HIGH COURT OF MADHYA PRADESH : JABALPUR ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- PRESENT Hon’ble Smt. Justice Sushma Shrivastava Hon’ble Shri Justice R.C. Mishra ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- CRIMINAL RIMINAL R REFERENCE EFERENCE N NO.1/2011 .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 AND CRIMINAL RIMINAL A APPEAL PPEAL N NO.503/2011 .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 J U D G M E N T 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 - 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. Convicted under Section Sentenced to 302 of the IPC (on five counts) death. 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 :: 2 :: 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 :: 3 :: 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 :: 4 :: 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. :: 5 :: 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. :: 6 :: 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. :: 7 :: 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 :: 8 :: 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 :: 9 :: 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 :: 10 :: 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 :: 11 :: 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 :: 12 :: 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 :: 13 :: 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 :: 14 :: 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” :: 15 :: 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