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PETITIONER: ASHOK KUMAR

       Vs.

RESPONDENT: THE STATE (DELHI ADMINISTRATION)

DATE OF JUDGMENT19/09/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 AIR  265            JT 1995 (6)   660  1995 SCALE  (5)443

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Punchhi, J.      Permission to file special leave petition sought by the mother and  brother of  the  petitioner,  Ashok  Kumar  vide Criminal Miscellaneous  Petition No.1593 of 1995 is refused. Leave granted  to Ashok  Kumar, petitioner  on his  petition from jail.      This appeal by Ashok Kumar is to challenge the judgment and order  of the  Delhi High  Court dated  January 10,1995, whereby he  has been  held guilty  for the offence of murder under Section 302 IPC and sentenced to death. His co-accused Smt. Prem  Kanwar stands convicted for offence under Section 302/34 IPC,  for  which  she  has  been  sentenced  to  life imprisonment and  to pay a fine of Rs.1,00,000/-, in default of payment  of which  she has further to undergo 3-1/2 years rigorous imprisonment.  Smt. Prem  Kanwar has  not  appealed against her  conviction and  sentence. So  instantly we  are only concerned with Ashok Kumar.      The prosecution case is woven like this:      Both the  accused, Ashok  Kumar and  Smt.  Prem  Kanwar belong to  the same  village in the State of Rajasthan. Both the accused  had a  long knit  physical intimacy  with  each other. While  so Smt.  Prem Kanwar  was given in marriage to Mahabir Singh,  deceased. The marriage made no difference to the intimacy  and their  relationship continued.  Out of the wedlock of  Smt. Prem  Kanwar, accused  with  Mahabir  Singh deceased, two  children were  born. The  passion between the two lovers,  seemingly, did not subside. It is inferred that because of  that relationship Ashok Kumar, appellant and his co-accused Smt. Prem Kanwar drew a plot to kill the deceased so that they could be with each other unobstacled. To fulfil that design,  it is  stated that  they moved  out  of  their respective places  of residence and jointly came on December 27, 1987  to the  house of  P.K. Sharma,  P.W. 33 at village Kotputli where  both the  accused persons,  the deceased and

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the two  minor children  spent a night. Then it is said that this group  of people  came to  Delhi and  with the  aid  of Bajrangi Lal,  Guide, P.W.27 came at about 11.00 p.m. on 29- 12-1987 to  hotel Eagle  in  Katra  Barian,  Delhi  to  seek accommodation.  Before-hand,   the  appellant  Ashok  Kumar, styling himself  as Vijay  Kumar had  told Bajrangi  Lal  of their requirement  of having  a room  with three  cots.  The guide conveisely  told him  that a  room with a pair of cots and  another  with  single  cot  would  be  made  available. Accordingly, the  appellant and his companions, on coming to the hotel,  were allotted  room nos.  30 and  33, after  the appellant had duly signed the necessary papers and registers at the hotel desk, and having also paid Rs.200/- as advance. He gave  out to the hotel management his name as Vijay Kumar and supplied an address which was false. Room No.30 was then occupied by  the couple. The same was on the fourth floor of the hotel.  Room No.33  was occupied  by the appellant. This was on  the top  floor.  Both  the  rooms  had  no  attached toilets. Common  bathrooms and  latrines were  available for both the  floors i.e.  4th and top floor at the third floor. The following  morning at about 9.00 a.m., the appellant and his co-accused  Smt. Prem Kanwar were seen standing together in front of room no. 30, and on their asking were served tea by Ram  Kumar, P.W.23.  At about  11.00  am  the  appellants accompanied by  his co-accused  Smt. Prem Kanwar and her two children left the hotel premises never to return back. It is further traced that on that day itself they left Delhi so as to be  in Jaipur where they had checked in at Hotel Sital at about 7.00 p.m. There again the appellant with a pseudo name gave a  wrong address.  On the  new year day, i.e. 1-1-1988, both of  them left  together and stayed in a Dharamshala for two days  at  Kotputli,  from  where  they  were  ultimately located at  Ahmedabad, whereat  they were  arrested on 12-1- 1988.      The Hotel  management on  its part,  on routine  check, found that  room no.33  lay open.  The key  and lock of that room lay  inside the  room. Room No.30 was however locked by the private  lock of  the customer. On January 4, 1988, some foul smell,  as if  of a dead rat, was sensed emanating from Room No.30.  This put  Sunil Kumar, Hotel Manager, P.W.12 on the alert.  He informed  his father  Hari Om,  P.W.12 on the alert.  He   informed  his  father  Hari  Om,  P.W.14.  They approached Police  Station Haus  Qazi for  help. S.I. Gurbax Singh, P.W.29 arrived at the scene at about midnight. In the presence of  the police  party, and  others present, lock of Room No.30  was got broken and on opening was found the dead body of  the deceased  lying on a cot. Amongst many articles which were  recovered from  the  spot  were  the  weapon  of offence being  a red-stone.  There were also a plastic rope, some broken  bangles and  a tuft of hair. The clothes on the dead  body   were  blood   stained.  As   a  part   of   the investigation, the dead body was sent for postmortem. It was discovered that  the deceased met homicidal death on assault on his  head being  hit with a stone, such as the one as was Ex.P.13,  recovered   at  the   spot.  Internally,   it  was discovered  that   there  were  fractures  of  the  frontal, parietal and occipital bones. Death was opined to have taken place within  the time  suggested by the prosecution i.e. on the night intervening 29th and 30th December, 1987.      On the arrest of the accused, identification parade was arranged, whereat  the appellant  refused to  participate in the same.  Smt. Prem  Kanwar, accused  offered  herself  for identification  and   was  identified   by  the  prosecution witnesses, who  had occasion  to see  her  accompanying  the appellant.

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    After completion of the investigation, both the accused were sent  up for  trial before  the Court  of Session.  The conduct of  the appellant  at the trial was far from normal. He was  obstructive to  the proceedings  of  the  trial  and somewhat defiant  as  observed  by  the  learned  Additional Sessions Judge.  Apparently, he had a "Don’t care" attitude, as seen  by the  learned  Judge.  He  would  at  times  stop communicating with  his counsel and take to silence. His co- accused Smt. Prem Kanwar, however, was different. She made a statement at  the trial  that she  and her  husband and  her children had accompanied the appellant to Hotel Eagle on the day and  at the time alleged by the prosecution and admitted having stayed  and having  slept in room no.30 alongwith her husband when  the appellant  had stayed  in room no.33. This part of  it is obviously separate and has nothing to do with the crime  as such. Now about the crime she says that on the next day at about 5.00 a.m. she got up to urinate and had to go down  on the third floor to visit the toilet. Having gone there, she  says she  just as  well had a bath, and when she returned to her room, she found the appellant standing there and her  husband lying covered with a bed-sheet. She removed the bed-sheet  to find  her husband  profusely bleeding. She then asked  the appellant  as to why he had done this to her husband. At  that juncture,  the appellant  is said  to have asked her  to  keep  quite  and  threatened  her  with  dire consequences, and  even of  killing her children, if she did not cooperate.  She alleges that the appellant gave her some drug by  which she  became semi-conscious. Statedly, in that condition she  left the  hotel room  with her  children till finally after  wandering from  place to place, she was taken to Ahmedabad  by the  appellant where  she was  left in  her uncles house,  to whom she told about the occurrence, who in turn informed  the police and this is how she claims to have been arrested.      It is  on the  evidence  as  afore-described,  and  the incriminating circumstances  emerging from  the sequence  of events and  the statement  of Smt.  Prem Kanwar,  co-accused that  the   appellant  stand   convicted  and  sentenced  as aforesaid.  The   High  Court   enumerated  as  many  as  11 circumstances which  appeared against  the appellant. It has spelled out  the appellant’s  case to  be the rarest of rare cases, deserving death penalty.      On earing  learned counsel on both sides, we are of the view that  the conviction of the appellant is well-based and the chain  of circumstances  having tightened  the  ring  of guilt around him successfully.      To begin with we have no reason to disbelieve P.W.33 in whose house the appellant and his party stayed for the night on 27-12-1987.  It is  true that  the said witness could not positively identify  the woman  accompanying  the  appellant because according  to him she was in parda. Still, it cannot be doubted  that the appellant had a female accompanying him and had  a man and two children alongwith him. Then there is no reason to disbelieve the evidence of Bajrangi Lal, Guide, P.W.27 at  whose suggestion  and behest  they were lodged in Eagle Hotel  at an  unearthly hour at about 11.00/11.20 p.m. Bajrangi Lal  correctly identified  Smt. Prem  Kanwar at the identification parade.  Besides, he  was the  one  in  whose presence the  appellant had signed the hotel papers as Vijay Kumar and  had paid Rs.200/- as advance. Bajrangi Lal had no axe to  grind against  the  appellant  and  his  co-accused. Similarly, Raj Kumar, waiter, P.W.23 who was responsible for giving possession  of the  two rooms  to the  party  of  the appellant cannot  be doubted  and equally of his having seen both the accused in the company of each other at the time of

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his serving tea to them the following day at about 9.00 a.m. In the  same sequence  the evidence  of Sunil Kumar, P.W.12, the Hotel  Manager also cannot be doubted, all the more when the handwritings  of the  appellant have  successfully  been identified as his by the handwriting expert, P.W. 30, on his obtaining  and   comparing  the   admitted  handwriting  and signatures of  the appellant.  Another fact of importance is the discovery  of E  group blood  on the  stone Ex.P.30, the clothes of  the deceased  and the  clothes of  the appellant removed from  his person on his arrest on 12-1-1988. This is indicative of  his being  in close proximity of the deceased when he  was fately  wounded. And lastly is the statement of the co-accused  which fixes  the  appellant  to  be  in  the company of the deceased at or about the time when he met his death, let alone what he said to his co-accused. Lastly ever brooding to  the occurrence  is the  motive of the crime. No animus is  alleged against the prosecution. It has given the chain of  events and  the movements  of the accused inter se and of  their being  seen together  in the  company  of  the deceased. The  appellant has  thus necessarily  to  be  held guilty of  the crime,  unless he had a plausible explanation to offer.  But instantly,  the appellant gave no explanation at all what to say of a plausible one. The appellant, in our view, was  thus  rightly  convicted  of  the  offence  under Section 302  IPC. The  appraisal of  evidence of both courts was sound and we entirely agree with their verdict.      On the  question of  sentence, however,  we differ from the view  taken by the courts below. The learned Trial Judge fixed his  attention more  on the  defiant  and  unrepentent attitude of  the appellant  as observed  by  him  while  the appellant stood  before him  in dock as an accused. The High Court on the other hand was more on the moralistic aspect in the appellant having killed his mistress’s husband for lust. Even if  these two  aspects are  allowed to play a part, all the more  when there  is no  explanation by  the  appellant, still we  feel that  this is not the rarest of rare cases in which death  penalty should  be imposed on the appellant. It cannot be  forgotten that two children had been born to Smt. Prem Kanwar.  The appellant was intimate with his co-accused even prior  to her  marriage with  the deceased  and kept on being so  when the  children came. That was obviously a long durated steady  connection, at least of 5 to 6 years, if not more. Since  there was  no time  compulsion,  the  appellant could have  had plenty  of other  opportunities to  kill the deceased at  another appropriate  place in the wilderness of Rajasthan rather  than bringing  him to  the hotel to Delhi, accompanied by  children, signing  hotel  papers  under  his signatures even  though false  and yet  killing the deceased with barely  a stone.  The prosecution would have us believe that since  the stone is not a normal object to be kept in a hotel room,  it shall  be presumed  that was  carried by the appellants to  the hotel  to accomplish  the deed.  It looks incredible that  a stone be carried as far from Rajasthan or to be  gathered before  hand to  be handy  for committing  a calculated murder  of such  degree in the execution of which something satanic could be spelled out. It rather appears to us more  probable that  the appellant  having gone  to  room no.30 in the early hours of the morning to meet his mistress or to  fetch her  to his room was confronted in some form by the  deceased  which  led  to  the  appellant  striking  the deceased with  a handy  stone and  bringing about the end of the deceased.  The act  of the appellant therefore cannot be said to be so cruel, unusual or diabolic which would warrant the death  penalty. We,  therefore, commute  his sentence to that of  life imprisonment.  The appeal  is allowed  to that

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extent only.