# SAN DEEP v. STATE OF U.P

- **Citation:** [2012] 5 S.C.R. 952
- **Court:** Supreme Court of India
- **Decided:** 2012-05-11
- **Case number:** Criminal Appeal No. 1651 of 2009
- **Bench:** Dr. B.S. Chauhan, Fakkir Mohamed Ibrahim Kalifulla
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/san-deep-v-state-of-u-p-28376
- **Pages:** 42

## Headnote

Penal Code, 1860 - ss. 302134 and 316154 - Murder -
C Prosecution for - Accused persons apprehended with the
victim who was in injured condition - By PWs police officials
while on patrolling duty - Victim implicating the accused -
Accused admitting the facts narrated by the victim and
confessing the guilt - Recoveries made - Subsequent death
D of the victim - Trial court convicting both the accused for
murder and sentencing them to death - High Court confirming
the conviction of both the accused - Death sentence of main
accused upheld while that of co-accused commuted to life
sentence - On appeal, held: The chain of circumstances
E alleged against the accused persons conclusively proved
without any missing link - Conviction of both the accused and
life sentence of co-accused affirmed - Death sentence of main
accused commuted to life sentence with order that he would
serve a minimum of 30 years in jail without remissions -
F
Sentence/Sentencing.
Evidence Act, 1872:
s. 106 - Burden of proving fact specially within knowledge
- Accused taking plea of alibi - Held: Burden to establish the
G plea is on the accused since it was within his special
knowledge.
H
ss. 25 and 8 - Admission of facts and confession by
accused before police officials - Admissibility of - Held:
952
SANDEEP v. STATE OF U.P.
953
Statement of accused consisting mixture of admission and
A
confession required to be sifted - Distinction required to be
drawn between admission and confession - Part of statement
which does not implicate the accused would amount to mere
admission and not confession and hence can be relied upon
and would be covered by s. 8 - s. 25 can be pressed into
B
service only to the part of the statement that would implicate
the accused - When reliance is placed upon admissible
portion, the entirety of the statement cannot be rejected
outrightly by application of s. 25.
Evidence - Establishment of the fact that accused was
C
biological father foetus - Plea that improper preservation of
the foetus sample resulted in wrong report - Two Samples of
foetus was preserved, one in formalin solution and the other
one by ice preservation - Sample preserved in formalin
solution was not accepted because standard protocol analysis
D
was not available in the laboratory - However, Second sample
preserved in ice was tested which confirmed that the accused
was father of the foetus - Thus fatherhood of the accused with
the foetus was established.
E
Code of Criminal Procedure, 1973 - s. 157 - Delay in
forwarding the express report to Magistrate - Effect of, on
prosecution case - Held: Where FIR is recorded without delay
and investigation started on the basis of the FIR and no
infirmity brought out, mere delay in forwarding the express
F
report to the Magistrate, in absence of any prejudice to the
accused, cannot be said to have tainted the investigation.
Appellants-accused were prosecuted for having
caused death of a girl. The prosecution case was that
when the police officials PW1 to PW-5 and were on
G
patrolling duty, they were informed by two constables
that they heard some screaming noise from a moving car.
PW-1 alongwith others, when went in that direction, at a
distance saw a car. They saw two young men trying to
pull out a girl in injured condition by opening the rear
H
954
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A door of the car. PW-1 and others caught hold of the two
young men and also noticed a girl with injuries all over
and on whom acid was also sprinkled. When PW-1
questioned her, she told her name, parents name and
address and also told that she had developed friendship
s with accused 'S' (main accused); that she got pregnant;
that on being told by the main accused that he would
marry her at Haridwar, she went with him; that while they
were moving in the vehicle driven by the co-accused, the
main accused asked her to get the foetus aborted; that
c when she disagreed, and told that she would reveal the
facts to his family members and the police, he start

## Text

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A
B
[2012] 5 S.C.R. 952
SAN DEEP
v.
STATE OF U.P.
(Criminal Appeal No. 1651 of 2009 etc.)
MAY 11, 2012
[DR. B.S. CHAUHAN AND FAKKIR MOHAMED
IBRAHIM KALIFULLA, JJ.]
Penal Code, 1860 - ss. 302134 and 316154 - Murder -
C Prosecution for - Accused persons apprehended with the
victim who was in injured condition - By PWs police officials
while on patrolling duty - Victim implicating the accused -
Accused admitting the facts narrated by the victim and
confessing the guilt - Recoveries made - Subsequent death
D of the victim - Trial court convicting both the accused for
murder and sentencing them to death - High Court confirming
the conviction of both the accused - Death sentence of main
accused upheld while that of co-accused commuted to life
sentence - On appeal, held: The chain of circumstances
E alleged against the accused persons conclusively proved
without any missing link - Conviction of both the accused and
life sentence of co-accused affirmed - Death sentence of main
accused commuted to life sentence with order that he would
serve a minimum of 30 years in jail without remissions -
F
Sentence/Sentencing.
Evidence Act, 1872:
s. 106 - Burden of proving fact specially within knowledge
- Accused taking plea of alibi - Held: Burden to establish the
G plea is on the accused since it was within his special
knowledge.
H
ss. 25 and 8 - Admission of facts and confession by
accused before police officials - Admissibility of - Held:
952
SANDEEP v. STATE OF U.P.
953
Statement of accused consisting mixture of admission and
A
confession required to be sifted - Distinction required to be
drawn between admission and confession - Part of statement
which does not implicate the accused would amount to mere
admission and not confession and hence can be relied upon
and would be covered by s. 8 - s. 25 can be pressed into
B
service only to the part of the statement that would implicate
the accused - When reliance is placed upon admissible
portion, the entirety of the statement cannot be rejected
outrightly by application of s. 25.
Evidence - Establishment of the fact that accused was
C
biological father foetus - Plea that improper preservation of
the foetus sample resulted in wrong report - Two Samples of
foetus was preserved, one in formalin solution and the other
one by ice preservation - Sample preserved in formalin
solution was not accepted because standard protocol analysis
D
was not available in the laboratory - However, Second sample
preserved in ice was tested which confirmed that the accused
was father of the foetus - Thus fatherhood of the accused with
the foetus was established.
E
Code of Criminal Procedure, 1973 - s. 157 - Delay in
forwarding the express report to Magistrate - Effect of, on
prosecution case - Held: Where FIR is recorded without delay
and investigation started on the basis of the FIR and no
infirmity brought out, mere delay in forwarding the express
F
report to the Magistrate, in absence of any prejudice to the
accused, cannot be said to have tainted the investigation.
Appellants-accused were prosecuted for having
caused death of a girl. The prosecution case was that
when the police officials PW1 to PW-5 and were on
G
patrolling duty, they were informed by two constables
that they heard some screaming noise from a moving car.
PW-1 alongwith others, when went in that direction, at a
distance saw a car. They saw two young men trying to
pull out a girl in injured condition by opening the rear
H
954
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A door of the car. PW-1 and others caught hold of the two
young men and also noticed a girl with injuries all over
and on whom acid was also sprinkled. When PW-1
questioned her, she told her name, parents name and
address and also told that she had developed friendship
s with accused 'S' (main accused); that she got pregnant;
that on being told by the main accused that he would
marry her at Haridwar, she went with him; that while they
were moving in the vehicle driven by the co-accused, the
main accused asked her to get the foetus aborted; that
c when she disagreed, and told that she would reveal the
facts to his family members and the police, he started
beating her with jack and spanner and cut her with a
blade and also poured acid on her head; and that they
tried to throw her into field when PW-1 arrived here. The
0 accused persons, on being apprehended, admitted the
facts as revealed by the victim. They also admitted
having purchased two bottles of acid and four shaving
blades. They confessed that they caused injuries to the
deceased. The police party seized the vehicle, a jack, a
spanner, four blades and two empty bottles of acid. The
E victim was sent to the hospital. Statement of PW-1 was
registered as FIR against both the accused u/ss. 307, 326,
324 and 328 IPC. The same was later altered u/s. 302/34
after the victim was declared dead. The trial court charged
the accused u/ss. 302/34 and s. 316/34 IPC. Accused were
F found guilty of offences u/ss. 302/34 and 316/34 IPC and
capital punishment was inflicted on both the accused.
High Court upheld the conviction of both the accused.
However, while confirming the death sentence of the
main accused, altered the sentence of the co-accused
G into imprisonment for life. Hence the present appeals.
H
Partly allowing the appeal of the main accused and
dismissing the appeal of the co-accused, the Court
HELD: 1.1 The chain of circumstances alleged
SANDEEP v. STATE OF U.P.
955
against the appellants was conclusively proved without A
.any missing link. There is no scope to interfere with the
conviction arrived at against the appellants by the trial
court as confirmed by the Division Bench of the High
Court. [Para 35] [990-F-G]
State of WB. v. Mir Mohammad Omar and Ors.2000 (8)
B
SCC 382:2000 (2) Suppl. SCR 712; Somappa Vamanappa
Madar andShankarappa Ravanappa Kaddi v. State of
Mysore (1980) 1 SCC 479:Suni/ Kumar and Anr. vs. State of
Rajasthan (2005) 9 SCC 283: 2005
(1) SCR 612; Ram
Kumar v. State (NCT) of Delhi (1999) 9 SCC 149- referred C
to.
1.2 The case of prosecution that the deceased made
a statement about the sequence of the occurrence was
really made as spelt out by the witnesses PW Nos. 1 to D
5. In view of the description of the injuries, as noted by
the doctor who conducted the post-mortem, it cannot be
said that the injury in the mouth was such as the
deceased could not have made any oral statement at all
to the witnesses. The Doctor (PW-6) who had examined E
the injuries sustained by the deceased did not rule out
the possibility of the deceased making any statement
irrespective of injuries sustained by her. Accused
themselves, before the High Court, specifically
contended that the deceased sustained multiple injuries F
and except one injury, all other injuries were simple in
nature and none of the injuries were sufficient in the
ordinary course of nature to cause the death of the
deceased. Therefore, even going by the stand of the
accused, the condition of the deceased, even after G
.sustaining multiple injuries, was such that she was alive,
conscious and her death was not instantaneous. [Paras
20 and 21] [975-C-H; 976-A]
1.3 The grievance of the appellants as regards nonexamination of any independent witness cannot be taken
H
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SUPREME COURT REPORTS
[2012J 5 S.C.R.
A
as a factor to put the case against the prosecution and
to hold that the whole case. of the prosecution should be
set at naught. From the evidence of PWs 1 and 3 what
all that can be inferred was that a crusher unit was at least
100 yards away from the place of occurrence and that
B even at that point of time, the unit was working with at
least 3-4 labourers. Beyond the above fact, it was not the
case of the appellant that any worker from the crusher
unit was present at the spot and yet he was neither
shown as a witness nor examined and thereby any
c prejudice was caused to the appellants. It is also not the
case of the appellants that apart from the labourers
working in the crusher unit, any other independent
witness was present at the spot who was not cited nor
examined as a witness. Apart from the above, no other
0
point was raised as regards the non-examination of any
independent witness as to the occurrence narrated by
the prosecution. [Para 22] [977-C-H]
1.4 The witnesses who were examined were able to
unfold the narration of events in a cogent and convincing
E manner and the non-examination of the Constable and
the jeep driver was, therefore, not fatal to the case of the
prosecution. In examination of the sequence of events,
it is found that after gathering whatever information from
the deceased, as regards the occurrence implicating the
F
accused, which were the required details for PW-1 to
lodge the necessary complaint, his immediate priority
was to attend on the injured person in order to save her
life. Such a course adopted by PW-1 and other police
personnel at the place of occurrence was quite natural
G and appreciable. The appellants could not demonstrate
as to any prejudice that was caused by the nonexamination of the Constable and the jeep driver in order
to find fault with the case of the prosecution on that
score. [Para 24] [977-F-H; 978-B-C, F-G]
H
SANDEEP v. STATE OF U.P.
957
Tej Prakash v. The State of Haryana (1995) 7 JT 561 -
A
relied on.
1.5 When the main accused took a positive stand
that he was not present at the place of occurrence by
relying upon a fact situation, namely, he was not
8
responsible for bringing the lndica car belonging to his
mother at the place of occurrence along with the
deceased, the burden was heavily upon him to establish
the plea that the car was stolen on that very date of
occurrence, and, therefore, he could not have brought C
the deceased in that car at that place. Apart from merely
suggesting that the lndica car was stolen which was not
fully supported by any legally admissible evidence, no
other case was suggested by the appellants. By merely
making a sketchy reference to the alleged theft of the car
in the written statement and the so-called complaint said
D
to have been filed with the police station nothing was
brought out in evidence to support that stand. In this
situation, Section 106 of the Evidence Act gets attracted.
When according to the accused, they were not present
at the place of occurrence, the burden was on them to
E
have established the said fact since it was within their
special knowledge. The failure of the main accused in not
having taken any steps to prove the said fact strikes at
the very root of the defence, namely, that he was not
present at the place of occurrence. As a sequel to it, the
F
case of the prosecution as demonstrated before the court
stood fully established. [Paras 26 and 27] [980-C-G; 981E-F]
Prithipal Singh and Ors. vs. State of Punjab and Anr.
G
(2012) 1 sec 10 - relied on.
1.6 When there was no serious infirmity in the
registration of the FIR based on the complaint on
17 .11.2004 (i.e.) immediately after the occurrence and
every follow-up action was being taken meticulously, a
H
958
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A minor discrepancy in the timing of alteration of the crime
by itself cannot be held to be so very serious to suspect
the registration of the crime or go to the extent of holding
that there was any deliberate attempt on the part of the
prosecution to ante date the FIR for that purpose. The
B accused miserably failed to substantiate the stand that
he was not present at the spot of occurrence whereas he
was really apprehended on the spot by the prosecution
witnesses and was brought to the police station from
whom other recoveries were made. The submission by
c referring to certain insignificant facts relating to the delay
in the alteration of crime cannot be held to be so very
fatal to the case of the prosecution. [Para 31] [987-F-H;
988-A-B]
Pala Singh and Anr. v. State of Punjab AIR 1972 SC
D 2679: 1973 (1) SCR 964 - relied on.
1.7 Where the FIR was actually recorded without
delay and the investigation started on the basis of that
FIR and there is no other infirmity brought to the notice
E of the court then, however improper or objectionable the
delay in receipt of the report by the Magistrate concerned
as stipulated u/s. 157 Cr.P.C. in the absence of any
prejudice to the accused, it cannot by itself justify the
conclusion that the investigation was tainted and
F prosecution insupportable. In the present case, while
pointing out the delay in the forwarding of the FIR to the
Magistrate, no prejudice was said to have been caused
to the appellants by virtue of the said delay. As far as the
commencement of the investigation is concerned, there
was no dearth in that aspect. In such circumstances,
G there is no infirmity in the case of prosecution on that
score. [Para 32] [988-D-G]
lshwar Singh v. State of Uttar Pradesh AIR 1976 SC
2423;Subhash Chander etc. v. Krishan Lal and Ors. AIR 2001
H SC 1903 - relied on.
SANDEEP v. STATE OF U.P.
959
1.8 There were no good grounds to dis-believe the
A
statement of the deceased. No other motive or any other
basis was shown to disbelieve the statement. When the
reliance placed upon the admissible portion of the
statement of the accused is considered, the entirety of
the statement cannot be rejected outrightly by application
B
of Section 25 of the Evidence Act. Section 25 can be
pressed into service only insofar as it related to such of
the statements that would implicate himself while the
other part of the statement not relating to the crime would
be covered by Section 8 of the Evidence Act and that a c
distinction can always be drawn in the statement of the
accused by carefully sifting the said statement in order
to identify the admission part of it as against the
confession part of it. The evidence of PW-1 where the said
witness narrated the statement made by the main
0
accused which consisted of mixture of admission as well
as confession. The part of the statement which does not
in any way implicate the accused but is mere statement
E
of facts would amount to mere admissions which can be
relied upon for ascertaining the other facts which are
intrinsically connected with the occurrence, while at the
same time, the same would not in any way result in
implicating the accused into the offence directly. The first
statement only reveals the fact of the main accused's
friendship with the deceased and the physical
relationship developed by him with her. Acceptance of
F
the said statement cannot be held to straightway implicate
the accused into the crime and consequently it cannot
be construed as a confessional statement in order to
reject the same by applying Section 25 of the Evidence
Act. [Paras 28, 29 and 30] [982-A-B; D-F; 983-F-G; 984-AG
B]
Bheru Singh Sia Kalyan Singh v. State of Rajasthan
(1994) 2 SCC467: 1994 (1) SCR 559 - relied on.
1.9 The circumstance, namely, the report of the DNA
H
960
SUPREME COURT REPORTS
[2012) 5 S.C.R.
A in having concluded that the main accused was the
biological father of the recovered foetus of the deceased
was one other relevant circumstance to prove the guilt
of the main accused. In the light of the expert evidence,
it cannot be said that improper preservation of the foetus
B would have resulted in a wrong report to the effect that
the main accused was found to be the biological father
of the foetus received from the deceased. In the evidence
of Junior Scientific Officer of Central Forensic Laboratory
PW-10, it was brought out that the blood samples of the
c main accused and the foetus was received by him on
27 .01.2005 and that necessary test was conducted based
on which a report on 138/1, 13A/2 and 13C/3 were
forwarded which confirmed that the main accused was
the biological father of the foetus. It has also come in his
0 evidence that the collection of samples, preservation of
samples and transportation of samples if not carefully
done, it may affect the result, but in the case on hand the
result reported by him was not based on wrong facts.
The plea that the proper preservation of the foetus
resulted in wrong report is not supported by any relevant
E material on record and the appellant was not able to
substantiate the said argument with any other supporting
material. [Para 34] [989-E-F; 990-A-D]
2.1 There is no scope to interfere with the sentence
F of life and other sentences imposed against the coaccused u/s. 302, IPC r/w. s. 34, IPC by the High Court
and the other sentences u/s. 316 r/w s. 34 IPC. [Para 36]
[990-H; 991-A]
2.2 It is well-settled that awarding of life sentence is
G the rule, death is an exception. The application of the
'rarest of rare case' principle is dependant upon and
differs from case to case. However, the principles laid
down earlier and restated in the various decisions of
Supreme Court can be broadly stated that in a
deliberately planned crime, executed meticulously in a
H diabolic manner, exhibiting inhuman conduct in a ghastly
SANDEEP v. STATE OF U.P.
961
manner touching the conscience of everyone and
A
thereby disturb the moral fibre of the society would call
for imposition of capital punishment in order to ensure
that it acts as a deterrent. Though the case of the
prosecution based on the evidence displayed, confirmed
the commission of offence by the appellants, without any
B
iota of doubt, still the case does not fall within the four
corners of the principle of the 'rarest of the rare case'.
However, considering the plight of the hapless young
lady, who fell a victim to the avaricious conduct and lust
of the main accused, the manner in which the life of the c
deceased was snatched away by causing multiple
injuries all over the body with all kinds of weapons, no
leniency can be shown to the main accused. [Para 37]
[992-C-G]
Bachan Singh v. State of Punjab 1980 (2) SCC 684;
D
Machhi Singh v. State of Punjab AIR 1983 SC 957; Swamy
Shraddananda v. State of Kamataka 2008 (13) SCC 767:
2008 (11) SCR 93; Santosh KumarSatishbushan Bariyar v.
State of Maharashtra 2009 (6) SCC 498: 2009 (9) SCR 90;
Mohd. Farooq Abdul Gafur v. State of Maharashtra 2010 (14)
E
SCC 641: 2009 (12) SCR 1093; Haresh Mohandas Rajput
v. State of Maharashtra 2011 (12) SCC 56; State of
Maharashtra v. Goraksha Ambaji Adsul AIR 2011 SC 2689 -
relied on.
2.3. In the facts and circumstances of the present
case, while holding that the imposition of death sentence
F
to the main accused was not warranted and while
awarding life imprisonment it is held that the main
accused must serve a minimum of 30 years in jail without G
remissions before consideration of his case for
premature release. [Para 38] [993-B-C]
Shraddananda v. State of Kamataka 2008 (13) SCC 767:
2008 (11) SCR 93; Ramaraj v. State of Chhattisgarh AIR
2010 SC 420: 2009 (16 ) SCR 367 - relied on.
H
962
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A
Case Law Reference:
2000 (2) Suppl. SCR 712
Referred to
Para 12
Mysore (1980) 1 SCC 479 Referred to
Para 12
B
2005 (1) SCR 612
Referred to
Para 14
(1999) 9 sec 149
Referred to
Para 14
(1995) 7 JT 561
Relied on
Para 24
(2012) 1 sec 10
Relied on
Para 27
c
1994 (1) SCR 559
Relied on
Para 29
1973 (1) SCR 964
Relied on
Para 32
AIR 1976 SC 2423
Relied on
Para 32
D
AIR 2001 SC 1903
Relied on
Para 32
1980 (2) sec 684
Relied on
Para 37
AIR 1983 SC 957
Relied on
Para 37
E
2008 (11) SCR 93
Relied on
Para 37
2009 (9) SCR 90
Relied on
Para 37
2001 ( 2 ) SCR 864
Relied on
Para 37
F
2011 (12) sec 56
Relied on
Para 37
AIR 2011 SC 2689
Relied on
Para 37
2009 (16) SCR 367
Relied on
Para 37
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
G No. 1651 of 2009 etc.
From the Judgment & Order dated 28.05.2009 of the High
Court of Uttar Pradesh at Allahabad in Criminal (Capital)
Appeal No. 4148 DB of 2007.
H
WITH
SANDEEP v. STATE OF U.P.
963
Crl. A. No. 1425-1426 of 2011.
Sushil Kumar, Vined Kumar, Aditya Kumar, Meenakshi,
S.K. Chaudhary, Harichand, Daya Krishan Sharma, Vinay
Arora, Debasis Misra, D.P. Chaturvedi for the Appellant.
Ratnakar Dash, Rajeev Dubey, Kamlendra Mishra for the
Respondent.
The Judgment of the Court was delivered by
A
B
FAKKIR MOHAMED IBRAHIM KALIFULLA, J. 1. These
C
appeals arise out of the common judgment of the Division
Bench of the High Court of Allahabad in Criminal Appeal
No.4148/2007 along with Criminal Reference No.19/2007 by
which, the High Court while accepting the Criminal Reference
insofar as it related to appellant Sandeep in Criminal Appeal
D
No.1651/2009, rejected the same insofar as it related to
appellant Shashi Bhushan in Criminal Appeal Nos.1425-26/
2011. In other words, while upholding the sentence of death
awarded to Sandeep, the appellant in Criminal Appeal
No.1651/2009, the Division Bench modified the sentence into
E
one of life imprisonment insofar as it related to Shashi Bhushan,
the appellant in Criminal Appeal Nos.1425-26/2011.
2. Shorn of unnecessary facts, the case of the prosecution
F
as projected before the trial Court was that on 17.11.2004 I
D.N. Verma (PW- 1) along with Sub-Inspector Chander Pal
Singh (PW-2), Constable Rambir Singh, Constable Sukhram,
Constable Ashok Kumar and Driver Yashvir Singh were on
patrolling duty; that when they reached ahead of Badsu on
Khatoli Road leading towards Falut, they met Constable Rajesh
Kumar and another Constable Ramavtar who informed PW-1
G
and other persons accompanying him that one lndica car took
a turn for going towards Falut road and that they heard some
screaming noise from that vehicle. PW-1, accompanied by the
other personnel referred to above, proceeded towards Falut
H
964
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A road and after a distance saw an lndica car. They stated to have
seen through the focus light of the police jeep two young men
trying to pull out a girl in an injured condition by opening the
rear door of the car. It is stated that it was around 21.30 hours.
The police jeep in which PW-1 and others were proceeding
B stopped ahead of the lndica car and caught hold of the two
young men and also noticed a girl, with injuries all over, on whom
acid was also sprinkled. The girl had also sustained injuries on
the head as well as on her right cheek. On noticing the above,
according to PW-1, when he questioned her, she responded
c by stating that her name was Jyoti and she is the daughter of
one Baljeet Singh, R/o Lane No.16, House No.56, Jagatpuri,
P.S. Preet Vihar, New Delhi and that her mother's name was
Varsha whose cell number was 9871020368. Inspector D.N.
Verma (PW-1) stated to have gathered information from her
D that she developed friendship with the appellant Sandeep while
she was working in a mobile shop. She also stated to have
revealed that she was pregnant. According to the information
gathered from Jyoti, accused Sandeep had called her on that
evening and asked her to come to Laxmi Nagar market, Delhi,
around 6 p.m. promising her that he will marry her at Haridwar.
E Believing his words, she went to Laxmi Nagar market from
where she was taken in a car and that while they were moving
in the vehicle, accused Sandeep asked Jyoti to get the foetus
aborted at Meerut, to which she disagreed. On this, he started
beating her inside the vehicle right from the point of Modinagar.
F She stated to have further informed PW-1 and others that she
told accused Sandeep that she would reveal all facts to his
family members as well as to the police and that when the
vehicle in which they were travelling turned towards an isolated
place near Khatoli, they tried to throw her into the sugarcane
G field at which point of time PW-1 and other police members
reached the spot. According to her information to PW-1,
accused Sandeep and Shashi Bhushan caused the injuries on
her with the aid of a jack and pana (spanner) apart from cutting
her with a blade and also by pouring acid on her head. PW-1
H stated that on noticing the condition of the girl, he arranged for
SANDEEP v. STATE OF U.P.
965
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
shifting her to Muzaffarnagar Government Hospital in the police
A
jeep along with Constable Rambir Singh and the driver of the
jeep. It was further stated that accused Sandeep and Shashi
Bhushan, on being apprehended, also revealed their names
and informed that accused Sandeep used to visit deceased
Jyoti while she was working in a mobile shop in Mayur Vihar
B
Phase-I for the last six months prior to the date of occurrence
and developed friendship with her, and that in course of time,
deceased Jyoti pressurized him to marry her. On the date of
occurrence, around 6 p.m. he stated to have called her over
phone to meet him at Laxmi Nagar red light, that she responded c
to his call and came to Laxmi Nagar red light where accused
Sandeep was waiting along with his friend Shashi Bhushan who
drove the vehicle lndica car bearing registration No. DL 3CR
6666 which belonged to his mother. Accused Sandeep stated
to have extended a promise to marry her at Haridwar. While
0
the vehicle started moving, accused Sandeep asked Jyoti to
get the foetus aborted to which she did not agree instead
threatened him by saying that she will reveal all facts to his
parents as well as to the police and that as they reached
Modinagar, he started beating her. According to the version of E
accused Sandeep, as told to PW-1, at Modinagar he
purchased two bottles of acid and four shaving blades, that
when they reached Khatoli, on seeing an isolated place, they
tried to pull out the injured Jyoti from the vehicle and that at that
point of time they were apprehended by the police. It is the case
of the prosecution that while both the accused were taken into
F
custody, the vehicle in which they were travelling was also
seized along with the jack and pana, four blades and two acid
bottles. The articles, namely, blood stained floor mat, empty
bottles of acid, one pair of ladies footwear were stated to have
been seized after preparing a seizure memo. A copy of the
G
seizure memo was stated to have been handed over to the
accused. It is the specific case of the prosecution that since it
was late in the night and it was a lonely place, there were no
independent witnesses other than the police personnel. The
seizure memo was marked as Exhibit K-1.
H
966
SUPREME COURT REPORTS
[2012] 5 S.C.R.
A
3. The statement of PW-1 was registered as FIR No.Nil/
2004 on the files of P .S. Ratanpuri on 17 .11.2004 against both
the accused persons for offences under Sections 307, 326,
324 and 328, Indian Penal Code (in short 'IPC') which came
to be subsequently altered later on as one under Sections 302/
B
34 IPC after the victim was declared dead by the hospital
authorities. On the above set of facts, District and Sessions
Judge, Muzaffarnagar framed charges against both the
accused persons for offences under Section 302, IPC read with
Section 34, IPC and Section 316, IPC read with Section 34,
c IPC and proceeded with the trial. In support of the prosecution
as many as 10 witnesses were examined.
4. When the accused persons were questioned under
Section 313, Cr.P.C. for offences under Section 304, IPC read
with Section 34, IPC and Section 316 read with Section 34,
D
IPC, both the accused pleaded not guilty and also filed a written
statement to that effect. The tria! Court in its judgment dated
02.06.2007 ultimately found the accused persons guilty of
offences under Section 302 read with Section 34, IPC and 316
read with Section 34, IPC and after hearing both the accused
E
persons on the question of sentence, took the view that having
regard to the magnitude and the diabolic manner in which the
offences were committed by them and also having regard to
the various principles laid down in the decisions of this Court
in relation to the award of death penalty concluded that, the
F
case on hand was one such case which fell under the category
of 'rarest of rare case' in which the accused deserved to be
inflicted with the capital punishment of death under Section 302,
IPC read with Section 34, IPC. Ultimately, the trial Court
convicted and sentenced both the accused persons to death
G under Section 302 read with Section 34, IPC apart from
imposing a fine of Rs.30,000/- each and also sentenced them
to undergo 10 years rigorous imprisonment and pay a fine of
Rs.10,000/- each for offences under Section 316 read with
Section 34, IPC and in default of payment of fine sentenced
H .them to undergo further rigorous imprisonment for one year. The
SANDEEP v. STATE OF U.P.
967
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
sentences were to run concurrently. On realization of fine from
A
the accused persons, a sum of Rs.50,000/- was directed to be
paid to the parents of the deceased Jyoti as compensation.
5. While hearing the Criminal Reference No.19/2007 as
well as Criminal Appeal No.4148/2007 preferred by the
appellants, the High Court while confirming the death penalty
imposed on appellant Sandeep held that the case of accused
Shashi Bhushan was distinguishable and that the gravity of the
offence did not warrant infliction of extreme punishment of death
B
and consequently altered the same into one of imprisonment C
for life.
6. We heard Mr. Sushi! Kumar, learned senior counsel for
the appellant in Criminal Appeal No.1651/2009 assisted by Mr.
Daya Krishan Sharma and Mr. D.P. Chaturvedi, learned
counsel for the appellant in Criminal Appeal Nos.1425-26/2011
D
for appellant Shashi Bhushan. We also heard Mr. Ratnakar
Dash, learned senior counsel assisted by Mr. Rajeev Dubey,
for the State.
7. Mr. Sushi! Kumar, learned senior counsel in his
E
elaborate submissions after referring to the evidence of the
prosecution witnesses and medical evidence as well as expert
witnesses submitted that the so called dying declaration of the
deceased Jyoti was not proved, that the confessional statement
of the accused cannot be relied upon, that there were very many
missing links in the chain of circumstances and therefore the
guilt of the accused cannot be held to be made out. According
to the learned senior counsel there were discrepancies in the
timing of registration of the F.l.R., delay in sending of the report
F
to the Magistrate apart from vital contradictions in the evidence
of the police witnesses.
G
8. Learned senior counsel also contended that there were
serious lacunae in the preservation of foetus samples and,
therefore, the ultimate D.N.A. test result cannot be accepted.
H
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SUPREME COURT REPORTS
[2012] 5 S.C.R.
A
9. Learned senior counsel further contended that nonexamination of some of the cited witnesses caused prejudice
to the accused and on that ground also the case of the
prosecution should be faulted. He further contended that the
case of the accused about the theft of the lndica car was not
B properly appreciated by the Courts below. It was also contended
that there were infirmities in regard to the recoveries which
were not properly examined by the Courts below. Lastly, it was
contended that it was not a case for conviction and in any event
not 'rarest of rare case' for imposition of capital punishment of
c death sentence.
10. Mr. D.P. Chaturvedi, learned counsel appearing for the
accused -Shashi Bhushan apart from adopting the arguments
of Mr. Sushil Kumar, learned senior counsel contended that out
of 17 injuries alleged to have been sustained by the deceased
D Jyoti, at least 7 to 8 injuries were serious and in such
circumstances there would not have been any scope for the
deceased Jyoti to have made any statement as claimed by the
prosecution. According to him there was absolutely no overt act
attributed to the accused Shashi Bhushan in the matter of
E infliction of injuries on the body of the deceased Jyoti and
consequently even the imposition of life sentence was not
warranted.
11. As against the above submission, Shri Ratnakar Dash,
F learned senior counsel appearing for the State contended that
evidence of the prosecution witnesses who were all police
personnel was fair, impartial and natural and there was no
reason to doubt their version. He would contend that when there
was no independent witness present at the place of occurrence,
G there was no question of examining any such private witness.
According to him, the deceased was alive at the time when the
accused were apprehended by the police on 17 .11.2004 at
21.30 hrs. and the injuries noted by the doctor would show that
the deceased was capable of making a statement and,
therefore, the recording of such statement by PW-1 in his
H
SANDEEP v. STATE OF U.P.
969
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
complaint was perfectly in order. He further contended that even
A
in the statements of the accused such of those versions made
by them which did not in any way implicate them in the offence
was admissible under Section 8 of the Evidence Act while the
rest of the statements which are likely to implicate them can
be distinguished and eliminated from consideration.
B
12. Learned senior counsel relied upon the decision of this
Court in State of WB. v. Mir Mohammad Omar & Ors.- 2000
(8) SCC 382 and Somappa Vamanappa Madar &
Shankarappa Ravanappa Kaddi v. State of Mysore - (1980)
C
1 sec 479] in support of his submissions.
13. Learned counsel also contended that no prejudice was
demonstratively shown by the non examination of the cited
witnesses. Learned counsel contented that going by the version
of the expert witnesses, the preservation of the foetus was
D
according to the prescribed norms and the D.N.A. result having
been proved in the manner known to law cannot be doubted.
He also contended that when the registration of the F.l.R. was
promptly made, simply because there was minor delay in the
alteration of the offence from Section 307, IPC to Section 302,
E
IPC and the subsequent forwarding of the express report to the
Magistrate cannot be fatal to the case of the prosecution.
14. Learned counsel relied upon the decision in Sunil
Kumar and Anr. Vs. State of Rajasthan - (2005) 9 SCC 283,
Ram Kumar v. State (NCT) of Delhi- [(1999) 9 SCC 149, Tej
F
Prakash v. The State of Haryana -(1995) 7 JT 561 in support
of his submissions.
15. Having heard learned Senior counsel for the appellants
and learned senior couns!'ll for the State and having perused
G
the material papers, original records and the judgments of the
trial Court as well as the Division Bench of the High Court, we
wish to note the broad spectrum of the appellants' challenge
to the conviction and sentence which can be noted as under:
H
A
B
c
D
E
F
970
SUPREME COURT REPORTS
[2012] 5 S.C.R.
(I) The case of the prosecution which was mainly based
on the so-called dying declaration of the deceased and the
confessional statement of the accused cannot be
accepted as the same was not proved.
(II) The accused were able to demonstrate that they were
not present at the time of the commission of the alleged
offence on 17.11.2004, as there were very many
disruptions in the chain of circumstances to rope in the
appellants.
16. When the submissions made on behalf of the
appellants are analyzed, the following facts were claimed to
support their stand:-
a)
The entire case of the prosecution was dependent
on the version of witnesses, majority of whom were
police personnel and there was no independent
witness to support the version of the police.
b)
The source of the FIR was the alleged dying
declaration of the deceased which was not proved
and the so-called confession of the accused
Sandeep was inadmissible under Section 25 of the
Evidence Act.
c)
If the confession is inadmissible, the whole case
depended on circumstantial evidence.
d)
The case which was originally registered under
Section 307, IPC was altered into one under
Section 302, IPC belatedly.
G
e)
There were very many missing links in the chain of
circumstances.
f)
There were serious infirmities in the tests conducted
in the samples of the foetus which seriously
H
undermine the case of the prosecution.
SANDEEP v. STATE OF U.P.
971
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
g)
Though the· occurrence took place in a public place
A
near a crusher unit where number of labourers were
working, the absence of examination of
independent witnesses was fatal to the case of the
prosecution.
h)
Non-examination of some of the key witnesses cited
in the charge- sheet whose evidence would have
otherwise supported the case of the accused
caused serious prejudice and on that ground the
case of the prosecution should fail.
i)
The delay in sending the express report was a
serious violation of Section 157, Cr.P.C. which
would again vitiate the case of the prosecution.
B
c
j)
The alleged seizure of materials from the car was
0
highly doubtful, having regard to certain vitiating
circumstances.
k)
Accused Sandeep was roped in falsely by creating
a link with his mother's car, which according to
Sandeep, was stolen on the date of occurrence,
E
which was omitted to be considered in the proper
perspective.
I)
When admittedly there was a pending rape case
relating to the deceased in which certain persons
F
were accused of having committed rape on the
deceased on 17.04.2004 which was tacitly
admittedly by Baljeet Singh (PW-8), father of the
deceased, there was every scope for the aggrieved
persons in the said criminal case to have involved
G
in the crime against the deceased.
17. As against the above, when the stand of the learned
counsel for the State is analyzed, the following points emerge
for consideration:-
H
972
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS
[2012] 5 S.C.R.
i) The relationship of Sandeep (A-1) with the deceased
and the carrying of the foetus in the womb of the deceased
was not in dispute.
ii) Merely because the key witnesses were police
personnel, that by itself cannot be a ground to eschew that
evidence from consideration.
iii) The case of the prosecution based on the statement
of the deceased as spoken to by the witnesses cannot be
doubted.
iv) The statement of the deceased to the police insofar as
it related to the incident and such of those admissions of
the accused not implicating them to the offence was
admissible in evidence under Section 8 and not hit by
Section 25 of the Evidence Act.
v) when there were no independent witnesses present at
the place of occurrence, the grievance of the accused on
that score does not merit consideration.
vi) The medical evidence, in particular, injuries noted in the
post-mortem certificate show that the deceased was
capable and did make the statement as demonstrated by ·
the prosecution.
vii) The forensic report established the presence of blood
on the weapons used as well as in the car which was one
of the clinching circumstances to prove the guilt of the
accused.
viii) The outcome of the DNA test established the link of
the accused with the deceased to prove the motive for the
crime.
ix) The claim of theft of the car was not established before
the trial Court in the manner known to law.
SANDEEP v. STATE OF U.P.
973
[FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]
x) The presence of the accused at the time and place of
A
occurrence was proved beyond all reasonable doubts.
xi) The handling of the samples sent for chemical and
forensic examination was carried out in accordance with
the prescribed procedure.
xii) The accused failed to show that the non-examination
of any of the cited witnesses caused prejudice to them
before the trial Court and, therefore, the grievance now
expressed will not vitiate the case of the prosecution.
xiii) The various other discrepancies alleged were all minor
and the same do not in any way affect the case of the
prosecution.
B
c
18.