Malik Sharief-Ud-Din, J.
1. This judgment will dispose of Murder Reference No. 1 of 1985 (State v. Gursharan Singh etc.), Criminal Appeal No, 3 of 1985 (Prabhat Kumar v. State) and Criminal Appeal No, 5 of 1985 (Gursharan Singh v. State) as all these three matters arise out of the same incident, facts and circumstances.
2. Mr. S. M. Aggarwal, Addl. Sessions Judge, Delhi, found two persons, Gursharan Singh alias Baboo and Parbhat Kumar guilty under Section 302/34, Section 307/34 and Section 392/34 IPC and sentenced them to death under Section 302/34 and to undergo seven years' rigorous imprisonment and a fine of Rs. 1,000/- respectively under Section 307/34 and Section 392/34. Since he had awarded death sentence the same was submitted to this Court for confirmation. The convicts have also preferred separate appeals registered as Cr.A.3/85 (Parbhat Kumar v. State) and Cr.A.5/85 (Gursharan Singh v. State).
3. We have heard the learned Counsel for the parties at great length and we have carefully considered the facts and evidence to find out whether there is any merit in the appeals and whether the death sentence awarded should or should not be confirmed.
4. To begin with, the scene of incident is House No. A-l 1, Kirti Nagar, Delhi where the deceased one Smt. Rajinder Narula was running her sticker manufacturing factory. The house was partly being used for the purposes of residence by her and her husband, Ramesh Narula. Ramesh Narula was independently running another factory for manufacturing stickers at Mayapuri. The first informant in this case is Ramesh Narula, husband of the deceased. There are in all four accused involved in the commission of this crime, namely, the two appellants and one Ramesh and Kishan who are both absconding and could not be sent for trial.
5. On 24-1-83 when this incident took place at about 12.30 P.M., the two appellants along with the two absconding accused Ramesh and Kishan as also the two prosecution witnesses, Naveen and Danny were working in the first floor of the house in a hall while four girls, namely, Elizabeth, Maya, Rita & Madhu were working on ground floor. Out of these four girls, Elizabeth, Madhu and Maya are the prosecution witnesses, PW20, PW22 and PW29 respectively. Naveen and Danny are PWs 5 and 17. The bed-room of the couple was situated in the first floor and the ground floor was also being used partly for residential purposes.
6. On the fateful day all the ten factory workers had resumed their duties as usual at 8 a.m. Maya, was partly working at the residence of the couple. At about 11.00 AM, Ramesh Narula is said to have left for his factory at Mayapuri and at about 11.15 AM Parbhat appellant asked Danny to go to the second floor for getting frames which he declined to do. Before that, the two appellants and the two absconding accused are said to have conferred with each other for some time. When Danny declined to go to the second floor, the appellant Gursharan Singh working as a Foreman of the factory is said to have brought pressure on him and sent Danny to second floor. Soon thereafter appellants Parbhat and Gursharan Singh and the absconding accused Ramesh also went to the second floor where Gursharan appellant told Danny that since he had behaved as a loyal servant of the employer they would teach him a lesson. Immediately thereafter Parbhat and Ramesh held him by his hands and' the appellant Gursharan put a cotton rope around his neck and pulled it. Ramesh gagged his mouth and when he fell down, accused Gursharan hit him with an iron pipe on his forehead while appellant Parbhat and accused Ramesh tied up both his hands. Appellant Parbhat also hit him on the forehead with a hammer and appellant Gursharan pulled his testicles and also dealt a hammer blow on his testicles as a result of which Danny became unconscious, Danny was latter helped by Ramesh Narula who brought him to the first floor and untied his hands. Danny saw the body of Mrs. Narula lying on the first floor and also found Naveen, the four girls and Mr. Narulu to whom he narrated the incident. Mr. Narula summoned a doctor and reported the matter to police. Smt. Narula and Danny were removed to Ganga Ram Hospital where Mrs. Narula was declared dead and Danny was thereafter removed to Willingdon Hospital where surgery was performed on him.
7. The next limb of the prosecution story is that after Danny was sent to second floor and was followed by the appellants and Ramesh, Kishan accused remained on the first floor in the company of Naveen PW. At about 12.30 PM all the three accused came back to first floor and Gursharan Singh appellant sent Kishan absconding accused to fetch Mrs. Narula deceased on the pretext that a quarrel was going on. The moment deceased came to the room, the absconding accused Ramesh and appellant Parbhat put a Nylon cord around her neck and pulled it. Accused Kishan gagged her mouth and pressed her throat while appellant Gursharan Singh picked up a pair of scissors and dealt blows on the right buttock of Mrs. Narula. Naveen was threatened with dire consequences by Gursharan Singh and was told that if he raised any alarm he will be similarly dealt with. After the deceased fell down Naveen went out of the room and went to the ground floor where the girls were working. Ramesh accused is said to have followed hint and told him that if he opened his mouth he will be killed. Naveen was found trembling by die four girls and when lie was asked by I he girls as to why he was shivering, Ramesh accused explained to them that Naveen was terrified as Gursharan had snubbed him. Soon thereafter, appellant Gursharan Singh and Parbhat also came to the ground floor and Gursharan Singh enquired from the girls if there has been any call. He then went to the telephone room and on return the appellants and Ramesh accused told them that they were leaving for lunch. At about 1 p.m. Maya wanted to deliver tea to Mrs. Narula deceased but she got no response from her. She came back and informed the girls. Naveen is said to have remained silent out of fear and Elizabeth then sent Naveen, Maya and Madhu to the first floor workshop where on seeing Mrs. Narula lying on ground Maya shrieked wildly which attracted Elizabeth and Rita also. Elizabeth then came to telephone room to ring up to Mr. Narula but found that its wires were snapped. She then rushed to Mayapuri and informed Mr. Narula. Ramesh Narula accompanied by Elizabeth and others rushed to the scene and untied the nylon cord from the neck of his wife. Then he went to second floor to look for Danny and found, him tied and injured. He brought him to first floor and after untying him sent for Dr. Ajwani. Dr. Ajwani on arrival advised him to take them to hospital and also inform the police. Ramesh Narula then informed police and removed the victims to Ganga Ram Hospital where Mrs. Narula was declared dead. At that stage whatever cryptic information he could get from Danny and Naveen about the four accused persons including the two appellants being responsible for commission of this crime, was conveyed by him to the police. On 25-1-83, Ramesh Narula after checking the articles at his house had also informed the police that one Remote Control of Sony T. V., cash amounting to Rs. 1100/-, one gold chain, one pair of gold nose pin, 6 gold bangles, one gold ring and one silver ring studded with stone were missing from his house.
8. We have already indicated that Smt. Rajinder Narula was declared dead at Ganga Ram Hospital. She was taken back to house and in this confusion Danny PW, who was in precarious condition, was left over there and on information to the police control room by some employee over there he was removed to Willingdon Hospital where he was examined vide M.L.C. Ex.PW2l/A at 3.30 p.m. with the alleged history of assault by 3/4 persons. He was operated upon for his injury of urethra consequent upon a lacerated wound of his scrotum.
9. Appellant Gursharan Singh was arrested on 2-2-83 in Delhi with a brief case containing Rs. 2600/-, one Remote Control of Sony T. V., one Cassette Tape Recorder, one cream bottle, one terri cot shirt, one Lungi, one towel etc. On the same day he made a disclosure statement regarding having sold gold ornaments to a shop-keeper at Lakhna in U.P. through Phupha of Ramesh living in Khandesi. He also pointed out to the pair of scissors and a hammer from underneath a rack lying in the first floor portion of the workshop in the house of the deceased and also got recovered four gold bangles from the shop of Ram Sarup Kushwaha at Lakhna, District Itawa on 8-2-83. In a test identification parade held by Shri Om Prakash, Metropolitan Magistrate PW 28 these gold bangles were identified correctly by Ramesh Narula PW 30, husband of the deceased as the same which belonged to the deceased. Appellant Parbhat is said to have surrendered before the court on 15th March 1984.
10. The defense set up as unfolded in their statements under Section 313 Cr. P.C. is that they were working in the factory of the deceased with co-workers as alleged. It is said that the deceased and Ramesh Narula had strained relations for many years for the reason that the husband used to employ young girls in the factory and flirt with them. It is also said that Elizabeth PW20 was one of such girls and PW Danny had also fallen for her. It is also said that Mrs. Narula had warned both Danny and Elizabeth that she would terminate their services. All this is, perhaps, said to suggest that Danny and Elizabeth were responsible for this murder and that the injuries to Danny were caused by the deceased in her self-defense and Elizabeth thereafter tied his hands to give the incident a different look. That also was the impression which was conveyed to the court during the course of arguments by Mr. Frank Anthony.
11. We may right in the beginning state that this is an absurd defense as it suffers from basic infirmity as the victims were found on two different floors and the accused persons were not found around after the incident. In fact, it is only by sheer luck that two of the appellants were apprehended. One can justifiably ask as to why the other two workers, accused Ramesh and Kishan are still absconding after the incident. The witnesses in this case are their co-workers and they had no reason to falsely involve them. The suggestion given is that Elizabeth was flirting both with Mr. Narula, husband of the deceased and Danny PW, his servant. This is absurd. In fact, Elizabeth PW20 who was initially working in the factory of Ramesh Narula had been turned out but she had been re-employed by the deceased in her factory. The deceased could not have done so if she had suspected that Elizabeth was flirting with her husband.
12. We need not over-burden this judgment by making reference to the entire evidence adduced in the case. The learned Addl. Sessions Judge has extensively reproduced it and dealt with it. The cause of death of the deceased is asphyxia due to strangulation and it is not disputed. The injuries found on the person of Danny are not in controversy nor are the injuries sustained by the deceased in dispute. In fact, there are two eye witnesses to the occurrence, namely, PW5 Naveen and PW17 Danny. PW10 Kishan Lal Narula brother of Ramesh Narula is witness to the arrest of Gursharan Singh appellant and to the disclosure statement made by Gursharan Singh on 2-2-83 in pursuance of which four gold bangles were recovered from PW27 Ram Sarup Kushwah who is also witness to the recovery. PW 11 Raj Kumar Narula is a witness to the seizure made of some articles connected with the case from the house of the deceased and found at the scene of incident as also to the seizure of hammer and a pair of scissors at the instance of Gursharan Singh appellant. Then we have the testimony of PW 20 Elizabeth, PW22 Madhubala PW30 Ramesh Narula and PW 29 Maya about the other circumstances such as that immediately before the incident accused were working in the first floor; that when Naveen came down after about half past twelve he was trembling, that he was followed by Ramesh accused who tendered an Explanationn as to why he was trembling, that Gursharan Singh went to the telephone room and after returning back all of them left on the pretext of going for lunch and then never returning, that at about 1.00 p.m. Maya wanted to deliver tea to the deceased and when she got no response the dead body of the deceased was discovered in the workshop on first floor, that Danny was not found around and that information about it was conveyed by Elizabeth to Mr. Narula who on arrival untied the Nylon Cord from the neck of his wife and found Danny in injured and tied condition on second floor and brought him down and untied him and that Naveen and Danny narrated as to how the incident had taken place.
13. In fact the main witness in this case is Naveen PW5. True that he did not disclose the details about the incident before the arrival of Ramesh Narula but that he has explained and there is evidence that he was trembling as he too had been threatened to be killed. He only felt assured of safety when Ramesh Narula and others arrived on the scene and then he immediately disclosed as to how and in what manner incident had taken place. His conduct under the circumstances of this case can neither be said to be unnatural nor abnormal. In fact, the accused have to explain as to why after they left the house on the pretext of taking lunch they did not return and why up to date two of the accused Ramesh and Kishan are still absconding? Why the telephone line was snapped? So is the evidence that appellant Gursharan Singh before leaving the premises went to the telephone room. Why, if we may so ask, he found it necessary to cut off telephone line? It is difficult to believe that Gursharan Singh appellant felt feverish at 11.30, as stated by him, and left the factory and when reported back on duty around 2.30 p.m. was taken into custody by police. What happened to his other co-accused, Parbhat, Ramesh and Kishan? We are only making reference to these facts to indicate the absurdity of the defense version. This is not to suggest that these people have to prove their innocence but the conduct of the accused definitely is a relevant factor to be taken into consideration in a criminal trial.
14. The learned Addl. Sessions Judge has made a reference to the testimony of various PWs at great length and for adequate reasons he has believed them. There is over-whelming evidence on record that the appellants along with the two absconding accused, Danny, Naveen PWs and the four girls, Elizabeth, Madhu, Maya and Rita at the relevant time and date were working in the house of the deceased in her factory for manufacturing stickers and while the male employees were working in the first floor, the female employees were working on the ground floor. This is not disputed. It is also not disputed that a part of the first floor was being used as bed-room while a part of ground floor was also used for residential purposes. There is no dispute about it. There is ample evidence on record that after the incident Naveen PW was found trembling and when these four girls asked as to why he was trembling, Ramesh who was following him said that Gursharan Singh had snubbed him. It is also In evidence that soon thereafter Gursharan and Parbhut also came to the ground floor and Gursharan went to telephone room and on returning back all the accused left the house on the pretext of taking lunch and did not return thereafter. It is true that Naveen did not disclose anything till he felt assured about his safety on arrival of Mr. Narula and others. There is no serious challenge to all these facts. There is evidence of Elizabeth that when she wanted to telephone to Mr. Narula the telephone line was found snapped and before it was found to be so Gursharan Singh had gone to the telephone room and he alone had the chance to snap the wires. In fact, Elizabeth, Madhu and Maya PWs have seen Naveen trembling; Ramesh accused tendering Explanationn for his trembling; Gursharan Singh going to the telephone room and all the accused leaving the premises on the pretext of taking meal and then not returning thereafter. They are also witnesses to the fact that they found the deceased lying on the first floor soon after the accused left the first floor and they are also witnesses to the fact that at that time Danny was not in sight. There is no reason to disbelieve Elizabeth PW that thereafter she fetched Ramesh Narula and Ramesh Narula discovered Danny on the second floor and brought him down to the first floor and untied him. All these witnesses along with Ramesh Narula have also testified to the fact that Nylon Cord tied around the neck of the deceased was untied by Ramesh Narula, These girls and Ramesh Narula are also witnesses to the fact that soon after arrival of Mr. Narula, Naveen and Danny PWs disclosed to Ramesh Narula as to how the incident took place and at whose hands. There is no challenge to the fact that Ramesh Narula called Dr. Ajwani and also went to police station and made report in terms of whatever little at that stage was disclosed to him by Naveen and Danny. It is also clear from the evidence that soon thereafter police came to the scene of incident and none of the accused was found around. In fact, the two appellants came to be arrested in the circumstances stated by the prosecution and two of the accused are still absconding. One does not know why? If the appellants and other absconding accomplice were not connected with the commission of crime they would be present in the premises. There is no serious challenge to the testimony o! Naveen and Danny PWs. They are not inimical to the accused. In fact they were co-workers and there is no history of any hostility against the accused. One of these two witnesses namely, Danny PW was himself victim of the ghastly act of the accused and there is no reason for him to involve innocent and screen the real culprit.
15. The defense version that Elizabeth and Danny caused this incident makes no sense. It will be seen that the deceased is in her room all the time. Elizabeth is with her co-workers in the ground floor all the time, till the discovery is made. There is no dispute that all these girls were working in the ground floor and accused person together with Danny and Naveen were working in the first floor. Who then caused this incident and how can one believe such an absurd defense when none of the lady workers has said that Elizabeth had parted with their company any time before the incident was discovered. The only persons at the time of incident who were in the first floor were the accused and PWs Naveen and Danny and the deceased. Danny is subjected to a murderous attack, Naveen is trembling after the incident and comes to the ground floor followed by Ramesh accused who threatened him. Who else, if not the accused, under these circumstances could have caused this incident? Gursharan Singh appellant's plea that he was arrested on the same day from the same premises at 2.30 P.M. is absurd. Why, if we may ask so, other accomplice are not found in the premises and why two of them are still absconding? Naveen PW has no axe to grind on either side and there is no reason why his testimony should not be believed.
16. Above all, we have the testimony of PW10, Kishan Lal Narula, in whose presence Gursharan Singh has made disclosure statement and also of PW27 Ram Sarup Kushwah from whom four gold bangles of the deceased at the instance of Gursharan Singh appellant were recovered. PW27 Ram Sarup Kushwah belongs to U.P. and it cannot be said that he was under the influence of police. He has clearly deposed that on the recommendation of his relative Gursharan Singh accused had sold these bangles to him for Rs. 7000A and that he handed these over to the police. He is a bona fide purchaser and these four bangles were identified us those of the deceased on test identification parade held by PW28 Shri Om Parkash Metropolitan Magistrate Delhi. All these facts leave no doubt in our minds that the accused and accused alone are connected with the commission of this crime.
17. One of the objections is that Danny was found outside the bed room on the first floor. This cannot be sustained. As we know from Ramesh Narula PW30 that he was brought down from 2nd floor by him. Danny, one of the victims, has narrated that part of the story in which the accused made a murderous assault on him. We find no reason to disbelieve him. It will be seen that he had received a very dangerous injury because of rupture of urethra for which he had to undergo surgery and the doctor had opined that he would have died of this injury but for timely surgical aid.
18. A most important aspect of the case is that soon after this incident came to be committed the accused left the factory and accused Gursharan Singh was for the first time apprehended after about 10 days of the incident while accused Parbhat was arrested only on 15-3-83 and the other two accused Ramesh and Kishan are still absconding. This cannot be said to be the conduct of innocent person. The jewellery of the deceased was recovered at the instance of Gursharan Singh appellant indicating a clear motive for the murder. Ram Sarup Kushwah PW27 has proved the involvement of Gursharan appellant in selling these bangles to him. He cannot be said to be a witness who is testifying under some sort of influence. He has said that Gursharan Singh was accompanied by Kedar Singh who was known to him. In these circumstances it is of little significance that the witness to the disclosure made by Gursharan Singh is the brother of deceased's husband.
19. It is next urged that no blood was recovered from the scene of incident. In view of the conduct of the accused and the testimony of Naveen, Danny and other witnesses we do not think it proper to attach any unnecessary significance to this fact. So many persons have been moving around the scene of incident and it is possible that the scene of incident was disturbed.
20. It is also urged that Ramesh Nurula had informed the police about the missing ornaments only on 25-1-83. We fail to understand the significance of this contention. Inquest report Ex. PW1 /A has been prepared on 24-1-83 and it clearly makes mention about the ornaments having been removed as also about rope etc. This goes to show that the investigating officer had taken note of the fact that the ornaments of the deceased were missing. All that Ramesh Narula PW30 seems to have done on 25th is to give details of the missing articles on 25th Jan. 1983 after properly verifying the same. One of the objections raised is that Naveen PW was silent till the arrival of doctor. This is not true. Evidence is to the effect that immediately on arrival of Ramesh Narula and others when Naveen felt assured about his safety he disclosed the events to him. Earlier he was frightened and even the four girls had seen him trembling.
21. On the basis of these observations, we find that there is no scope for taking any other view of the case. From our point of view the learned Addl. Sessions Judge has rightly found the appellants guilty under Sections 302/34,307/34 and 392/34, IPC. The learned defense counsel however, submitted that this is not a case where death sentence should have been awarded to the appellants. His contention is that this is not the rarest of rare case and the learned Addl. Sessions Judge was not right in awarding death sentence to the appellants. It appears that the learned Addl. Sessions Judge has been moved by the betrayal part of the conduct of the accused. From our point of view all murders are ghastly. Rarest of rare case of murder would be one which would really shock the conscience of humanity. In the circumstances of this case, thereforee, we are of the view that death sentence awarded to the appellants should not be confirmed. We accordingly refuse to confirm the same and instead sentence the appellants to undergo imprisonment for life. The sentences awarded to the appellants under Section 307/34 and Section 392/34 by the learned Addl. Sessions Judge are maintained. We, however, direct that all the sentences shall run concurrently. The Murder Reference is decided accordingly.