- '-J^^^'s^-^:;^-?^'.^-^^:-'--"" ~-'s.'-'- E'^-'^^—'L.^- '•N;'^^ mOH COURT OF CHHATTISGARH: BUASPUR DEATH REFERENCE N0.1 OF 2002 [Made by the Third Additional Sessions Judge (Fast Track Court), Bemetara, Distt. Durgunder Section 366 of the Cr.P.C.] State of Chhattisgarh, Through PS:Berla, bistt. Durg (C.fi.) -Versus- Brijpal AND \-u. APPELLANT: RESPONDENT: CRIMINAL APPEAL N0.326 OF 2002 Brijpal, S/o Chcndu Satnami, Aged about 48 years, R/o Vilbge: Berla, PS: Berla, Disft. Durg (C.6.). -Versus- State of Chhattis9arh, Through P5: P.H.O., PS: Berki, Distt. Durg (C.6.). JUD6MENT FOR CONSI&ERATEON Sd/- L.C.BHADOO Judge ^•y'^roL.y zuo^ HON'BLE THE CHIEF JUSTICE ^_^^^__ Sd/- Chief Justice POST FOR JUD6MENT ON^^f. JULY. 2003 Sd/- ^ ?E rULY 2003 ( HIGH COURT OF CHHATTISGARH: BILASPUR bEATH REFERENCE N0.1 OF 2002 [Made by the Third Additional Sessions Judge (Fast Track Court), Bemetara, Distt. Durg under Section 366 of the Cr.P.C.] State of Chhattis9arh, Through PS: Beria, Distt-. Durg (C.6.) -Varsus- Brijpal AND APPELLANT: RESPONDENT: CRIMINAL APPEAL N0.326 OF 2002 Brijpal, S/o Chondu Satnami, Aged about 48 years, R/o Village: Berla.PS: Berla, Disft. C)urg (C.6.). -Versus- State of Chhattisgarh, Through PS: P.H.O., P5: Berla, Distfr. Durg (C.G.). Present; - Sri S.L. Bajaj, Advocate: Sri P. 5. Koshy, 6ovt. Advocate: For the appetlont For the State/respondent Division Bench: HON'BLE MR. JUSTICE K.H.N.KURANGA. C.J. & HON-BLE MR. JUSTICE L. C.BHADOO.J. JU&6MENT (Delivered onjffj^ July, 2003) By J'ustice L. C. Bhadocr. - 1. Accused/appellant Brijpal was tried by the Third Additional Sessions Judge (Foet Track Court), Bemetara, Distr. Durg, in Sessions Trial No.256 of 2000 for the commission of the offences punishable under Section 302 of the I.P.C. and Section 25 (1-B) B read with Section 4 of the Arms Act for committin9 the murders of Surajbai, Prabhabai, Dhaneshwari and Domar Sin9h. The learned Additional Sessions Jud9e by his judgment dated 8 March, 2002, after holding the accused guilty of the offences under Section 302 of the I.P.C. and Section 25 (1-B) B read witii Section 4 of the Arms Act, sentenced him to death. However, no separate sentence has been passed for the commission of the offence under Section 25 (1-B) B read with Section 4 of the Arms Act. 2. Criminal Appeat No.326 of 2002 has been filed by the accused/appeltant against the said conviction and sentence passed against him by the Additional Sessions Judge. On -the other hand, the learned Additional Sessions Judge has made Death Reference No.l of 2002 to this Court for confirmation of the death sentence imposed by him on the accused. /- This judgment shall dispose of the aforesaid appeal filed by the accused and the reference made by the learned Additional Sessions Judge. Briefly stated, the prosecution case is that on 3 June, 2000,ot about 11 a.m. accused Brijpal himself oippeared in Police Station: Berla cmd gave the merg intimation (Ex.P-32) to the effect That he woa doubting the fidelity/chastity of his wife Surajbai that she had illicit relations with some other person and all the three children are also of that other person with whom his wife had illicit retations. As such, he planned to kill his wife and The three children, but he could not execute that plan in the past. On 03.06.2000 in the morning at about 7 O' Clock, in order to execute the plan, he took Surajbai along with his daughters Prabhabai & Daneshwctri and son Domar Singh to the agricultural field under the pretext of bringing wood from the soid field. He also took along with him one Tangia and a sword like iron sharp ectged Patta (herein after referred to as the Patta'). After reaching -the field, he left the children on one side and took the wife to the other side. After threatening her, he enquired from hsr as to who was the real fa-Hier of •rfie children. She peplied that the children were of that other person with whom she had illicit relations. On hearin9 this reply, he became angry and assauited Surajbai with the Patta on her neck. She sustained / /^. injuries on her hond while protecting herself by raisin9 her hands. Thereafter, he assaulted his doughter Prabhabai by the same Patta in the field of one Babulal Satnami and murdered her. Thereafter, he assaulted his son Domar Singh by the same Patta on his neck and murdered him also. After this, he chased Dhaneshwari cnd assautted her by the same Patta cmd murdered her. Thus, the occused murdered all the four persons. Thereafter, he left the Patta cmd Tangia near the dead body of Prabhabai on the boundary in the field of Babulal. 5. On receiving this report, F.I.R. was recorded and the case was registered under Ex.P-31. After registration of the cose, PW-16 J.5. Chauhan, the Sub Inspector, recorded the memorandum, Ex.P-1, of accused Brijpal and reached the spot and prepared the site plan Ex.P-33. Thereorfter, he sent the summons To the witnesses vide Ex.P-3, Ex.P-14, Ex.P-15 <& Ex.P-16 aind prepared the Panchanamas of the dead bodies of Surajbai, Ex.P-17; Prabhabai, Ex.P-18; bhaneshwari, Ex.P-19; ond Domar Singh, Ex.P- 20. The dead bodies were sent for post mortem examination vide Ex.P-34, Ex.P-35, Ex.P-36 and Ex.P-37. The blood stained soil from 't+ie place of occurrence was seized under Ex.P-3, Ex.P-4, Ex.P-5 & Ex.P-6. From the boundary of the agricultural field of Babulal Satnami one pair of Chappals, one bamboo basket, one plostic bag, one old Lungi and one small Tangia were seized at the instance of accused Brijpal under Ex.P-7. Thereafter, based on the information Ex.P-1, at the instance of the accused, the 5ub Inspector recovered one iron Patta vide Ex.P-2 which is 'Article- l'. After this, the Sub Inspector hcmded over -the investigation to the Station House Officer. PW-17 B.R. Mcindnvi has stated that on 3 June, 2000, he was posted as Sub Inspector at Police Station: Berla, he recorded the statements of witnesses in the case, sent the recovered Patta for medical examination ond seized the clothes of accused Brijpal viz., one Baniyoin & one Samcha under memorandum Ex.P-8. He also seized the clothes of the deceased persons under Ex.P-28. Accused Brijpal was arrested vide memorandum Ex.P-38 and all the seized articles were sent for chemical examination vide Ex.P-39 through the Superintendent of Police. The reports of the Forensic Science Laboratory, Raipur are Ex.P-42, Ex.P-43 <& Ex.P-44 ond the report of the Serologist is Ex.P-45. After completion of the investi9ation, dharge sheet was filed against the accused. 6. The learned Additional Sessions Judge after hearing the arguments fnaned the charges against the accused for the offences punishable under Section 302 of the I.P.C. and Section 25 (1-B) B read with Section 4 of the Arms Act. The accused denied the charges and claimed to be tried. The prosecution in order to prove Ihe offences against the accused/oppellant 6 -^ examined in all seventeen witnesses. The statement of accused/ appellant Brijpal was recorded under 5ection 313 of the Cr.P.C. in which he denied the evidence of the prosecution witnesses and other evidence and pleaded that he is innocent and he has been falsely implicated in the case. In his defence, he examined one witness namely, DW-1 Shafeen. After hearing The arguments of the Public Prosecutor ond counsel for the accused and after believing •the evidence of the prosecution, the learned Additional Sessions Judge convicted and sentenced the accused/appellant for the commission of the offence punishable under Section 302 of the I.P.C. and sentenced him to death ond sent the proceedings to this Court for confirmation of the death sentence. 7. We have heard •the learned counsel for the accused/appellant and learned 6ovt. Advocate for the State/respondent. 8. As far as the nature of dea'ths of deceased Surajbai, Prabhabai, Dhaneshwari and Domar Singh being homicidal is concerned, the learned counsel for the accused/appellant has not disputed this fact. PW-6 t)r.C.S.Mansi has stated that on 03.06.2000 he was posted as Medical Officer in the Primary Health Centre, Berla and on the request of the Police he conducted the post mortem on the dead body of Surojbai, W/o Brijpal and on examination he found the following injuries on her body: - / L<V%-" i. One incised wound over the neck above the thyroid cartilage of the size of 10 x 1 cm. deep up to cervical vertebra; all major veins were cut; skin, subcutaneous tissue and muscles were incised. ii. Incised wound over the medial aspect of left fore arm just above The wrist joint of the size of 3.5 x 1 cm., bone deep. iii. Incised wound over The taterot part of right fore arm just above the wrist joint of the size of 3 x 1 cm., bone deep, clotted blood was present. iv. Incised wound over the posterior surface of shoulder joint 2x1 cm., bone deep, clotted blood was present. The doctor" opined that all the injuries were ante mortem in nature caused by a sharp edged object. Injury No.l was dangerous in nature and other injuries were simple. The couse of the death was due to shock. The post mortem report is Ex.P-21. On the same ddy, he conducted -riie post mortem on the dead body of Prabhabai and found the following injuries on her body:- i. One incised wound over the neck above •ttie thyroid cartilage of the size of 15 x 1 cm. skin deep; subcutoneous tissues, all muscles, all arteries/veins, trachea and cervical vertebra were incised. •^p ii. Incised wound over the posterior surface of neck at the tevel of first cervical vertebra of the size of B x 1 cm., skin deep. The doctor opined that both the injuries were caused by a sharp edged object and were ante morteni in nature. The cause of the death ufas due to shock. The post mortem report is Ex.P-22. On the same doy, the post mortem examination on the dead body of Dnaneshwari was conducted by the doctor and following injuries were found on her body;- i. Incised wound over the neck above •the thyroid cartilage of -the size of 4 x 1 cm., bone deep. ii. Incised wound over the neck below the thyroid cartilage of the size of 4 x 1 cm. deep up to cervical vertebnx; subcutaneous tissues, muscles, trachea, cartilage ond vessels were incised. The doctor opined that the injuries were ante mortem in nature and causejfcy sharp ed9ed object. The ccuse of the death is due to shock. The post morteni report is Ex.P-23. On the same day, the doctor also conducted the post mortem examination on the dead body of Doniar Singh and following injury was found on the body: - i. Incised wound oyer the neck above the thyroid cartilage of the size of 7 x i- cm., deep up to vertebra; skin, subcutaneous tissue, muscles, vessels and trachea ore incised. The doctor opined that the above injury was ante mortem in nature arid caused by a sharp edged object. The cause of death was due to shock. The report is Ex.P-24. The doctor further stated •riiat the deaths of all the four persons were homicidal. 9. In view of the above evidence of the doctor and post mortem reports Ex.P-21 to Ex.P-24, it stands proved That the deaths of Surajbai, Prabhdbai, bhouieshwari and Domar Singh were homicida!. 10. Now, coming to the question of involvement of the accused/ appellant in the murder of the deceased persons namely, Surajbai, Prabhaboi, Dhaneshwari and bomar Singh, there is no direct aid ocular evidence in this case to prove the offence against the accused/appellant. The whole case rests on the circumstcntiai evidence and the law on The point is that in a case bdsed on circumstantial evidence the Court con record conviction but it must satisfy itself that the circumstances from which an inference of guilt could be drawn have been established by unimpeachable evidence led by the prosecution and that all the circumstances put together are not only of a conclusive nature but also complete the chain so fully os to unerringly point only the 10 9uilt of the accused and are not copable of any expkmation which is not consistent with the hypothesis of the guilt of the accused. 11. As far as the question of admissibjlity of mer9 intimation, Ex.P- 32, g'wen by the accused himself at Police Station; Berla is concerned, accordin9 to the prosecution, the accused/appelloint had confessed that he had committed the murder of his wife Surajbai, dau9hters Prabhabai & Dhaneshwari and son Oomar Smgh with the Patta & Tangia as he was doubting the fidelity/chaistity of his wife Surajbai and suqsected that she was having illicit relntions with some one else ond also that the children were of that person. Since this statement was made before the Police and the same is hit by Sections 24, 25 and 26 of the Evidence Act os per the law laid down by Hon'ble Apex Court in the case of Aghrmo Nagesia vs. State of Bihar reported in AIR 1966 Supreme Court 119, the above stcitement of the accused in the F.I.R., Ex.P-32, is not admissible in evidence. Therefore, this F.I.R. is not of any assistance to the prosecution in proving the offence against the accused/appellant. 12. Now, we shali proceed to examine the circumstantial evidence adduced by the prosecution in order to pmve -ttie offence a9ainst •ttie accused/oppellant. The prosecution has adduced the evidence on the following circums-tances: - ^ 11 .••' f '.. ^. i. AAotive of the crime: - The accused was doubting the fidelity/chastity of his wife Surajbai (since deceased) that she had illicit relations with some other person cnd all the three children namely, Prabhabai, Dhaneshwari <& t>omar Singh, were the children of that other person with whom Surajbai was having illicit relations. ii. The extra judicial confession made by the accused before PW-14 Babulal. iii. The accused and the deceased persons were seen alive together in the morning at the residence of the accused by PW-10 Rekha. iv. The weopons of offence, the sword like iron sharp edged Patta and the Tongia were recovered oit the instance of the accused and the same were found stained with human blood. 13. As far as the motive of the crin'.s is concerned, the prosecution has examined PW-7 Sewaram, the father of deceased Surajbai, who has given the evidence that Surajbai was his eldest daughter, first she was married to a person of Kudela village, there she remained for one year and thereafter, she resided with him i.e. her father for one year. Thereafter, she started residing at yilla9e; Chikhfci with one Likhircm as his wife. She liyed with Likhiram for one and half years. Thereafter, she deserted 12 Likhiram and started residing with omother person of the same village as his wife, whose name he does not know, but who was by caste Sa+nawi. Surajbai stopped coming to his ptacB and he did not have any contact with her thereafter. Surajbai delivered Two daughters and one son, while she was residin9 as wife of one Satnami person. Now she has died. 14. PW-3 Itwari has turned hostile to the prosecution and in the cross-examination by Public Prosecutor, he has stated that a Panchayat was convened <md the Panchayat imposed fine on Panda alfcts 5ama!iya and on the direction of the Panchayat he hosted a feast to the villa9ers. PW-3 has further stated that the fine was imposed on Panda on account of his illicit relations with Surajbai. 15. The other witness examined is PW-8 Bhagchouid. He has stated that he knows Panda alias Samaliya who resides at Village: Berla. He has further stated that Surajbcu, the wife of the accused, was cought one year back while she was having physical relations with Panda alias Samaliya and because of that, the Panchayat was convened and Samaliya was punished cmd was osked to pay a fine of Rs.2,000/- and to host a feast to the villagers. In the cross examination, this witness has stated that he was present in the Panchayat. 16. The other witness is PW-12 Panda himself witti whom the accused/appellant was suspecting the illicit relations of deceased 13 17. Surajbai. PW-12 Samaliya Panda has stated that about ten years back Surajbai used to come to his residence for work and since last 3-4 years she was not coming to his place. PW-12 has further stated that the Panchay'at had imposed a fine on him on account of his physical relations with Surajbai and he was also asked to host a feast to the people of the society and to provide Laddu in the feast. Accordin9ly, he hosted the feast and provided Laddu in the feast. The persons of his community said that since he had intercourse with Surajbai that is vuhy he was punished. In The cross examination, this witness has stated that it is true that he was not havin9 illicit relations with Surajbai. PVV-13 Kanakram is The son of Panda alias Samaliya. Even though this witness has been declared hostile, he has admitted in his evidence that a Panchayat was convened in his yillage in connection with the relations of his father with Surajbai omd the Panchayat imposed fine on his father that he will host a feast to the community people and accordingly, his father hosted a feast. He further stated that the Panchayat people said that since Surajbai was the wife of his father that is why Panda,his father, was asked to host the feast. 18. PW-15 Adshadas has been declared hostile. but he has also stated that Ponda had hosted a feast to the villagers, he does not know why he hosted the feast. He has further stated in Para 4 of his ~~~-./ 14 evidence that the accused had said that he would not keep Surojbai as she was having illicit relations with Panda. It is true that in the Panchayat, Panda was asked about his physical reiations with Surajbai and he had admitted about his physical relations with Surajbai. Therefore, Panda was punished to poy Rs.2,001/- and one coconut. It is also true That the Panchayat had advised Panda & Surajbai that in future they would not indulge in such activities. 19. It is clear from the above evidence that deceased Surajbai wos o. lady of easy virtue and she was in the habit of changing husbands very frequently. As per the evidence of her own father namely, PW-7 5ewaram and in view of The other evidence on record that on account of the illicit relations of Panda with Surajbai a Panchayat was convened and the Panchayat imposed a fine on Pcnda Samaliya and he was also asked to host a feast and accordingly, he hosted the feast. It stands proved that deceased Surajbai was having physical relations with Panda alias Samaliya and she was a woman of easy virtue. But, beyond -Hiis there is no evidence that on account of this, the accused by his conduct or words showed his an9er a9ainst his wife or children and there is no evidence also to show that he was disturbed or gave any indication to commit such a ghast!y crime to eliminate his whole family. 15 \... ..-..• 20. As far as the extra judicial confession made by the accused is concerned, other witnesses have turned hostile except only one witness namely, PW-14 Babulal. 1-lis evidence has not been believed by -rtie trial Court and we are also of the opinion that the trial Court was right in reaching the conclusion that the prosecution has not been able to prove the extra judicial confession said to have been made by the accused before this witness. In the examination in chief, he has stated -ttiat the accused admitted before the Pcmchoyat, in which he was present, about committin9 of the murder of his wife and children and scxid that he assaulted his wife and chiidren by the Patta. But in the cross examination, in Para 8 he has stated that the villagers said that accused Brijpal has murdered the children, but Brijpal hos not stated before him that he has murdered his wife and children. He further stated that he has not given ony statement before the Police in this regard and for •the first time he was giving the statement before the Court that the accused said before the vi'hgers that he had murdered his wife omd children. l-1e stated that if this fact is not recorded in his statement before the Police Ex.E>-2, he cannot give any reason for that. Therefore, this witness has not stated in his statement before the Police Ex.t>-2, that the accused confessed before the Panchayat in his presence that he has committed the murder of 16 his wife and children ond he has stated this fact for the first time before the Court. Therefore, this is an improvement in his evidence before the Court, which cannot be believed. Moreover, in Para 8, he has stated that Brijpal has not confessed before him that he has murdered his wife flnd children. No other member of tiie Panchayat has been produced by the prosecution as witness. Therefore, the prosecution hois utterly failed to prove that the accused made an extra judicial confession before This witness. 21. As far as the question of last seen alive of the deceased persons with the accused is concerned, PW-10 Rekha after being declared hostile, in cross examination by the Additional Public Prosecutor hos stated in Para 2 of her evidence that it is correct that on the fateful day she was taki"9 water from the tap and at that time she saw Surajbai coming out from her house and her husband Brijpal was carrying a Tongia. It is also correct that when she was taking water from the tap 5he saw -that accused Brijpal was cailing his children from the house dnd thereafter she heard that Brijpa! has murdered his wife and children in the field, but she does not know the name of the person from whom she heard this information. In cross examination. in Para 4 she has sta-ted that it is true that she has not heard all these things and it is also cor"ect thst she had not seen Surajbai and children. Therefore, in view of the above wavering statements of this witness, her-^ 17 fA0'-2/ evidence becomes doubtful ond connot be relied upon, as the same does not inspire confidence. 22. PW-11 Basanti has stated that she heard throu9h one Asha that accused Brijpal hos murdered his wife ond three children. She has further stated that she saw the accused omd the family members in their house in the morning when ttiey were taking ted and thereafter, she does not know what happened. In the cross examination, she has stated that it is true that the relations between the husband, wife and children we.rs cordial. 23. Therefore, in view of -the above evidence it is clear That PW-11 has also made wavering s+atements. Even if, her statement is be!ieved that she saw the accused, his wife ond children to9ether in the morning at the residence of the accused when they were taking tea together, even then, this circumstonce itself does not connect the accused with the murder of his wife ond children for the reason that it was but notural that the husbomd, wife ond chiidren will remain to9ether at their residence and there was nothing abnorinal in •Hieir conduct and "this circumstance oannot be made much off. The wife and children of the accused were not found dead in •the house, but -riiey were found dead in •tfie agricuitural field and there is no evidence of any witness that the accused was seen alon9 with his wife and children at the field, where the dead bodies were found. Therefore, this circumstcnc^ » 18 is of no assistonce to the prosecution to connect the accused/appeltant with the nnurder of his wife and children. 24. On the circumstances of the recovery of the weopon of offence, tiie Parra, at, the instonce of the accused, The recovery witnesses are PW-1 Ajurani ond PW-2 Lakhan. PW-l Ajuram has stated that the accused told