SANTOSH KUMAR SINGH v. STATE OF MADHYA PRADESH

#1. 7. In view of the statements made by the injured witnesses PW-3 and PW-4 as corroborated by the postmortem report, seizure of jewellery, hammer, blood stained clothes and statement of PW-11, as corroborated F by PW-6 and PW-7, the trial court rightly held the accused guilty for the offences u/s 302, 307, 394 r/w 397 and 450 IPC. [Para 19) (941-D, E]

1.8. As regards the ground taken by the counsel for the appellant with respect to denial of opportunity to the G accused to be defended by a· counsel of his choice, is incorrect as from the record it is found that proper opportunity was given to the accused. On perusal of records it transpires that Advocate 'AS' had filed his · H 932 SUPREME COURT REPORTS [2014] 7 S.C.R. A Vakalatnama for representing the appellant. When the case was fixed for evidence though the advocate was competent to cross-examine the witnesses but he"moved the application to defer the cross-examination of the witnesses on the ground that the accused wanted to B engage senior advocate, 'RSC'. However, neither 'RSC' was present nor any Vakalatnama was-filed on his behalf. On that day, two witnesses PW-1 and PW-2 were exa, mined and 'AS', advocate had cross-examined those witnesses. None of those witnesses were eyewitnesses; C in fact PW-1 was declared hostile. Two days later, advocate 'AS' refused to appear on behalf of the lb:' appellant, when the appellant on asking expressed his inability to appoint any counsel. Since there was none to. represent the accused, the trial court appointed advocate 'GP' to pursue the appeal. The appellant failed to show that 'GP' was not competent or was incapable of handling the case. On the contrary from the cross-examination of the witnesses made by advocate 'GP', it is found that he was competent to deal with the case. Even on the next date neither 'RSC', advocate appeared nor he filed his 0 E Vakalatnama. [Para 20, 22] [941-E-F; 942-A-F] F

1.9. In the instant case, the appellant is an educated person, he was about 26 years old at the time of committing the offence. The accused was a tutor in the family of the deceased. He was in acquaintance with the deceased as well as PW-3 and PW-4. There is nothing specific to suggest the motive for committing the crime except the articles and cash taken away by the accused. It is not the case of the prosecution that the appellant G cannot be reformed or that the accused is a social menace. Apart from the incident in question there is no criminal antecedent of the appellant. It is true that the accused has committed a heinous crime, but it cannot be held with certainty that the instant case falls in the "rarest H of the rare category". On appreciation of evidence on SANTOSH KUMAR SINGH v. STATE OF M.P 933 record and keeping jn mind the facts and circumstances A of the case, sentence of death penalty would be extensive and unduly harsh. The death sentence of appellant is commuted to life imprisonment. The conviction and rest part of the sentence are affirmed. [Para 29, 30] [955-B-F] B ' Bachan Singh vs. State of Punjab 1980 (2) SCC 684; Machhi Singh and others vs. State of Punjab 1983 (3) SCR 413 :1983 (3) SCC 470; Ronny alias Ronald James Alwaris and others vs. State of Maharashtra 1998 (2) SCR 162: 1998 C (3) SCC 625; Al/auddin Mian & Ors. Vs. State of Bihar 1989 (2) SCR 498: (1989) 3 SCC 5; State of Maharashtra vs. Goraksha Ambaji Adsul 2011 (9) SCR 41: 2011 (7) SCC 437; Ramnaresh and others vs. State of Chattisgarh 2012 (3) SCR 630 : 2012 (4) SCC 257; Shankar Kisanrao Khade vs. State of Maharashtra 2013 (6) SCR 949 :2013 (5) SCC 546 - D referred to. Case Law Reference: 1983 (3) SCR 413 Referred to Para 24 1998 (2) SCR 162 Referred to Para 25 1989 (2) SCR 498 Referred to Para 25 2011 (9) SCR 41 Referred to Para 25 2012 (3) SCR 630 Referred to Para 27 2013 (6) SCR 949 Referred to Para 28 CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.410-411 of 2012. From the Judgment and Order dated 24.03.2011 in CRLR No. 4/2010, CRLA No. 48/2011 of the High Court of M.P. at Jabalpur. E F G H 934 SUPREME COURT REPORTS [2014] 7 S.C.R. A Vinay Kumar Garg, Neeraj Kr. Sharma, Namrata Singh, Priyanka Dixft for the Appellant. Vibha Datta Makhija, Archi Agnihotri for the Respondent. The Judgment of the Court was delivered by B SUDHANSU JYOTI MUKHOPADHAYA, J. 1. These appeals are directed against the common impugned judgment dated 24th March, 2011 passed by the High Court of Madhya Pradesh, Principal Seat at Jabalpur, by which High Court upheld c the judgment of conviction and sentence for the offences u/s 302, 307, 394, 397 and 450 IPC, as follows: Section Sentence im12osed For offence under Section 302 IPC (on two counts); For offence under Section 307 IPC - failure of payment RI Sentenced to death. Sentence for life on each count with fine of Rs.10,000 (on two counts); each for two years each. For offence under Section 394 read with of payment further RI for RI for ten years on each coun with fine of Rs.5,000/- each Section 397 (on four failure counts); one year each. For offence under Section 450 IPC. RI for ten years with fine of Rs.5,000/-. On failure of payment, further RI for one year.

#2. The learned counsel for the appellant assailed the conviction, inter alia, on the following grounds: (a) The trial was not fair as the appellant was not given an opportunity to defend by the counsel of his choice. D E F G H SANTOSH KUMAR SINGH v. STATE OF M.P. [SUDHANSU JYOTI MUKHOPADHAYA, J.] 935 (b) The Trial Court gravely erred in placing implicit reliance A on the statement of Razia Khatoon (PW-4) and Zeenat Parveen (PW-3) and on the evidence of recovery of the ornaments and other articles from the possession of the appellant. (c) The death sentence awarded by the Trial Court as confirmed by the High Court is not justified, as no case of rarest of the rare is made out. B

#3. Th(: case of the prosecution is that the accused-Santosh Kumar Singh was known to the family of Gulam Mohd. including C his wife, Noorjahan, son Javed Akhtar, and daughters viz. Rozi @ Razia and Zeenat Parveen. On 7th May, 2010, accused came to their house in Sector No.12, Quarter No.B-664, N.C.L. Colony, Singrauli at about 2 p.m. He had a chat with Noorjahan Begum (deceased) for about 30 minutes. In the same room D besides her Rozi@ Razia Khatoon(PW-4) and Zeenat Parveen (PW-3) were also present. Javed Akhtar (deceased}, son of Noorjahan Begum was sleeping in the bedroom. After accused left, Noorjahan Begum (deceased) started offering Namaz, Rozi @ Razia went to bathroom to take bath and Zeenat Parveen E was sitting in the outside room. After sometime, accused came back and knocked the door; Zeenat Parveen opened the door and the accused came inside. At that time Rozi @ Razia came out of the bathroom and saw accused talking to Zeenat in the outside room, at that moment, the accused suddenly pulled out F an iron hammer from his T-shirt and hit on the head of Zeenat Parween two-three times with hammer. Zeenat Parveen screamed and became unconscious. The accused, thereafter, with intention to kill Noorjahan Begum and Javed Akhtar also hit them with hammer on their heads, because of which both fell down and became unconscious. After that accused hit Rozi G @ Razia by the hammer on her head with an intention to kill her resultantly Razia's head got fractured. Thereafter, the accused opened the almirah, suitcases and boxes and footed two gold chains, one pair of tops, one pair of bali, one pair of H 936 SUPREME COURT REPORTS [2014] 7 S.C.R. A jhala, three rings, one nose pin and four pairs of silver anklets, artificial jewellery etc. and Rs. 23,000/- cash of Noorjahan Begum. He also took out four brass bangles from the hands of Noorjahan Begum. As a result of assault Noorjahan Begum , died on the spot. On hearing shrieks of Rozi @ Razia, Ramesh B Satnami (PW-1 ), Ramawadh Pal (PW-5) and other people of the colony came. At the time of incident, Gulam Mohd. (PW-2) was on duty and on receiving the news he came to the place of incident and took Rozi @ Razia, Zeenat Parveen and Javed Akhtar to Nehru Hospital. c

#4. On the basis of the report, Ext.P-10, of Rozi @ Razia Khatoon(PW-4), a case Crime No.0/10 was registered under Section 302, 307, 450, 394 & 397 IPC at the Police Station Vindhya Nagar. After receiving the news of the death of Noorjahan and Javed Akhtar, Shiv Kumar Dubey (PW-13) D recorded the marg intimation of Ext.P-24 & 25 in Police Chauki Jayant, P.S. Vindhya Nagar and the marg intimation-Ext.P/10 was sent to the concerned Police Station, on the basis of which Crime No.Ka-0-304/10 was registered at P.S. Baidhan and investigation was started. E F

#5. Sub-Inspector, J.S. Paraste (PW-12), on the same day, went at the spot and prepared the inquest memo of the body of Noorjahan Begum (Ext.P/12).The dead body of Noorjahan Begum was sent for postmortem examination. After conducting inquest proceedings in respect of the dead body of Javed Akhtar, the same was also sent for postmortem examination. Dr. Vinod Sharma(PW.16) examined the injuries of Razia Khatoon and Zeenat Parveen and found injuries on their heads. The injuries, grievous in nature, were dangerous to life. G

#6. Dr. V.N. Satnami (PW-10) conducted autopsy of the body of Noorjahan Begum. He found three injuries on her skull, skull bones were fractured. He submitted his postmortem report-Ext.P/19. In his opinion, death of the deceased was homicidal in nature. Dr. V.N. Satnami (PW-10) also conducted H autopsy of body of Javed Akhtar and found two injuries on his SANTOSH KUMAR SINGH v. STATE OF M.P. [SUDHANSU JYOTI MUKHOPADHAYA, J.] 937 head. There was depressed fracture of skull bone underneath A the injuries. In his opinion, death of the deceased was homicidal in nature. Postmortem report of Javed Akhtar is Ext.Pl20.

#7. Anil Upadhyay (PW-11) was the Investigation Officer, who on the same night apprehended the accused from Khariya 8 Chowk and recovered Rs.23,0201- from the pocket of his pants. On the information given by the appellant under Section 27 of the Indian Evidence Act, he recovered stolen articles, iron hammer and blood stained clothes from the house of the accused situated in N.C.L. Colony. The recovered articles were C identified by Gulam Mohd (PW.2) and Razia Khatoon (PWA).

#8. After due investigation, the chargesheet was filed and the case was commi!!ed for trial. The appellant denied the guilt and pleaded false implication but he did not adduce any evidence in his defence.

#9. Prosecution examined altogether 16 witnesses and produced a number of documentary evidence to prove their case. The Trial court on the appreciation of the evidence held the accused guilty and convicted and sentenced him for the offence as mentioned above, which was affirmed by the High Court.

#10. Dr. V.N. Satnami (PW-10), who performed the postmortem examination of the body of Noorjahan Begum found the following injuries on her body: "(1 )Reddish contusion 5 cm x 4 cm present on right side of forehead. Red blood clot was deposited under the skin. (2)Lacerated wound 5 cm x 3 cm x bone deep on m.iddle of the forehead posteriorly with depressed multiple fractures of underlying bone. D E F G (3) Lacerated wound 4 cm x 3 cm x bone deep on left occipito parietal region of head with depressed multiple H 938 SUPREME COURT REPORTS [2014] 7 S.C.R. A fractures of underlying bones. In his opinion, death of deceased Noorjahan .had occurred as a result of coma due to head injury. Death was homicidal in nature. The postmortem examination report (P/19) was written and signed by him." On the same day, Dr. Satnami (PW-10) performed postmortem examination of the body of deceased Javed Akhtar and found the following injuries: "(1) Lacerated wound on left parietal region of head 2 cm x 1 cm x bone deep with peripheral.contusions in size of 6 cm x 5 cm. subcutaneous reddish blood clot with multiple depressed fractures of underlying bone. (2) Reddish contusion on occipital region of head 5 cm x 4 cm in size with subcutaneous reddish blood clot with depressed fracture of underlying bone. In his opinion, death of Javed Akhtar had occurred as a result of coma due to injury. Death was homicidal in n•ture."

#11. From the inquest memorandums (Ext.P/6 and Pl12) and the evidence of Sub-Inspector, J.S. Paraste (PW-12) and constable Raj Bahadur Pandey (PW-15), who conducted inquest, it was established that Noorjahan and Javed Akhtar died of homicidal injuries found on their bodies. B c D E F

#12. Anil Upadhyay (PW-11 ), Investigation Officer arrested the accused from Khariya Chowk, Main Road, P.S. Shakti Nagar in the presence of witnesses Mohd. Sadiq (PW-6) and G Mohd. Yunus (PW-7) and seized money from him and prepared seizure memo-Ext.P-15. After arrest the accused was brought to the Police Station-Jayant and was interrogated in front of the witnesses. During interrogation accused gave information regarding jewellery and the hammer which was used in H committing crime; the clothes, hammer and jewellery were SANTOSH KUMAR SINGH v. STATE OF M.P. [SUDHANSU JYOTI MUKHOPADHAYA, J.] 939 seized from the house of the accused vide memorandum-Ext.P- A 13, written by Anil Upadhyay (PW-11). Anil Upadhyay stated that he went to the house of accused and seized the jewellery article from articles-A1 to A 24; seizure memo-Ext.P-14 was prepared. He had also stated that blood stained clothes and · iron hammer were seized in the presence of witnesses vide B seizure memo-Ext.P-16.

#13. Mohd. Sadiq (PW.6) and Mohd. Yunus (PW?!) are the independent witnesses of the memorandum of seizure. In their statement they deposed that the Police arre, Sted the accused C at Khariya Chowk in their presence anc,l seized about Rs. 23,000/-from him' and the accused was brought to the Police Station-Jayant /or inquiry. At the Police Station the accused disclosed about the jewellery, hammer and clothes, on the basis of whic1tjew.ellery, hammer and clothes were seized. Both the witnesses thereby fl.aye corroborated the stafement of Anil D Upadhyay(PW-11). During~ cro&S-examination both the witnesses, PW-6 and PW-7 admitted that they visited the house of Gul~m Mohd. There is no infirmity or contradiction in the statements of the two witnesses. E

#14. Mohd. Ayaz Khan (PW-9) stated that on 8th July, 2010 at the request of the Police he conducted identification of the jewellery at stadium Baidhan and prior to the identification Police had handed over other jewellery in a sealed packet. He mixed it and then conducted the identification and· during the F identification Gulam Mohd .. and Razia had identified the original jewellery. After identification he had handed over the jewellery in a packet to the Police who were standing outside the stadium.

#15. Zeenat Parween(PW-3) and Razia Khatoon (PW-4), G daughters of deceased Noorjahan and sisters of deceased Javed Akhtar are the injured eyewitnesses; both of them received serious injuries at the incident. Both the witness PW- 3 and PW-4 clearly stated that sometime before the incident, the accused had come to their house and he being a prior H · 940 SUPREME COURT REPORTS [2014] 7 S.C.R. A acquaintance, the accused had taken refreshment sitting with their mother and also was talking with her. From the statements of both the witnesses the facts of the accused coming to their house before the incident, taking refreshment with deceased Noorjahan and talking with her are proved, which is also B corroborated from the FIR-Ext.P-10. Both these witnesses have, also stated that in the past the accused used to come for tuitions 1 and their mother used to treat the accused like her son and the photograph of the accused was also hanging in their house. From the aforesaid evidence, it is clear that the PW-3 and PW- C 4 were in a position to identify the accused, the accused was well acquainted with both PW-3 and PW-4 since long. The prosecution proved beyond reasonable doubt that even prior to the incident the accused was known to the deceased and the injured witnesses PW-3 and PW-4 and on the date of incident also, the accused had come to their house and had taken refreshments and had talks. 0

#16. Zeenat Parveen (PW-3) and Razia Khatoon (PW-4) in their statements clearly stated that initially the accused left their house and after sometime the accused had come again to their E house. On opening the door he had hit the hammer on the head of Javed Akhtar, who had come out after hearing screams of Zeenat Parveen and then after entering into the bedroom he hit deceased Noorjahan on her head. From the statement of Razia Khatoon (PW-4), it is also clear that the accused after F entering the store-room had hit on her head and then the accused had taken out the money and jewellery from the almirah, suitcase, box and attache, etc. In paragraph 7 Zeenat Parveen (PW-3), has also stated that she had seen the accused hit Javed Akhtar on his head but she could not see G as to who hit Razia and her mother. Such statement cannot be stated to be contradiction and does not adversely affect the case of the prosecution in view of the deposition made by Razia Khatoon(PW-4).

#17. Similarly, from the statement of Razia Khatoon (PW- H SANTOSH KUMAR SINGH v. STATE OF M.P. [SUDHANSU JYOTI MUKHOPADHAYA, J.] 941 4), we find that the accused after hitting Zeenat Parveen, Javed A Akhtar and Noorjahan took away jewellery, cash amount and the bangles of Noorjahan and then he ran away after bolting the door from outside.

#18. PW-4 further deposed that after the accused n.in away 8 , : by bolting the door from outside she went into the balcony and stop Satnami (PW-1), who at that time had taken out his vehicle and was going somewhere. Then, the door was got open. Statements of Razia Khatoon (PW-4) about shouting from the balcony stopping Satnami (PW-1) and then opening of the C door by Satnami are also proved by the statement of Ramesh Satnafrii (PW-1), who made similar statement. . . 19. In view of the statements made by the injured witnesses · ··zeenat Parveen (PW-3) and Razia Khatoon (PW-4) as corroborated by the postmortem report, seizure of jewellery, D hammer, blood stained clothes (Ex. P-13)and statement of Anil Upadhyay (PW-11 ), as corroborated by Sadiq (PW-6) and Yunus (PW-7), the Trial Court rightly held the accused guilty for the offences u/s 302, 307, 394 r/w 397 and 450 IPC.

#20. First ground taken by the learned counsel for the appellant with respect to denial of opportunity to the accused to be defended by a counsel of his choice is incorrect as from the record we find that proper opportunity was given to the accused. E F

#21. The order sheets of the Trial Court dated 25th September, 2010 shows that the appellant made an application that appellant wanted to get the witnesses cross-examined by senior Advocate, Mr. Rajendra Singh Chauhan, therefore, he requested to defer the cross-examination of the witnesses. The G Trial court rejected the application. On 27th September, 2010, counsel of the accused, Mr. Amrendra Singh, who was defending the accused, refused to defend him. The Trial Court then appointed one Mr. G.P. Dwivedi, Advocate, as defence counsel on State expenses. H 942 SUPREME COURT REPORTS [2014] 7 S.C.R. A

#22. dn perusal of records it transpires that Shri Amrendra Singh, Advocate had filed his Vakalatnama for representing the appellant. On 25th September, 2010, when the case was fixed for evidence though he was competent to cross-examine the witnesses but he moved the application to defer the cross- B examination of the witnesses on the ground that the accused wanted to engage senior Advocate, Mr. Rajendra Singh Chauhan. However, neither Rajendra Sin!;lh Chauhan was present nor any Vakalatnama was filed on his behalf. On that day, two witnesses, namely Ramesh Satnami (PW-1) and c Gulam Mohd. (PW-2) were examined and Mr. Amrendra Singh, Advocate had cross-examined those witnesses. None of those witnesses were eyewitnesses; in fact one of them, Ramesh Satnami (PW-1) was declared hostile. On 27th September, 2010, Mr. Amrendra Singh refused to appear on behalf of the appellant, when the appellant on asking expressed his inability to appoint any counsel. Since there was none to represent the accused, lhe Trial Court appointed Mr. G.P. Dwivedi, Advocate, to pursue the appeal. The appellant has failed to show that Mr. G.P. Dwivedi was not competent or was incapable of handling the case. On the contrary from the cross-examination of the E witnesses made by Mr. G.P. Dwivedi we find that he was competent to deal with the case. Even on the next date neither Mr. Rajendra Singh Chauhan, Advocate appeared nor he filed his Vakalatnama. 0 F G H

#23. The next question is whether death sentence awarded to the appellant is excessive, disproportionate on the facts and circumstance of the case, i.e. whether the present case can be termed to be a rarest of the rare case.