Vikram Singh & Ors vs State Of Punjab

These appeals arise out of the following facts:

1. On 14th February 2005 the deceased Abhi Verma

@ Harry, a boy aged 16 years and a student of DAV

School, Hoshiarpur, son of Goldsmith Ravi Verma (PW

27) was kidnapped at about 8.45 a.m. from outside the

school. An anonymous call was received in Police

Station City, Hoshiarpur at 8.45 a.m. by Sub-Inspector

Nirmal Singh (PW 39), the SHO, and on its basis an FIR

was recorded under Section 364 of the IPC referring to

the kidnapping of a child from a place near "Shimla 2

Pahari". Sub-Inspector Jiwan Kumar (PW 43) of CIA

Staff, Hoshiarpur also received information about the

kidnapping on which the police machinery was further

activated. A short while later, that is at about the noon

time, Ravi Verma (PW) received a call on his landline

telephone No.226059 installed in his shop telling him

that his son had been kidnapped and in case he

wanted him to return alive, he should pay a ransom of

Rs.50 Lac and that he would be contacted later. Ravi

Verma's request to the caller to permit him to speak

with his son was denied. Ravi Verma, greatly alarmed,

went post haste to the school and was told that his son

had not come to class that day. This information

confirmed his fear that his son had indeed been

kidnapped for ransom. Sub-Inspector Jiwan Kumar

(PW) in the meanwhile reached Shimla Pahari Chowk

and met Ravi Verma at about 12.30 p.m. and recorded

his statement (Ex.PWWW) and on its basis the offence

under Section 364 IPC was converted into one under

Section 364A of the IPC. The Sub-Inspector also 3

directed Ravi Verma to arrange an ID caller with a tape

recorder and to connect it with the telephone in his

shop and to await another call from the kidnapper.

These directions were carried out by Ravi Verma and

the subsequent conversations were duly recorded. At

about 4.00 p.m. Ravi Verma received a call on his

Mobile No. 9814783418 and the kidnapper enquired as

to whether arrangements for the payment of the

ransom had been made. Ravi Verma told him that he

was in the process of collecting the money on which the

kidnapper once again threatened that in case the

money was not paid, the boy would be killed. At 7.00

p.m. Ravi Verma received yet another call from the

kidnapper on his landline number aforementioned,

asking him to activate his Mobile but Ravi Verma told

him that he was not carrying his Mobile at that

moment. The kidnapper also told Ravi Verma that the

police, including the SSP, Hoshiarpur had visited his

house and that if this was repeated, the boy would be

done to death. Ravi Verma, however, told the 4

kidnapper to reveal the place where the ransom could

be delivered and was told that this information would

be given later on phone. Ravi Verma again received a

call on his landline from the kidnapper asking him to

switch on his Mobile and on which the kidnapper called

him on the Mobile and told him that there was great

panic all over the town after the kidnapping and that

this would have serious consequences on his son. Ravi

Verma, however, assured the kidnapper that he had no

concern with the activity and that he was only

interested in securing his son. No call was thereafter

received from the kidnapper. The cassette on which

the conversations had been recorded on the landline

was handed over by Ravi Verma to S.I. Jiwan Kumar

and on a replay of the tape, the conversation was

clearly audible and was heard by the police. During

the course of the investigation, it transpired that

appellant Vikram Singh @ Vicky had visited Naresh

Sharma (PW-3) who was the father of Mukul Sharma,

at about 7 or 7.30 a.m. on the 14th February, 2005 and 5

had requested for the loan of his car as he wanted to go

to Jahankhelan. Naresh Sharma accordingly loaned

his Alto Car PB-07-M-5023 to Vicky. Vicky parked his

motorcycle inside Naresh Sharma's house and drove off

in the car but returned it at about 10 or 10.15 a.m. the

same day. Naresh Sharma's statement was recorded

by the Magistrate under Section 164 of the Cr.P.C. on

21st February 2005 as his car was suspected to be used

in the commission of an offence. The police also

recorded the statement of Baljeet Kumar Saini (PW13)

at about 11.15 p.m. on 14th February 2005 to the effect

that an Alto car of grey colour had been parked at 8.30

a.m. in his locality while he was near the main gate of

his house awaiting the arrival of a rickshaw to carry

children to their school and that he had noticed that

the appellant Vikram Singh was sitting on the driver's

seat and that in the meantime Abhi Verma had arrived

with the appellant Jasvir Singh and the two had got

into the rear seat whereafter Vikram Singh had driven

towards the DAV school. During the investigation, it 6

further came to light that a few minutes later, that is at

about 8.40 a.m., Satish Kumar (PW 19) who owned a

shop called New Deluxe Bakers and Confectioners

situated at Shimla Pahari Chowk had heard a cry of

anguish (Bachao Bachao) while standing outside the

shop and on looking that side had seen an Alto Car of

silver grey colour without a number plate coming from

the side of DAV school at a very high speed and a

human foot protruding out of the car window. This

information was immediately conveyed to the police on

telephone. It further came out during the investigation

that one Amit Chohan (PW24), a relative of the

complainant Ravi Verma, while was on his way to

Kartarpur heard the news on the TV about the

kidnapping and decided to return home to Hoshiarpur

via Kishangarh and Adampur and as he reached village

Daulatpur he saw a Chevrolet Car of black colour and a

motorcycle of silver colour parked on the road side and

while driving by the car he heard a whispered

conversation, and on the next day came to know that 7

Abhi Verma had been murdered and the dead body had

been found lying in the fields of village Daulatpur. It

also transpired from the investigation that Vikram

Singh on the motorcycle (Ex.P5) and Jasvir Singh and

his wife Sonia appellant in the Chevrolet Car (Ex.P3)

were seen driving on the Jalandhar road and they were

duly identified by Amit Jain (PW18). The police also

received secret information that the appellants were, at

that moment, hiding in a house owned by one Darshan

Kaur (father's sister of accused Jasvir Singh) a NRI,

situated in Mohalla Milap Nagar, Hoshiarpur on which

a police party headed by SI Jiwan Kumar accompanied

by Manohar Lal (PW30) raided the house and on going

inside the drawing room, found Vikram Singh and

Jasvir Singh present there. Seeing the police, they

attempted to run away but were over powered and

arrested. The police also found Sonia in the backyard

hurriedly pouring Alcohol on some clothes and

attempting to set them on fire. She too was arrested

and the clothes which had been partly burnt, were 8

recovered. The police also found several half burnt

articles including a school bag with books and on a

search of the house a pair of black shoes, a belt, an

iron karra, a sim card of Mobile No. 9814783418 and a

bottle of chloroform with some material which too were

taken into possession. The police also secured the

services of (PW25) a finger print expert, who lifted the

finger prints from several items, which were sent to the

forensic laboratory for comparison. The police also

took into possession a Hero Honda (Karizma)

motorcycle bearing a temporary No.PB-07 P 200

belonging to Vikram Singh. Jasvir Singh was

interrogated and he disclosed that the dead body of

Abhi Verma had been carried in his Chevrolet Optra

Car B-08 (T)-AL-1718 to a field near village Daulatpur

and that he could get the same recovered. Similar

statements of Vikram Singh and Sonia were also

recorded. The appellants then led the police to the

specified place whereafter the naked dead body of Abhi

Verma wrapped in a bed sheet, was recovered. The 9

appellants also revealed the whereabouts of the Alto

and Chevrolet Optra cars. The Alto car was recovered

from the residence of Naresh Kumar Sharma (PW), its

owner. The finger print experts PWs. Gurdip Singh and

Kashmir Singh also lifted some finger prints from the

car which too were sent to the forensic laboratory. The

police party then proceeded to katcha tobba where the

Chevrolet car was found parked in front of the

residence of one Subhash Kapoor and this too was

taken to possession and examined by the two finger

print experts. The police also recovered a pass port size

photograph of Abhi Verma and two applications for the

grant of leave by Abhi Verma from the car and these

were taken into possession. In addition the police

found a black coloured pouch with the label of Capital

Bank containing visiting cards of Jasvir Singh. All the

articles aforesaid were duly sent to the forensic

laboratory for examination. The post mortem on the

dead body was carried out by Dr. Mrs. Gurinder

Chawla alongwith a team of two Doctors at about 2.30 1

p.m. on 15th February 2005 but no conclusive report as

to the cause of death was given but after the report

(Ex.PZZ) of the Chemical Examiner was received, the

Doctors opined that the cause of death was chloroform

and pentazocine poisoning. The Doctors also explained

that pentazocine was the chemical name for the drug

sold under the trade name `Fortwin'. During the

course of the investigation, the police also ascertained

that the sim card bearing No. 9814783148 had been

sold to appellant Jasvir Singh from a dealer M/s

Telecom Bullowel owned by Jasvir Singh PW. The call

print out of the aforesaid Mobile telephone was also

obtained from the service provider, Airtel. On the

completion of the investigation, a charge-sheet was filed

against the three appellants and a charge was framed

against them under Sections 302, 364A, 120B and 201

of the IPC and as they pleaded not guilty, they were

brought to trial. In their statements under Section 313

of the Cr.P.C. the appellants pleaded false implication.

Appellant Jasvir Singh and his wife Sonia also pleaded 1

an alibi and claimed that they had been present at

Amritsar in the clinic of Dr. Daljit Singh so that the

latter could get treatment for her eye problem. They

also produced, amongst others, Dr. Daljit Singh as a

defence witness.

2. The Sessions Judge, Hoshiarpur on an analysis of

the evidence, all circumstantial in nature, observed

that the chain of circumstances was complete and that

there was no room for doubt with regard to the guilt of

the appellants. He also observed that as the present

matter was a case of ransom and a young person had

been done to death, the appellants deserved no mercy

and accordingly identifying the case as being in the

category of the "rarest of the rare", convicted them for

offences punishable under sections 302, 364A, 201 and

120-B IPC and sentenced them to death. The

proceedings were thereafter submitted to the Punjab

and Haryana High Court for confirmation of the

sentence, as provided under Section 366 of the Code of 1

Criminal Procedure. The High Court by its judgment

dated 30th May 2008 accepted Murder Reference No.1

of 2007 and confirmed the death sentence.

Resultantly, Criminal Appeal No.105-DB/2007 filed by

the appellants was dismissed. It is in this background

that the matter is before us after the grant of special

leave.

3 Mr. A.Sharan, the learned senior counsel for the

appellants has made his submissions under three

broad heads; one, that the chain of circumstances

and the links in the prosecution evidence were not

complete, the moreso, as all the witnesses were not

only chance witnesses but also related to or

associates of Ravi Verma, second that the recoveries

made at the instance of the appellants under Section

27 of the Evidence Act could not be taken into

evidence as it was the case of the prosecution itself

that the appellants had been taken into custody at

about 8 p.m. on 15th February 2005 whereas the 1

recoveries had been made on 14th February 2005,

and that in any case there was absolutely no

evidence to suggest Sonia's involvement in the

kidnapping or the murder and that her case would,

at its worst, fall under Section 201 of the IPC as an

attempt to destroy evidence, and finally the death

sentence was not warranted as the case was based

exclusively on circumstantial evidence and did not

fall in the category of the rarest of the rare case.

4. These arguments have been stoutly controverted

by Mr. Jaspal Singh, the learned senior counsel for the

complainant and by Mr. Kuldip Singh the Counsel

representing the State of Punjab. It has been

submitted that the circumstances essential for

conviction on the basis of circumstantial evidence were

complete inasmuch that there was evidence to show

that the deceased had been kidnapped for ransom from

outside the school and while he was being whisked

away, had been seen by several trustworthy witnesses, 1

that the purchase of chloroform and fortwin injections

had also been proved by independent evidence and the

fact that the appellants had been seen near village

Daulatpur, from where the dead body had been

recovered at their instance, by at least two witnesses

whose presence too had been proved beyond doubt and

the fact that the motive was kidnapping for ransom as

the impression was that the father of the deceased,

being a goldsmith, was reputedly a rich man and

therefore in a position to pay up to save his son. It has

been submitted that the factum of the telephone calls

made to the telephone of Ravi Verma by Jasvir Singh

which had been recorded on the instructions of the

police or from his Mobile No. 9814783418 and that the

voice had been matched with the voice sample taken

from Jasvir Singh proved that it was the appellants and

the appellants alone who were guilty of the ghastly

crime. It has also been submitted by Mr. Jaspal Singh

that Section 27 of the Evidence Act envisaged recovery

from a person "accused of any offence, in the custody of 1

a police officer" and as admittedly, the appellants had

been taken to custody late on the evening of the 14th

February 2005 but had been formally arrested the next

day at 8 a.m., would have no adverse effect on the

recoveries made earlier. Controverting Mr. Sharan's

submission with regard to the sentence, it has been

submitted that kidnapping for ransom and murder,

individually envisaged a death sentence and taken

cumulatively, the offences fell in the rarest of the rare

cases category, as held by this Court in Bachan Singh

v. State of Punjab and as such the death penalty was

justified.

5. We now examine the evidence under the broad

heads delineated by Mr. Sharan. It has been submitted

that the chain of circumstances was not complete. It

has first been submitted by Mr. Sharan that the

statement of Naresh Kumar (PW) with regard to the

borrowing of the Alto car by Vikram Singh @ Vicky on

the morning of 14th February 2005 had not been proved 1

on record and that it was doubtful as to whether this

car had actually been used. It has been highlighted

that there was no evidence to suggest that the car

in question was indeed the one belonging to Naresh

Kumar as the colour of the car owned by him was

"Miami Gold" and the very description suggested that it

was a shade of Gold and not Grey or Silver, as had

been stated by PWs. Naresh Kumar, Baljeet Kumar

Saini, Satish Kumar and Kulwant Kaur (PW1), the

Clerk from the Office of the DTO, Hoshairpur. It is true

that the colour of the Alto Car is said to be Miami Gold

but it is significant that in the cross-examination of all

the witnesses referred to above and in particular PW3,

PW13 and PW19 who had deposed that the colour was

silver grey not a single question had been put as to the

fact that the car was gold in colour and not grey. The

only inference that can flow from this omission in the

cross-examination is that "Miami Gold" was in fact a

trade name and not an indication of the actual colour

of the car. It is also significant that PW's Naresh 1

Kumar, Baljeet Kumar Saini and Satish Kumar had

absolutely no animosity against the appellants which

could motivate them to give a false statement as to the

colour of the vehicle. Naresh Kumar in fact deposed

that the car had been taken by Vicky, his son's friend,

at about 7.30 a.m. and had been returned at about

10.30 a.m. or so the same morning. This circumstance

fits in with the prosecution story that Vikram Singh

and Jasvir Singh had been seen by PW Baljeet Kumar

Saini with Amit deceased and a short while later Satish

Kumar PW had heard the noise of "bachao bachao" and

on looking in that direction had seen a silver grey

coloured car being driven away from the DAV School at

a very high speed with one human foot protruding

outside the car window. It is significant that this

information had been conveyed on telephone to the

police as well.

6. Mr. Sharan has also dubbed PW13 Baljeet Saini

and PW19 Satish Kumar as chance witnesses whose 1

statement could not be relied upon. He has seriously

challenged the conduct of PW13 Baljeet Saini, statedly

a friend of the complainant family for 25 years, and has

pointed out that though he had seen the kidnapping at

8.30 a.m. on the morning of the 15th February 2005

yet, contrary to the behaviour of a close friend, he had

gone on to a pilgrimage to Chintpurni and had returned

late the same evening and though information about

the kidnapping had been given to him, he had not got

in touch with Ravi Verma that evening and had chosen

to keep silent. We are unable to accept this

submission. Baljeet Kumar has given a cogent

explanation as to the circumstances under which he

had seen Abhi Verma being kidnapped and taken away

in the Alto Car. He deposed that he had come out of

his house at about 8.30 a.m., which was admittedly on

the way leading to the DAV School, to see off the

children of a relative who had to take a Rikshaw to

school and it was at that crucial moment that he had

seen Abhi Verma being innocently taken away by 1

Vikram Singh and Jasvir Singh in the grey Alto Car

Ex.P4 which was also identified by him. He also stated

that on his return from Chintpurni he had tried to

contact to Ravi Verma but his telephone remained

continuously engaged. It is also extremely significant

that this witness was in a position to recognize Vikram

Singh as he (Vikram Singh) was running a computer

centre where Saini was undergoing training. Likewise,

he knew Jasvir Singh and Sonia from those days as

they too would often visit Vikram Singh in the

computer centre.

7. It is also relevant that when Baljeet Saini had seen

the Alto Car driven being away, it appeared to be a

normal transaction as the boy appeared to be going

willingly with his kidnappers. It is, therefore, obvious

that his suspicion about anything amiss could not have

been raised at any stage prior to his return from

Chintpurni. Criticism of PW Satish Kumar is equally

misplaced. Admittedly, this witness was the owner of a 2

bakery shop at Shimla Pahari and it was while he was

outside the shop that he had heard the screams of

"Bachao Bachao" and on looking in that direction had

seen a car being driven away at a high speed and a

human foot protruding out of the car window and on

seeing this unusual activity the owner of Laxmi Steels,

Satish Kumar's neighbour, had informed the Police on

telephone. Further, Satish Kumar clarified that as he

was running a bakery which attracted customers from

8.00 or 8.30 a.m. onwards and for that reason it was

his practice to open his shop early. It is also significant

that this witness was not in any way connected with

Ravi Verma, the complainant, and that they were not

even known to each other. Mr. Jaspal Singh has also

cited Rana Partap & Ors. vs. State of Haryana

1983(3) SCC 327 as to the meaning of the expression

"chance witness".

"3. There were three eyewitnesses. One was the brother of the deceased and the other two were a milk vendor of a neighbouring village, who was carrying milk to the dairy and a vegetable and fruit hawker, who was pushing 2

his laden cart along the road. The learned Sessions Judge and the learned counsel described both the independent witnesses as "chance witnesses" implying thereby that their evidence was suspicious and their presence at the scene doubtful. We do not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."

Applying the above broad principles to the facts of the

present case, we find that the presence of PW Baljeet

Saini and PW Satish Kumar was natural at the places 2

they professed to be in and they cannot, therefore, be

dubbed as chance witnesses.

8. There is yet another material circumstance with

regard to the unfortunate incident. This is the medical

evidence. As already indicated above, the dead body

had been recovered on the morning of 15th February

2005 and had been subjected to a post-mortem by a

Board of Doctors headed by PW-14 Dr. Gurinder

Chawla at 2.30 the same afternoon. The Board was

called upon to examine the allegation that the deceased

had died of a poisonous or intoxicating injection or of

suffocation on account of a tape having been put over

his mouth. As the post-mortem did not indicate any of

these conditions, the viscera was taken from the body

and sent to the chemical examiner. On the receipt of

the chemical examiner's report Ex.PZZ, the Board

opined that the cause of death was Chloroform and

Pentazocine poisoning. Dr. Chawla further explained

that Fortwin was the trade name for the chemical 2

Pentazocine and that the maximum normal dose for

Fortwin was 0.5 ml to 1 ml. and that anything in excess

of 1ml. would be a fatal dose. She further clarified that

Chloroform, which was an anesthetic, earlier used

during surgery, was not being used any more because

of its known toxicity. In cross-examination, however,

the Doctor admitted that the quantitative analysis

regarding the Chloroform and Pentazocine had not

been made by the Chemical Examiner and she further

revealed the existence of two pin-point brown coloured

marks on the lateral side of the right buttock which

was the usual side for the administration of an

injection.

9. The evidence of the Medical Board has to be

scrutinized in the light of the evidence pertaining to the

purchase of the Fortwin injections and the Chloroform.

The first witness in this connection is PW4 Anand

Kumar the owner of a shop called Scientific Sales

Corporation at Hoshiarpur. He deposed that he knew 2

the appellants as they were all residing near his house.

He further went on to say that on the 11th February

2005 he had been present in his shop at 4.00 p.m.

when the appellants had come to him and told him that

they wanted to purchase Chloroform for a student who

had to undergo a practical examination in a Science

subject. He further stated that he had sold a bottle of

500 ml Chloroform manufactured by Glaxo and also

issued Bill No.347 dated 11th February 2005 Ex.P6

pertaining to the sale. This witness also produced the

purchase bill Ex.P7 indicating that the Chloroform had

earlier been purchased by him for sale in his shop and

after a comparison of the batch number on the bottle

with the Bills Ex.P6 and P7, testified that it was the

same bottle of Chloroform that had been sold to the

appellants. We have gone through the cross-

examination of this witness and see that some

insignificant questions had been put to him and no

material circumstance could be elicited by the defence.

It is extremely relevant to notice that not a single 2

question was put to him as to his connection, if any,

with the complainant party. The evidence of Bhanu

Aggarwal PW5, another shop keeper, is equally

significant as the 5 Fortwin injections of 1 ml. each had

been purchased by the appellants vide Bill No. 1951

dated 11th February 2005 Ex.P9 on the basis of a

prescription from a veterinary Doctor that had been

produced by them. PW5 also brought the original bill

whereby he had purchased the injections from Sood

Medical Traders vide Bill No. L-009075 dated 15th

December 2004. The fact that the prescription for

Fortwin injection had been produced on account of a

prescription from a veterinary Doctor is fortified by the

fact that on the Bill Ex.P9 the word "Dog" has been

written. It is again of great consequence that not a

single question was put to him as well as to his

association with the complainant party. The factum of

the over dose of Chloroform and pentazocine

administered to the deceased is clear from the fact that

the recoveries show that almost the entire bottle of 2

Chloroform (500 ml.) and all five Fortwin injections i.e.

5 ml. had been used by the kidnappers and that this

lethal combination of Chloroform and an over dose of

pentazocine was the cause of death. The medical

evidence, thus, is another link in the chain of

circumstances.

10. We now take up the question of Sonia's

culpability. The above evidence reveals that the

conspiracy had been hatched by the three appellants

and the first step towards the execution of the

conspiracy was taken on the 11th February 2005 at

11.00 a.m. when the Fortwin injections were purchased

from Bhanu Aggarwal PW5, the second step was the

purchase of Chloroform at 4.00 p.m. the same

afternoon from PW4 Anand Kumar and the third the

borrowing of the Alto car from Naresh Kumar on the

morning of 12th February 2005. These three

transactions are intimately connected with the

kidnapping and subsequently the murder of Abhi 2

Verma. In State of Himachal Pradesh vs.

K.L.Pardhan & Ors. 1987 (2) SCC 17, this Court while

examining the concept of criminal conspiracy has

observed:

"In the opinion of the Special Judge every one of the conspirators must have taken active part in the commission of each and every one of the conspiratorial acts and only then the offence of conspiracy will be made out. Such a view is clearly wrong. The offence of criminal conspiracy consists in a meeting of minds of two or more persons for agreeing to do or causing to be done an illegal act or an act by illegal means, and the performance of an act in terms thereof. If pursuant to the criminal conspiracy the conspirators commit several offences, then all of them will be liable for the offences even if some of them had not actively participated in the commission of the offences."

It was observed in Keshar Singh & Ors. Vs. State

(Delhi Administration) 1988 (3) SCC 609 that even the

post incident conduct of an accused can be taken into

account to determine as to whether the criminal act

which had been committed was pursuant to a criminal

conspiracy. In the case in hand, we find categorical 2

evidence with regard to the purchase of the Fortwin

injections and Chloroform and merely because PW

Baljeet Saini and Satish Kumar did not refer to the

presence of Sonia in the Alto car at the time of the

actual kidnapping would not mean that she was not

privy to the conspiracy. Moreover, the evidence also

reveals that she was attempting to destroy the evidence

relating to the kidnapping when she had been

apprehended. We are, therefore, of the opinion that the

second set of incriminating circumstances is the

medical evidence and the conspiracy hatched between

the three appellants including Sonia leading to the

kidnapping and murder.

11. Mr. Sharan, being alive to the fact that in a matter

resting on circumstances, the evidence of recovery

becomes extremely relevant, has dwelt on this aspect in

extenso. He has first and foremost pointed out that the

recoveries made on the disclosure statements of the

appellants were not admissible under Section 27 of the 2 Evidence Act as the appellants were not under arrest at

that point of time. He has taken us to the evidence of

Sub-Inspector Jeevan Kumar, who had led the police

party which had raided the house of Darshan Kaur, on

the evening of 14th February 2005, pursuant to secret

information that Abhi Verma was being detained in that

house and had deposed that as the raiding party

entered the premises they had found Vikram Singh and

Jasvir Singh in the drawing room, and on seeing the

police they had tried to run away but had been

apprehended. A further search of the house had been

made and Sonia, who was in the rear court-yard, was

caught while burning some clothes by pouring alcohol

on them. The police party had, thereafter, conducted a

minute search of the house and several items used in

the commission of the crime i.e. a partly used bottle of

Chloroform, nylon socks, partly burnt clothes, a school

bag containing books, copies and answer sheets in the

name of the deceased, were duly taken to the

possession. The appellants had thereafter been 3

interrogated and Jasvir Singh had revealed in his

statement Ex.PFFF that he had carried the dead body

in his Chevrolet Car No. PB-08(T) AL1718 and thrown it

in the area of village Daulatpur. This statement was

signed by Jasvir Singh and attested by Manohar Lal

Verma PW-30, Kulwinder Singh and Shiv Raj Singh,

ASI. Vikram Singh and Sonia appellants had made

similar statements and they too were duly recorded.

The appellants had thereafter disclosed that the Alto

Car was parked in the house of Naresh Kumar PW in

Bahadurpur Enclave and the police party had reached

that place and taken it into possession as well and on a

search thereof a black coloured purse Ex.P.34

containing a passport size photograph of the deceased

Ex.P36 and two applications for grant of leave Ex.DD

and DE were recovered therefrom. The appellants had

thereafter led the police party to Mohalla Katcha Tobba

and the aforementioned Chevrolet Car had been taken

into possession and on a search thereof (amongst other

items) a pouch containing visiting cards of Jasvir Singh 3

were recovered. The dicky of the car had also been

vacuumed with the help of a vacuum cleaner and the

rubble had been taken into possession. Both the cars

were subjected to examination by finger print experts

who lifted several finger prints which were duly

dispatched to the laboratory. The question raised by

Mr. A. Sharan as to whether the recoveries pursuant to

the disclosure statements could be taken into

consideration or not has to be decided on these facts.

It bears repetition that the appellants were under grave

suspicion, suspected to be accused in a case of

kidnapping and murder, and Vicky and Jasvir Singh

had attempted to run away and Sonia was in the

process of destroying evidence, when they had been

apprehended and put in police custody whereafter they

had made their disclosure statements. Section 27 of

the Evidence Act reads as under:

"27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of 3

a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

A bare reading of the provision would reveal that a

"person must be accused of any offence" and that he

must be "in the custody of a police officer" and it is not

essential that such an accused must be under formal

arrest. In State of Uttar Pradesh vs. Deoman

Upadhyaya AIR 1960 SC 1125 this is what a

Constitution Bench had to say while examining the

scope and applicability of Section 27. The Bench relying

on the observations made by the Privy Council in

Narayan Swami vs. Emperor ( AIR 1939 PC 47)

observed as under:

"Section 27 of the Indian Evidence Act is one of a group of sections relating to the relevancy of certain forms of admissions made by persons accused of offences. Sections 24 to 30 of the Act deal with admissibility of confessions i.e. of statements made by a person stating or suggesting that he has committed a crime. By Section 24, in a criminal proceeding against a person, a confession made by him is inadmissible if it appears to the court to have been caused by inducement, threat or promise having reference to the charge and proceeding from a person in authority. By Section 25, there is an absolute ban against proof at the 3

trial of a person accused of an offence, of a confession made to a police officer. The ban which is partial under Section 24 and complete under Section 25 applies equally whether or not the person against whom evidence is sought to be led in a criminal trial was at the time of making the confession in custody. For the ban to be effective the person need not have been accused of an offence when he made the confession. The expression, "accused person" in Section 24 and the expression "a person accused of any offence" have the same connotation, and describe the person against whom evidence is sought to be led in a criminal proceeding. As observed in Pakala Narayan Swami v. Emperor by the Judicial Committee of the Privy Council, "Section 25 covers a confession made to a police officer before any investigation has begun or otherwise not in the course of an investigation". The adjectival clause "accused of any offence" "is therefore descriptive of the person against whom a confessional statement made by him is declared not provable, and does not predicate a condition of that person at the time of making the statement for the applicability of the ban. Section 26 of the Indian Evidence Act by its first paragraph provides. "No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against a person accused of any offence". By this section, a confession made by a person who is in custody is declared not provable unless it is made in the immediate presence of a Magistrate. Whereas Section 25 prohibits proof of a confession made by a person to a police officer whether or not at the time of making the confession, he was in custody, Section 26 prohibits proof of a confession by a person in custody made to any person unless the confession is made in the immediate presence of a Magistrate. Section 27 which is in the form of a proviso states "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much 3

of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved". The expression, "accused of any offence" in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26, the two sections do not necessarily deal with evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered. By Section 26, a confession made in the presence of a Magistrate is made provable in its entirety."

12. Mr. Sharan has, however, referred us to Section

46(1) of the Code of Criminal Procedure to argue that

till the appellants had been arrested in accordance with

the aforesaid provision they could not be said to be in 3

police custody. We see that Section 46 deals with

`Arrest how made'. We are of the opinion that word

"arrest" used in Section 46 relates to a formal arrest

whereas Section 27 of the Evidence Act talks about

custody of a person accused of an offence. In the

present case the appellants were undoubtedly put

under formal arrest on the 15th February 2005 whereas

the recoveries had been made prior to that date but

admittedly, also, they were in police custody and

accused in an offence at the time of their apprehension

on the 14th February 2005. Moreover in the light of the

judgment in the Constitution Bench and the

observation that the words in Section 27 "accused of

any offence" are descriptive of the person making the

statement, the submission that this Section would be

operable only after formal arrest under Section 46(1) of

the Code, cannot be accepted. This argument does not

merit any further discussion.

3

13. Some argument has been raised by Mr. Jaspal

Singh as to whether (even assuming that Section 27 of

the Evidence Act could not be applied to the facts of the

present case) yet the conduct of the appellants when

the raid had been carried out in the house of Darshan

Kaur by Sub-Inspector Jeevan Kumar was such as

would be a material circumstance in terms of Section

28 of the Evidence Act. We are of the opinion that in

the light of the above findings, we are not called upon

to examine this aspect of the matter.

14. The question that now falls for consideration is as

to the credibility that can be attached to the recoveries

that had been made. Mr. Sharan has been at pains to

point out that the recovery witnesses could not be

believed as they were interested parties and it appeared

that the recoveries had, in fact, been manipulated. He

has referred primarily to the fact that Manohar Lal

(PW30) who was a very close relative of Ravi Verma,

had attempted to withhold this information whereas the 3

other witness of the recoveries was Sub-Inspector

Jeevan Kumar, the Investigating Officer himself.

15. It is indeed true that most of the recoveries have

been witnessed by these two and that PW Manohar Lal

did finally admit that Ravi Verma was his nephew and

the deceased was his grandson. We find nothing

unusual in Manohar Lal's statement. It hardly needs

emphasizing that independent witnesses are not

forthcoming these days and the prosecution has per

force to rely on witnesses who are relatives or

associates of the complainant. This in a way also

ensures that the witnesses would not leave out the true

culprits. We find from the statement of PW Manohar

Lal that as a consequence of the disclosure statement

made by the three appellants, the Alto car had been

recovered from Naresh Kumar (PW), the black Chevrolet

car from the area of Katchha Tobba vide Memo Exhibit-

PJJJ and on the search of the car, various other items

such as the photographs and purse of the deceased, 3

had been taken into possession under seizure Memo

Ex.PLL. It is also significant that on 16th February

2005 a silver ring belonging to the deceased had been

recovered at the instance of Vikram Singh and five

empty ampules of Fortwin injections, a syringe, a

plastic bag with hyperdemic needles and a roll of

medical tape at the instance of Jasvir Singh from

behind the kothi of Darshan Kaur and were taken to

possession vide Memo Ex.PMMM and PNNN

respectively.

16. It is also significant that Jasvir Singh also

disclosed that he had kept concealed the dead body in

the fields of village Daulatpur and that it had been

removed from Darshan Kaur's house in the Chevrolet

car belonging to him and the three appellants had

further revealed that the dead body had been disposed

of in the fields of village Daulatpur and the dead body

was recovered and taken into possession by Memo

Ex.PGGG signed by Manohar Lal as also Sub-Inspector 3

Jeevan Kumar. We are unable to accept Mr. Sharan's

bare submission that the evidence of Manohar Lal and

Sub-Inspector Jeevan Kumar should not be believed as

they were interested in the successful outcome of the

prosecution, as no other material adverse circumstance

has been brought to our notice.

17. The matter does not end here. As already

indicated above, Ravi Verma had been called on the

telephone repeatedly on his landline No.226059 from

Mobile No.98147 83418. Admittedly, the landline

telephone is fixed in the shop of Ravi Verma and it has

come in evidence that the card aforesaid had been

purchased on 14th February 2005 by Jasvir Singh

appellant. PW14 stated that Jasvir Singh had come to

him in hurry and demanded a connection which had

been supplied to him after he had undertaken he would

supply the identification papers later on. PW12

Jaswinder Singh who had a dealership for pre-paid

Airtlel Sim cards deposed that a pre-paid connection 4

No.98727-12583 had been sold to Iqbal Singh on 10th

July 2004 and Iqbal Singh has come as PW16 and

deposed that he had sold the aforesaid Airtel

connection to Jasvir Singh appellant. PW15 Rohit

Khullar also revealed that he had sold two post paid

connections No.98729-99441 and 98729-99442 on 14th

August 2002 to Vikram Singh and this fact was

confirmed by PW17 Kamalpreet Singh, Executive,

Human Resources (HR) Bharti Cellular Ltd., Mohali.

Simarjeet Singh (PW 21) of the telephone department

appeared and testified that on the directions of the

SSP, Hoshiarpur several telephone numbers including

226059 had been kept under observation and the

computer print out of the calls made to and from the

said number had been supplied to the police. He

further deposed that the record of incoming calls on

telephone No.226059 running into five pages had been

supplied to the police. PW40 Saurabdeep Singh,

Executive Regulatory Affairs, Spice Communication Pvt.

Ltd., Mohali also supplied the call details of Mobile 4

No.98147 83148. It is submitted by Mr. Sharan that

there was something amiss in the evidence of PW14

Manjeet Singh who deposed that the Mobile connection

had been sold to Jasvir Singh on 14th February 2005,

but it appeared from the call statement Ex.PYYY that

the first, second and third calls from this Mobile had

been made on 19th January 2005 and thereafter

several calls had been made on 14th February 2005.

Undoubtedly, there is some discrepancy in the records

vis-`-vis the ocular statements but the fact remains

that this mobile was being used by Jasvir Singh to call

Vikram Singh on his Mobile No.98729-99441 and that

they had been talking to each other much before the

present occurrence and that even on the day of crime,

they had talked to each other at 7.30 on their Mobiles.

Likewise, it has come on record that the several phone

calls had been received by Ravi Verma on the landline

226059 and were duly recorded by a tape recorder and

the incoming number identified by an ID caller

machine. It is significant that the conversations 4

recorded on the tape recorder were compared by an

expert with the sample voice of Jasvir Singh and they

were found to match with each other.

18. We also find that the prosecution has been able to

show that the finger prints lifted by the police officers

from the Alto and Chevrolet car belonged to Vikram

Singh and Jasvir Singh respectively. It is significant

that the Chloroform bottle recovered from Darshan

Kaur's residence was also examined and the thumb

impression of Jasvir Singh was detected thereon.

19. Mr. Sharan has referred us to the defence

evidence in order to prove the alibi of Jasvir Singh and

Sonia. Dr. Daljeet Singh, a very reputed Eye Surgeon

of Amritsar, has appeared as DW1. He deposed that

Sonia had been operated by him on 13th May 2002 and

that she had come several times to his clinic for a re-

check and that she had visited the hospital on the 11th

February 2005 and had been attended by one 4

Jaswinder Singh. When cross-examined, however, the

Doctor admitted that though the OPD in the hospital

was computerized there was no entry in the name of

Sonia as on 11th February 2005. Moreover, even

assuming that Sonia had indeed gone with her

husband to Amritsar on the 11th of February 2005, as

claimed, it was possible for them to go there and return

in time to purchase the Fortwin injections and the

Chloroform etc. on 11th February 2005. Doctor Daljeet

Singh's evidence, therefore, does not in any way prove

the alibi of Jasvir Singh and Sonia.

20. We must also emphasize that in a case of

circumstantial evidence some uncertainty is bound to

occur in the statements of the prosecution witnesses

and that this flaw is occasioned by the fact that what

they have witnessed is often an innocent transaction

and it is only after the event that it transpires that

what had been seen was a crime or a prelude to the

commission of a crime. A witness, therefore, does not 4

assimilate or imbibe the scene as carefully as he,

would, say in a case where he was an eye witness to a

murder. Also consider the conduct of PW Baljeet

Kumar who saw nothing untoward in Abhi Verma and

his kidnappers moving together, and being

unconcerned went off to Chintpurni. Contrast this

with the reaction of PW Satish Kumar who had seen

the car being driven away at a fast speed and someone

calling for help, on which he had immediately informed

the police. To our mind, while it is undoubtedly for the

prosecution to prove its case beyond doubt but the

standard to be applied for evaluating the evidence in a

case of circumstantial evidence vis-`-vis an eye witness

account would vary and a slightly different yardstick for

assessment has to be applied. It is for this reason that

courts have repeatedly emphasized that the chain of

circumstances against an accused in a case of

circumstantial evidence must be directed only towards

his guilt and admit of no other hypothesis, whereas in

the case of the evidence of an eye witness a chain of 4

circumstances is not required and one good eye witness

is sufficient to record a conviction. In the present case,

however, there is the direct and eye witness evidence of

PW Baljeet Saini who had seen Vikram and Jasvir

(whom he knew earlier) kidnapping Abhi Verma from

outside the school.

21. Three death sentences have been awarded in this

case to the appellants herein, Vikram Singh being

about 26 years of age as on the date of incident, Jasvir

Singh about 24 and his wife Sonia, slightly older, at 29

years.

22. Much argument and passion have been expended

by the learned counsel as to the propriety of the death

sentence in the facts of the case. Mr. Sharan has

emphasized that as the prosecution story rested on

circumstantial evidence, this fact by itself was a

relevant consideration in awarding the lesser sentence.

It has also been pleaded that the appellants were all 4

young persons and the possibility that they could be

reformed during their incarceration could not be ruled

out and this too was a factor which had to be

considered in awarding the sentence. He has also

referred us to Dhondiba Gundu Pomaje & Ors. Vs.

The State of Maharashtra 1976 (1) SCC 162 that an

accused of young age should not ordinarily be meted

out a death sentence. Reference has also been made by

Mr. Sharan to some observations in Bachan Singh vs.

State of Punjab (1980) 2 SCC 684 that the mitigating

circumstance in favour of an accused must also be

factored in. It has also been pleaded that the

additional circumstance in favour of Sonia was that she

was not only young but she was also a lady and as it

was possible that she had been influenced into the

unpleasant situation by her husband, the death

sentence should not be given to her in any case. Mr.

Sharan has also placed reliance on two recent

judgments of this Court in Santosh Kumar

Satishbhushan Bariyar vs. State of Maharashtra 4

(2009) 6 SCC 498 and an unreported judgment in

Sushil Kumar vs. State of Punjab Criminal Appeal

No.670 of 2009 decided on September 1, 2009 whereby

it has been indicated that the latest trend in

jurisprudence was that the death penalty should not be

awarded except in the most extraordinary of cases and

that the position and background of the appellant-

accused was to be kept in mind in evaluating the

circumstances for and against the imposition of the

death sentence.

23. These submissions have been strongly

controverted by Mr. Jaspal Singh and Kuldeep Singh

the learned counsel representing the complainant and

the State of Punjab respectively. It has been

emphasised that Section 364-A and 302 both provided

for the imposition of a death sentence and as

kidnapping for ransom was perhaps the most heinous

of offences, no latitude should be shown to the

appellants as they had poisoned a young boy to death 4

for money. The learned counsel have also placed

reliance on Henry Westmuller Roberts vs. State of

Assam (1985) 3 SCC 291 and Mohan & Ors. Vs. State

of T.N. (1998) 5 SCC 336 where the kidnap victim was

a young boy and had subsequently been done to death,

the Court had awarded the death penalty.

24. Some of the judgments aforesaid refer to the

ongoing debate as to the validity and propriety of the

death sentence in a modern society. There are the

moralists who say that as God has given life, he alone

has the right to take it away and this privilege cannot

be usurped by any human being. There are others who

believe that the death sentence cannot be taken as a

retributive or deterrent factor as the statistics show

that the possibility of a death sentence has never acted

as a deterrent to serious crime. The theory which is

widely accepted in India, however, is that as the death

penalty is on the Statute Book it has to be awarded

provided the circumstances justify it. The broad 4

principle has been laid in Bachan Singh's case (supra)

as the "rarest of the rare cases". Bachan Singh case

has been followed by a series of judgments of this Court

delineating and setting out as to the kind of matters

that would fall within this category. In Machhi Singh

& Ors. Vs. State of Punjab (1983) 3 SCC 470 this

Court gave an indication as to what could constitute

this category. It was observed as under:

"32. The reasons why the community as a whole does not endorse the humanistic approach reflected in `death sentence-in-no- case' doctrine are not far to seek. In the first place, the very humanistic edifice is constructed on the foundation of `reverence for life' principle. When a member of the community violates this very principle by killing another member, the society may not feel itself bound by the shackles of his doctrine. Secondly, it has to be realized that every member of the community is able to live with safety without his or her own life being endangered because of the protective arm of the community and on account of the rule of law endorsed by it. The very existence of the rule of law and the fear of being brought to book operates as a deterrent of those who have no scruples in killing others it if suits their ends. Every member of the community owes a debt to the community for this protection. When ingratitude is shown instead of gratitude by `killing' a member of the 5

community which protects the murderer himself from being killed, or when the community feels that for the sake of self- preservation the killer has to be killed, the community may well withdraw the protection by sanctioning the death penalty. But the community will not do so in every case. It may do so "in rarest of rare cases" when its collective conscience 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. The community may entertain such a sentiment when the crime is viewed from the platform of the motive for, or the manner of commission of the crime, or the anti-social or abhorrent nature of the crime, such as for instance:

1. Manner of commission of murder

33. 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. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

5

11. Motive for commission of murder

34.When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-`-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course for betrayal of the motherland.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-`- vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons."

25. It was further observed that in determining the

culpability of an accused and the final decision as to

the nature of sentence, a balance sheet of the

aggravating and mitigating circumstances vis-`-vis the 5

accused had to be drawn up and in doing so the

mitigating circumstances had to be given full weight so

that all factors were considered before the "option is

exercised". In Santosh Kumar's case (supra) this Court

further expounded on the propriety and justification in

awarding the death sentence. The broad principle that

emerges from all the judgments is that in evaluating

the category of the rarest of the rare, the facts of that

particular case must be given pre-dominant

consideration. As noted above, the High Court in the

present matter while determining the various factors

against the appellants has observed as under (verbatim

reproduction) :

"In the instant case, from a careful reading of facts; minute analysis of evidence on records, and due consideration of rival submissions, we notice the following special reasons to hold that this case has acquired enormity (sic) of that kind which brings it in the rarest of rare category and for those reasons, we accept death reference and confirm death sentence:

1) This is a case that involves kidnapping of a school going innocent boy for ransom and from discussion on motive, as above, it 5

appears that the accused had raised a demand of Rs.50,00,000/- from father of the deceased boy who was an established jeweler of Hoshiarpur;

2) This has come in evidence of father of the deceased, Ravi Verma (PW27), that accused Vikram Singh @ Vicky was known to his family and thus, under that acquaintance, accused Vikram Singh @ Vicky and Jasvir Singh committed kidnapping of the boy while betraying his trust in them;

3) That all three accused-appellant committed offence of murder in a pre-planned manner by using scientific methods and injecting fatal dozes of chemicals in order to ensure that the offence was not detected and they were not fastened with criminal liability;

4) Right from pre-planning through death till recovery of dead body of the deceased, all three accused-appellants remained closely associated;

5) It appears that murder of the deceased was committed by administering chloroform and fortwin injections in heavy dozes after tying his both hands and legs and putting a tape on his mouth.

Chloroform which was used to make the boy unconscious is now not given as anesthetic drug to any patient and fortwin is administered only in moderate dozes of 0.5 ml o 1 ml at a time after a gap of 8 hours. However, at the time of recovery of ampoules, each of 1 ml. quantity, all 5 ampoules were found to be empty. As such, the deceased was administered 5 ml. fortwin just within 24 hours apart from giving heavy dozes of chloroform. Thus, soon after kidnapping, the deceased was 5

reduced to a corpus with the help of chemicals and he was done to death in inhuman, diabolical and dastardly manner;

6) The deceased was the only son on his parents and incident of his kidnapping had sent a shock wave throughout the town of Hoshiarpur and in adjacent areas and further it also shocked the cumulative conscious of community causing hue and cry all over;

7) This is not a case of murder simplicitor but the accused persons have also been held guilty under Section 364-A IPC which was brought in statute book in order to curb the menace of kidnapping for ransom and even independent of penal provisions of Section 302 IPC, this Section also prescribes the punishment of death sentence in fit cases; and

8) This is not a case with even an iota of evidence to show enmity between parties, therefore, this is a case of cold blooded murder committed only in order to extract a heavy ransom of Rs.50,00,000/- which is evident from evidence of Ravi Verma (PW27) father of the deceased that every time, while calling on phones, the kidnapper gave him threats that if he wanted his son to be alive, he should immediately arrange for ransom amount of Rs.50,00,000/-. It appears as the police became active, the accused could not extract the ransom and out of panics, poisoned the boy to death by administering heavy dozes of chloroform and fortwin. However, as accused Vikram Singh @ Vicky was known to the family and the body had seen them, in all 5

probabilities, the accused would not have spared his life in order to destroy evidence even in case of having received the ransom amount. Thus, from very beginning, the accused had kidnapped the boy for his elimination finally in either case (whether ransom amount was paid or not).

On the other hand, Mr. Sharan has been at pains to

point out that the appellants were young persons,

and Sonia a lady as well, who could be rehabilitated

and the pre-dominant trend being against the

imposition of the death penalty as of today, and the

evidence being circumstantial in nature, the death

penalty should not be awarded.

26. The learned counsel for the Complainant and the

State have, however, pointed out that Section 364-A

had been introduced in the Penal Code by virtue of

Amendment Act 42 of 1993 and the purpose for its

introduction was given as under:

"Kidnappings by terrorists for ransom, for creating panic amongst the people and for securing release of arrested associates and cadres have assumed 5

serious dimensions. The existing provisions of law have proved to be inadequate as deterrence. The Law Commission in its 42nd Report has also recommended a specific provision to deal with this menace. It was necessary to amend the Indian Penal Code to provide for deterrent punishment to persons committing such acts and to make consequential amendments to the code of Criminal Procedure, 1973."

A plain reading of the Objects and Reasons which led to

the amendment shows the concern of Parliament in

dealing with kidnapping for ransom a crime which

called for a deterrent punishment, even in a case where

the kidnapping had not resulted in the death of the

victim. The statistics further reveal that kidnapping for

ransom has become a lucrative and thriving industry

all over the country which must be dealt with, in the

harshest possible manner and an obligation rests on

Courts as well. Courts to lend a helping hand in that

direction. In the case before us, we find that not only

was Abhi Verma kidnapped for ransom which act

would by itself attract the death penalty but he was

murdered in the process. It is relevant that even before 5

the aforesaid amendments, this Court in Henry's case

(supra) observed that death sentence could be awarded

even in a case of kidnapping and murder based on

circumstantial evidence holding that:

"We are of the opinion that the offences committed by Henry, the originator of the idea of kidnapping children of rich people for extracting ransom, are very heinous and pre-planned. He had been attempting to extract money from the unfortunate boy's father, PW23 even after the boy had been murdered by making the father to believe that the boy was alive and would be returned to him if he paid the ransom. In our opinion, this is one of the rarest of rare cases in which the extreme penalty of death is called for the murder of the innocent young boy, Sanjay in cold blood after he had been kidnapped with promise to be given sweets. We, therefore, confirm the sentence of death and the other sentences awarded to Henry by the High Court under Sections 302, 364, 201 and 387 IPC and dismiss Criminal Appeal No. 545 of 1982 filed by him."

Moreover, as already indicated, we have the eye

witness statement of PW Baljeet Saini with regard to the

kidnapping of Abhi Verma from outside the school. 5

27. Likewise in Mohan's case (supra) which again

related to a kidnapping for ransom and murder under

Sections 364-A and 302 of a young boy aged 10 years,

while assessing the aggravating and mitigating

circumstances, it was observed that the former far

outweighed the others. It was held as under:

"So far as the appellant Gopi is concerned, he not only did participate by pulling the rope around the neck of the boy, as already narrated, but went to his house and brought a coir rope. After removing the rope from the neck of the boy, he encircled the coir rope again around the boy's neck and the pulled the said rope for about = a minute and the boy stopped breathing. Thereafter he took out one Keltron TV box from underneath the cot and packed the boy in the box. These aggravating circumstances on the part of accused Mohan and Gopi clearly demonstrate their depraved state of mind and the brutality with which they took the life of a young boy. It further transpires that after killing the boy and disposing of the dead body of the boy, Mohan also did not lose his lust for money and got the ransom of Rs.5 lakhs.

We must also emphasize that in this tragic scenario and

in the drawing up of the balance sheet, the plight of the 5

hapless victim, and the abject terror that he must have

undergone while in the grip of his kidnappers, is often

ignored. Take this very case. Abhi Verma was only 16

years of age, and had been picked up by Vikram Singh

who was known to him but had soon realized the

predicament that he faced and had shouted for help.

His terror can further be visualized when he would have

heard the threatening calls to his father and seen the

preparations to do away with him, which included the

taping of his mouth and the administration of an

overdose of dangerous drugs. The horror, distress and

the devastation felt in the family on the loss of an only

son, can also be imagined.

28. Mr. Sharan has, however, placed reliance on some

observations in Santosh Kumar's and Sushil Kumar's

cases (supra), as already indicated above. These

judgments have merely rested on the earlier position of

law, and laid great emphasis on the drawing up of the

balance sheet and have gone into the development of 6

the jurisprudence and philosophy with regard to the

imposition of the death penalty under Indian law.

Sushil Kumar's case (supra), cited by Mr. Sharan

sentence pertained to a death sentence awarded for the

murder of a wife, a son aged 6 years and a daughter

aged 4 years of the appellant. The judgment of the

Sessions Judge was confirmed by the High Court in

reference. The matter thereafter came to this Court by

way of special leave. This Court after hearing the

matter at length drew up the balance sheet envisaged

in Bachan Singh's and Machi Singh's cases (supra) and

held that the mitigating circumstances far outweighed

the aggravating ones and these were delineated as

under:

"(i) appellant had been unemployed for last 7 to 8 months.

(ii) he used to borrow money from others to meet his daily needs.

(iii) he himself had consumed `sulphas tablets' to commit the suicide even though not medically established.

6 (iv) he therefore, was keen that his whole family should be finished and no one should be alive to suffer the pain and agony alone.

(v) he was fed up with his life and was seen in a perplexed condition by PW-4.

(vi) in any case, he cannot be a threat to the society and there are fairly good chances of his reformation as he has learnt sufficient lesson from it.

Extreme poverty had driven the appellant to commit the gruesome murder of three of his very near and dear family members

- his wife, minor son and daughter.

There is nothing on record to show that appellant is a habitual offender. He appears to be a peace loving, law abiding citizen but as he was poverty stricken, he thought in his wisdom to completely eliminate his family so that all problems would come to an end. Precisely, this appears to be the reason the offence of murder. No witness has complained about his bad or intolerable behaviour in the past. Many people had visited his house after the incident is indicative of the fact that he had cordial relations with all. He is now about 35 years of age and there appear to be fairly good chances of the appellant getting reformed and becoming a good citizen."

29. This judgment can by no stretch of imagination

advance the case of appellants before us. The balance 6

sheet has been drawn up by the High Court. We adopt

the same.

30. We, however, do find some reason in favouring

Sonia, the lady appellant, wife of Jasbir Singh. Keeping

in view the overall picture and the fact that at the time

when Abhi Verma had been kidnapped from outside the

DAV School, Sonia had not been present and that she

may have got embroiled in the conspiracy with her

husband and Vikram Singh on account of having come

under their pressure, some leniency must be shown to

her. We are, therefore, of the opinion that insofar as

Sonia is concerned, her death sentence ought to be

converted into one of life. We order accordingly. The

appeal of the other two appellants, however, is

dismissed.

...............................J. (HARJIT SINGH BEDI) 6

...............................

J. (J.M.PANCHAL)

NEW DELHI JANUARY 25, 2010.