Circumstantial Evidence with an Introduction on the Theory of Presumptive  Proof 50-52 (1875)]  

92.     In United States v. Quinones, 205 F. Supp. 2d 256, 267 (S.D.N.Y.  2002) the court remarked:  

"Many states that allow the death penalty permit a  conviction based solely on circumstantial evidence

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only if such evidence excludes to a moral certainty  every other reasonable inference except guilt."

93.     In the instant case, confession before police was taken as a gospel  truth. It seems that the judicial mind has a role to play in that behalf in  imposition of sentence.  

94.     Another aspect which needs to be considered as according to the  Bachan Singh Rule (that sentencing should involve analysis about the nature  of crime as well as the accused) which require consideration, is the effect of  two pointers relating to the nature of crime. Firstly, the case does not seem  to be an instance of what is called a diabolical murder.  We come across  cases of murdering wife by burning for non-fulfillment of dowry, preceded  by continuous torture. Simon and Ors. v. State of Karnataka [(2004) 2 SCC  694] noting the "all murders are cruel" observation in Bachan Singh (supra)  puts the law on death penalty in perspective as:

"The Constitution Bench said that though all  murders are cruel but cruelty may vary in its  degree of culpability and it is only then the  culpability assumes the proportion of extreme  depravity that "special reasons" can legitimately be  said to exist."

95.     Second point relates to planning which went into committing the  murder. It is agreed that accused deliberately came close to the beautiful and  wealthy lady. He must have had his intentions and calculations in that  regard. To that extent intention behind the marriage can be imputed. But to  infer from that the murder was a pre-planned murder will be going a bit too  far as he did not know the opportune date when the servant would be   leaving the house. He could not have known the servants would receive a  telegram and ask for leave.  Without their leaving the place, the plan, if there  was any, could not have been executed. This is one weak link in the  hypothesis that the murder was meticulously planned. 96.     In Kashmir Singh v. State of Himachal Pradesh, [1990 Supp (1) SCC  133] the Court held: "There was no infirmity in appraisal of the facts  and circumstances and the circumstantial evidence  by the courts below in arriving at the conclusion  that the accused-appellant has committed the crime  under Section 302 IPC. But considering the fact  that it was not a pre-meditated and cold-blooded  murder, and also because the appellant appeared  before the Sessions Judge and made a confessional  statement, the sentence is converted from death to  life imprisonment."  

97.     Keeping the abovementioned other characteristics of the crime, we  now delve into whether this instance can be categorized as a "rarest of rare"  murder. The question is whether murder of wife for the purpose of usurping  property is a rarest of rare crime statistically. It is not to say that rarest of  rare doctrine only has a statistical dimension i.e. incidence of particular type  of murder in a given sample; rarest of rare benchmark can also be used in the  context of other parameters such a brutality, planning, society’s reaction et  al. Facets relating to nature of the crime have already been explained in  terms of the few parameters mentioned just now. Therefore we attend to the  incidence aspect. It can not be conclusively said that murder of wife for  usurping property is a particularly rarest of rare incident. It could, of course,  be a rare incident.  

98.     Also it is to be realized that in criminal cases character of accused is  immaterial by the mandate of section 53 and 54 of Indian Evidence Act. The  same should not factor in the discussions at the sentencing stage.  If that be  so, bad character of the accused by itself should not be a determinative

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factor.

99.     In fact, Appellant should not have been heard at that stage.  The stage  of hearing an accused under Section 235(2) of the Code is after the judgment  of conviction is pronounced and not prior thereto.  Appellant herein made a  confession before the High Court.  The High Court took the same into  consideration in the main judgment which could not be done.  He had been  brought before the High Court only for purpose of fulfilling the requirement  of sub-section (2) of Section 235 of the Code of Criminal Procedure.  His  Statement was taken during midst of hearing.  He knew the implications  thereof.  Despite the same, he made a categorical statement that he was  responsible for burring the dead body.  He gave an explanation, which might  not have found favour with the High Court, but the fact that he had made a  confession at least accepting a part of the offence could not have been  ignored at least for the purpose of imposition of punishment.  He is more  than 64 years’ old.  He is in custody for a period of 16 years.  The death  sentence was awarded to him by the trial court in terms of its judgment dated  20.05.2005.  In a situation of this nature, we are of the opinion that  imposition of a life imprisonment for commission of the crime under Section  302 shall serve the ends of justice.

100.    However, while saying so, we direct that in a case of this nature ’life  sentence’ must be meant to be ’life sentence’.  Such a direction can be given,  as would appear from some precedents.  {See Subhash Chander v. Krishan  Lal and Ors. [(2001) 4 SCC 458]}.   

101.    Yet again in Ram Anup Singh and Ors. v. State of Bihar [(2002) 6  SCC 686], this Court directed that the accused shall remain in jail for a  period of not less than 20 years. [See Prakash Dhawal Khairnar (Patil) v.  State of Maharashtra, (2002) 2 SCC 35], Shri Bhagwan v. State of Rajasthan  [(2001) 6 SCC 296] and Mohd. Munna etc. v. Union of India & Ors. etc.   [(2005) 7 SCC 417].

102.    However, before parting with this case, we may notice that a prayer  was made by Smt. Sabhah Khaleeli (daughter of the deceased) that the  mortal remains of Smt. Shakereh (deceased) including skull are required by  the family of the deceased for burial and obsequies ceremony.  The High  Court has issued such a direction.  As the family of the deceased and in  particular Smt. Sabah Khaleeli (PW-5) desires to perform burial and other  obsequies ceremonies, we direct that the order of the High Court, in this  behalf, may be implemented, as expeditiously as possible.

103.    For the reasons aforementioned, the appeal is dismissed, subject to the  modification in sentence, as directed hereinbefore.