Prafulla C. Pant, J.
I have the benefit of going through the draft judgment of Hon’ble Mr. Justice Uday Umesh Lalit. With great regard, I beg to differ with his Lordship, on the point that the prosecution has failed to prove the charge against the appellant.
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2. The prosecution story, medical evidence on record, and statements of witnesses of facts have already been narrated by his Lordship Justice Lalit. Briefly stated, prosecution story is that on 19.02.2012 between 10.00 to 11.00 p.m. the appellant Dhal Singh Dewangan has committed murder of his wife Thaneshwari and five minor daughters, namely, Nisha, Laxmi, Sati, Nandini and Sandhya with a knife. PW-6 Kejabai, mother of the appellant, came out of the house at about 10.30 p.m. shouting that the accused is assaulting his wife and daughters. PW-1 Ishwar Pradhan, Sarpanch of the village, on receiving information about it through PW-2 Santosh Kumar Mahar, went to the spot, whereafter he along with Santosh Kumar Mahar and two others went to the Police Station, Arjunda (Distt. Balod, Chhattisgarh). The police, on their information, made Entry No. 671 in the General Diary and PW-13 Krishna Murari Mishra, Station House Officer, rushed to the spot at about 1.30 a.m., i.e. in the wee hours of 20.02.2012. A Dehati Nalishi (Ext. P-18) at the instance of PW-6 Kejabai was registered at about 3.00 a.m. and the crime Page 37 3 relating to offence punishable under Section 302 of Indian Penal Code (IPC) was investigated. The dead bodies were
Nisha and Sandhya was conducted on 20.02.2012 by PW-7 Dr. Ajaypal Chandrakar. The post mortem examination of rest of the three dead bodies, namely, that of Thaneshwari, Laxmi and Nandini was done by PW-14 Dr. Chandrabhan Prasad, on the very day (20.02.2012). Blood stained knife, blood stained clothes and blood stained soil etc. were seized by the police and witnesses interrogated. On completion of investigation charge-sheet was filed against the appellant for trial in respect of offence punishable under Section 302 IPC. The case was committed to the court of Sessions for trial. After the charge was framed, total fourteen Prosecution Witnesses were examined.
3. Out of the prosecution witnesses, PW-1 Ishwar Pradhan, Sarpanch, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu, PW-4 Anjor Singh and PW-5 Dan Singh Dewangan Page 38 4 have given evidence as to the fact that when they reached the square of the village, they saw that PW-6 Kejabai was shouting and crying loudly about the incident, and told that the appellant has killed his wife and daughters. The appellant was in the house.
4. Relevant portion of statement of PW-1 Ishwar Pradhan, Sarpanch of the village, is reproduced below: -
“…..I returned to my house at around 10.30 P.M. Santosh Kumar Mahar (PW-2), the village Kotwar, came to my house and told me that Dhal Singh had cut his wife and children in his house. On receiving this information I reached Gandhi Chowk on my motor cycle. I met Santosh Kumar, the Kotwar, Neelkanth Sahu, Dan Singh Dewangan, Kejabai and Jhaggar ….. who all were sitting in the square. Kejabai told there that Dhal Singh has cut his wife and children in his house. On hearing this I didn’t believe, therefore, I suggested that lets go to the spot and see. Then we went to the house of Dhal Singh. Blood was lying near the door of the room where Dhal Singh (was) slept. We locked the door of the house. Dhal Singh was present in his house ………………………. After locking the door, I, (with) Santosh Kumar, the Kotwar and Chaitram went to Police Station Arjunda and gave information.
The police came to the village Mohandipat along with us. The S.P. …. also reached there. The police (interacted) with Kejabai there. Kejabai told that the accused Dhal Singh has cut his wife and children with knife. The police entered (in) the Page 39 5 house and we kept standing outside the house. We called ambulance No. 108 there and took Dhal Singh to the hospital in it because he was in half (un)conscious condition ”
5. PW-2 Santosh Kumar Mahar has narrated the incident as under: -
“………… The incident occurred on 19.02.2012 at 11.00 PM. Jivan Dewangan, the neighbour of accused, came to my house and told that the accused has murdered his wife Thaneshwari and daughters with iron knife used for cutting chicken. Thereafter, I, (with) Neelkanth Sahu, (and) Ishwar Pradhan, the Sarpanch went to the house of accused. We went inside the room and saw that the accused was present in the room of his wife. His wife was lying dead there. The four children were also lying dead there. Wife of the accused was lying dead on the cot and four children were lying on the ground. The accused was lying there in unconscious condition. One iron knife was also lying by his side, and one child was lying in the room of her grandmother. She (the granddaughter) was also dead and back of her neck was cut. Hand, leg and neck of the wife and children were cut. Blood was found on the room and verandah.
Then I went to Police Station, Arjunda along with Sarpanch and Vijay and gave information about the incident. ……………….. The police personnel enquired about the incident from the neighbours and Kejabai, the mother of the accused. Kejabai was behaving like mad, but she told that the accused has cut and killed his wife and five children. The police personnel sent the accused to the hospital in ambulance No. 108………….
Page 40 6 …… The police seized one knife, bottle of liquor, blood stained pillow, plain earth, blood smeared earth from the place of incident in the night of the incident ”
The witness has also proved the seizure memo (Ext. P-1 and P-2). The witness has further proved the inquest report and other documents.
6. PW-3 Neelkanth Sahu, corroborating the above facts, states that he came to know about the incident at about mid night through Gangaram Sahu and Chaitram Yadav, who knocked his door. When he opened the door, he was told that Dhal Singh has killed his wife and five daughters. They further told him that Kejabai, mother of the accused, has told about the incident. He further told that when he reached Gandhi Chowk, Kejabai was already present there and crying loudly. This witness also corroborates that Kejabai told him that Dhal Singh has killed his five children and wife.
7. PW-5 Dan Singh Dewangan has also narrated the incident and stated that he got information about the incident at about mid night. He further told that when he went to the Page 41 7 house of Kejabai along with Sarpanch, Kejabai was telling that the accused Dhal Singh had cut his wife and five children with the knife. Corroborating the fact that the incident was got reported through Sarpanch to the police, this witness has also stated that the deceased Thaneshwari was lying dead on the cot and the four children were lying dead on the ground. The accused was also there lying on one side. One girl was lying in the room in which Kejabai used to sleep. One knife was also lying by the side of the accused.
8. The above statements of the witnesses have been read in evidence by the trial court and the High Court with the aid of Section 6 of the Indian Evidence Act, 1872. My Lord Justice Uday Umesh Lalit has opined that these statements do not fulfill the requirement of spontaneity and continuity, and as such, cannot be read with the aid of Section 6 of the Indian Evidence Act, particularly when Jivan Dewangan, Gangadhar and Jhaggar, who told them about what PW-6 Kejabai was disclosing, were not examined.
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9. However, in my opinion, in the facts and circumstances of the case, non-examination of Jivan Dewangan, Gangaram and Jhaggar is not sufficient for not relying on the statements of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu and PW-5 Dan Singh Dewangan with the aid of Section 6 of the Indian Evidence Act, 1872. The courts below have rightly appreciated the entire chain of circumstances that has been narrated by these witnesses, particularly when they have told what PW-6 Kejabai herself told them at the square, when they reached there. The testimony of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu and PW-5 Dan Singh Dewangan is admissible in evidence as being part of the res gestae. Sections 6, 7, 8 and 9 of the Indian Evidence Act, 1872 deal with the relevancy of facts not in issue but connected with the facts in issue. The provisions contained therein provide as to when the facts though not in issue are so related to each other as to form components of the principal fact. The facts which are closely or inseparably Page 43 9 connected with the facts in issue may be said to be part of the same transaction.
10. It is also relevant to mention here that PW-4 Anjor Singh Dewangan, father-in-law of the appellant, has stated that deceased Thaneshwari was his daughter. He further told that he had also gone to Nagpur to attend the marriage in which the appellant and Thaneshwari were present. The witness has further stated that his daughter complained there about the behavior of the appellant. He further told that the accused used to say that his family has become large with daughters only. PW-4 Anjor Singh Dewangan further told that the quarrel took place between the couple in Nagpur itself. He further told that after the marriage, the appellant, Thaneshwari and their daughters came back to their house. The above statement makes it clear that the appellant had the motive for committing the murder of his wife and daughters. The only other inmate in the house, i.e. PW-6 Kejabai had no motive to commit the crime, and had she attempted, she Page 44 10 could have been easily over-powered by the appellant and the six deceased.
11. As to the lapses in the investigation pointed out by learned senior counsel for the appellant regarding the fact that clothes of the accused were not seized immediately and seizure memo (Ext. P-16) does not mention the word “Lungi”, I do not think it sufficient to doubt the credibility of the prosecution story. In paragraph 41 of State of W.B. v. Mir Mohammad Omar and others8, this Court has observed as under: -
“…..Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit the accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation ”
8 (2000) 8 SCC 382 Page 45 11
12. Normally, it is not the duty of the accused to explain how the crime has been committed. But in the matters of unnatural death inside the house where the accused had his presence, non-disclosure on his part as to how the other members of his family died, is an important reason to believe as to what has been shown by the prosecution through the evidence on record is true. It is nobody’s case that any dacoity or robbery had taken place in the fateful night of the incident. There are six members of the family who have been killed brutally. Simple reply by the accused in his statement under Section 313 CrPC that he did not know as to how the incident happened, particularly when he was in the house, does certainly make easier to believe the truthfulness of the evidence that has been adduced by the prosecution in support of charge against him. As far as statement of PW-6 Kejabai is concerned, she has turned hostile. But the reason as to why she has turned hostile is not difficult to be found out. She was going to lose the only son left with her.
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13. As to the fact that in the General Diary entry (Ext. P-37) there is no mention of commission of murder of his wife and children by the appellant, it is sufficient to say that the General Diary entries are summary entries relating to movement of police, or relating to the fact that some information regarding an offence has been given at the police station. The doubts created in the present case on the ground that what more could have been mentioned in the General Diary, or that there are minor variations in the statements of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu and PW-5 Dan Singh Dewangan, cannot be said to be reasonable doubt. And this Court cannot close its eyes to the ring of truth in the prosecution evidence. In Himachal Pradesh Administration v. Shri Om Prakash9, in paragraph 7, this Court has observed as under: -
“………..It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which 9 (1972) 1 SCC 249 Page 47 13 the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a court is generally due to the nature and quality of that evidence. It may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt — the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy — though unwittingly it may be — or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is “not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism”. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. It is for this reason the phrase has been criticised. Lord Goddard, C.J., in Rox v. Kritz [1950 (1) KB 82 at 90], said that when in explaining to the juries what the prosecution has to establish a Judge begins to use the words Page 48 14 “reasonable doubt” and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language. “It is the duty of the prosecution to satisfy you of the prisoner’s guilt”. What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubt…..”
14. In the light of the law laid down, as above, on careful scrutiny of the evidence on record, in my opinion, there is no room for reasonable doubt in the present case as to the truthfulness of the evidence adduced against the appellant that he has committed murder of his wife and five daughters on 19.02.2012 between 10.00 and 11.00 p.m. in his house.
15. In the above circumstances, I concur with the view taken by the trial court and the High Court that it is proved on record beyond reasonable doubt that accused Dhal Singh Dewangan has committed murder of his wife and five daughters. As such, the conviction deserves to be upheld.
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16. Now, I come to the issue of sentence. Mr. Colin Gonsalves, learned senior counsel appearing for the appellant, submitted that the High Court has erred in affirming the death sentence awarded by the trial court. He further contended that no adequate opportunity was given to the convict to present the mitigating circumstances. He further argued that the burden of proof to show the impossibility of reformation of the accused was on the State.
17. On the other hand, learned counsel for the State submitted that it is one of the rarest of rare cases. It is further submitted that considering the brutality of the offence, the convict deserves no leniency and the courts below have rightly awarded/confirmed the death sentence.
18. I have carefully considered the aggravating and mitigating circumstances in the present case in the light of law laid down by this Court on the point. In Bachan Singh
v. State of Punjab10, in paragraph 206, this Court has given examples of some of the mitigating circumstances which
10 (1980) 2 SCC 684 Page 50 16 include the probability of the accused not committing criminal acts of violence as would constitute a continuing threat to society, and the probability that the accused can be reformed and rehabilitated.
19. In the instant case, the State has failed to show that the appellant is a continuing threat to the society or that he is beyond reformation and rehabilitation. Both the courts below, in my opinion, appear to have been influenced by the brutality and the manner in which the crime is committed. But this Court cannot ignore the fact that there are no criminal antecedents of the appellant. Also, it cannot be said that he is continuing threat to the society or that he cannot be reformed or rehabilitated. It is also pertinent to mention here that the accused is from socially and economically disadvantaged strata of the society. Therefore, considering all the facts, circumstances and the established principle of law laid down by this Court, in the present case, sentence of imprisonment for life would meet the ends of justice.
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20. Accordingly, the appeals are partly allowed. The conviction of the appellant under Section 302 IPC stands affirmed. However, the sentence of death is set aside, instead the appellant is sentenced to imprisonment for life.
New Delhi; September 23, 2016.
… J.
[Prafulla C. Pant] Page 52