Ishwari Lal Yadav vs State Of Chhattisgarh

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.1416-1417 OF 2017

Ishwari Lal Yadav …..Appellant

Versus

State of Chhattisgarh …..Respondent

WITH

CRIMINAL APPEAL NOS.300-301 OF 2018

Nihaluddin @ Khanbaba & Ors. …..Appellants

Versus

State of Chhattisgarh …..Respondent

CRIMINAL APPEAL NOS.1418-1419 OF 2017

Kiran Bai …..Appellant

Versus

State of Chhattisgarh …..Respondent Signature Not Verified

Digitally signed by R

AND NATARAJAN Date: 2019.10.03 18:34:11 IST Reason:

1 Crl.A.Nos.1416-17/17 etc.

CRIMINAL APPEAL NOS.298-299 OF 2018

Rajendra Kumar & Anr. …..Appellants

Versus

State of Chhattisgarh …..Respondent

JUDGMENT

R. Subhash Reddy, J.

1. All these appeals are directed against the common judgment of the

High Court of Chhattisgarh at Bilaspur dated 01.12.2016 passed in Criminal

Reference No.1 of 2014 and Criminal Appeal No.511 of 2014, as such they

are disposed of by this common judgment and order.

2. All the appellants were charged for offence under Sections 364/34 read

with 120B; 302/34 read with 120B and 201, Indian Penal Code (IPC). Vide

judgment dated 27.03.2014 passed in Sessions Trial No.61 of 2011, the

learned Sessions Judge, Durg, has convicted and sentenced the appellants.

For the offence under Sections 364/34 read with 120B, IPC they were

convicted and sentenced for imprisonment for life and fine of Rs.5000/- each,

in default of payment of fine, to undergo further rigorous imprisonment for four

months. For the offence under Sections 302/34 read with 120B, IPC death

2 Crl.A.Nos.1416-17/17 etc.

penalty was imposed with a fine of Rs.5000/- each, in default of which, they

were sentenced to undergo further rigorous imprisonment for four months.

For the offence under Section 201, IPC, rigorous imprisonment for five years

and a fine of Rs.2000/- each was imposed, in default of payment of fine, they

were sentenced to undergo further rigorous imprisonment for two months.

3. In view of death penalty imposed on the appellants, a reference was

made to the High Court, as required under Section 366 of Cr.P.C. and further

appellants-accused have filed Criminal Appeal No.511 of 2014 before the High

Court. By a common judgment dated 01.12.2016, the High Court has

confirmed death sentence on the two main accused, namely, Ishwari Lal

Yadav and Smt. Kiran Bai and modified the sentence of other appellants to

one of imprisonment for life without any entitlement of remission or parole.

4. The deceased, a small two year old boy, by name, Chirag Rajput was

the son of Poshan Singh (PW-3) and Savitri Bai (PW-5). PW-5 works as a

domestic help whereas Poshan Singh (PW-3) was working in Bhilai. Smt.

Vandana Rajput (PW-21) is the sister of Savitri Bai (PW-5) and was at home

along with the minor child – Chirag – on fateful day, i.e., 23.11.2010. When

Vandana Rajput (PW-21) and deceased boy Chirag Rajput were at home on

23.11.2010, Chirag went outside the house to play while she was inside. After

sometime when she went out, she could not find Chirag and Chirag was

missing. She immediately rang her sister and brother-in-law, i.e., PW-5 and 3

respectively who came back to their house.

3 Crl.A.Nos.1416-17/17 etc.

5. It is the case of the prosecution that the two main accused, Smt. Kiran

Bai and her husband Ishwari Lal Yadav believed in tantrism. Smt. Kiran Bai

wanted to attain siddhi. She was also proclaimed as ‘gurumata’. To propitiate

the God, she asked her husband and disciples who are the other co-accused

along with them, to get a small child for human sacrifice. The main accused

were neighbours to PW-3 and 5. It is alleged that for the purpose of sacrifice

to God, the child Chirag was kidnapped and murdered in a gruesome manner,

inside the house of main accused Kiran Bai and Ishwari Lal Yadav. Thereafter

he was buried in the precincts of the house. To avoid sound of cries, music

system was played loudly.

6. After the information from Vandana Rajput (PW-21) to her sister Savitri

Bai (PW-5) and brother-in-law Poshan Singh (PW-3), all started searching for

Chirag. When the parents of the child, family members and other people of

the neighbourhood were searching for missing boy, they became suspicious

from the loud music, emanating from the house of two main accused.

Thereupon, some people have entered the house of Kiran Bai and Ishwari Lal

Yadav and found five mounds of freshly dug earth. It is alleged that there was

also a leaf bowl (Dona), one small bowl (Katori), one small round metal pot

(Lota), a trident (Trishul), idols and pictures of Gods and other items of puja

were lying there. There was blood on some of these items. It is alleged that

when the crowd asked the accused what had happened, Smt. Kiran Bai and

Ishwari Lal Yadav confessed that they had sacrificed Chirag with the help of

4 Crl.A.Nos.1416-17/17 etc.

other co-accused and begged for mercy. Immediately thereafter, the crowd

started digging the freshly dug earth and body of Chirag was taken out.

Thereafter police came to the site and report was lodged. The body of Chirag

was sent for post-mortem. All the accused were questioned on which they

made some disclosure statements. On the basis of such disclosure

statements, recoveries of certain incriminating articles were made. After

completing the investigation, the police filed final report under Section 173

Cr.P.C. against all the appellants and one other accused by name Krishna

Tambi. However, as he was absconding, his trial was separated. All the

accused have denied the guilt and claimed trial. They were tried for the

offences as referred above before the learned Sessions Judge, Durg and they

were convicted and sentenced vide judgment dated 27.03.2014. All the

appellants were imposed with the penalty of death. Reference was made to

the High Court under Section 366 of the Cr.P.C.

7. Appellants have also challenged their conviction and sentence imposed,

by way of criminal appeal. Both were considered by a common judgment.

While confirming the conviction under Section 302/34 read with Section 120B,

IPC and sentence of death penalty on the main accused, namely, Ishwari Lal

Yadav and Kiran Bai, the High Court has modified the punishment of other

accused to that of imprisonment for life.

8. We have heard Sri Siddhartha Dave, learned senior counsel appearing

for the appellants in Crl. Appeal Nos.1416-1417 of 2017 and 1418-1419 of

5 Crl.A.Nos.1416-17/17 etc.

2017; Sri Birendra Kumar Mishra, learned counsel for the appellants in Crl.

Appeal Nos.300-301 of 2018; Sri Rajeev Kumar Bansal, learned counsel

appearing for the appellants in Crl. Appeal Nos.298-299 of 2018 and Sri

Sumeer Sodhi, learned counsel appearing for the respondent-State of

Chhattisgarh.

9. In these appeals, mainly it is pleaded by the learned senior counsel Sri

Siddhartha Dave appearing for the appellants that except the alleged

confessional statement, there is no other evidence to prove the guilt of

accused for kidnapping and murder of deceased boy – Chirag. It is further

submitted that all the findings recorded by the trial court, as confirmed by the

High Court, for conviction of the appellants rest upon confessional statement

of the appellants which is barred under Sections 24, 25 and 26 of the Indian

Evidence Act, 1872. It is submitted that there are material contradictions in

the depositions of witnesses about the arrival of police to the place of

occurrence of the offence and on the alleged extra-judicial confessions, inspite

of the same, courts below have accepted such evidence on record and

passed the impugned judgments. It is submitted that, as the body of the

deceased was not found in exclusive possession of the main accused, courts

below have committed an error in taking assistance of Section 106 of the

Indian Evidence Act. It is submitted that body was discovered only after large

crowd had gathered. Further, it is submitted that the discovery of skeleton of

other person and also the theory of bad character, that is, appellants were

6 Crl.A.Nos.1416-17/17 etc.

black magic practitioners, is barred under Sections 14, 15 and 54 of the Indian

Evidence Act. It is further submitted that the prosecution has not proved any

ingredient under Section 120B, IPC to prove conspiracy among the appellants

for committing the alleged offence.

10. It is the contention of the learned counsel appearing for the appellants

that there is absolutely no evidence on record to prove that there was a

common intention on the part of such appellants to commit the offence of

kidnapping and murder of the deceased child. So far as the appellants other

than the main accused, it is submitted that the findings of the courts below are

based on the alleged confessional statements and in the absence of any

corroboration, the courts below have committed an error in convicting the

appellants with the aid of Sections 34 and 120B, IPC. It is also the contention,

of the learned counsel for the appellants that there is no reason or justification

for imposing the death penalty on Ishwari Lal Yadav and Kiran Bai, while

modifying the punishment to that of life imprisonment to all other accused. It

is also submitted that the incident in question cannot be considered as the

“rarest of rare cases” so as to impose the capital punishment. The learned

counsel appearing for the appellants, in support of his arguments, has relied

on the following cases :

1. Aghnoo Nagesia v. State of Bihar1

2. Sahadevan & Anr. v. State of Tamil Nadu2 1 1966 (1) SCR 134 = AIR 1966 SC 119 2 (2012) 6 SCC 403

7 Crl.A.Nos.1416-17/17 etc.

3. Shambu Nath Mehra v. The State of Ajmer3

4. Firozuddin Basheeruddin & Ors. v. State of Kerala4

5. Ronny v. State of Maharashtra5

11. On the other hand, Sri Sumeer Sodhi, learned counsel appearing for the

State of Chhattisgarh, has submitted that the case relates to a gruesome

murder of small two year old boy as a human sacrifice and from the oral

evidence on record, the prosecution has proved the guilt of the accused

beyond reasonable doubt, as such there are no grounds to interfere with the

impugned judgment. It is submitted that, all the appellants were present in

the house of the main accused and the fact that the body of the deceased was

also recovered from the house of the main accused, is proved from the oral

evidence of PWs-2, 3, 5, 6, 9, 10, 12, 13 and 16. It is further submitted that

the contradictions referred to by the counsel for the appellants are minor and

they may not affect well reasoned findings and conclusions arrived by the trial

court, as confirmed by the High Court. The learned State Counsel has relied

on the judgment of this Court in the case of Sushil Murmu v. State of

Jharkhand6 to substantiate his arguments.

12. Having heard the learned counsels we have carefully perused the

impugned judgments and also the material on record.

13. To prove the guilt of the accused, prosecution has examined PW 1 to

PW 22. When it was reported by Vandana Rajput (PW-21), who is the sister 3 1956 SCR 199 4 (2001) 7 SCC 596 5 (1998) 3 SCC 625 6 (2004) 2 SCC 338

8 Crl.A.Nos.1416-17/17 etc.

of Savitri Bai (PW-5), Savitri Bai and Poshan Singh (PW-3) came back to their

house. In the evidence of Poshan Singh (PW-3) who is the father of the

deceased child, he has stated that the main accused Ishwari Lal Yadav and

Smt. Kiran Bai are his neighbours and he knows them. He also knows all

other accused because they regularly visit but he could not tell their names.

He further stated that during their search for the missing Chirag along with his

wife Smt. Kiran Bai and others, they heard loud music emanating from the

house of the main accused, which gave suspicion in the minds of the people

in the locality, therefore, they entered the house of Ishwari Lal and Kiran Bai

and noticed that the ground around the place of worship was wet and a knife

was also lying at that place. On digging up the wet place, body of Chirag was

found. The body was in two parts and head had been severed from the neck.

Both the cheeks had been cut. At the place of worship, pictures of Gods have

been placed. At the same time, he stated, he has come to know the names of

other accused after occurrence of the incident. In similar lines is also the oral

evidence of PW-5 who is the mother of the deceased child. In her deposition

she has stated that she works as a domestic help. On the day of occurrence,

when Vandana Rajput (PW-21) has informed the mother of the deceased

child, PW-5 Savitri Bai has come back to the house and it is stated that she

along with her husband and others, were searching for the missing boy, and

on hearing the loud music emanating from the house of Ishwari Lal Yadav they

entered the house. She has further stated that she knows accused Kiran Bai

9 Crl.A.Nos.1416-17/17 etc.

and Ishwari Lal Yadav, Nihaluddin @ Khanbaba, Hemant Sahu and Sukhdev.

She has also stated that all other accused were regularly going to the house

of Ishwari Lal Yadav and Kiran Bai. She too in clear terms has stated that

when they entered the house of Ishwari Lal Yadav and Kiran Bai, they

admitted the guilt of committing murder of Chirag in the form of human

sacrifice and begged for mercy. On suspicion from the members of the group,

the place of worship was dug and on digging, the body of Chirag was found.

His head was separated from the body, both the cheeks had deep cuts and

tongue was cut off. On seeing her child with such condition, she became

unconscious. In her deposition she has specifically stated that police had not

come with them inside the house of Ishwari Lal Yadav, they came later. The

brother of Poshan Singh, Sri Suraj Singh Rajput (PW-2) was also examined.

In his deposition he has stated that he knows all the accused because earlier

he was residing in Ruabandha area where all accused used to reside. In his

deposition he has stated that on call from his brother Poshan Singh (PW-3)

stating that Chirag was missing, he went to the house of his brother and along

with him the sister-in-law and other persons of the locality searched for

Chirag. Thereafter they went to police station, lodged a report and returned to

their locality and on hearing loud music in the house of the tantriks – Ishwari

Lal Yadav and Smt. Kiran Bai – and on getting suspicion, they went inside the

house along with others. He has also stated in his deposition that on

questioning, Ishwari Lal Yadav confessed that he has asked Hemant Sahu to

10 Crl.A.Nos.1416-17/17 etc.

kidnap Chirag for the purpose of human sacrifice. Thereafter puja was done

at the spot and Chirag was sacrificed and buried there. He has further stated

that at the time of human sacrifice, wife of Ishwari Lal Yadav, i.e., Smt. Kiran

Bai, their three children and all other accused were present. Sri Ram Avtar

Gada is also a neighbour of accused Ishwari Lal Yadav and Kiran Bai and

Savitri Bai and Poshan Singh, he was examined as PW-6. In his deposition,

he has stated that the accused Ishwari Lal Yadav and Smt. Kiran Bai were

known tantriks and other accused were their followers. On hearing the loud

music, he went to the house of the main accused, along with others and on

digging the puja area the body of Chirag was found which was in two parts –

severed at the neck and both cheeks were cut. Sri Parasnath Bhuarya who

was examined as PW-9 has stated that on the day of occurrence having come

to know that Chirag was missing, they all were searching for Chirag and on

hearing the loud music coming from the house of accused Ishwari Lal Yadav

and Kiran Bai, they entered their house and he could recognise accused

Ishwari Lal Yadav and since it was dark he could not recognise other accused.

He too stated that when they questioned the accused, the accused Ishwari Lal

Yadav and Kiran Bai confessed that they had sacrificed Chirag and begged for

mercy. Corporator of the area – Rajendra Rajak was examined as PW-10. In

his deposition, he has stated that Chirag’s grandmother has come to his

house and informed about the missing of her grandson Chirag. Thereafter he

has given a suggestion that an announcement be got made from loudspeaker

11 Crl.A.Nos.1416-17/17 etc.

of the mosque. Thereafter the announcement was made. All the people of

the locality were searching for Chirag. He too stated that the house of Poshan

Singh (PW-3) adjoins the house of accused Ishwari Lal Yadav. In his

deposition he has also stated that when the whereabouts of the child were not

known even after the announcement was made and the main accused were

continuously playing music, he along with other persons went inside the house

of accused Ishwari Lal Yadav and Kiran Bai. In his deposition he has also

stated that the main accused have stated that Chirag had been sacrificed in

pursuance of their tantrik activities and had been buried inside the house. At

the same time he stated, he cannot identify the other accused but stated that

some people were present there. The evidence of PW-12 – Dilip Thakur is

also on similar lines stating that after hearing the announcement about the

missing of Chirag he started searching for Chirag along with others. The

evidence of PW-13 – Arvind Singh is also to the same effect. One Sri Shiv

Kumar Rajak was examined as PW-16. In his deposition he has stated that

after hearing the announcement made about the missing of Chirag, son of

Poshan Singh, he joined others. After hearing loud music from the house of

Ishwari Lal Yadav and Kiran Bai he also entered along with others. He has

further stated that after digging the puja area, body of Chirag was found which

was in two parts. Some ash has been smeared on the head of Chirag and

both the cheeks had been cut and tongue was missing. Only thereafter police

was informed. He further stated that when accused Ishwari Lal Yadav was

12 Crl.A.Nos.1416-17/17 etc.

questioned, he confessed that he has asked Hemant Sahu to kidnap the child

and thereafter they had worshipped the child, put tilak, touched the feet then

sacrificed the child. He has also stated that on questioning, the accused

confessed that about six months earlier they had sacrificed one girl child also.

14. From the oral evidence on record of all the persons who have joined the

parents of the deceased child, i.e., Poshan Singh (PW-3) and Savitri Bai (PW-

5), it is clear that they have stated in one voice, that when they entered the

house of the main accused, they have found some area which was wet and

some puja articles were there. When they have noticed fresh mounds of

earth, they have removed the same and found the body of the deceased child

in two parts. All the witnesses have consistently stated that the body was in

two parts, its cheeks were cut and tongue was missing.

15. The first information with the police was recorded by PW-19 – Domar

Singh Thakur. The constable who took the application for post mortem was

examined as PW-1. The doctor who conducted the post mortem on the body

of Chirag was Dr. Lal Mohammad was examined as PW-14. One Patiram

Bareth was examined as PW-11. He was the Patwari of the area and in his

statement he has clearly stated that the house from which the body of the

child was recovered belongs to Ishwari Lal Yadav. PW-18 is the Assistant Sub

Inspector who took accused Ishwari Lal Yadav into custody and recorded his

statement under Ex.P21. The recovery of incriminating articles was

disbelieved by the High Court. From the evidence on record it is also clear

13 Crl.A.Nos.1416-17/17 etc.

that several independent witnesses who were examined on behalf of the

prosecution were in the group of search along with parents of the deceased

and they have entered the house of the main accused on hearing the loud

music. It is also equally clear from the evidence that police have come to the

scene of occurrence only afterwards, when PW-10 – Corporator has informed

the police.

16. From the above evidence on record, it is clear that the parents of the

deceased boy along with others were searching for the boy, on hearing the

loud music from the house of Ishwari Lal Yadav and Kiran Bai, they got

suspicious and entered the house. It is consistently, deposed by the

independent witnesses mentioned above, that when they entered the house of

the main accused, namely, Ishwari Lal Yadav and Kiran Bai, they have

confessed that they have committed murder of the deceased child for the

purpose of sacrifice. There is nothing on record to show that such

confessions are caused by inducement, threat or promise. When such

confessions are corroborated by other evidence on record, the trial court as

well as the High Court, rightly relied on such confessions. From the evidence,

it is proved that the place where the body of deceased Chirag was traced

belongs to Ishwari Lal Yadav and Kiran Bai and in absence of any explanation

from their side, there is no error committed by the trial court in accepting such

evidence on record. It is true that the extra judicial confession is a weak piece

14 Crl.A.Nos.1416-17/17 etc.

of evidence, but at the same time if the same is corroborated by other

evidence on record, same can be accepted.

17. To prove the charge of kidnapping and conspiracy, there is no

acceptable evidence on record. In absence of any corroborative evidence for

kidnapping of the deceased boy by Hemant Sahu and another, the evidence

on record cannot be accepted. Even to prove the common intention to attract

the provision under Section 34, IPC, it requires a pre-arranged plan and prior

concert. Therefore, there must be prior meeting of minds. The common

intention must exist prior to the commission of the act in a point of time. The

burden lies on the prosecution to prove that participation of more than one

person for commission of criminal act was done in furtherance of common

intention. If we closely analyse the evidence on record the common intention

stands proved between Ishwari Lal Yadav and Kiran Bai who are main

accused but at the same time there is no acceptable evidence against all

others to prove their guilt that they have committed the offence with the

common intention. Prosecution has failed to prove the common intention of all

other appellants than the main accused, namely, Ishwari Lal Yadav and Kiran

Bai, either to kidnap or to murder the deceased child on the day of

occurrence. It is borne out from the evidence on record that all other accused

were disciples of self-claimed gurumata, namely, Kiran Bai and they were

regularly visiting the house of the main accused offering fruits and flowers.

There is no consistency of the persons named by the witnesses in the house

15 Crl.A.Nos.1416-17/17 etc.

of Ishwari Lal Yadav and Kiran Bai, when they all entered their house. Even

PW-5 Savitri Bai, in her deposition has clearly stated that all other accused

used to come regularly to the house of Ishwari Lal Yadav and Kiran Bai, along

with the fruits and flowers. The father of the child PW-3 Poshan Singh, in

cross-examination has stated that he knew the names of Ishwari Lal Yadav

and Kiran Bai earlier and he has come to know the names of all other

accused, after the occurrence of the incident. PW-6 Ram Avtar Gada, also

stated in her deposition that the accused Ishwari Lal Yadav and Kiran Bai

were known tantriks and other accused were their followers. Further PW-9

Parasnath Bhuarya, in his deposition has stated that he entered the house

along with the others and he could only recognise Ishwari Lal Yadav and as it

was dark he could not recognise all others. In absence of any consistent

definite evidence regarding presence of all other accused, along with the main

accused, namely, Ishwari Lal Yadav and Kiran Bai and further when the

prosecution has failed to prove either the common intention or the conspiracy

on their part along with the main accused, it is difficult to accept the case of

the prosecution as such they are entitled for the benefit of doubt. In view of

the evidence on record the prosecution has proved the guilt of the main

accused, namely, Ishwari Lal Yadav and Kiran Bai for the offence under

Section 302 read with Section 34 of the IPC. The common intention is to be

restricted only to the main accused Ishwari Lal Yadav and Kiran Bai but same

cannot be applied to others.

16 Crl.A.Nos.1416-17/17 etc.

18. Learned counsel for the appellants has relied on a judgment of this

Court in the case of Aghnoo Nagesia1 to buttress his contention that the courts

below have committed error in recording a finding of guilt of the appellants

based on confession. But same is a case where the appellant therein was

charged under Section 302 IPC for murdering his aunt and others and there

were no eye witnesses to the murder. The principal evidence against the

appellant was First Information Report which contains a full confession of guilt

by the appellant himself. The said confession was made to a police officer

and the same is not provable having regard to Section 25 of the Indian

Evidence Act. Further reliance is also placed on a judgment of this Court in

the case of Sahadevan2. In the aforesaid judgment of two-Judge Bench of

this Court it is held that the extra judicial confession is a weak piece of

evidence and court must ensure that same inspires confidence and is

corroborated by other prosecution evidence. If the totality of oral evidence on

record is considered in the case on hand, it is consistent and inspires

confidence of the case of the prosecution to prove the guilt of the main

accused. We are of the view that the aforesaid judgments would not render

any assistance to support the case of the appellants.

19. Learned counsel also relied on the judgment of this Court in the case of

Shambu Nath Mehra3. In the aforesaid judgment this Court has held that in a

criminal case burden of proof is on the prosecution and Section 106 is

certainly not intended to relieve it of that duty. It is held that on the contrary, it

17 Crl.A.Nos.1416-17/17 etc.

is designed to meet certain exceptional cases in which it would be impossible,

or at any rate disproportionately difficult, for the prosecution to establish facts

which are “especially” within the knowledge of the accused and which he

could prove without difficulty or inconvenience. In this case on hand it is

proved by cogent evidence that the body of Chirag was found in the house of

Ishwari Lal Yadav. By applying the provision under Section 106 of the Indian

Evidence Act definitely it is the burden of the accused to explain the fact within

the knowledge of them how the body of Chirag came to be buried in their

house. The judgment relied on in the case of Shambu Nath Mehra3 also

would not be helpful for the appellants. In the case of Firozuddin

Basheeruddin4 this Court has discussed the ingredients which constitute

criminal conspiracy within the meaning of Section 120B of the IPC. As we are

of the view that the evidence on record is not sufficient to prove the guilt of the

appellants under Section 120B of IPC, as such it is not necessary to elaborate

any further.

20. Vide impugned judgment, the High Court has confirmed the death

sentence imposed on appellants Ishwari Lal Yadav and Kiran Bai. Learned

counsel for the appellants relied on the judgment in the case of Ronny5

wherein this Court has held, in a case of multiple accused, where the

culpability of each accused is not clear to examine whose case falls within the

“rarest of rare cases”, it would serve the ends of justice, if the capital

punishment is commuted into life imprisonment. On the other hand, learned

18 Crl.A.Nos.1416-17/17 etc.

counsel appearing for the State of Chhattisgarh has submitted that the High

Court has considered the aggravating and mitigating circumstances and

confirmed the death sentence so far as main accused, namely, Ishwari Lal

Yadav and Kiran Bai are concerned and there are no grounds to modify the

same. Learned counsel for the State also relied on judgment of this Court in

the case of Sushil Murmu6. In the above said case in similar set of facts

where killing of a nine year old boy as a sacrifice to the deity was dealt with,

this Court has upheld the death sentence imposed on the appellant therein.

21. It is clearly well settled that normal punishment for the offence under

Section 302 IPC is life imprisonment but in a case where incident is of “rarest

of rare cases” death sentence is to be imposed. It is equally well settled that

only special facts and circumstances will warrant passing of death sentence

and a just balance has to be struck between aggravating and mitigating

circumstances, before the option is exercised. While referring to the earlier

cases in the case of Bachan Singh v. State of Punjab 7 and Machhi Singh v.

State of Punjab8 further guidelines are summarised in the judgment in the

case of Sushil Murmu6. Paragraphs 15 and 16 of the judgment read as under :

“15. The following guidelines which emerge from Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] will have to be applied to the facts of each individual case where the question of imposition of death sentence arises: (Machhi Singh case [(1983) 3 SCC 470 : 1983 SCC (Cri) 681] SCC p. 489, para 38)

7 (1980) 2 SCC 684 8 (1983) 3 SCC 470

19 Crl.A.Nos.1416-17/17 etc.

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the “offender” also require to be taken into consideration along with the circumstances of the “crime”.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

16. In rarest of rare cases when the collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. murder by a hired assassin for money or reward or a cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course of betrayal of the motherland.

20 Crl.A.Nos.1416-17/17 etc.

(3) When murder of a member of a Scheduled Caste or minority community etc. is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of “bride-burning” or “dowry deaths” or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

(5) When the victim of the murder is an innocent child, or a helpless woman or an old or infirm person or a person vis-à-vis whom the murderer is in a dominating position or a public figure generally loved and respected by the community.”

22. It is clear from the above judgment that this Court has laid down the

guidelines, which are to be considered, in a given case whether capital

punishment should be imposed or not. There cannot be any hard and fast

rule for balancing the aggravating and mitigating circumstances. Each case

has to be decided on its own merits. In a “rarest of rare case” capital

punishment is to be imposed. To come to conclusion in each case

aggravating and mitigating circumstances are to be considered. Further

factors like, age of the accused, possibility of reformation, gravity of the

offence etc. are also to be kept in mind.

23. In this case it clear from the evidence on record, the main accused,

namely, Ishwari Lal Yadav and Kiran Bai have committed the murder of the

two year old child Chirag as a sacrifice to the God. It is to be noticed, they

21 Crl.A.Nos.1416-17/17 etc.

were having three minor children at that time. Inspite of the same, they

committed the murder of the deceased, a child of two years of age brutally.

The head of the helpless child was severed, his tongue and cheeks were also

cut. Having regard to age of the accused, they were not possessed of the

basic humanness, they completely lacked the psyche or mindset which can be

amenable for any reformation. It is a planned murder committed by the

aforesaid two appellants. The appellants herein who are the main accused,

namely, Ishwari Lal Yadav and Kiran Bai were also convicted on an earlier

occasion for the offence under Section 302/34 and Section 201 of IPC in

Sessions Trial No.98/2011 by the learned Sessions Judge, Durg, for similar

murder of a 6 year old girl for which they were convicted and sentenced to

death, but such sentence was modified on appeal in Criminal Appeal No.1068

of 2014 by the High Court of Chhattisgarh at Bilaspur and they were

sentenced to undergo life imprisonment without any remission or parole. On

appeal to this Court, the order of the High Court is. Such conviction for similar

offence can be considered as aggravating factor. By following the guidelines

as mentioned in the case of Sushil Murmu6 we are of the view that this is a

case of “rarest of rare cases” where death sentence imposed by the trial court

is rightly confirmed by the High Court. As the case is proved beyond any

reasonable doubt so far as the main accused are concerned, the judgment

relied on by the learned counsel for the appellants in the case of Ronny5 also

is not helpful to them.

22 Crl.A.Nos.1416-17/17 etc.

24. For the aforesaid reasons the appeals filed in Criminal Appeal Nos.300-

301 of 2018 and Criminal Appeal Nos.298-299 of 2018 are allowed and

conviction recorded and sentence imposed upon the appellants therein is set

aside. They shall be released forthwith if their custody is not required for any

other case. Criminal Appeal Nos.1416-1417 of 2017 and Criminal Appeal

No.1418-1419 of 2017 filed by Ishwari Lal Yadav and Kiran Bai respectively

are partly allowed, setting aside the conviction recorded and sentence

imposed for the offence under Section 364/34 and 120B of the IPC. However,

their conviction under Section 302/34 and 201, IPC is confirmed, confirming

the death sentence imposed on them for the offence under Section 302/34

IPC. The sentence imposed on them under Section 201 IPC is also

confirmed.

….……………………………….J. [ROHINTON FALI NARIMAN]

….……………………………….J. [R. SUBHASH REDDY]

….……………………………….J. [SURYA KANT]

New Delhi.

October 03, 2019.

23 Crl.A.Nos.1416-17/17 etc.

REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1522 OF 2019 (Arising out of S.L.P.(Crl.)No.7947 of 2017)

Ishwari Lal Yadav & Anr. …..Appellants

vs.

State of Chhattisgarh ...Respondent

J U D G M E N T

R.Subhash Reddy,J.

1. Leave granted.

2. This appeal is filed by appellant Nos. 1 and

2 in Criminal Appeal No.1068 of 2014 filed

before the High Court of Chhattisgarh, Bilaspur,

aggrieved by the common judgment in Criminal

24 Crl.A.Nos.1416-17/17 etc.

Reference No.4 of 2014 and Criminal Appeal No.1068 of

2014. The appellants herein were charged for

offences punishable under Sections 364/34 read with

120B IPC, Sections 302/34 read with 120B IPC and Section

201 IPC. On the aforesaid charges they were tried in

Sessions Trial No.98 of 2011 by the learned

Sessions Judge, Durg, and they were convicted for the

offences charged and sentenced for imprisonment for life

and a fine of Rs.5,000/- was imposed for the offence

under Sections 364/34 read with 120B IPC, sentence of

death and a fine of Rs.5,000/- for the offence under

Sections 302/34 read with 120B IPC, rigorous imprisonment

for five years and a fine of Rs.2,000/- for the offence

under Section 201 IPC. In view of the death sentence

imposed, the learned Sessions Judge made a reference to

the High Court in Criminal Reference No.4 of 2014.

Challenging the conviction recorded and the sentence

imposed on them, appellants have filed Criminal Appeal

No.1068 of 2014. Vide impugned judgment dated 30.11.2016,

the High Court has confirmed the conviction recorded

against appellants. However, the death sentence imposed

by the Trial Court is modified to imprisonment for life.

It was further observed that appellants-accused are not

25 Crl.A.Nos.1416-17/17 etc.

entitled to any remission or parole. Aggrieved by the

said judgment this appeal is filed.

3. On 04.03.2010, Beeru Dewar (PW-2) had lodged a

complaint with the Police Station, Bhilai Nagar,

stating that his six year old daughter Ku. Manisha

is missing.

4. On 23.11.2010, a child by name Chiraj Rajput was

found missing from his house. A missing report was

given in Police Station, Bhilai Nagar, District

Durg. Thereafter, the parents were searching for

their child. On hearing loud music being played in the

house of appellants i.e. Ishwari Lal Yadav (A-

1) and Smt. Kiran Yadav (A-2), they entered their

house. When they entered the house they found

freshly dug mound of earth and appellants

herein who were claiming as “tantriks”, have admitted

that they had killed Chirag and buried him there to

attain “siddhi”. Further, it is the case of the

prosecution that during the investigation in the said

case, Mahanand Yadav (A-4), made a statement to the

police that about seven/eight months earlier, he had

kidnapped one small girl on the asking of A-1 and A-2.

26 Crl.A. @ SLP(Crl.) No. 7947 of 2017 27

5. The said girl had been killed by way of human

sacrifice and her body was buried in the compound of

the appellants herein. On 24.11.2010, one constable of

Bhilai Nagar Police Station made ‘O’ entry to the

effect, that an information has been received about

the kidnapped girl who had been killed by way of human

sacrifice and her skeletal remains were recovered

along with the cloths which she was wearing. On the

said date a statement was recorded under Ext.P-15.

On the basis of the aforesaid statement, investigation

was done and skeletal remains of the child were

recovered.

6. After recovery of the skeletal remains, DNA test

was conducted and it was determined that skeletal

remains found in the house of Ishwari Lal Yadav (A-1)

and Smt. Kiran Yadav (A-2) were of Ku.Manisha who was

also reported to be missing. After completing

investigation, the appellants herein were charged

for the offences alleged against them.

7. On behalf of the prosecution, PW-1 to PW-21 were

examined to prove the guilt of accused. The Trial

Court on appreciation of evidence on record has held

27 Crl.A. @ SLP(Crl.) No. 7947 of 2017 28

that the appellants and two other accused are guilty

for the charges framed against them, convicted and

sentenced the appellants as follows :

Accused Conviction Sentence U/s.

Ishwari Lal Yadav 364/34 and Imprisonment for life and 120B IPC fine of Rs.5000/-. In default of payment of fine, further rigorous imprisonment for four months.

302/34 and Death sentence and fine of 120B IPC Rs.5000/-. In default of payment of fine, further rigorous imprisonment for four months.

201 IPC Rigorous imprisonment for five years and fine of Rs.2000/-. In default of payment of fine, two months rigorous imprisonment.

Smt. Kiran Yadav @ 364/34 and Imprisonment for life and Gurumata 120B IPC fine of Rs.5000/-. In default of payment of fine, further rigorous imprisonment for four months.

302/34 and Death sentence and fine of 120B IPC Rs.5000/-. In default of payment of fine, further rigorous imprisonment for four months.

201 IPC Rigorous imprisonment for five years and fine of Rs.2000/-. In default of payment of fine, two months rigorous imprisonment.

28 Crl.A. @ SLP(Crl.) No. 7947 of 2017 29

8. On appeal, High Court has acquitted accused nos.3

and 4, namely, Rajendra Kumar Mahar and Mahanand Yadav

respectively. So far as appellants are concerned

their conviction is confirmed, the death sentence

imposed on them is modified to one of imprisonment for

life for offence under Section 302/34 and 120B, IPC.

At the same time their conviction and sentence is

confirmed for the offence under Section 364/34 and

120B IPC and 201 IPC.

9. We have heard Sri Siddhartha Dave learned senior

counsel appearing for the appellants and Sri Sumeer

Sodhi,learned counsel appearing for the respondent-

State of Chhattisgarh.

10. It is contended by the learned senior counsel for

the appellants that the prosecution has failed to

prove the guilt of accused beyond reasonable doubt and

inspite of the same they were convicted and sentenced

for the offences alleged. It is submitted that the

confessional statements ought not to have been relied

on in absence of any corroborative evidence to prove

29 Crl.A. @ SLP(Crl.) No. 7947 of 2017 30

the guilt of the accused. It is further contended that

there are material contradictions among the witnesses,

as such the evidence is unreliable. It is further

submitted that the femur bone that was preserved, was

sent to CDFC Hyderabad for DNA analysis, and in fact

the report relied upon by the prosecution was the FSL

Report, Sagar. Even the FSL Report does not

conclusively draw to the fact that PW-3 is the mother,

but, states that she is a biological relative. There

are also discrepancies with regard to the cloths found

on her. Further, it is submitted that appellants were

in custody from 23.11.2010 and recoveries were made on

24.11.2010 but disclosure statements were recorded

thereafter.

11. As such, it is submitted that, same raises a

strong probability that these weapons have been

planted by the police. It is further submitted that

even the blood which was found on the weapons,

there is no proof that it was human blood. In

support of his arguments, learned counsel has relied

on the judgments of this Court in the case of Aghnoo

30 Crl.A. @ SLP(Crl.) No. 7947 of 2017 31

Nagesia vs. State of Bihar9, Sahadevan & Anr. vs.

State of Tamil Nadu10, Shambu Nath Mehra vs. The State

of Ajmer11, Ronny vs. State of Maharashtra12, State of

Goa vs. Sanjay Thakran13, Prakash vs. State of

Karnataka14 and Firozuddin Basheeruddin & Ors. vs.

State of Kerala15.

12. To buttress the submission that as there is

strong probability that the weapons seized have been

planted by the police, as such recoveries cannot be

relied on, learned counsel relied on the judgment in

the case of Sanjay Thakran5. Further, reliance is

also placed on the judgment in the case of Prakash6.

In support of his submission that as the blood on the

weapon used in crime is not shown to be that of the

deceased, it raises a grave suspicion that

investigation was not fair and benefit of doubt is to

be given to the accused.

13. On the other hand Sri Sumeer Sodhi, learned

counsel appearing for the respondent-State has 9 AIR 1966 SC 119 10 (2012) 6 SCC 403, 11 1956 SCR 199 12 (1998) 3 SCC 625, 13 (2007) 3 SCC 755 14 (2014) 12 SCC 133.

15 (2001) 7 SCC 596

31 Crl.A. @ SLP(Crl.) No. 7947 of 2017 32

submitted that as the case relates to the gruesome

murder of a minor girl of six years, for the purpose

of human sacrifice and from the oral evidence on

record, the prosecution has proved the guilt of the

accused beyond reasonable doubt, as such there are no

grounds to interfere with the impugned judgment. It is

submitted that when a child of two years by name

Chirag was missing, his parents were on search for

missing child along with family members and residents

of locality, on hearing the loud music emanating from

the house of the appellants, they got suspicious and

entered the house. It is submitted that at that point

of time both the appellants-accused have confessed

their guilt of committing the act of murder of Chirag

and burying the body in the precinct of the house. It

is submitted that looking at the fresh mound of mud,

same was excavated and the body of Chirag was found in

two parts. At that time one of the accused in the

said case also revealed committing of similar offence

of a girl child. It is submitted that there was

already a complaint of missing child of six year old

daughter of Beeru Dewar (PW-2), lodged on 04.03.2010,

32 Crl.A. @ SLP(Crl.) No. 7947 of 2017 33

investigation was made. Further investigation of the

police revealed that they have kidnapped and committed

murder of minor girl by name Km.Manisha. She was also

buried near to the place of Chirag. As such by

excavating skeletal remains along with cloths were

taken out. It is submitted that from the evidence on

record it is clearly proved by confession of several

independent witnesses, which is corroborated by other

evidence on record to prove that Manisha was murdered

for the purpose of human sacrifice by appellants, as

such they were rightly convicted and sentenced by the

Trial Court and their sentence of death was modified

by the High Court to that of imprisonment for life

without any remission or parole. As such, it is

submitted that there are no grounds to interfere with

the same. Learned counsel has also relied on the

judgment in the case of Sushil Murmu vs. State of

Jharkhand16.

14. Having heard the learned counsels on both the

sides, we have perused the impugned judgment and also

the other material on record.

16

(2004) 2 SCC 338.

33 Crl.A. @ SLP(Crl.) No. 7947 of 2017 34

15. To prove the guilt of appellants-accused, several

independent witnesses were examined. From the evidence

on record it is clear that on 23.11.2010 when there

was search by the parents of the deceased Chirag

Rajput for their missing child along with others of

the locality, on hearing the loud music from the house

of the appellants, they got suspicious and entered the

house. Upon entering the house a freshly dug mound of

earth was found in the house of the appellants and on

confession made by the appellants body of Chirag was

traced. Further, as it was disclosed by one of the

accused that about 7/8 months earlier, they have

kidnapped one small girl on the asking of A-1 and A-2

and they have handed over the girl to Ishwari Lal

Yadav and Kiran Yadav, further investigation was made

in view of the complaint lodged by Beeru Dewar (PW-2)

on 04.03.2010. On 04.03.2010, Beeru Dewar (PW-2)

filed a report to the effect that his six year old

daughter Ku.Manisha was missing. On further

investigation, the skeletal remains were also

recovered from the house of the appellants from the

place adjoining from where body of Chirag was taken

34 Crl.A. @ SLP(Crl.) No. 7947 of 2017 35

out. In oral evidence Beeru Dewar (PW-2), father of

the deceased stated that when they went to the house

of Ishwari Lal Yadav (A-1), they found the skeletal

remains and they have also identified the cloths of

his daughter Ku. Manisha.

16. Mother of the deceased Smt. Durga Bai was

examined as PW-3. In her deposition, she has stated

that about 1½ years earlier to the date of statement,

she had gone to Kasaridih at about 06.00 pm for

begging. Her daughter was wearing one red coloured

two piece set and at about 8.00 pm when pooja was over

in the temple, her daughter Ku. Manisha stated that

she wanted to defecate. She also stated in her

deposition that after sometime when she went back to

the place of electric pole where her daughter was

defecating, she did not find her there. It is stated

that at the instance of police officials they went to

the house of appellants at Ruabandha and in her

presence a grave was dug which was inside the house of

the appellants and cloths of her daughter were lying

there along with some pieces of bones. She identified

the cloths to be that of her daughter Ku.Manisha.

35 Crl.A. @ SLP(Crl.) No. 7947 of 2017 36

17. Dilip Thakur was examined as PW-11, who was one

amongst the persons who went inside the house of the

appellants in search of other child Chirag. He has, in

clear terms, stated that at that time both the

appellants Ishwari Lal Yadav and Smt. Kiran Yadav

confessed that earlier they had sacrificed one small

girl child whom they had brought from Kasaridih and

that she had been buried in their house.

18. PW-13 Shrikant Gawander stated that on pointing

out by Ishwari Lal Yadav, some mound in the courtyard

was dug up and inside the same skeletal remains were

found along with red coloured frock and red coloured

underwear.

19. PW-16 is the Assistant Sub Inspector, who has

recorded the merg intimation (Exhibit P-28) and

(Exhibit P-29).

20. One Khuman Singh Sahu was examined as PW-21. In

his deposition he has stated that he knows accused

Ishwari Lal Yadav and his wife Smt. Kiran Yadav,

appellants herein, who are his neighbours. He has

stated that both the accused A-1 and A-2 were engaged

36 Crl.A. @ SLP(Crl.) No. 7947 of 2017 37

in witchcraft. Rajendra Kumar (A-3) and Mahanand Yadav

(A-4) are the disciples of (A-1) and (A-2). He was

also one of the members in the team in search of

missing boy Chirag earlier. He too stated in his

deposition that the appellants have admitted that one

girl by name Ku. Manisha who had been kidnapped

earlier, had been sacrificed by them. A confession is

also to the effect that they have buried the girl next

to the place where Chirag’s body has been buried.

21. From the evidence on record, it is clearly

established beyond reasonable doubt that Km.Manisha is

the daughter of PW-2 and PW-3 and was missing since

04.03.2010. Though, the said complaint was recorded

in the Police Out Post Padmanabhpur, Durg, on

04.03.2010 but there was no breakthrough. Only after

Chirag’s case has come to light, based on admissions

by the appellants and two others, further

investigation revealed that the appellants earlier

also committed similar offence of murder of Km.Manisha

for their tantrik activities and buried the body of

minor girl in their house.

37 Crl.A. @ SLP(Crl.) No. 7947 of 2017 38

22. The confessional statements made to the police by

the appellants, cannot be the basis to prove the guilt

of the accused but at the same time there is no reason

to discard the confessions made to the independent

witnesses at the time when Chirag’s body was found,

prior to the arrival of police. It is true that extra

judicial confession, is a weak piece of evidence but

at the same time if the same is corroborated by other

evidences on record, such confession can be taken into

consideration to prove the guilt of the accused. In

the case on hand, the evidence from independent

witnesses is in one voice and consistent. The medical

evidence on record also substantiated the case of the

prosecution. In addition to the same, PW-2 and PW-3

who are the parents of the deceased have identified

the cloths, which the deceased child was wearing on

the date of missing. It is also clear from the

evidence that the skeletal remains were removed. They

have also found the cloth pieces, attached to skeletal

remains. The colour of such cloth pieces was tallied

with the description in the missing report lodged by

PW-2 earlier on 04.03.2010. As such it is clearly

38 Crl.A. @ SLP(Crl.) No. 7947 of 2017 39

proved beyond any reasonable doubt that the appellants

are responsible for the offence alleged against them.

23. Learned counsel for the appellants has relied on

a judgment of this Court in the case of Aghnoo

Nagesia1 to buttress his contention that the courts

below have committed error in recording a finding of

guilt of the appellants based on confession. But same

is a case where the appellant therein was charged

under Section 302 IPC for murdering his aunt and

others and there were no eye witnesses to the murder.

The principal evidence against the appellant was First

Information Report which contains a full confession of

guilt by the appellant himself. The said confession

was made to a police officer and the same is not

provable having regard to Section 25 of the Indian

Evidence Act. Further reliance is also placed on a

judgment of this Court in the case of Sahadevan2. In

the aforesaid judgment of two-Judge Bench of this

Court it is held that the extra judicial confession is

a weak piece of evidence and court must ensure that

same inspires confidence and is corroborated by other

prosecution evidence. If the totality of oral

39 Crl.A. @ SLP(Crl.) No. 7947 of 2017 40

evidence on record is considered in the case on hand,

it is consistent and inspires confidence of the case

of the prosecution to prove the guilt of the main

accused. We are of the view that the aforesaid

judgments would not render any assistance to support

the case of the appellants.

24. Learned counsel also relied on the judgment of

this Court in the case of Shambu Nath Mehra3. In the

aforesaid judgment this Court has held that in a

criminal case burden of proof is on the prosecution

and Section 106 is certainly not intended to relieve

it of that duty. It is held that on the contrary, it

is designed to meet certain exceptional cases in which

it would be impossible, or at any rate

disproportionately difficult, for the prosecution to

establish facts which are “especially” within the

knowledge of the accused and which he could prove

without difficulty or inconvenience. In this case on

hand it is proved by cogent evidence that the body of

Chirag was found in the house of Ishwari Lal Yadav.

By applying the provision under Section 106 of the

Indian Evidence Act definitely it is the burden of

40 Crl.A. @ SLP(Crl.) No. 7947 of 2017 41

the accused to explain the fact within the knowledge

of them how the body of Chirag came to be buried in

their house. The judgment relied on in the case of

Shambu Nath Mehra3 also would not be helpful for the

appellants. In the case of Firozuddin Basheeruddin7

this Court has discussed the ingredients which

constitute criminal conspiracy within the meaning of

Section 120B of the IPC. As we are of the view that

the evidence on record is not sufficient to prove the

guilt of the appellants under Section 120B of IPC, as

such it is not necessary to elaborate any further.

25. The other judgments relied on by the learned

counsel for the appellants in the case of Sanjay

Thakran5 and the judgment in the case of Prakash6 also

would not render any assistance to the case of the

appellants having regard to facts and circumstances of

the present case. Apart from the recoveries there is

a strong and consistent evidence of independent

witnesses to prove the guilt of the accused. The FSL

Report, Sagar, conclusively establishes that PW-3 is

the biological relative of the deceased. The said

evidence if considered along with other oral evidence

41 Crl.A. @ SLP(Crl.) No. 7947 of 2017 42

of PW-2 and PW-3, it is proved beyond reasonable doubt

that the skeletal remains of the body removed from the

house of the appellants was only that of their

daughter Ku.Manisha. It is also proved from the

evidence on record that the house belonged to the

appellants where skeletal remains were removed.

26. Further, as there is no acceptable evidence on

record except the alleged confession to prove the

offence under Sections 364/34 read with 120B IPC, the

appellants are entitled for acquittal for offences

punishable under Sections 364/34 and 120B IPC. At the

same time, by burying the dead body of the deceased

caused disappearance of evidence of offence, they are

rightly convicted for offence under Section 201 IPC.

27. Having regard to gruesome nature of murder, the

Trial Court has imposed the punishment of death for

offence under Sections 302/34 read with 120B IPC but

on appeal the High Court has modified the sentence to

that of imprisonment for life without any remission or

parole. Considering the gruesome nature of murder the

sentence imposed by the High Court is to be confirmed.

42 Crl.A. @ SLP(Crl.) No. 7947 of 2017 43

28. For the aforesaid reasons, this Criminal Appeal

is partly allowed, setting aside the conviction

recorded and sentence imposed for the offence under

Sections 364/34 read with 120B IPC. However, we

confirm the conviction recorded and sentence imposed

for the offence under Sections 302/34 and Section 201

IPC.

.....................J. [ROHINTON FALI NARIMAN]

.....................J. [R. SUBHASH REDDY]

.....................J. [SURYA KANT]

New Delhi, October 03,2019

43