SHRI BHAGWAN v. STATE OF RAJASTHAN

Citation: [2001] 3 S.C.R. 656

Court: Supreme Court of India

Bench: M.B. SHAH, K.G. BALAKRISHNAN

Judgment text

SHRI BHAGWAN v. STATE OF RAJASTHAN MAY 10, 2001 (M. B. SHAH AND K. G. BALAKRISHNAN, JJ. ] Penal Code, 1860-Sections 392, 397, 302 and 57-Robbeiy-Murder of. five persons of a . family-Conviction based on circumstantial evidencelmposition of'death sentence by Trial Co11rt-Confir111ed by High Court-On appeal, conviction upheld-Sentence commuted to life imprisonment in view ofyoung age of accused and his mental suflering due to confinement under death sentence-Nature ofcrime held cruel and sadistic-Hence accused not to be released before completion of20 years-Sentencing-life imprisonment. Criminal Procedure Code, 1973-Section 433(b) rlw 433A- Applicability of-life imprisonment-Meaning of-Prima facie it means for the whole ofthe remaining period ofconvict's natural life-Death sentence- Commutation qf-Release ofthe accused held not permissible on completion of 14 years, in view of the nature of the offence. \:. _ Evidence Act, 1872-Section 114 //lustration (a)-Presumption- Artic!

es connected with crime-Recovery of immediately after commission of crime-No account given for such possession-Held, affords presumption of guilt-However, presumption weakens if goods change hands. Appellant-accused was convicted under Sections 302, 392 and 397 IPC for having caused death of five family members of PW-17 and for having committed ,robbery in their house. The conviction was based on circumstantial r evidence that the accused was last seen together with the one of the deceased; and that injury was found on the person of the accused; and that an axe, a blood-stained shirt and articles taken away from the house of deceased were recovered at the instance of the accused immediately after the incident. It was proved that the accused had an acquaintance with the family members of PW-17. Death sentence was imposed for the offence under section 302 IPC and sentence imposed for·offences under section 392 and 397 IPC. The High Court confirmed the conviction and sentence.

In appeal to this Court, the appellant contended that the chain of SHRI BllAGWAN v. STATE OF RA. IASTHAN 657 circumstances were not complete and the same were insufficient to draw' inference of guilt of the accused; and that the statement of PW-17, one of the relatives of the deceased was not reliable as he did not mention the name of appellant in his statement before investigating officer (PW-23); and that ,, the appellant was entitled to benefit of doubt since there was possibility that there must have been more assailants, as series of injuries allegedly had been caused to the deceased persons with various weapons; and that various recvoveries effected at the instance of the appellant were doubtful. On the question of sentence he contended that the sentence might be commuted t. o life imprisonment in view of mitigating factors like appellant's young age and his mental suffering due to his confinement under sentence of death. Disposing of the appeal, the Court HELD : 1.

Courts below have rightly held the appellant guilty of the offences charged against him. In view of the facts of the case, there is nQ reason to suspect the guilt of the appellant as it is proved that the appellant , was seen with one of the deceased before the incident and the appellant had an acquaintance with the family members of the deceased. (664-B; 662-D-EI 2. The statement of PW,.. 17 cannot be held to be unreliable. He would not have mentioned the name of the appellan~ to PW-23 who recorded his. statement, since he must have been under severe psychic trauma at the time ofgiving the statement (Exh. P-8) before the police. PW-23 himself recorded the statement of PW-2 immediately thereafter and in that statement the name of the appellant was mentioned as the person last seen with one of the deceased. (661-E-Fl 3. The fact that household items were used as weapons ofoffence, rules out the possibility of the presence of any outsider.

It is also not possible to infer anything from the nature o3f injuries as to how many assailants were involved. It is quite reasonable and probable that one assailant alone can cause so much of injuries especially during the night when the victims might have been in deep slumber. (662-BI 4. There is no reason to disbelieve the evidence adduced by the prosecution as regards recoveries, as there is further corroborative evidence to support the recoveries. (662-CI 5. 1. The possession of the fruits of the crime recently after it has been . committed, affords a strong and reasonable ground for the presumption that \the party in whose possession they are found was the real offender, unless - he can account for such possession in some way consistent with his innocence. His unwillingness or inability to affo. rd any reasonable explanation is regarded as amounting to strong, self inculpatory evidence.

If the party gives a reasonable explanation as to how he obtained it, the courts will be justified .. in not drawing the presumption of guilt. The force of this rule of presumption depends upon the recency of the possession as related to the crime and that if the interval of time be considerable, the presumption is weakened and more especially . if the goods are of such kind as in the ordinary course of such things frequently change hands. It is not possible to fix any precise period. 1662-G-H; 663-A-BI Earabherppa @ Krishnappa v. Sate of Karnataka, 119831 2 SCC 330; Mukund v. State of M. P. , IJ 9971 10 SCC 130 and Guiab Chand v. State of M. P. , 1199513 SCC 574, referred to. 5. 2. In the instant case, the appellant could not give an explanation as to how he came into po~session of various gold ornaments and other articles belonging to PW-17 and the members of his family.

The appellant also could not give any reasonable explanation how he sustained injuries on his body and how his shirt became blood-stained. In the facts and circumstances, it is a fit case where the presumption under illustration (a) to Section 114 of the Evidence Act could be drawn that the appellant committed the murders and the robbery. 1663-H; 664-A-Bl 6. 1. Death sentence imposed upon the appellant is commuted to life imprisonment. As regards offences under sections 392 and 397 IPC, the conviction of the appt:llant is confirmed and no separate sentence is awarded. 1668-F-GI 6. 2. Section 57 IPC provides that in calculating fractions of terms of punishment, imprisonment for life is to be reckoned as equivalent to the imprisonment for twenty years. Considering the heinous, barbaric offence committed by the accused, in no set of circumstances accused should be released before completion of 20 years of imprisonment. 1665-D-EI A. Devendran v.

State ofTamil Nadu, 11997111 SCC 720, distinguished. Dalbir Singh and Ors. v. State of Punjab, 119791 3 SCC 745 and Subhash Chander v. Krishan Lal and Ors. , (2001) 3 Scale 130, referred to. 6. 3. Though provided for under Section 433(b) read with Section 433- Cr. P. C. appellant cannot be released on completion of 14 years of 1-J imprisonment. A sentence of imprisonment for life imposed primafacie be I SHRI BHAGW/\N v. STATE OF R/\. IASTH/\N [K. G. BALAKRISHNAN, . 1. J 659 treated as imprisonment for the whole of the remaining period of the convicted person's natural life. Rules framed under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life. f667-B-Df. State of Madhya Pradesh v. Ratan Singh and others, (19761 3 SCC 470; Meru Ram v. Union ofIndia, 11981) 1 SCC 107; Laxman Naskar (Life Convict) v. State ofW. B. and another, 1200017 SCC 626 and Gopal Vinayak Godse v. State of Maharashtra, 119611 3 SCR 440, referred to.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 242 of2000. From the Judgment and Order dated 15. 12. 99 of the Rajasthan High Court in D. B. Crl. M. R. No. 3/98 and D. B. Crl. J. A. No. 20 of 1999. Dr. Shyamla Pappu, R. Krishnamorthi, A. K. Sinha and Shakeel Ahmed (A. C. ) for the Appellant. Sushi! Kumar Jain, A. Mishra and Anjali Doshi for the Respondent. The Judgment of the Court was delivered by K. G. BALAKRISHNAN, J. The facts in this criminal appeal disclose acts of unparalleled evil and barbarity as five persons of a family were battered to death without mercy by a young culprit aged about 20 years. PW-17 Shiv Pratap, his wife, three daughters and aged parents were residing in a house at Bidasar. The marriage of the eldest daughter of Shiv Pratap was fixed to be held on 20. 2. 1994. In order to purchase some articles for the marriage, Shiv Pratap and his wife Bhanwari had left for Jaipur on 14th December, 1993.

They came back to Bidasar from Jaipur on 17th December, 1993 at about 9. 30 PM. On reaching the house, they found the outer door of the house open and the inside room was found bolted from within. PW-17 knocked at the door in vain and after sometime he scaled over the wall and gained entry into the room. He found his parents lying dead with multiple injuries. PW-17 and his wife then went to thP- room of their daughters. That room was found locked from outside. PW-17 broke open the lock and found dead bodies of his three daughters. Various blood-stained articles were found strewn in the room. PW-17 used to peg the bag containing gold and silver jewellery of the shop. That bag was also found missing. Shocked at the .. incident, they made a hue and cry. The brother of PW-17 who was staying nearby came to the house. Some neighbours also came there in the meanwhile and saw the ghastly incident. By about 9. 45 P. M.

, PW-17 gave the P-8 statement before the Station House Officer of Police Station Chhapar (PW- 23). PW-23 registered a case and immediately visited the place ofoccurrence. 660 SlJPREMI-: COURT REPORTS 12001 I 3 S. C. R. He recorded the statement of Bhanwari (PW-I); Murlidhar (PW-2) and also _ the further state. ment of Shiv Pratap (PW-17). On the next day, he took various photographs and conducted inquest of the dead bodies of all the five deceased persons. The various articles, including clothes found lying in the house, .... were recovered. Many of these articles were found blood-stained. In his statement, PW-2, Murlidhar mentioned that on the evening of 14th December, 1993, he had seen the deceased Jora Ram, the father o_f Shiv Pratap, at about 6. 00 PM going to his house after closing the shop and the appellant, Shri Bhagwan was also accompanying him.

PW-2 further stated that Shri Bhagwan was known to him previously as he had worked in the shop of Shiv Pratap for about 8 to 10 months. He also stated that he saw the appellafit and Jora Ram entering the house of Shiv Pratap. Based on this infonfiation, appellant Shri Bhagwan was arrested on the night of 18th December, 1993 and the investigation of the case was taken over by PW-24. He too visited the place of occurrence and collected various articles from there. A broken iron 'Kunta', a wooden Pestle and an iron scissors were also recovered from the scene of occurrenc~ and all these articles were stained with blood. The appellant was interrogated and based on his statement, an axe was recovered from the water tank located on the terrace of the house of Shiv Pratap. During the course of further investigation, the appellant gave a statement regarding the place of concealment of golden jewellery and other ';. articles taken away from the house of Shiv Pratap.

Appellant's brother-in-law (Bahnoi) Ramu Ram was a resident of Sardar Shahar. The appellant led the police party to the house of Ramu Ram and from his house a bag containing jewellery and other articles were seized under Ex. P-83. These articles included one gold finger-ring, gold ear tops and nose tops, white pearls, etc. All these articles were later identified by Shiv Pratap as gold ornaments belonging to his mother and daughters. From the 110use of Ramu Ram, a small tobacco box was recovered which . contained 12 copper pieces and an envelope of' Kumkurn Patri' addressed to Shiv Pratap, Bidasar, and the sender's name was one Manak Chand Soni (PW- I0). Manak Chand was examined and he deposed that this invitation had been sent by him to Shiv Pratap on the occasion of the marriage of his daughter which was on IOth December, 1993.

Appellant, Shri Bhagwan also gave a statement to the effect that while he was travelling in a bus, he had thrown away the shirt worn by him at the time of occurrence, near a place three kilometers away from Sujangarh. The appellant led the police party to that place and the said shirt was recovered from the bushes near the place where the appellant had stated to have thrown the same. This shirt was blood-stained and it bore the label of786 J. K. Tailors, _, SllRI llll! \CiW/\N \". ST/\TI·: OF R/\. l/\STll/\N IK. G. 11/\L/\KRISllN/\N. . I. I 66) Subzi Mandi, S. R. D. R. On the shirt, number 427 was found marked. The investigation officer later visited the said shop of J. K. Tailors and questioned - - In case ofSubash Chander v. KrishanLal & Ors. , [2001] 3 SCALE 130, the said principle is followed by this Court and it was ordered that accused shall be incarcerated for the remainder of his life and that he shall not be let loose upon the society as he is a potential danger.

Question may arise-whether in view of the provision of Section 433(b) read with Section 433-A Cr. P:C. accused should be released on completion of 14 years of imprisonment? For this purpose, we would make it clear that under · 1-- Section 433 (b) enables the appropriate Government to commute the sentence of imprisonment for life, for imprisonment ofa term not exceeding 14 years or for fine. Under Section 433-A, there is an embargo on that power by providing that where a sentence of imprisonment for life is imposed on conviction ofa person for an offence for which death is one of the pun. ishments provided under the law, such person is not to be released from prison unless he had s~Ned at least fourteen years of imprisonment. This question is considered by various decisions rendered by this Court and by the Privy Council and it has been reiterated that a sentence of imprisonment for. life imposed primafacie be treated as imprisonment for the whole ofthe remaining '>.

period of the convicted person's natural life. It is also established law that rules framed under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life. This Court in State of Madhya Pradesh v. Ratan Singh and Others, [1976] 3 SCC 470 in paragraphs 4 and 9 held thus:- "4. As regards the first point, namely, that the prisoner could be released automatically on the expiry of 20 years under the Punjab Jail Manual or the Rules framed under the Prisons Act, the matter is no loriger res integra and stands concluded by a decision of this Cou1t ,;in Gopal Vinayak Godse v. State ofMaharashtra, [1961] 3 SCR 440, where the Court, following a decision of the Privy Council in Pandit Kishori Lal v.

King Emperor, [(LR 72 IA I : AIR 1945 PC 64] observed as follows: "Under that section, a person transported for life or any other term before the enactment of the said section would be treated as a person sentenced to rigorous imprisonment for life or for the said tenn. If so, the next question is whether there is any provision of law 1-' SHRI Bl-IAGWAN '"STATE OF RAJASTl-IAN [K. G. 13ALAKRISl-INAN. J. ] 667 whereunder a sentence for life imprisonment, without any formal remission by appropriate Government can be automatically treated as one for a definite period. No such provision is found in the Indian Penal Code of Criminal Procedure or the Prisons Act. * * * * * A sentence of transportation for life or imprisonment for life must primafacie be treated as transpo11ation or imprisonment for the whole of the remaining period of the convicted person's natural life.

The Court further observed thus: But the Prisons Act does not confer on any authority a power to commute or remit sentences; it provides only for the regulation of prisons and for the treatment of prisoners confined therein. Section 59 of the Prisons Act confers a power on the State Government to make rules, inter alia, for rewards for good conduct. Therefore, the rules made under the Act should be construed within the scope of the ambit of the Act. ... Under the said rules the orders of an appropriate Government under Section 40 I, Criminal Procedure Code, are a prerequisite for a release. No other rule has been brought to our notice which confers an indefeasibie right on a prisoner sentenced to .. transportation for life to an unconditional release on the expiry of particular term including remissions. The rules under the Prisons Act do not substitute a lesser sentence for a sentence of transportation for life.

The question of remission is exclusively within the province of the appropriate Government; and in this case it is admitted that, though the appropriate Government made certain remissions under p Section 401 of the Code of Criminal Procedure, it did not remit the entire sentence. We, therefore, hold that the petitioner has not yet acquired any right to release. It is, therefore, manifest from the decision of this Court that the Rules framed under the Prisons Act or under the Jail Manual do not affect the total period which the prisoner has to suffer but merely amount to administrative instructions regarding the various remissions to be given to the prisoner from time to time in accordance with the rules.

This Court further pointed out that the question of remission of the entire sentence or a part of it lies within the exclusive domain of the appropriate Government under Section 40 I of the Code of Crim inal Procedure and neither Section 57 of the Indian Penal Code nor any Rules or local Acts can stultify the effect of the sentence qf life imprisonment given by the court under the Indian Penal Code. In other words, this Court has clearly held that a sentence for life would ensure till the lifetime of the accused as it is not possible to fix a particular period the prisoner's death and remissions given under the Rules couId not be regarded as a substitute for a sentence of transportation for life. In Marz1 Ram v. Union ofIndia, [1981] I SCC 107, Constitutional Bench of this Court reiterated the aforesaid position and observed that the inevitable conclusion is that since in Section 433-A we deal only with life sentences, remissions lead nowhere and cannot entitle a prisoner to release.

Further, in laxman Naskar (LIFE CONVICT) v. State ofW. B. and another [2000] 7 SCC 626, after referring to the decision of the case of Copa! Vinayak Godse v. State ofMaharashtra, [1961] 3 SCR 440, the Court reiterated that sentence for "imprisonment for life" ordinarily means imprisonment for the whole of the remaining period of the convicted person's natural life; that a convict undergoing such sentence may earn remissions of his part of sentence under the Prison Rules but such remissions in the absence of an order of an appropriate Government remitting the entire balance of his sentence under this section does not entitle the convict to be released automatically before the full life term is served. It was observed that though under the relevant .

Rules a sentence for imprisonment for life is equated with the definite period of20 years, there is no indefeasible right ofsuch prisoner to be unconditionally released on the expiry of such particular term, including remissions an~ that is only for the purpose of working out the remissions that the said sentence is equated with definite period and not for any other purpose. -<C'- Therefore, in the interest of justice, we commute the death sentence imposed upon the appellant and direct that the appellant shall undergo the sentence of imprisonment for life. We further direct that the appellant shall not be released from the prison unless he had served out at least 20 years of imprisonment including the period already undergone by the appellant. As regards offences under Sections 392 & 397 ! PC, we confirm the conviction or the appellant and no separate sentence is awarded. With the above directions and modification in the sentence, the appeal is disposed of. K. K. T.

Appeal disposed of.