IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL COURT’S ORDER WHETHER THE CASE IS OR IS NOT APPROVED FOR REPORTING [Chapter VIII, Rule 32(2) (b)] Description of case Criminal Reference No. 01 of 2005 Decided on: June 23, 2006 With Criminal Appeal No. 200 of 2005 A.F.R. (Approved for Reporting) Not approved for Reporting Date. 23.06.2006 (Initial of Judges) Note: Bench Reader will attach this at the top of the first page of the judgment when it is put up before the Judges for signature. Judgment Reserved IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Criminal Reference No. 01 of 2005 State of Uttaranchal ……..Appellant Vs. Vijay Kumar Bathla S/o Sri Hans Raj Bathla R/o village Surajpur No. 2 P.S. Gadarpur District- Udham Singh Nagar …….Respondent WITH Criminal Appeal No. 200 of 2005 Vijay Kumar Bathla S/o Sri Hans Raj Bathla R/o village Surajpur No. 2 P.S. Gadarpur District- Udham Singh Nagar …….Appellant. Vs. State of Uttaranchal ……Respondent. Shri Ram Singh Sammal, Shri T.S. Phartiyal and Manoj Kumar Ray, Advocates for convict/appellant. Shri D.K. Sharma, learned Government Advocate and Shri H.C. Pandey, learned Additional Government Advocate for the State. Coram: Hon’ble Rajeev Gupta, C.J. Hon’ble Prafulla C. Pant, J. Per: Hon’ble Prafulla C. Pant, J. This reference has been made under Section 366 of Code of Criminal Procedure, 1973, (herein after referred as Cr.P.C.) by the learned Sessions Judge, Udham Singh Nagar, for confirmation of death sentence, awarded against the convict Vijay Kumar Bathla under Section 302 of Indian Penal Code, 1860, (herein after referred as I.P.C.). The convict has also preferred an appeal under section 374 (2) of Cr.P.C. against the judgment dated 05.10.2005 and order of sentence dated 06.10.2005, passed in Sessions Trial No. 271 of 2004 by learned Sessions Judge, Udham Singh Nagar, whereby he has been convicted under Section 302 of I.P.C. and sentenced to death. Both, the reference and the appeal are being disposed of by this common judgment. 2. We heard learned counsel for convict/appellant and learned Public Prosecutor, and perused the entire record. 3. Prosecution story in brief is that about seven years before the date of the incident, convict/appellant Vijay Kumar Bathla got married to Rekha alias Sapna (one of the deceased). He was extravagant and used to take alcohol. He used to demand money from his wife and her relatives. The couple had a daughter named Shakshi (another deceased). On 16.04.2004, P.W. 1 Shyam Chandra Arora (informant), brother of Rekha alias Sapna came to her house in village Surajpur No. 2, Gadarpur, along with his brother-in-law (SAALA) P.W. 2 Breet Kumar. On that evening also convict/appellant Vijay Kumar Bathla asked for money from P.W. 1 Shyam Chandra Arora, who declined to give further money, stating that he has already given him time and again earlier, and it is not possible for him to give any more. Rekha alias Sapna, wife of convict/appellant, also supported her brother. After taking meals, P.W. 1 Shyam Chandra Arora slept in a room with P.W. 2 Breet Kumar in the house of his sister in village Surajpur No. 2. The convict/appellant along with his wife Rekha alias Sapna and his daughter Sakshi slept in their room, which was adjoining to the room in which informant and his brother-in-law were sleeping. Next day on 17.04.2004, at about 7:30 A.M., P.W. 1 Shyam Chandra Arora, heard shrieks of his sister (Rekha alias Sapna) from the adjoining room. He along with his brother-in-law (SAALA) P.W. 2 Breet Kumar rushed to the room of his sister and found that convict/appellant Vijay Kumar Bathla, armed with an axe was giving blows on the person of his wife Rekha alias Sapna. By then, Sakshi, a girl child of four years was already lying in a pool of blood. On the shouts of both P.W. 1 Shyam Chandra Arora and P.W. 2 Breet Kumar, the convict/appellant Vijay Kumar Bathla fled from the room with his axe. Rekha alias Sapna also died on the spot of the injuries received by her. At about 10:30 A.M. on the same day First Information Report (Ext. A-1) with the Police Station Gadarpur, which was at a distance of 4 Kms. from the place of occurrence. On the basis of said report, P.W. 4 Head Constable Gopal Singh Bisht, prepared Check Report (Ext. A-6) and made an entry in General Diary (extract of which is Ext. A-7). A crime No. 70/04 was registered under Section 302 of I.P.C. against accused Vijay Kumar Bathla. P.W. 10 Sub-Inspector Praveen Kumar Tyagi of police station Gadarpur, started investigation of the crime and recorded the statement of Shyam Chandra Arora and proceeded on the very day i.e. 17.04.2004, for the place of incident. He took the dead bodies into his possession and prepared Inquest Reports (Ext. A-2 and Ext. A-3). He also got prepared police form No. 13 (Ext. A-15 and Ext. A-20), sketch of the dead bodies (Ext. A-13 and Ext. A-18), sample seal (Ext. A-17) and letters to Chief Medical Officer (Ext. A-16 and Ext. A-21), requesting for post mortem examination of the dead bodies. On the very day i.e. 17.04.2004, at about 3:00 P.M. Vijay Kumar Bathla, was arrested, and an axe (Ext. 1) was recovered at about 3:30 P.M., on his pointing out. A recovery memo (Ext. A-5) was prepared, which was signed also by accused Vijay Kumar Bathla. (In said recovery memo, a confessional statement of accused is recorded by police, which part, in the document, is not admissible in evidence as the same is said to have been given to the police). Autopsy on the dead bodies was conducted by P.W. 7 Dr. Anil Chandra Sah on that very day i.e. 17.04.2004, at 4:10 P.M. and 4:40 P.M., who prepared post mortem examination reports- Ext. A-10 of dead body of Smt. Rekha alias Sapna and Ext. A-11 of dead body of Sakshi, the female child. The Investigating Officer took the blood stained bed sheet and cushion, from the place of occurrence, into his possession and recovery memo Ext. A-4 was prepared. After the arrest of the accused, his blood stained under-wear and under-shirt, were also taken into possession and recovery memo (Ext. A-12) was got prepared by the Investigating Officer. A site plan (Ext. A-22) was also prepared by him. After concluding the investigation, a charge sheet (Ext. A-24) was submitted against accused Vijay Kumar Bathla to the Chief Judicial Magistrate. The blood stained clothes namely, bed sheet, under-wear, under-shirt and blood stained axe, were sent to Forensic Laboratory, Agra, from where report (Ext. A- 25) was received by the court in which it was reported that on examination of all the articles sent, these were found containing human blood of Group ‘B’. 4. Learned Chief Judicial Magistrate, on receiving the charge sheet, registered the same and after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., committed the case to the Court of Sessions for trial. After hearing the prosecution and the defence, a charge of offence, punishable under Section 302 I.P.C. was framed against the accused Vijay Kumar Bathla, who pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Shyam Chandra Arora, informant and eye-witness, P.W. 2 Breet Kumar- eye-witness, P.W. 3 Mukhtyar Arora (another brother of deceased- Rekha alias Sapna), P.W. 4 Head Constable Gopal Singh Bisht, who prepared the check report (Ext. A-6) on the basis of the First Information Report (Ext. A-1) and also made entry in the General Diary (extract of which is Ext. A-7), P.W. 5 Ramesh, scribe of the report (Ext. A-1), P.W. 6 Satish Kumar, brother-in-law (SAARHOO) of the accused, P.W. 7 Dr. Anil Chandra Sah, who conducted autopsy on the dead bodies and prepared post mortem examination reports (Ext. A-10 and Ext. A-11), P.W. 8 Raj Kumar, a witness before whom under-wear and under-shirt of the accused were taken into possession by the police and recovery memo (Ext. A-12) was prepared, P.W. 9 Madan Lal, another brother-in-law (SAARHOO) of the accused, who has stated that accused was extravagant and used to demand money, and P.W. 10 Sub-Inspector Praveen Kumar Tyagi, the Investigating Officer, who got prepared the inquest reports (Ext. A-2 and Ext. A-3) and sketches of the dead bodies (Ext. A-13 and Ext. A-18), police form No. 13 (Ext. A-15 and Ext. A-20), sample seal (Ext. A-17), Chalans (Ext. A-14 and Ext. A-21) requesting Chief Medical Officer for autopsy on the dead bodies, site plan (Ext. A-22), recovered the blood stained clothes and prepared memo (Ext. A-4), recovered the blood stained axe and prepared memo (Ext. A-5), gave information of the arrest of accused to his father (memo of which is Ext. A-23) and submitted the charge sheet against the accused (Ext. A-24). All the oral as well as documentary evidence was put to the accused Vijay Kumar Bathla under Section 313 of Cr.P.C. in reply to which he has stated that the witnesses have given evidence against him due to the enmity. No evidence in defence was adduced by the accused even after being given the opportunity for the same. After hearing the prosecution and the defence, learned Sessions Judge, Udham Singh Nagar, found accused Vijay Kumar Bathla guilty of offence punishable under Section 302 of I.P.C. and convicted him on 05.10.2005, and heard on sentence on 06.10.2005 and sentenced him to death. Learned Sessions Judge, directed the record to be placed before this Court for confirmation of sentence, as required under Section 366 of Cr.P.C. Convict Vijay Kumar Bathla also preferred appeal against the said judgment, who was convicted and sentenced to death. Both, the reference and the appeal are connected and taken together for hearing and disposal. 5. Before further discussions, it is necessary to mention the ante mortem injuries found on the person of deceased Rekha alias Sapna, and Sakshi, a female child. Ext. A-10 prepared on 17.04.2004 at 4:10 P.M. by P.W. 7 Anil Chandra Sah, who conducted autopsy on dead body of Rekha alias Sapna, shows following ante mortem injuries on her person:- 1. Incised wound measuring 7cm x 3cm x bone deep present obliquely over left side face, over left mandible. On further exploration of the wound all the muscles of face over mandibles cut, vessels and nerve cut, left side gum cut with avulsion of left lower incisor, canines, pre molar, molar teeth, left side mandible cut and soft tissue and vessels of oral cavity below cat side of the tongue cut, oral cavity filled with clot and blood. There was haemorrhage with clot around the cut muscles and vessels. 2. Incised wound measuring 10cm X 5cm X bone deep and tissue deep present obliquely over right side neck and left side margin of mandible reaching up to mid of chin in the center. Margin of wound is contused, on further exploration of this wound all the muscles of neck cut, all the major vessels, nerve of neck cut, right cut present on oral cavity of this wound, all the muscles, tissues and vessels cut. Right side muscle over mandible cut, vessels cut, right gum cut with avulsion. Right canine, pre molar and molar teeth, right side mandible cut, tissue of oral cavity below mandible cut. There were clots with haemorrhage. 3. Incised wound measuring 6cm X 2cm X cavity deep present transversely on the right side of inter costal space of chest, margin of wound is contused. On further exploration of this wound there is huge sub cutaneous haemorhage, sub cutaneous tissue cut, inter costal muscular cut. Right lung upper lobe pleura cut and right upper lobe cut, thoracic cavity filled with 2 liter of blood. There was haemorrhage in lung tissue with clot also. 4. Incised wound measuring 6cm X 0.9 cm X soft tissue deep to 3cm X 0.2c, X soft tissue deep present on the right side neck and right upper part of chest in an area of 10cm X 13cm. On further exploration of these wounds, there was huge sub cutaneous, haemorrhage soft tissue cut, muscles and vessels cut and inter muscular haemorrhage present. On internal examination of the organs of generation, a gravid about 10 weeks size was found. Cause of death of Smt. Rekha alias Sapna, according to the Medical Officer (P.W. 7 Dr. Anil Chandra Sah) was shock and haemorrhage due to ante mortem injuries. 6. Ext. A-11 prepared on 17.04.2004 at 4:40 P.M. by the same Medical Officer (P.W. 7- Dr. Anil Chandra Sah) after conducting autopsy on dead body of Sakshi, shows following ante mortem injuries on her person:- 1. Incised wound measuring 6cm X 2cm X bone deep, present obliquely over left side mandible (face) and left side neck, reaching up to mid of chin. On further exploration all the muscles of neck and over mandible cut, all the big vessels, nerve cut, all the muscles of neck cut, cat side of C3 vertebrae column cut, spinal cord cut, left side mandible cut and fractured, there was sub cutaneous haemorrahage and inter muscular haemorrhage. There was clot and haemorrhage present around cut mandible and cut 3rd cervical vertebrae. 2. Incised wound 3cm X 1cm X soft tissue deep over right mandible. On further exploration sub cut tissue, muscles of neck, vessels of neck out. 3. Incised wound measuring 5cm X 2cm X soft tissue and muscles deep present. Left side neck placed obliquely 2cm below mid of left mandible. On further exploration, of this wound muscles of neck, vessels of neck cut. There as haemorrhage and haemotoma present and all around the neck vessels cut. 4. Incised wound 4cm X 2cm X tissue muscle deep present obliquely. Tailing present on the medial side of the neck. On further exploration of this wound, all the vessels, nerve cut, there is sub cutaneous haemorrhage and inter muscular haemorrhage present with large clot present around cut vessels of left side of neck. 5. Multiple incised wounds measuring 3cm X 0.2cm. X soft tissue deep to 02 X .1cm X soft tissue deep present on the left cat and post aspect of left side neck in an area of 6cm X 8cm adjacent to left mandible just above the injury No. 4. On further exploration of wound there is sub cut tissue cut, at places muscles cut, small vessels cut with sub cutaneous inter muscular haemorrhage with haemotoma around cut vessels. Causes of death of Sakshi, according to the Medical Officer (P.W. 7 Dr. Anil Chandra Sah) was shock and haemorrhage due to ante mortem injuries. 7. P.W. 3 Mukhtiyar Arora is another brother of the deceased Rekha alias Sapna. This witness has stated that on 20.03.2004, i.e. about a month before the date of the incident, accused demanded Rs. 20,000/- from him. This witness has stated that he also told the accused that already enough money has been paid to him and he offered only Rs. 1,000/- on that day. P.W. 3 Mukhtiyar Arora, is also witness of the inquest report (Ext. A-2 and Ext. A-3) who has proved his signatures. P.W. 6 Satish Kumar is husband of sister of deceased Rekha alias Sapna. This witness has stated on oath that economic condition of accused Vijay Kumar Bathla was not good. He used to ask for money. According to P.W. 6 Satish Kumar, accused once asked for money from him also and he paid Rs. 800/- to help the accused. The witness corroborates the statement of P.W. 3 Mukhtiyar Arora and P.W. 1 Shyam Chandra Arora on the point that accused used to ask for money and used to make pressure on his wife for the same. P.W. 9 Madan Lal is husband of another sister of deceased Rekha alias Sapna. This witness has also stated that the economic condition of accused Vijay Kumar Bathla, was bad and he used to ask for money from the relatives of his wife. P.W. 9 Madan Lal states that the accused was so much extravagant that he has sold his land also. It is also stated by this witness that husband and wife (i.e. Vijay Kumar Bathla and Smt. Rekha alias Sapna) used to quarrel on the issue of money. 8. P.W. 1 Shyam Chandra Arora is the informant and brother of the deceased Rekha alias Sapna. He has stated before the trial court that his sister Rekha alias Sapna, got married to accused Vijay Kumar Bathla about seven years before the date of the incident. P.W. 1 Shyam Chandra Arora, further states that on 16.04.2004, he along with his brother-in-law (SAALA) P.W. 2 Breet Kumar, went to the house of the deceased Rekha alias Sapna to meet her. This witness has stated that accused Vijay Kumar Bathla used to demand money off and on. He (accused) used to harass his wife. Shyam Chandra Arora (P.W. 1) has stated that his sister (deceased) had a daughter named Sakshi. On 16.04.2004, at about 7:00 – 8:00 P.M., he and his bother-in-law had their meals in the house of his sister. After the meals, the witness says that accused asked for money, on which he (informant) told him that already he had given enough money and he had nothing more to give to the accused. Thereafter, according to this witness, he and his brother-in-law (SAALA) Breet Kumar (P.W. 2) went to sleep in the room adjoining to the room of his sister Rekha. Accused along with his wife Rekha alias Sapna and daughter Sakshi went to sleep in their room. Next day i.e. 17.04.2004, according to this witness, at about 7:30 A.M., he heard shrieks of his sister from her room and rushed there with Breet Kumar (P.W. 2) and saw that accused Vijay Kumar Bathla, armed with an axe giving blows on the neck of Rekha alias Sapna. The witness further states that his niece Sakshi was lying in a pool of blood. On seeing the witnesses in his room, accused ran away from there with the axe in his hand. P.W. 1 Shyam Chandra Arora lastly states in his examination in chief that his sister Rekha alias Sapna died on the spot and his niece Shakshi had also already died by then. Both the deceased were having mark of injuries of the axe over their necks. P.W. 1 Shaym Chandra Arora has also stated that accused was habitual drunkard and his economic condition was bad. He used to demand money from Rekha alias Sapna and due to this reason, they used to quarrel. This witness lodged the First Information Report (Ext. A-1), which he got scribed through P.W. 4 Ramesh. Ext. A-1 is proved by the witness and it is stated by him that he lodged the same at 10:30 A.M. with the police station Gadarpur. On returning back from the police station, the witness states that the police prepared inquest reports (Ext. A-2 and Ext. A-3) in his presence, of the dead bodies of Rekha alias Sapna and Sakshi. The witness has also proved recovery memo (Ext. A-4) of the blood stained bedsheet, prepared by the police and recovery memo (Ext. A-3) of the blood stained axe recovered on the pointing out of the accused. 9. P.W. 2 Breet Kumar, an eye-witness who is brother-in-law (SAALA) of the informant, has narrated the prosecution story as stated by P.W. 1 Shyam Chandra Arora and corroborated the entire prosecution story, as mentioned above that he along with P.W. 1 stayed in the house of the accused in the intervening night of 16th – 17th April, 2004. On the next day, i.e. 17.04.2004, at about 7:30 A.M. on hearing shrieks of Rekha alias Sapna, he says that along with Shyam Chandra Arora, went in her room and saw accused giving blows on the neck of his wife with an axe. This witness also corroborates the fact that Shakshi was lying in the pool of blood. 10. P.W. 4 Head Constable Gopal Singh Bisht, has stated that at about 10:30 A.M. on 17.04.2004, informant Shyam Chandra Arora, gave a written report (Ext. A-1) to him on the basis of which check report (Ext. A-6) was prepared and an entry was made in the general diary (extract of which is Ext. A-7). P.W. 5 Ramesh is scribe of the First Information Report (Ext. A-1) and he is also witness of inquest report and recovery memos of blood stained clothes. On these points, P.W. 5 Ramesh has corroborated the statement of P.W. 1 Shyam Chandra Arora. 11. P.W. 7 Dr. Anil Chandra Sah, conducted autopsy on the dead bodies of both the deceased namely Rekha alias Sapna and her daughter Sakshi and prepared post mortem report (Ext. A-10 and Ext. A-11). This witness has proved the ante mortem injuries found on the dead bodies, as mentioned above. According to this witness, Rekha alias Sapna and Sakshi, have died as a result of shock and haemorrage due to the ante mortem injuries received by them. His evidence corroborates the homicidal death of both the deceased. At the end of his examination in chief, he has stated that the ante mortem injuries found on the dead bodies could have been caused by sharp edged weapon like an axe. P.W. 8 Raj Kumar is the witness of the fact that the police took into possession the blood stained under-wear and under-shirt of the accused and prepared inquest report (Ext. A-12). 12. P.W. 10 Sub Inspector Praveen Kumar Tyagi is the Investigating Officer who has stated that after the crime No. 70/2004, is registered at the police station on 17.04.2004, he recorded the statement of informant Shyam Chandra Arora in the police station itself and proceeded with him to the place of incident i.e. Surajpur No. 2. The witness further states that on reaching at the spot, the dead bodies were taken into possession and inquest reports (Ext. A-2 and Ext. A-3) were prepared. The police form No. 13 (Ext. A-15 and Ext. A-20), sketches of the dead bodies (Ext. A-13 and Ext. A-18), sample seal (Ext. A-17), chalans of the dead bodies (Ext. A-14 and Ext. A-19), letters to Chief Medical Officer, requesting for post mortem examination (Ext. A-16 and Ext. A-21) were also prepared by him. The witness has further stated that site plan (Ext. A-22) was prepared after arresting the accused on the very day, memo of information (Ext. A-23) was prepared and at the instance of accused, blood stained axe (Ext. 1) was recovered and a memo (Ext. A-5) to that effect was prepared. Before that, the witness states that recovery memo (Ext. A-4) of the blood stained bed sheet was prepared after taking the same into possession. He has also stated that under the orders of Chief Judicial Magistrate, the blood stained articles were sent to Forensic Laboratory Science, Agra from where report (Ext. A-25) was received. This Court on the perusal of Ext. A-25 found that it has been reported by Forensic Laboratory that blood stained bed sheet and blood stained under wear and under shirt and blood stained axe contained human blood of Group ‘B’. As such, this evidence also corroborates the prosecution story as narrated by the eye-witnesses. 13. From the evidence, as discussed above, it is proved beyond all reasonable doubt, by the prosecution, that accused Vijay Kumar Bathla committed culpable homicide amounting to murder of his wife Rekha alias Sapna aged 25 years and his daughter Sakshi aged 4 years. The dual murder was committed brutally with an axe (Ext. 1) as mentioned above. There is recovery of the weapon used at the pointing out of the accused. The murders of Rekha alias Sapna, wife of accused and his daughter Sakshi have taken place in the house of accused in his bedroom. The defence has nowhere taken a stand that accused was not present in his house or in his room on the date of the incident. Apart from the eye-witness account given by P.W. 1 Shyam Chandra Arora and P.W. 2 Breet Kumar, there is sufficient circumstantial evidence, which by itself is sufficient to prove the charge framed against the