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The Indian Penal Code
The Indian Evidence Act, 1872
Section 6 in The Indian Penal Code
Shri Bhagwan vs State Of Rajasthan on 10 May, 2001
Ravji @ Ram Chandra vs State Of Rajasthan on 5 December, 1995

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Madhya Pradesh High Court
Maganlal vs The State Of Madhya Pradesh on 12 September, 2011

SPECIAL LEAVE PETITIONS PREFERRED AGAINST THE JUDGMENT AND REGISTERED AS SLP(CRI.) NOs.329-330 of 2012 HAVE BEEN DISMISSED BY THE APEX COURT ON 09.01.2012.

HIGH COURT OF MADHYA PRADESH : JABALPUR -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

PRESENT Hon'ble Smt. Justice Sushma Shrivastava Hon'ble Shri Justice R.C. Mishra

-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

CRIMINAL REFERENCE NO.1/2011

In reference,

vs.

Maganlal, son of Mangilal Barela,

aged about 40 years, Resident of village Kaneria, Police Station Ichhawar, Distt. Sehore ...Respondent ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Shri Umesh Pandey, G.A., for the State. Shri S. C. Datt, Senior Counsel with Shri Siddharth Datt, Advocate for the respondent-accused. ---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

AND

CRIMINAL APPEAL NO.503/2011

Maganlal, son of Mangilal Barela,

aged about 40 years, Resident of village Kaneria, Police Station Ichhawar, Distt. Sehore ...Appellant vs.

State of Madhya Pradesh, through SHO,

P.S. Ichhawar, Distt. Sehore ...Respondent -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Shri S. C. Datt, Senior Counsel with Shri Siddharth Datt, Advocate for the appellant.

Shri Umesh Pandey, G.A., for the respondent/State. -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

Date of Hearing : 03.08.2011 Date of Judgment : 12.09.2011

JUDGMENT

Per R.C. Mishra, J.

This judgment shall govern disposal of death reference and criminal appeal as they arise from the judgment-dated 03.02.2011 passed by the Sessions Judge, Sehore in S.T. No.185/2010, whereby Maganlal (hereinafter referred to as the 'appellant') was convicted and sentenced as under - :: 2 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

Convicted under Sentenced to Section

302 of the IPC death.

(on five counts)

309 of the IPC undergo R.I. for 1 year.

2. The appellant is the father of Jamuna, Leela, Aarta, Savita and Phool Kunwar who, at the time of their untimely deaths, were aged about 1 year, 3 years, 4 years, 5 years and 6 years. Amongst these, Jamuna, Leela & Savita were born through his second wife namely Basanti (PW1) while he got the other two from his first wife viz. Santo (PW2), the cousin of Basanti. Appellant's children also include three sons; Shriram from Basanti and Ajay & Vijay from Santo. He was tried not only for committing murders of all the five daughters but also for making an attempt to commit suicide.

3. Prosecution case may briefly be stated thus -

(i) At the relevant point of time, the appellant was residing in a one-room house situated on forest-land in village Kaneria along with his wives and children. His elder brother Chhagan and younger brothers Jagan (PW3) and Agan (PW8) were also living in the same vicinity but in different houses constructed on the forest-land only.

(ii) During the period of nearly a month preceding the incident in question, the appellant proposed to sell his land in favour of one Ramlal, a co-villager. However, his wives as well as brothers were opposed to the proposal. They persuaded him not to sell the :: 3 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

land saying that 'how would he maintain the children after doing so'. Against this backdrop, the appellant, being annoyed with the attitude of his wives and brothers, did not take meals in the night intervening 10th and 11th of June, 2010. On the following morning, he again refused to eat food and started moving around carrying an axe. However, ignoring his displeasure, Basanti and Santo went to agricultural field located behind their house to pick up pieces of stones, leaving all the children playing in the house of Agan.

(iii) On 11.06.2010, at about 5 p.m., the appellant called on his daughters to return home. As the girls including Jamuna, who was being carried by Phool Kunwar in her lap, entered into the house, the appellant closed the door from inside and exterminated each one of them by cutting her throat with the axe after causing the same to be placed on a wooden plank.

(iv) Hearing alarms, Basanti and Santo rushed to the house; peeped thereinto through the closed door and found that all the five daughters, stained with blood, were lying dead and the appellant, wearing only a pant, was also present there with axe in his hand. Basanti immediately shouted to Agan and Jagan that the appellant had cut down the girls but before their arrival at the scene, the appellant opened the door and attempted to kill Basanti and Santo, who were able to run away. At this point of time, the appellant climbed over nearby Teak Tree and tried to hang :: 4 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

himself by tying a rope around his neck. Agan and Jagan immediately aborted appellant's attempt to commit suicide by climbing over the tree and bringing him down after cutting the rope. They then tied up the appellant with a rope to the tree.

(v) Agan (PW8) informed Radheshyam (CW1), the husband of Sarpanch about the incident. Radheshyam, in turn, apprised V.K. Jain (PW9), the then SHO of P.S. Ichhawar accordingly on cell-phone. After recording the corresponding information at Serial No.705 of the Roznamcha (Ex.32-C and D-2), V.K. Jain immediately proceeded to the spot where he scribed Dahati Nalishi (Ex.P-1) upon information given by Basanti (PW1).

(vi) After inquest proceedings, dead bodies were sent for post-mortem examinations, that was conducted by Dr. B.B. Sharma (PW4). He opined that common cause of deaths was shock due to excessive haemorrhage. The medical expert also preserved bloodstained clothes worn by each one of the deceased for forensic examination.

(vii) During investigation, SHO V.K. Jain (PW9) inspected the spot and seized the following articles therefrom -

(a) ordinary soil (b) bloodstained soil (c) piece of wood (d) rope in four pieces (e) bloodstained axe

He also seized bloodstained pant worn by the appellant at the place of occurrence only. The :: 5 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

appellant was subjected to medical examination. All the seized articles were forwarded to Regional FSL, Bhopal for forensic examination. The corresponding report (Ex.P-40) indicated that except the ordinary soil, all the articles contained human blood and also that blood found on the frock and underwear of Phool Kunwar and on appellant's pant was of the same group i.e. AB.

4. The appellant abjured the guilt. In his examination, under Section 313 of the Code of Criminal Procedure (for short 'the Code'), he further pleaded that someone else had killed his daughters. However, the defence did not prefer to adduce any supportive evidence presumably in view of categorical admissions made by Basanti (PW1), Santo (PW2), Jagan (PW3) and Agan (PW8) to the effect that on being asked about the gruesome incident, the appellant disclosed that some unknown persons had not only murdered his daughters but also tied him to the tree.

5. Let us first deal with the appeal against the convictions, which are apparently based on circumstantial evidence only.

6. Legality and propriety of the impugned convictions have been challenged on the following grounds -

(i) Chain of circumstances relied upon by learned trial Judge was not so complete and connected with the charges as to establish the guilt of the appellant.

:: 6 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

(ii) Witnesses, whose presence around the spot was natural and probable, viz. Basanti, Santo, Jagan and Agan, on one hand, did not corroborate the prosecution case and on the other, supported the defence that some unknown persons after killing his daughters, had tied the appellant to the tree.

In response, learned Government Advocate, while making reference to the incriminating pieces of evidence, has contended that the convictions were fully justified.

7. The sole line of defence suggested that each one of the deaths in question was homicidal in nature. Further, no serious dispute was raised questioning veracity of the medical evidence as to the number, situs and nature of injuries found on the persons of Jamuna, Leela, Aarta, Savita and Phool Kunwar and those received by the appellant. Still, in order to appreciate the rival contentions in the right perspective, it would be necessary to advert to testimony of the medical expert.

8. Evidence of Dr. B.B. Sharma (PW4) relates to the post-mortem examinations on the dead bodies of Aarta, Savita, Leela, Jamuna and Phool Kunwar as conducted on 12.06.2010. According to him, he had found the following ante-mortem injuries -

on the body of Aarta (as described in Ex.P-18)

(i) Incised wound 8 x 4 cm bone deep at the back of neck. Vertebral artery, fascia, underlying muscles and IInd cervical vertebra are being cut. :: 7 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

(ii) Incised wound 6 x 3 cm bone deep at the lower occipital part of skull. Occipital bone is cut in lower part.

(iii) Incised wound 5 x 2 x 2 cm at upper part of back left side.

on the body of Savita (as described in Ex.P-19)

(i) Incised wound 8 x 5 cm bone deep at the back of the neck. Vertebral artery, fascia, underlying muscle and cervical vertebra are being cut. (ii) Incised wound 5 x 2 cm bone deep at the lower part of occipital bone at the back of skull. (iii) Incised wound (obliquely) 6 x 2 x 2 cm at right side of back at supra scapular region.

on the body of Leela (as described in Ex.P-20)

Incised wound, 10 x 8 cm at back of the neck. Neck is cut through and head is attached to the body with skin only from front side. Oesophagus, trachea, all vessels and nerve with vertebrae are being cut. Brain matter is exposed and meninges is cut. Occipital bone in lower half and Ist cervical vertebrae are also cut.

on the body of Jamuna (as described in Ex.P-21)

Incised wound 10 x 7 cm at the back of the neck. Neck is cut through and head is attached to the body with skin only from front side. Oesophagus, trachea, all vessels and nerve with vertebrae are being cut. Brain matter is exposed and meninges is cut. Occipital bone in lower part of skull and Ist cervical vertebrae are also cut.

on the body of Phool Kunwar (as described in Ex.P-22)

(i) Incised wound 6 x 3 cm bone deep lower occipital part of the skull.

:: 8 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

(ii) Incised wound 10 x 5 x 4 cm extending from back to the left side of the neck (oblique). External jugular vein, fascia, muscle (underlying) and cervical vertebra are being cut.

(iii) Incised wound 4 x 2 x 1 cm at the supra scapular region on the back of right side.

The Autopsy Surgeon categorically opined that all the abovementioned injuries were caused by hard, sharp and heavy object and the common cause of deaths was shock due to excessive haemorrhage. He further deposed that the injuries received by the deceased could be inflicted by the axe, referred to him for examination by the SHO on 14.06.2010 by way of memo (Ex.P-25). Corresponding report (Ex.P-26) was also tendered in evidence.

9. In the face of all this evidence, learned trial Judge did not commit any illegality in holding that each one of the deceased had met with a homicidal death that was caused by cutting her neck by means of the axe.

10. Dr. B.B. Sharma also proved existence of the following injury, as reflected in the report (Ex.P-24), on the neck of the appellant -

"A ligature mark all around the neck above the thyroid cartilage oblique, 36 cm long 1.5 cm wide, ligature mark starting from back of the neck to angle to mandible left side. Ligature mark is missing on left side back of the neck and below left ear".

In the cross-examination, the medical expert ruled out the possibility that the neck injury could be sustained due :: 9 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

to tying of rope around the neck. According to him, ligature mark was caused by hanging only.

11. Coming to the other evidence on record, it may be observed that one of the incriminating circumstances relied on by the prosecution, that related to extra-judicial confession said to have been made by the appellant before Ratan Singh (PW7) was discarded by learned trial Judge as inadmissible. Moreover, as pointed out already, the mothers and uncles of the deceased had not supported the prosecution version as to involvement of the appellant in the offences charged with.

12. Evidence concerning remaining circumstances, as highlighted by the prosecution and found proved by learned trial Judge, may be re-appreciated in the light of the rival contentions in the following manner: -

(A) CIRCUMSTANCES RELATING TO THE OFFENCE OF MURDER.

(1) The first circumstance held proved is in the form of admission made by Basanti (PW1) to the effect that seeing dead bodies of the daughters, she had started shouting that the appellant had cut down the girls. Learned Senior Counsel has submitted that the admission, being inconsistent with a categorical assertion to the effect that she did not know as to who had killed the girls, could not be relied upon as an incriminating circumstance. However, it was not possible to reject corresponding part of Basanti's deposition on the ground that she was declared hostile :: 10 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

by the prosecution (Bhagwan Singh v. State of Haryana AIR 1976 SC 202 relied on) particularly when she was not cross-examined by the defence in respect of this constituent incident of the transaction. Needless to say, this fact was admissible under Section 6 of the Evidence Act as res gestae.

(2) The next circumstance found established is that an entry (Ex.P-32-C as well as D-2) in the Rojnamcha (Daily Diary) of the police station was made by SHO V.K. Jain (PW9), upon the cell-phonic information said to have been given by Radheshyam (CW1) suggesting that Maganlal Barela viz. the appellant had killed five daughters in his residence located at village Kaneria and was also attempting to hang himself. Since the telephonic information received by the police officer was not vague or cryptic, but contained precise particulars of the offending acts committed by the appellant, it could be treated as an FIR (Sunil Kumar v. State of M.P. AIR 1997 SC 940 referred to).

Learned Senior Counsel, while making reference to decision of the Madras High Court in Sankaralinga Tevan v. Emperor AIR 1930 Madras 632 (2) and that of the Supreme Court in State of Bombay v. Rusy Mistry AIR 1960 SC 391, has still contended that the entry in the Roznamcha could not be used as substantive evidence. Attention has also been invited to the fact that Radheshyam, summoned as a Court Witness but permitted to be declared as hostile by the prosecution, clearly asserted that he had only communicated the information received from Jagan :: 11 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

(PW3) to the effect that mutilated dead bodies of all the five daughters were lying in appellant's house and not that it was the appellant who had murdered them. Nevertheless, in absence of any prejudice or bias towards the appellant, statement of V.K. Jain that he had made the aforesaid entry only upon the information conveyed by Radheshyam, could not be disbelieved simply because he happens to be a police officer. The information so given immediately after the commission of the crime so as to form part of the same transaction was also relevant under Section 6 of the Evidence Act. The circumstance that investigation against appellant started on the basis of the aforesaid information was rightly held to be established. (3) The next circumstance on which reliance has been placed is the appellant's conduct subsequent to murders of all the five daughters. Learned Senior Counsel has urged that an indifferent attitude of the appellant after witnessing the murders was not unnatural or improbable as no fixed pattern of natural conduct can be laid down as different witnesses would react in different manner in the same situation. According to him, apparently, the appellant, after seeing the ghastly incident, had become stunned and therefore, was not in a position to raise alarm. Making reference to evidence of Basanti, Santo, Jagan and Agan, he has further pointed out that all of them duly substantiated the defence by deposing that while denying his complicity in the murders, the appellant revealed that someone else had not only killed his :: 12 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

daughters but also tied him to the tree. Citing the decision of the Supreme Court in Zwinglee Ariel v. State of M.P. AIR 1954 SC 15, learned Senior Counsel has also contended that any statement made by the accused after being apprehended by the police was also not admissible under Section 8 of the Evidence Act.

However, fact of the matter is that evidence of the relatives suffered from inconsistency regarding information given by the appellant as to number of persons involved in killing of his daughters. According to Basanti, Santo and Jagan, on being asked, the appellant disclosed that some unknown person, after killing his daughters, had tied him to the tree whereas as per statement of Agan, the appellant's explanation suggested role of as many as four/five persons in the incident. Besides this, non-explanation on their part as to why even after knowing about the innocence of the appellant, they, instead of informing the police about the incident or untying the rope to set him free, had waited for police to arrive at the spot. It was, therefore, apparent that all of them were interested in screening the appellant from the penal consequences of the murders of his daughters. Had his plea been true, the appellant, in the ordinary course of human affairs, as a father witnessing brutal murders of all the five daughters by someone else, would certainly have raised hue and cry and taken steps to apprise the police of the incident. In this view of the matter, his conduct of non-reaction even after seeing merciless :: 13 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

killing of his female off-springs was rightly considered as an incriminating circumstance relevant under Section 8 of the Evidence Act to the fact in issue.

(4) Another circumstance found established is that the appellant was found tied to the teak tree by means of a rope. SHO V.K. Jain (PW9) was emphatic in stating that when he reached the spot, he had found the appellant tied to the tree, located near the place of occurrence, by means of a rope and this fact was also admitted by the appellant in his examination, under Section 313 of the Code. As concluded already, his non-explanation that he was made to stand tied to the tree by some unknown person/persons was not convincing in the facts and circumstances of the case.

(5) The fifth circumstance held proved against the appellant is that blood of same group was found on his pant and on the frock and underwear worn by Phool Kunwar. Investigating Officer V.K. Jain clearly deposed that along with the axe lying near the dead bodies of appellant's daughters, he had also seized (a) dust-coloured pant worn by the appellant by way of memo (Ex.P-30) and (b) bloodstained wooden plank, ordinary & bloodstained soil and pieces of rope as per memo (Ex.P-31). Contents of these documents were not challenged in his cross-examination. They also drew adequate support from the evidence of panch witness Ratan Singh (PW7). Further, no dispute was raised as to statement made by Autopsy Surgeon Dr. B.B. Sharma (PW4) that he had sealed the clothes worn by each one of the deceased separately for :: 14 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

chemical examination. According to V.K. Jain, he had forwarded all the seized articles along with a memo, copy of which was placed on record as Ex.P-39, to Regional FSL, Bhopal. Corresponding report (Ex.P-40) authored by M.P. Bhaskar, Senior Scientific Officer and Assistant Chemical Examiner, indicated that wooden plank, axe, pant & frock and underwear said to have been worn by Phool Kunwar, were found to contain same group of blood namely AB.

Learned Senior Counsel, while placing reliance on a decision of the Apex Court in Subhash Chand v. State of Rajasthan (2002) 1 SCC 702, has submitted that in absence of evidence as to appellant's blood group, presence of Group AB bloodstain on the pant did not assume any significance. However, the contention is not acceptable in view of the fact that no bleeding injury corresponding to the bloodstain on the pant was found on the person of the appellant. In these circumstances, matching of blood on the clothes worn by Phool Kunwar and those found on the pant was correctly taken into account as one of the incriminating circumstances against the appellant.

(6) Presence of human blood on the nail clipping is yet another circumstance found established against the appellant. While terming this circumstance as useless and deceptive, learned Senior Counsel has invited attention to the decision in Ujagar Singh v. Emperor AIR 1939 Lahore 149 wherein it was held that evidence of blood-stained nails is not only of no :: 15 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

medico-legal value but may be extremely dangerous to the innocent persons. However, as explained by the Supreme Court in Dayanidhi Bisoi v. State of Orissa (2003) 9 SCC 310, presence of blood in the nail clipping may not be sufficient by itself to fasten guilt on the accused; but when it is considered with other evidence and found acceptable can provide additional weightage to the prosecution case. This view was re-affirmed in Vilas Pandurang Patil v. State of Maharashtra AIR 2004 SC 3562.

(7) The seventh circumstance found proved is the falsity of the defence. It is well settled that the false answers given by the accused with reference to the charge or questions posed in his examination may also serve as an additional link in the chain of circumstance to bring home the charge. However, as explained by Fazal Ali, J., in Sharad Biridhichand Sarda v. State of Maharashtra AIR 1984 SC 1622-

"Before a false explanation can be used as additional link, the following essential conditions must be satisfied:

(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.

(2) the said circumstances point to the guilt of the accused with reasonable definiteness, and

(3) the circumstances is in proximity to the time and situation. If these conditions are fulfilled only when a Court can use a false explanation or a false defence as an additional link to lend as assurance to the Court and not otherwise"

:: 16 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

Turning to the facts of the instant case, it may be observed that there was not even an iota of evidence to probablise the suggestion made by the appellant as to involvement of someone else in causing deaths of his female offsprings. He was not able to explain as to how the dead bodies, the axe and bloodstained wooden plank were found in his house. But, even excluding the circumstance relating to falsity of the defence, the conclusion would be irresistible that all other circumstances proved by the prosecution pointed towards the guilt of the accused and were inconsistent with his innocence.

(8) Appellant's annoyance over the disagreement expressed by his wives viz. Basanti (PW1) and Santo (PW2) over the proposal to transfer the land in favour of one Ramlal is the last circumstance projected as motive of the crime. Jagan (PW3) clearly admitted that the appellant wanted to sell his land to Ramlal whereas Basanti, while supporting the aforesaid fact, further asserted that she and Santo had always advised the appellant not to sell the land as they were under an obligation to bring up their children. As explained by the Apex Court in Uday Kumar v. State of Karnataka AIR 1998 SC 3317, motive though is one of the circumstances, which assume importance but it cannot be said that in absence thereof, proved circumstances would be of no consequence. :: 17 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

(B) CIRCUMSTANCE AS TO THE OFFENCE OF ATTEMPT TO COMMIT SUICIDE.

Existence of ligature mark on the neck of the appellant is the only circumstance found proved against him. As indicated already, Dr. B.B. Sharma (PW4) noticed a ligature mark on his neck which, according to the medical expert, could ordinarily be caused due to hanging and not by tying a rope around the neck. But, none of the relatives had supported the corresponding version as disclosed in the Dehati Nalishi (Ex.P-1). To elucidate, Basanti and Santo did not substantiate the recitals to the effect that they had seen the appellant climbing over the tree and trying to hang himself by means of a rope whereas Jagan and Agan also resiled from their earlier statements that they had thwarted the appellant's attempt to end his life by cutting the rope and causing him to fall down. Moreover, no corresponding external injury was found on the appellant's body.

13. The fundamental rule of criminal jurisprudence for appreciation of circumstantial evidence as laid down by the Supreme Court in Hanuman Govind Nargundkar v. State of M.P. AIR 1952 SC 343 and re-affirmed as a time-honoured principle in all subsequent decisions on the point including the recent one rendered in Birender Poddar v. State of Bihar, (2011) 6 SCC 350, may be reproduced as under -

"In dealing with circumstantial evidence the rules specially applicable to such evidence :: 18 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

must be borne in mind. In such cases, it is always the danger that conjecture or suspicion may take the place of legal proof. In cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."

14. Sir Alfred Wills, in his work on "Circumstantial Evidence" has highlighted the following rules to be observed in a case based on circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any :: 19 ::

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reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted".

[quoted with approval by the Apex Court in I. Ravindra Reddy v. Shaik Khader Masthan AIR 2009 SC (Supp) 748].

15. As explained further in Liyakat v. State of Uttaranchal AIR 2008 SC 1537, -

"For a crime to be proved, it is not

necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. When a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person."

16. Applying these well-settled principles to the facts of the present case as established from the evidence on record, we are inclined to hold that on one hand, chain of circumstances found proved was so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant and did show that, in all :: 20 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

human probabilities, no one other than the appellant had committed murders of his own female offsprings and on the other, the false plea raised by him also lent assurance to the conclusion as to his guilt. However, in absence of corroborative direct or other circumstantial evidence, the appellant was entitled to benefit of doubt in respect of the offence of attempt to commit suicide for the simple reason that the only circumstance in the form of existence of ligature mark was not sufficient to establish the charge.

17. For these reasons, none of the contentions raised against legality and propriety of the conviction of the appellant under S.302 of the IPC (on five counts) deserves acceptance. It is, therefore, upheld as well-merited.

18. This brings us to the question of the sentence as well as the corresponding death reference.

19. Highlighting each and every surrounding circumstance, learned Government Advocate has supported the view taken by trial Court and submitted that death sentence was the most appropriate sentence for multiple murders of daughters including the one in lap namely Jamuna.

20. In response, learned Senior Counsel, making reference to the guidelines laid down by the Apex Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 and the propositions formulated thereon in a subsequent judgment rendered in Machhi Singh v. State of Punjab, AIR 1983 SC 957, has strenuously contended that it is not :: 21 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

the rarest of the rare cases warranting extreme penalty of death. According to him, plurality of murders would not serve as a sole criterion for imposing the capital punishment. To buttress the contention, the following precedents, where the sentence of death was commuted into one of imprisonment for life, have also been cited -

(i) Shri Bhagwan v. State of Rajasthan AIR 2001 SC 2342

(ii) Lehna v. State of Haryana, (2002) 3 SCC 76 (iii) Dharmendrasinh v. State of Gujarat, (2002) 4 SCC 679

(iv) Ram Pal v. State of U.P., (2003) 7 SCC 141 (v) Mulla v. State of U.P. AIR 2010 SC 942

21. In the end, learned counsel, relying on the recent decision of the Apex Court in Rameshbhai Chandubhai Rathod v. State of Gujarat AIR 2011 SC 803, has submitted that this Court may also give direction to the effect that life sentence must extend to life of the appellant.

22. The factual scenario as well as mitigating circumstances found established in the aforesaid cases may be tabulated as under -

S.No Name of Factual Mitigating accused scenario circumstance/s (i) Shri Bhagwan Convicted for Evidence does not make out multiple rarest of rare case. murders with (However, considering the robbery on the heinous barbaric offence, basis of in no set of circumstances circumstantial accused should be released evidence of last before completion of 20 seen and years of imprisonment). :: 22 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

recovery of

stolen

ornaments and

blood stained

shirt.

(ii) Lehna Convicted for Murders were not the result murders of of any diabolical planning mother, but of impulsive act brother and

sister-in-law

due to

animosity in

view of land

dispute

(iii) Dharmendra- Convicted for Accused since long was murder of two labouring under the strain sinh

minor sons by of suspecting character of inflicting his wife.

injuries with

dharia at the

time when they

were asleep.

(iv) Ram Pal He was found Circumstances which guilty of being amounted to provocation involved in from the side of victims for murder of commission of the offences twenty-one and also that (i) the people accused did not lead the including young other accused persons, (ii) children. the specific overt act attributed to him was not

stated to IO by the

witnesses (iii) his role was

similar to those who were

awarded lesser sentence

and (iv) he was in custody

for about 17 years.

(v) Mulla Mulla and co- One of the accused was 65 appellant years old and both were in Guddu were prison for last 14 years and found guilty of belonged to extremely poor cold-blooded background.

murder of five

persons

including one

middle aged

:: 23 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

woman for

ransom despite

being fully

aware of

poverty of the

victim.

(vi) Rameshbhai Convicted for Possibility that he could be rape and rehabilitated and would not murder of a commit offence later on. young child. (However, keeping in view gravity of offence,

behaviour of accused and

fear and concern such

incidents generate in

ordered society, life

sentence must extend to life

of accused but subject to

any remission or

commutation at instance of

Government for good and

sufficient reasons).

23. Obviously, the facts of the present case are not similar to anyone of the precedents referred to as above.

24. In Bachan Singh's case (ibid), while upholding the constitutional validity of death penalty for murder and the corresponding procedure, the Constitution Bench also pointed out that the under-mentioned factors may be considered as 'mitigating circumstances' -

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

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(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated.

The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."

However, in Para 207, the Bench expressed its limitation in providing a comprehensive list of extenuating circumstances in the following terms - "There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society."

25. Coming to the death penalty in question, it may be seen that learned trial Judge preferred to impose it while placing reliance on the following decisions of the Supreme Court -

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(i) Ravji v. State of Rajasthan AIR 1996 SC 787 - The case related to murder of 5 persons including wife of the accused and their three minor children and attempt to commit murder of two others while they were asleep. Rejecting the plea of temporary psychic disorder, the Court refused to commute the death penalty into life imprisonment.

(ii) Umashankar Panda v. State of M.P. (1996) 8 SCC 110 - The accused had committed murder of wife and two children and caused grievous injuries to the remaining three children and had inflicted 64 injuries in all. The Court, observing that there had been no mitigating circumstances but only aggravating circumstances, held that death sentence was justified.

(iii) Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 - The husband was convicted for committing murder of his wife and two children, students of class VIth and IVth. Holding that it was rarest of rare cases as the murder of wife was committed in an extremely brutal, gruesome, diabolical, revolting and dastardly manner and death of two children was caused by inflicting severe injuries on neck and other parts of the body, the Court upheld the death sentence awarded to the husband.

26. It is pertinent to note that out of these, decision in Ravji's case (supra) has been treated as a judgment per :: 26 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

incuriam in view of the guidelines laid down in Bachan Singh's case (Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 referred to).

27. In Machhi Singh's case, a three-judge Bench of the Supreme Court analyzed the decision rendered in Bachan Singh's case and formulated the following propositions for determination of the rarest of rare cases, which are to be applied when the question of awarding death sentence arises;

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

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

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

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to struck between the aggravating and :: 27 ::

Cri. Reference No.1/2011 and Cri. Appeal No.503/2011

mitigating circumstances before the option is exercised."

It was further laid down that in order to apply these guidelines, inter alia, the following questions may be asked and answered:

"(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum

weightage to the mitigating circumstances which speak in favour of the offender?

If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."

28. Accordingly, we proceed to prepare a balance sheet of aggravating and mitigating circumstances in the instant case, as under -

Aggravating circumstances Mitigating circumstances (i) The ages of the victims (i) He belonged to were respectively 1, 3, 4, 5 weaker socio-economic and 6 years. background. (ii) The deceased were (ii) He was under mental innocent female offsprings of stress in view of his the appellant who did not wives' disagreement prefer to cause any injury to over his proposal to sell anyone of his three male land in favour of Ramlal. :: 28 ::

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children and this bias clearly

indicated that he was not

under influence of any sort of

mental or emotional

disturbance.

(iii) Necks of the girls were (iii) The murders were brutally cut in the same not diabolically planned. manner as if they were the

animals to be sacrificed, by

placing them on a wooden

plank, which is used for

cutting the fodder plants.

(iv) Repeated blows with axe

were given on the persons of

Aarta, Savita and Phool

Kunwar.

(v) Dead bodies of the

victims were found placed one

over the other.

29. Apparently, the aggravating circumstances overwhelmingly outweigh the mitigating circumstances and thus, favour the extreme penalty whereas none of the mitigating circumstances provides any reasonable cause for commuting the death sentence awarded to the appellant.

30. In Swamy Shraddananda v. State of Karnataka AIR 2008 SC 3040 wherein the death sentence was directed to be substituted by life imprisonment for rest of life, it was further clarified that there cannot be an absolute rule excluding death sentence in all cases of circumstantial evidence.

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31. While dealing with the principle of proportion between crime and punishment, the Supreme Court in Lehna's case (supra) made the following observations -

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

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

(2) When the murder is committed for a motive, which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à- vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland. (3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed. :: 30 ::

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

(Emphasis supplied)

32. To sum up, taking into consideration the personalities of the victims, age of the appellant, manner of the commission of the crime, its magnitude and the surrounding circumstances suggesting that he had committed murders of the innocent children brutally neither under duress nor on provocation, we are of the considered opinion that the questions (a) and (b) posed above deserve to be answered in the affirmative. In other words, the case falls under the category of 'rarest of rare cases' warranting death sentence and not even life imprisonment for the rest of appellant's life. The death reference is, accordingly, accepted.

33. Consequently, conviction of the appellant under Section 302 of the IPC (on five counts) is hereby affirmed and the sentence of death awarded to him is also confirmed. However, his conviction under Section 309 of the IPC and the corresponding sentence are set aside.

34. Thus, the appeal is allowed in part and the death reference is accepted.

Copy of this judgment be retained in the connected matter.

(Smt. Sushma Shrivastava) (R.C. Mishra) JUDGE JUDGE .09.2011 .09.2011