Mmuuummum Uivmon bcmn \ rnrlmaaa) IN THE HIGH COURT W JUDICATLBE W MADHYA PRADESH AT JABALPUR. caxmmAL AWEAL No.m§ \ OF 1996. w/y/Kunjram, S/c Duka§:; Kewa£, aged about 34 years, Réo village Ira, P.s. La1 aghy ‘ District RAJNANDGAQN M.P.) ( APPELLANT VERSUS State of Madhya Pradesh ,./’ RESPQNDENT A ‘ CRIMINAL APPEN.‘ UNDER SECTION 374(2) G THE GmE OF CRIMINAL PROCEDURE“ X!-HC-78 OrA/ M26"... mamas mw mam(q§iaira) XI-Hc-78 ’A - i5 571 3g mwW<9§Eaw anéamrawiai maréwimw ‘ ‘ ‘ mmmméa 2.: _ mami’wm $Wanéu me to further undergo six m ths’ 8J. under Section 302 of the IPC and to undergo seven years' RJ. nd pay a fine of Rs.100!~, in default thereof to further undergo three mont s’ SJ. under Section 307 of the IPC. 2. Case of the prosecutio , in brief, is that PW-7 Narayan Lal - Viitage Sarpanch lodged the report 14 on 30‘" August 1995 at about 1:39 a.m. in the Poiice Station — Laibag to the effect that at about 10.30 in the night of 29.08.1995 he was at his esidence and at that'time he oame to know that accused Kunjram Kewat has committed murder of his children and wife, on which he went to the house of Kunjram where h‘e saw the crowd of viliagers, Govindram Sah informed him that Kunjram has committed murder of his three children n meiy Govinda, aged one year, Raghu, aged five years and his daughter eera Bai, aged nine years by attacking with axe and he has also attacke his wife Pardeshnin Bai with the axe who was lying inside the house in the pool of blood. After arranging the truck he ‘along with other villager took Pardeshnln Bai and Kunjram to the hospital. Receiving this rep rt alter registering the crime under Section 302 and 307 of the IPC, the Station House Ofhcer left for the scene of occurrence and prepared the Panchanamas P-18 of body of Govinda, P- 19 of body of Raghuram and —20 of body of Heera Bai. He also took into possession one shirt and t wel of the accused under P.22. Merg intimation P-23, P-24 and 25 were given by Narayan Lal. injured ‘Pardeshnin Bai was examin d by Dr. Prakash Sadanl (PW-1) at the request of PW-14 Ramlakhan He prepared the injury report P—1. injuries present on the body of accJsed were aiso examined by Dr. Prakash Sadani at the request of polic a and he prepared the injury report P-2. The w/KA ’65)]? my“ u- ." .. u. nu- Wm mammuaiaaa) mmmanéa ~ V 3_ meimaaim mnméam ,i _ mm wmt< $wanée1 ‘ recovered articles Le. ston , axe and bloodstained soil were sent for opinion of the doctor unde P.3A and the doctor gave his report P-3. During police custody the a used gave memorandum P-6 under Seetion 27 of the Evidence Act'Vto e investigating offcer regarding the piece where he kept the weapon o offence I e axe and In pursuance thereof he his house under P-7 Site plan P-8 was prepared by the Patwari. Bi tained sort and plain sotLone bioodstamed Sari, one photograph and b stained stone were taken into possession from the place of occurreno under P49. Dead bodies of Gevinda, Heera Bai and Raghuram were se tfor postmortem examination to the District Hospital, Rajnandgaon unde P—10, P-11 and P—12 respectively. Dr. Harish Joshi (PW.16) conducted e postmortem on the body of Govinda and prepared the postmortem re ort P-28 in which he opined that the mode of death is coma due to inci wound over the right side of neck cutting apart vertebrai column in \ parts at the level of c 2 and C 3 and the injuries were homicidal in ature. After conducting postmortem on the body of Heera Bai the docto prepared the report P-29 in which he opined that the mode of death is a due to incised wound over the back of neck cutting apart vertebral olumn in two parts at the level of C 2 and G 3 and the injuries were homi idal in nature. The doctor after conducting postmortem on the body f Raghuram preparaed the report P-30 and opined that the mode of d is coma due to incised wound oVer the ten side of neck cutting apart v bral column in two parts at the level of G 3, C 4 and the iniuries were ho icidal in nature. The clothes of the deceased P-13. The got recovered the axe fro o s i d were taken under persons into possession t s m e e e WA /%>g//% - mm“ u . . ....-..-......u....p. .n. WW anégmaas (wan) msmféaiai amméam ‘ mmafzama -4 mmimm aswanéa bloodstained articles, dothes of the accused, weapon of offence‘ — axe, stone and clothes of the de¢ ased were sent for chem§cal examination to the Forensic Science La oratory, Raipur under P~26 and after u ‘ examination the repdrt P—27 s received there from. As per the F.S.L. i.e. axe and the shirt and tewei of the rep'ort the weapon of ofte accused were found bloodst ined and other articles of the deceased and ‘ stone were also found stai with blood. The elothes of Pardeshnin Bai were alsohfound blood stai ed. After completion of the investigation charge sheet against the usedlappellant was filed in the Court of Judicial Magistrate First Cla s, Rajnandgaon for the Commission of the offences under Section 302 nd 30? of the IPC who in turn committed the , Rajnandgaon from where learned First Additional Sessions Judge re eived the case on transfer fortrial. 3. Prosecution in order establish the charge against the accused examined 16 witnesses. O the other hand, statement of the accused was recorded under Section 313 of the Cr.P.C. in which he pleaded his innocence and false impiicati n in the crime in question. However, he also pleaded ignorance about the injuries received by him. Learned Additionat Sessions Judge atter heari learned counsef for the respective parties convicted and sentenced the accused/agapellant as mentioned in paragraph —1 ofthisjudgme t. 4. We have heard Miss. Sangeeta Mishra, learned counsei appearing on behalf of the aocusedlap liant and Shri U.N.S.Deo, learned GA. with Shri D.K.Gwalre, learned P. on behalf ofthe Statelrespondent. case to the Sessions Jud 7r~\ ' - e n n o n e Xl-HC’78 , W W Em$ In .II.I.I..I.I.I.I.II.I..III..I.II Wt ar a /%$//&é mammaiaaa) “Mawmanést _- §_ mwa'ww $wam inda,‘Heera Bai and Raghuram are not in wife of the 1‘ 5. Hofnicidai deaths of G " dispute. Similarly, the injurie sustained by Pardeshnin Bai - accused, are also not in dispu e. 6. As far as involvement of the accused/appellant in committing the g” murder of his twosonstand o e daughter an‘d further attempting to commit V the murder of his wrfe Pardes nin Bai is concemed, there is no direct and ocular evrdence In this cas as the sole eyewitness to the incident L Rardeshnin .Bai (PW-8) has based on the circumstantial evidence as per the settle principle, the prosecution is required to establish that such evidence satisfy the following tests:- the circu stances from which an inference of guilt is s ught to be drawn, must be cogently and tirml established; those cir umstances shouldbe of a definite tendency unerringly pointing towards glit of the accused; the circu stances, taken cumulatively, shouid form a hain so complete, that there is no om the conclusion that within ail 1) 3) escape human p obability the crime’i‘was committed by the accu ed and none else; and the circu stantial evidence in order to sustain the convi tion must be complete and incapable 4) v r w e W.%£a ’1 §Vxxm ‘32: V Xl-HC-78 “it; "a”..A...4.$.§;z..[..9.A.... mm mammama) 1 ' ‘ ’ V ' mmwwqmn ‘mmwgama Ag, amaqmw [a of explan ition of any other hypothesis that that I I of thergu‘lt of the accused and such evidence should n t cnly be consistent with the gujlt of } the accu ed but should be inconsistent with his 1 a ’ 7. Learned counsel for th accusedfappetlant argued that in this case there is no evidence on reco question as the \Mfe of the ac usedlappeilant has turned hostiie As far as recovery of the axe and bioo tamed clothes of the accused Is eoncerned there Is no Serologists repc which establishes the involvement of the accused in the crime. She further argued that In the alternative even s committed by the appellant from the facts assuming that the offence and evidence available on re ord it appears that the accused committed the crime in the fit of insan' y and therefore his case is covered under Section 84 of the IPC. 8. On the other hand, l arned' counsel for the State supported the impugned judgment of thetri l Court. 9. Coming to the que ion of! insanity, Section 84 of the IPC contemplates that “Nothingi an offence which is done by a person who at the time of domg it by re on of unsoundneds of mind is mcapabfe of or that he is domg what is eiher wrong or knowing the nature of the a contraiy to iaw " In order t ascertain the unsoundness of mind of the accused the crucial paint of ti e at which unsoundness of mind should be @ @ XI-HC-78 Emmi-«mm ~ ; ‘ VWW§WW $Wm€a > established is the time wh‘er the\crime is actuany committed and the burden of proving which lies the accused in order to'se‘ek the beneiit of section 84 of the IPC as has een held by the Hon’ble Apex Court in the .matter of State Vs. Ahmad Ila repotte'd in MR 1961 SC 998. in the instant case in the first instan e no such plea or defence was taken by the accused when the charge s eet was tiled or when the charges were 1 " ‘framed and even during trial such plea was raised by the accused in his defence.‘ Even father of he accused PW—lo Dukhuram in his cross- examination has stated that it is true that one night the accused was crying without any reason b t he cannot say that the accused was of unsound mind. The evidence which has come on record is that there was a dispute between the accus d and his brother regarding partition of land as the father of accused had artittoned the land in three shares and one share was retained by him. the time of partition it was resolved that the iron would be handed overto Kunjram by Arjun but Arjun did not give it to the accused and therefore P chayat was convened where it was decided that Arju should deliver th possession of the land and iron to the accused. On that very day in the evening the accused in the first instance attacked one of his son wh was at his residence and thereafter he brought two of his daught and one son namely Santoshi‘, Heera Bai and Raghuram from the ho of his father Dukhuram and committed the murder of Raghu and Heera Therefore, the above eviden i, however, Santéshi escaped from there. is suggestivetofthe fact that at the time of committing the crime in q tion the accused was not suffering from unsoundness of mind and it i not a case where the accused was not able ,,,l o e u e u s a XI-HC—78 gh-AMMWZ m amiai merm(1ai§aa) u uu-uu-nnun-nugéuua‘ mm Xl-HC—78 J} 9 é mmqias mQTmaaim) mmwaarasr mmiww _. 9_ $®3nésr were lying dead near the p of God, there were injuries on the neck, her mother was also sitting here and she was uttering the word “Om Namo Shivay, 0m Namo Shi ". As his father was holding the axe in his hand that is why she raised s reams that her father has murdered both of her brothers because the axe stained with blood. PW—1O Dukhuram - .father of the accused has stat d that on the fateful day he was sleeping in ‘e his house. Santoshl and He a Bai were at his residence and they went to the house of Kunjrai'n and uddenly $antoshi returned back crying that hath her brothers have bee murdered and she was raising screams “save, save”, on \M‘ilch the vi agers gathered. When he was sleeping at his residence, the accused, h wife Pardeshnin Bai, Govinda were at the residence of the accused wh reas the accused Kunjram took Raghuraml from his house. He along others went to the house of Kunjram and saw that accused Kunjram striking stone on his head. Pardeshnin Bai was sitting there in the . He could not see both the children as after seeing the accused he ecame unconscious. Blood was oozing out of the head of accused Kunj m when he was striking his head with the stone. PW—11 Bhaiyaram ha statedthat on the fateful night uncle ofthe accused namely Narad cam to his house and called him and when he went to the house of accuse he saw the crowd of vitlagers there and the villagers told him that Kunjr has murdered his three children and has inflicted injuries on Pardeshni Bai - his wife. Hg sawthat Pardeshnin Bai was sitting in the room drenc ed with blood and when he went in the room he saw that three children e lying dead. There were injuries on their necks and the accused was sitting out of his house. When they were h o v y s s m a r XI-HC—78 mammiaw) ' mamm awsnéamiai mamma K M ~ mw#mm Qiwanésr 'v taking Kunjram and Pardesrinin Bai in a truck they saw that there were injuries on the head of the injuries. Thereafter, they to further stated that Panchana as P48, P—19 and P—20 of the dead bodies . of Govind, 'Raghuram and ' eera Bai respectiveiy were prepared in his presence. The aceused g ve memorandum P—6 regarding the place where he kept the weapon of offence — axe which was written in his presence and that docum nts bears his signature and in pursuance thereofthe axe was got reoo ered under P-7. ' 11. PW—12 Govindra‘m h s stated that on h%ring about the murder of the children of accused Kunj am, he went to the'house of accused. There he saw the crowd of people nd he-saw that accused was coming out of his house saying that whate er was to happen has happened and he will go to the temple and then e moved towards temple. Thereatter, 10-20 people of the vicinity brough the accused back from the temple and there were injuries on his head an blood was oozing out of the injuries. They took Kunjram and Pardeshn Bai to theHospital, Rajnandgaon. He has further dated that the stone clothes and axe were taken into possession in his presence. Similar is t e evidence of PWaZ Madan Mohan Sharma who has aiso stated that th‘ accused said in his presence thatwhatever was to happen has happen d. and he is going to the tempie. When he was going towards templet e viilagers caught him and they said that he be taken to the police sta on. The whole body of the accused was drenched with blood. PW—p Ramchandra has stated that the accused gave memorandum P:6 and [n pursuance of that hegot recovered the axe accused and bioad was oozing cut of the them to the hospitai, Rajnandgaon. He has Xl-HC-78 Gy A s‘//?é mmm$ - un- - n u nun-sun u .-..-.. WM mammaiaw) anéamrw aananéetm. ‘ 1 mmwamsr ,_ //, WW#WW *wma ,“ 1 J 1 \ L under P-7. Similar is the evi ce of PW-15 P.C.Tiwari, the investigating officer regarding recovery of e axe 1i'om the accused. Therefore, from the above evidence it is est biished that the dead bodies of Govinda, Raghu and Heera Bai were s en by these witnesses in the house of the accused, his wife was sitting‘ here in injured condition. the accused was also sitting there in an,injure condition and as’per the evidence of the § ‘* PW-1D Ku. \Santoshi Bai the a cused was holding bloodstained axe in his hand and he attempted to att k her with axe but she somehow managed to escape on the pretext that she be allowed to g9 to attend the call of nature. Even the accused e extra judicial confession before PW—2’ and PW-12 to the extent tha whatever was to happen has happened. Apart from that circumstantial vidence the weapon of offence i.e. axe was recovered at the instance o the accused. The above circumstantial evidence further stands corr berated by the evidence of Dr. Prakash Sadani (PW-1) who examine the injuries of Pardeshnin Bai and noticed that there was compound fra ure of right clevical bone and there were five incised wounds on the vi al part of the body of Pardeshnin Bai and injury report P-1 was prepare by him. The doctor has further stated that he also examined the accuse and found that there was a cut wound on the head and another cut wou d was also on the left side of the head and there was swelling inthe are of 5 cm on the head The Dr H K Joshi (PW—16) who conducted post ortem on the bodies of Raghu Heera and Gownda has stated that injuri s found on their person could be caused by the axe in question. The ax and clothes of the accused were sent for chemical examination to the F S.L. Raipur and as per the report the same ML. d n d Wm». m §Hf$ .u.%n-LA‘-££.§T[.(2§u"uh-n WQQG anésrmamaa) mafiaahé‘zl # /z- rmm#%®m $a‘%w3néa L '“ were found stained with blooq. However, no explanation has been given by the accused regarding the injuries received by him; as to how he was i sitting in the house and when he was in the house hawthe ‘murder of his three children was committed so brutaliy. Therefore, the presence of the i accused in the house at the time of incident with bloodstained axe in his hand, extrajudiciai ccnfessims made by him coupied with other t Vc‘rrcumstantiai evidence andt e conduct of the accused after commission of the offence, establish bey nd all reasonabie doubt the involvement of tile accused in committing he murder of his three children and to * attempting to ‘commit the mur er of his wife Pardeshnin Bai. i 12. (are of the considered opinion that there is ‘ no iliegality or intirmity in th judgment of the trial Court convicting and i sentencing the accusediappel ant under Section 302 and 367 of the lPc. 13. in the result, th’e app al being devoid of merits'is liable to be dismissed and is hereby dism' se. In View of the above, Sdl— ’ g 7;, Sdl- L.C. Bhadoo Dhirendra Mishra Judge Judge? .' d