Ronny v/s State of Maharashtra, (1998) 3 SCC 625

CaseRonny alias Ronald James Alwaris and Others v State of Maharashtra, (1998) 3 SCC 625
BenchMK Mukherjee and SSM Quadri, JJ.
Author of the judgementSSM Quadri, Justice.
Case No.Criminal Appeals Nos. 1064 to 1066 of 1997
Decided OnMarch 5, 1998
Advocate for appellant (in Crl.A.No. 1064 of 1997)U.R. Lalit, Senior Advocate (Am Khanwilkar, AP Mayee and Vijay Kumar, Advocates, with him)
Advocate for appellant (in Crl.A.No. 1065 of 1997)Ms Shilpa Malvankar, SC Paul, Anand Jain and JD Jain.
Advocates for the respondentIG Shah, MS Nargolkar, Senior Advocates (DM Nargolkar, Advocate, with them)
Author of the briefAditya Gor
KeywordsCriminal Law, Death punishment, Life Imprisonment, Murder.

Brief facts and procedural history:

The Ohol family used to reside in Rooman Bungalow situated in Varsha Park Society. The family consisted of four members Mr Mohan Ohol, Mrs Ruhi Ohol, Mr Rohan Ohol and Ms Reina Mohan Ohol. Other relatives of the said family are mentioned below in the chart. Nitil Anil Swargey and his friends Ronny and Santu are the appellants in the present case. All the three appellants reached Roman Bungalows on the night of July 20th and in the verandah of the bungalow, three persons were talking — Rohan and his two class mates, K.S. Pradhan and Rajesh Sundaram. (Para 2 & 3)

(Family Chart of Ohol Family. Three generations are classified with different colors).

Nitin expressed to Rohan that they wanted to stay overnight at his bungalow as their vehicle had broken down on their way to Panchgani. All of them stood talking there for about eight minutes and then Rohan told them to sit inside the house. A-1, A-2 and A-3 left their muddy shoes in the verandah and entered the house. (Para 3)

At about 8.00 a.m. in the morning on 21st July, Balasaheb Hiraman Kalambkar, the milkman, who went to deliver the milk, noticed that three persons were leaving the Rooman Bungalow in the car. He went and kept the milk bags on the rack and the newspaper given to him by the newspaperman at the bungalow and gave the usual call “doodh”. Mr Mhatre is the newspaperman. (Para 5)

The Maruti car was later found abandoned by A-1, A-2 and A-3 at Shirur. Thereafter, they started dealing with the properties of the Ohols. At about 11.15 a.m., on the same day, from Shirur they boarded the bus. At about 12.30 p.m., A-1 went to the Bank of Maharashtra, Hadapsar Branch, Pune, presented a cheque for Rs 12,000 purportedly signed by Mr Mohan Ohol and drawn in favour of one Mr M.K. Chavan, to the Bank Clerk, Nand Kishore Tukaram Shinde who asked A-1 to sign at the back of the cheque and he signed as M.K. Chavan. The cheque was given to Mr Damodar Apte, the Assistant Branch Manager, for verification. He found that the signature of Mr Mohan Ohol was not tallying and so A-1 was asked by him either to get Mr Mohan Ohol’s instruction or another cheque from him. He also asked A-1 to return the token and take back the cheque, but A-1 disappeared from the bank. Consequently, the uncased cheque remained with the bank and the token remained with A-1. (Para 6)

On 21-7-1992, the maid went for her daily chores at about 4.00 p.m., rang the bell but nobody opened the door. She went to the back side of the bungalow and knocked at the door. She did not get any response. She found the milk sachets in the verandah. She thought that the condition of the mother of Mrs Ohol might be serious and the family might have gone to the hospital. So she took the milk sachets and went home. At about sunset, she sent her daughter and son with the milk bags to the bungalow to deliver the same, but they returned with the milk bags stating that nobody was attending to the doorbell and also informed that the Maruti car was not in the porch. (Para 7)

In the evening of 22nd July, the nephew and niece of Mr Ohol, Viren and Rhoda, came to the bungalow to enquire as their parents were informed that neither Mrs Ohol nor any member of her family had gone to the Ruby Hospital to see her ailing mother nor they were not getting any response on phone. They noticed that the lights on the ground floor of Rooman Bungalow were burning. On 22nd July, when watchman went to the bungalow at 9.00 p.m., he pushed the doorbell button but the bell did not ring. The entrance door of the bungalow was closed, the lights were “on” on the ground and the first floor but the Maruti car was not there. Then the watchman went to the terrace to check that there is nothing abnormal. He reported that he did not find anything there but thereafter he pointed out that ants were going in and coming out of the bathroom on the ground floor. He then removed the window glass and saw that human bodies were lying in the tub in the bathroom. They broke open the door of the kitchen. They found that the house was ransacked. The disfigured dead bodies of Mr Mohan Ohol, Mrs Ruhi Ohol and their son Rohan Ohol were lying in the tub in the bathroom. The dead bodies were removed from the tub and panchnamas were prepared. In the post-mortem report it was identified that the cause of death of Mr Rohan Ohol and of Mr Mohan Ohol was due to suffocation and the compression of the neck. Similar was the opinion of PW 74 as to the cause of death of Mrs Ruhi Ohol. Among the injuries found on the dead body of Mrs Ruhi Ohol, there were injuries on her private parts which were opined to be due to violent sexual attack by more than one person on her. (Para 7)

On 23rd July, Ms Reina Ohol, the only surviving member of the Ohol family, returned to Pune from Bombay. On the same day, the Maruti car of Mr Mohan Ohol was escorted from Shirur petrol pump. (Para 10)

Issues before the Court:

(1) What, if any, would be the effect of:

(a) identification of the appellants by the witnesses for the first time in court (without participating in test identification parade); and

(b) the alleged non-compliance of sub-section (4) of Section 100 and sub-sections (3) and (4) of Section 166 CrPC;

on the judgment under appeal?

(2) Whether the charge under Section 376 against the appellants has been made out; and

(3) Whether the facts and circumstances of the case justify awarding of death sentence to the appellants.

Arguments of the appellants:

  • So far as identification by these witnesses at the time of trial without their participation in the TIP is concerned, it was argued that their identification was worthless and, therefore, that part of the evidence should be excluded from consideration and thus a vital link in the chain of circumstances would be missing, so their conviction based on such identification had to be set aside. (Para 17)
  • The copies of the letters sent to the other police station in whose jurisdiction the search and seizures were made, had not been produced. (Para 29)
  • It was submitted that the post-mortem reports would show that the death had occurred between 24 and 72 hours; it was also noted that the injuries were recent and that rigor mortis had passed off in the upper extremities and it was present in the lower extremities; therefore, the murder could have taken place at any time in the morning of 22nd July or in the intervening night of 21st and 22nd July and the presence of the appellants during that period in Rooman Bungalow was not established. (Para 34)

Arguments of the respondent:

  • It was contended that the test identification of an accused by a witness was for the purposes of ensuring that the prosecution was on the right track and to ensure that the memory of the witness did not fail on account of lapse of time from his first seeing the accused and this criteria would not apply to a witness who had known the accused earlier, so their identification for the first time at the time of trial would not demolish the case of the prosecution. (Para 17)

Ratio:

After their arrest, the appellants were identified by various witnesses; some identified them in test identification parade and subsequently in court but some identified them for the first time in court.  It may be noted here that many of these witnesses did not participate in the TIP. (Para 17)

Section 9 of the Evidence Act deals with relevancy of facts necessary to explain or introduce relevant facts. So the evidence of identification is a relevant piece of evidence under Section 9 of the Evidence Act where the evidence consists of identification of the accused person at his trial. The statement of the witness made in the court, a fortiori identification by him of an accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIP is not substantive evidence but is only corroborative evidence. It falls in the realm of investigation. (Para 18)

The substantive evidence is the statement of the witness made in the court. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much so that it becomes unsafe to rely on such a piece of evidence. But if a witness has known an accused earlier in such circumstances which lend assurance to identification by him in court and if there is no inherent improbability or inconsistency, there is no reason why his statement in court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony. (Para 18)

The Supreme Court accepted the view that the identification of the appellants by PW 42 and PW 45 cannot be relied upon as rightly been held by the Trial Court and the High Court. (Para 23)

The Supreme Court did not find any substance in the 2nd submission of the appellant. The witness stated that he has sent the letter to the police station concerned, therefore, the presumption under Illustration (e) of Section 114 of the Evidence Act would arise and the official acts would be deemed to have been performed regularly. There is thus no non-compliance of the aforementioned provisions of the Code of Criminal Procedure. Apropos the recovery of articles belonging to the Ohol family from the possession of the appellants soon after the robbery and the murder of the deceased (Mr Mohan Ohol, Mrs Ruhi Ohol and Mr Rohan Ohol) which possession has remained unexplained by the appellants, the presumption under Illustration (a) of Section 114 of the Evidence Act will be attracted. The irresistible conclusion would, therefore, be that the appellants and no one else had committed the three murders and the robbery. (Para 29 & 30)

The trial court and the High Court found no substance in the 3rd submission. In the view of Supreme Court also, this submission is devoid of any merit. The post-mortem reports clearly indicate that the death might have occurred between 24 and 72 hours and that would corroborate the prosecution case that the murders were committed in the intervening night of 20th and 21st July and the presence of the appellants between 8.30 p.m. on 20th July and 8.00 or 8.30 a.m. on 21st July, as noted, has already been established. (Para 34)

While referring to Baiju v state of MP (1978) 1 SCC 588, Gulab Chand v state of MP, Tulsiram Kanu v State, Union Territory of Goa v Beaventura D’Souza, the court held that the presumption under illustration (a) of section 114 of the evidence act has to be read along with the important time factor and if the ornaments of the deceased were found to be in the possession of the person soon after the murder, the presence of guilt in respect of murder by the possessor of the stolen goods also might be permitted. But if several months have expired the presumption could not permitted to be drawn. (Para 31, 32)

In this case, the trial court as well as the High Court have enumerated all those circumstances which have been established and which form a complete chain so as to bring home the guilt of the accused without giving room to any other hypothesis except the guilt of the accused and those circumstances are inconsistent with the innocence of the accused. The Supreme Court, therefore, confirmed the conviction of the accused recorded by the trial court and confirmed by the High Court in respect of all other charges; the conviction of the appellants under Section 376 IPC will be considered under Point 2. (Para 36)

With regards to point 2 it was clear that in the intervening night of 20th and 21st July, Mrs Ruhi Ohol was sexually assaulted and was put to death. The evidence with regard to this conclusion has been clearly found in Para 38 of the judgement. (Para 37)

In regard to the quantum of punishment to be awarded to persons found guilty of offences dealt with in the Indian Penal Code (for short “the Code”), the scheme of the Code is, it confers a wide discretion on the court in the matter of awarding appropriate punishment by prescribing the maximum punishment and in some cases both the maximum as well as the minimum punishment for the offence. Though no general guidelines are laid down in the Code for the purpose of awarding punishment, generally the judicial discretion of the court is guided by the principle that the punishment should be commensurate with the gravity of the offence having regard to the aggravating and mitigating circumstances vis-à-vis an accused in each case. For ascertaining the existence or absence of special reasons in the context, it was observed that though, in a sense, to kill is to be cruel and, therefore, all murders are cruel, yet such cruelty may vary in its degree of culpability and it is only when culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. It was emphasized that life imprisonment was the rule and death sentence was an exception and that death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstance of the crime and provided that the option to sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. (Para 40 & 41)

Whether the case is one of the rarest of the rare cases is a question which has to be determined on the facts of each case. Suffice it to mention that the choice of the death sentence has to be made only in the rarest of the rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and; where the crime is committed in an organised manner and is gruesome, cold-blooded, heinous and atrocious; where innocent and unarmed persons are attacked and murdered without any provocation, the case would present special reason for purposes of sub-section (3) of Section 354 of the Criminal Procedure Code. (Para 45)

Considering the cumulative effect of all the mitigating and aggravating factors enumerated in Para 46, it cannot be said that the offences were committed under the influence of extreme mental or emotional disturbance for the whole thing was done in a pre-planned way; having regard to the nature of offences and circumstances in which they were committed, it is not possible for the Court to predict that the appellant would not commit criminal act of violence or would not be a threat to the society. The appellants cannot be said to be too young or too old. The possibility of reform and rehabilitation, however, cannot be ruled out. Accordingly, the Court modified the sentence awarded by the courts below under Section 302 read with Section 34 from death to life imprisonment. (Para 47)