1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Criminal Appeal No.186 of 1989 Satish Kumar Agarwal Appellant Vs. The State Respondent Mr.A.P.Mundargi, Sr.Counsel with Mr.Niranjan Mundargi for appellant. Mr.D.A.Nalawade for Union Territory of Dadra Nagar Haveli. Mr.P.S.Hingorani, APP for State. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. Reserved on : June 19, 2009. Pronounced on : July 06, 2009. JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This appeal filed under Section 374 of Cr.P.C. arises from the order of conviction and sentence dated 4/2/1989 in Sessions Case No. 67 of 1987 passed by the learned Addl. District and Sessions Judge at Daman. By the said order the appellant came to be convicted under Section 302 of IPC and he has been sentenced to undergo RI for life. 2 It is said that Alcoholism coupled with gambling has the power to free a man from the shackles of self control and unleash bloody paths, but this case goes much beyond that general belief and puts up a gory story of triple murders by a loving and caring husband and father who was liberated from self control by alcoholism and gambling. He killed his dearest wife and two daughters while they were fast asleep and attempted to end his life as well but destiny had ordained a different course, namely, he survived and faced a trial and perhaps die as a prisoner as the very same vices saved him from going to the gallows. 2. The appellant was married to Lalitaben sometimes in the year 1979-80 and begot two daughters, elder daughter Sushma was 7 years of age and younger daughter Anjana was only eight month old when the incident took place on 23/6/1987. He was living with his wife and children in the rear portion of family house at Jain Street, Daman whereas front portion of the said house was occupied by his brother Rakesh Agarwal and his family. He was running a grocery shop in partnership with his brothers. The parents of Lalitaben as also some of her brothers i.e. Ramsharan and Dr.Ashok were staying at Udhwadha and another brother Dr. Vaishya was staying at Jampaber street at 3 Nani Daman. As per the prosecution case on 22/6/1987 the accused had gone to his in-law’s place at Udhwada along with his family and two children and he returned to his residence at about 9.45 p.m. along with the family. His brother Rakesh returned home on the same day at about 22.30 hours and found that Lalitaben was at home with children but the accused was missing. On his enquiry Lalitaben told him that the accused had gone to Vapi but Rakesh suspected that the accused could have gone near the talav for gambling and, therefore, he went in search of the accused but did not find him. However, the accused returned home at about 11.40 p.m. and went to his room. On the next day i.e. on 23/6/1987 at about 6.45 a.m. Rakesh told his wife Jyotiben to get Anjana, the younger daughter of the accused from the house of the accused and, therefore, Jyotiben went to the house of accused and returned with a slip of paper and showed it to Rakesh. It was written in Hindi by the accused stating that he had killed all three of his family and that he was going to kill himself by jumping in the sea. Rakesh, therefore, went to the house of accused and noticed that Lalitaben and her two daughters were lying dead on the bed. He rushed towards seashore and sent his son Pavan to inform Dr. Vaishya. At the seashore he met Mahesh the son of his another brother Gopal. At that 4 time he saw the accused being brought on a canoe by some fishermen and Rakesh and Gopal took the accused home. On the way Rakesh enquired from the accused as to why he had killed his wife and two daughters. The accused replied that on the previous night he had lost a lot of money on gambling and he had decided to kill them and end his own life as well. It is further the case of the prosecution that at about 7 a.m. on 23/6/1987 when Hirabhai Tandel, a fisherman with his brother was fishing near the bridge, he had heard a big sound in the water and also heard people saying “Pakado pakado” and that he rescued the accused from the sea/river water with their canoe and at that time the accused is reported to have asked them as to why they saved him when he wanted to die and that he had come after assaulting. He uttered the words “mai marine aviyo”. Hirabhai Tandel and his brother had brought him to the shore and handed over to one Magan Tandel. Dr. Vaishya on reaching the house of the accused asked the accused as to what had happened and the accused told him “Tinho ke hatya maine ke hai aur main darya mein marne ko ja raha hoo.” Rakesh had shown the chit to Dr. Vaishya and it was in the handwriting of the accused. Dr. Vaishya sent his car to bring his parents and Ramcharan and Ashok reached the house of the accused. On Ramcharan’s asking the accused had stated that he had killed all the three by pressing their necks. The accused gave a similar reply to 5 Dr. Ashok as well. Ramcharan lodged a complaint to the police which was received and recorded by PSI Rosario and the PSI reached the scene of offence, held an inquest panchanama in respect of three dead bodies, arranged photographs to be taken of the dead bodies and sent them for post mortem. Rakesh also handed over the chit to the I.O. which he attached under a panchanama. The accused was arrested and sent to Marwar hospital for medical examination. His nail clippings were taken. Scene of offence panchanama was drawn and writing pad and ball pen were attached. The I.O. also obtained specimen writings of the accused and also notebook having his handwriting. The chit, specimen writings and the notebook were forwarded to the Government Examiner of Questioned Documents. The handwriting expert sent his opinion stating that the chit was in the handwriting of the accused. On completion of investigation PSI Rosario filed the charge-sheet. The case was committed to the Sessions Court and charge was framed on 19/7/1988, for the offence punishable under Section 302 of IPC. But surprisingly, there was no charge framed under Section 309 of IPC, against the accused. 3. The accused pleaded not guilty to the charge framed against him under Section 302 of IPC and in the statement recorded under Section 313 of Cr.P.C. he stated that after he returned to his house in 6 the night of 22/6/1987 along with his wife and children, he had gone to his brother Gopal’s house at Moti Daman along with his books of accounts of partnership and in the morning at about 7 a.m. when he reached near the bridge he met his nephew Pavan and learnt that his wife and children were dead. He became nervous and just then a heavy vehicle was passing by when he lost his balance and fell in the sea. He heard some people saying “bachao, bachao” but he did not know who removed him from the sea. However, he admitted that the chit recovered by the police from his brother Rakesh was in his handwriting but according to him it was obtained from him by the police. This is the defence he took, but did not state as to how is wife died. At the same time he simply denied his involvement in the crime. 4. The trial Court framed the following two issues and answered them in the affirmative: 1. Whether the prosecution has proved that the death of Lalitaben, Sushma and Anjana were homicidal, and 2. Whether the prosecution has proved that it is the accused who had killed all three of them. 5. In support of its case the prosecution examined in all 15 7 witnesses. The complainant Ramsharan Agrawal – PW 1, Awabib Kalpati i.e. PW 2 as panch witness in respect of the inquest panchanama, Sayed Kureshi PW 3, panch witness in respect of the chit (Exh.PW 3/A), Amarsingh – PW 4, Bhagwanji Patel – PW 5 panch witness in respect of the scene of offence panchanama for the seizure of writing pad, PW 6 – Dr.M.R. Prabhakar, Hirabhai Tandel – PW 7, Laxman Tandel – PW 8 panch witness in respect of panchanama for obtaining specimen writing of the accused Dr. B. Hans Raj Medical Officer – PW 9 who had performed the autopsy of three dead bodies, photographer Paresh as PW 10, Dr.Vaishya – PW 11, the Judicial Magistrate First Class who had recorded the statement of witnesses and of the accused under Section 164 of Cr.P.C. as PW 12, Rakesh Agrawal – PW 13, Durlabhai Damania – PW 14 and PSI Rosaria – PW 15. 6. Admittedly the case of the prosecution was based on circumstantial evidence and extra judicial confessions which included the chit written by the accused. None of the witnesses turned hostile and the failure of the prosecution to examine Dr.Ashok or Jyotiben did not weaken its case in any way. Dr. B. Hans Raj – PW 9 had conducted the autopsy on three dead bodies between 10-30 a.m. and 2 p.m. He first conducted the post mortem of Lalitaben’s dead body between 8 10.30 to 11 a.m. and then that of Sushama’s dead body between 11 a.m. to 12 noon and finally that of Anjana between 1 to 2 p.m. He was assisted by Dr.C.A.Jog in conducting the post mortem. The P.M. report of Lalitaben at Exhibit PW 9/C, P.M. report of Sushama at Exhibit PW 9/D and P.M. report of Anjana at Exhibit PW 9/E. On the dead body of Lalitaben he found four bruises of 1 cm in size over the anterior part of neck caused by hard object and they were ante mortem. Age of the injury was within one to four hours. On the neck he found that there were nail marks and haemorrhage in sub contuous tissue of hyoid bone as well as in the larynx. Trachea was congested and there was fracture of hyoid bone. He opined that these injuries could be caused only by hand i.e. due to compression by hand. From the nature of injuries found on the neck he stated that sufficient force was used. He also found that both the lungs were congested and in his opinion the cause of death was asphyxia due to throttling. On the dead body of Sushama he found three bruises of 1 cm. size on the anterior part of neck and caused by hand. These injuries were ante mortem and were recent. The injuries on the neck were of nail marks and there was haemorrhage in the sub contuous tissue, 9 fracture of hyoid bone and also hemorrhage in the larynx. Trachea was congested. The cause of death in his opinion was asphyxia due to throttling. On the dead body of Anjana he found two bruised of 1 cm. length on neck anterior aspect. The injury was caused by hand. Membranes and brain were found to be congested, hemorrhage in the sub contuous tissue as well as larynx and trachea were congested so also the right and left lungs. The cause of death was in his opinion asphyxia due to throttling. Injuries were of about six hours of age. The inquest panchanama at Exhibit PW 2/A also shows nails injuries around the neck of all the deceased. 7. The prosecution, through the evidence of Dr. Hans Raj proved that Lalitaben, Sushama and Anjana died homicidal death and the cause of death was asphyxia due to throttling. 8. On 23/6/1987 PW 9 also conducted the medical examination of the accused and he found the following injuries on his person: (1) One abrasion 3 cm x ½ cm over the left shoulder joint 10 simple in nature and recent duration. (2) Another abrasions two in number. 2 cm x ½ x ½ cm and 1 cm x ½ cm., irregular in shape over the second and third toes Simple in nature and recent duration. The doctor explained that recent duration meant 2 to 6 hours. He further stated that he removed the nail clippings of the accused and then handed them over to the police as per Exhibit PW 9/F and the report of the Medical Examiner at Exhibit PW 9/G. In his cross- examination he admitted that he had recognised the dead bodies as that of the sister of Dr. Vaishya and her two daughters. He stated that he was unable to opine from the photographs if those three persons could be killed in the position in which they were and he was also not able to give distance between the assailant and the deceased on the basis of the photograph. He was also unable to say if it was possible to kill all the three persons at a time. He further stated that since the abrasion marks on the neck were 1 cm. in size, it appeared to him that it was the work of one person. He also stated that the nail marks depended on the pressure applied. All the three PM reports have been found to be reliable by the trial Court. The medical evidence clearly proved beyond doubt that Lalitaben, Sushma and Anjana met a homicidal death by throttling. 11 9. PW 13 – Rakeshkumar, the brother of the accused turned hostile during trial and, therefore, he was subjected to cross-examination. He denied that the accused had left behind any chit and the one that was brought on record along with the attachment panchanama at Exhibit PW 3/A, though he admitted that on 23/6/1987 he got up at about 6.30 to 6.45 a.m. and after his tea asked his wife to get Anjana from the bedroom of the accused, his wife went in that room but came back immediately. He, therefore, went to the room of the accused and lifted Anjana and found her lifeless. He also found that Lalita and Sushma were lying on the bed dead and he was frightened. He further admitted that he had gone to the bridge where he saw that two fishermen had brought the accused out from the river water. PW 15 Rosario was the Senior PSI of Daman Police Station from June 1987 onwards. At about 8 a.m. on 23/6/1987 Ramsharan Agrawal – PW 1 went to the police station and lodged complaint with PW 15 against the accused. The complaint (FIR – Exhibit PW 1/A) was recorded and PW 1 signed the same in his presence. He proceeded to the scene of offence on Jain Street, Daman and in the room of the accused he found three dead bodies lying on the cot. He held inquest panchanama of the dead bodies (Exhibit PW 2/A). He arranged for photographer – PW 10 who snapped the photographs. He stated that 12 in addition to PW 1, PW 13 – Rakeshkumar was also present at the spot and Rakeshkumar had shown him piece of paper written by the accused. The accused was arrested at about 10.45 a.m. and arrest panchanama was prepared. He again came back to the scene of offence and recorded statement of PW 13 and attached the chit (Exhibit PW 3/A) and drew panchanama in the presence of the witnesses. PW 3 – Sayed Kureshi identified the said chit as Exhibit X and he signed on its reverse. He further stated that it was produced by PW 13 – Rakesh when the panchanama for scene of offence was being drawn by PW 15 and it was handed over to PW 15 by PW 13. As per the said witness Rakesh had stated to PW 15 while handing over the chit that it was given to him by his wife who had in turn found the same in the room of the accused. The said chit along with the handwriting sample of the accused at Exhibit PW8/A was sent to the handwriting expert who confirmed that it was the handwriting of the accused on both the documents i.e. PW3/A and PW8/A. The report of the handwriting expert (Exhibit 19 and P/5 collectively) is not disputed. The evidence of all these witnesses, though PW 13 turned hostile, went to show that the chit originated from the bedroom of the accused and it was written and left behind by the accused. The chit read as under: 13 “In teeno ki hatya maine ki hai aur main darya mein marne ja raha hoo kyoki main jiye aur teer main pareshan ho gaya hoo aur aap ko barbad kar diya hai, is leye mujhe maaf karna. Aapka bhai Sati.” 10. Ramsharan Agrawal – PW 1 and the brother of Lalitaben was staying at Udwada, about 9 kms. away from the Court building. He stated that they were five brothers and three sisters and deceased Lalita was wife of the accused. He reached the house of the accused on 23/6/1987 at about 7.30 a.m. after receiving the message from his brother Dr. Vaishya. He entered the room of Lalita and saw that she and her two daughters were dead, their tounges were protruding out and the accused was sitting in the room near the dead bodies. He asked the accused as to what had happened and the accused replied that around 6.15 a.m. on that day he had killed them by pressing their necks. He also heard people talking outside the house that the accused had attempted to commit suicide by jumping into Damanganga river and he was saved by some fishermen. He further stated that on the previous day of the incident i.e. on 22/6/1987 at about 6.20 p.m. the accused had gone to his house at Udhwada along with Lalita and two daughters. He had left them in the house of PW 1 14 and gone back to Daman. The accused returned at about 9.45 p.m. and took Lalita and her daughters back to Daman. He proved complaint lodged with police station i.e. FIR at Exhibit PW 1/A. Dr. M.R. Prabhakar – PW 6 was the Medical Officer in the Primary Health Center at Daman and was a colleague of Dr. Vaishya – PW 11. He stated before the trial Court that on 23/6/1987 at about 7.45 a.m. he was on his way to drop the children at the convent school at Moti Daman via Jain street and he noticed a crowd near the house of the accused. He dropped his children and came back to the house of the accused. When he entered the house of the accused along with PW 1 and Dr. Ashok Agrawal, Dr. Ashok Agrawal asked the accused who was sitting near the dead bodies, as to how it had happened. The accused thereafter replied looking at Dr.Vaishya, “Hamne gala daba ke mar diya. Muje marne do. Muje fansi de do.” In his cross-examination the witness reaffirmed the confession made by the accused to Dr. Ashok Agrawal in his presence. In his statement recorded under Section 164 of Cr.P.C. (Exhibit PW 6/B) the confessions made by the accused to Dr.Agrawal was stated as “Doctor sahab in tino ko maine gala daba ke mara. Muje fansi de do. Muje marne do.” PW 14 – Durlabhai Damania stated that on 23/6/1987 at about 6.30 a.m. he had gone to Daman bridge to remove his fishing net and one Maganbhai was with him at that time. He further stated that as they were removing the net, he 15 saw the accused jumped in the river and was rescued by PW 7 and was brought to the shore. He had helped the accused to come out of the river clay and brought him to the bank of the river. After the accused was in good and solid ground, he was taken by his brother and he went walking. 11. Dr. Shrinivas Vaishya – PW 11 in his depositions before the trial Court stated that Ramsharan Agarwal-PW 1, Ramnivas Agarwal, Bhavdayal Agarwal and Ashok Agarwal are his brothers in addition to three sisters by name Munni Agarwal, Anita Agarwal and Lalita Agarwal. Lalita was married to the accused and they were living at their house on Jain street with two children. On 23/6/1987 between 6.30 am to 6.45 a.m. he received a message from Gopal to come to Daman bridge at Nani Daman and felt that there was some emergency. He went on his motorcycle to the bridge. He saw crowd of people and a person from that crowd told him that his brother (accused) was removed from the river and was taken home. He, therefore, went to the house of the accused, knocked on his door which was opened by Gopal, brother of the accused. He saw Lalita and her two children lying dead on the bed and the accused was sitting there next to the dead bodies holding the dead body of the younger daughter and was crying. He asked the accused as to what 16 he had done and what had happened to which the accused replied “Tino ki hatya maine ki hai or mai dariya me marne ku gaya tha.” At that time Rakesh – PW 13 showed him the chit which was written and left behind by the accused (Exhibit PW 3/A). After some time Ashok, his other brother, came and asked the accused as to what had happened. The accused replied, “In tino ki hatya maine ki hair or mai marne ja raha tha”. After 8 a.m. the Daman police came to the spot. These depositions in the cross-examination remained intact, though some contradictions / improvisations were sought to be brought out with the help of the statement recorded by the police on 24/6/1987 (Exhibit PW 11/A). In the evidence of PW 15 – Rosario it has been proved that the accused on his arrest at about 10.45 a.m. on the date of incident, he was sent for medical examination to Marwar hospital. In his evidence the handwriting expert’s opinion at Exhibit P/3 collectively was also brought on record. In his cross-examination he stated that the water surface of the river was about 40 ft. below the bridge. The discrepancies in the PM report about the timing of receipt of dead bodies and sought to be brought through the cross- examination of the witness do not affect the case of the prosecution, more so when Dr. Hans Raj – PW 0 has stated that there might be some error in writing the timings. He reiterated in his cross- examination that PW 11 – Dr. Vaishya had stated the portion “My 17 brother Ashokkumar asked him as to why he had done it” 12. The evaluation of the evidence adduced by the prosecution has proved the following circumstances:- (a) On 22/6/1987 the accused had taken his wife and two daughters to the house of his in-laws at Udhwada and at about 9.45 p.m. on the same day he brought them back to his house. (b) The accused along with his wife and two children was staying in the family house on Jain Street at Daman and his brother Rakesh – PW 13 was occupying the front portion and the accused and his family was occupying the rear portion of the house. (c) On 23/6/1987 between 6.15 a.m. To 6.30 a.m. Rakesh – PW 13 had asked his wife Jyotiben to get Anjana, the younger daughter of the accused, from the room of the accused and Jyotiben returned with a chit (Exh.PW 13/A). PW 13 – Rakesh along with Jyotiben then went to the room of the accused and 18 saw Lalitaben and the two daughters dead in the room of the accused and the accused was not present there. (d) PW 7 – Hirabhai Tandel was present at Damanganga river near Daman Bridge