Chattisgarh High Court
State Of Chhattisgarh vs Brijpal on 24 July, 2003
Equivalent citations: 2004(1)MPHT42(CG)
Author: L.C. Bhadoo
Bench: L.C. Bhadoo
JUDGMENT L.C. Bhadoo, J.
1. Accused/appellant Brijpal was tried by the Third Additional Sessions Judge (Fast Track Court), Bemetara, Distt. Durg, in Sessions Trial No. 256 of 2000 for the commission of the offences punishable under Section 302 of the IPC and Section 25(1B)B read with Section 4 of the Arms Act for committing the murders of Surajbai, Prabhabai, Dhaneshwari and Domar Singh. The learned Additional Sessions Judge by his judgment dated 8th March, 2002, after holding the accused guilty of the offences under Section 302 of the IPC and Section 25(1B)B read with 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(1B)B read with Section 4 of the Arms Act.
2. Criminal appeal No. 326 of 2002 has been filed by the accused/appellant 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. 1 of 2002 to this Court for confirmation of the death sentence imposed by him on the accused.
3. This judgment shall dispose of the aforesaid appeal filed by the accused and the reference made by the learned Additional Sessions Judge.
4. Briefly stated, the prosecution case is that on 3rd June, 2000, at about 11 a.m. accused Brijpal himself appeared in Police Station, Berla and gave the merg intimation (Ex. P-32) to the effect that he was 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 relations. As such, he planned to kill his wife and the three children, but he could not execute that plan in the past. On 3-6-2000 in the morning at about 7 o'clock, in order to execute the plan, he took Surajbai along with his daughters Prabhabai and Dhaneshwari and son Domar Singh to the agricultural field under the pretext of bringing wood from the said field. He also took along with him one Tangia and a sword like iron sharp edged Patta (hereinafter 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 her as to who was the real father of the children. She replied that the children were of that other person with whom she had illicit relations. On hearing this reply, he became angry and assaulted Surajbai with the Patta on her neck. She sustained injuries on her hand while protecting herself by raising her hands. Thereafter, he assaulted his daughter Prabhabai by the same Patta in the filed 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 and assaulted her by the same Patta and murdered her. Thus, the accused murdered all the four persons. Thereafter, he left the Patta and Tangia near the dead body of Prabhabai on the boundary in the field of Babulal.
5. On receiving this report, FIR was recorded and the case was registered under Ex. P-31. After registration of the case, J.S. Chauhan (P.W. 16), the Sub Inspector, recorded the memorandum (Ex. P-1) of accused Brijpal and reached the spot and prepared the site plan (Ex. P-33). Thereafter, he sent the summons to the witnesses vide Ex. P-3, Ex. P-14, Ex. P-15 and Ex. P-16 and prepared the Panchanamas of the dead bodies of Surajbai, Ex. P-17; Prabhabai, Ex. P-18; Dhaneshwari, Ex. P-19; and 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 the place of occurrence was seized under Ex. P-3, Ex. P-4, Ex. P-5 and Ex. P-6. From the boundary of the agricultural field of Babulal Satnami one pair of Chappals, one bamboo basket, one plastic 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 Sub Inspector recovered one iron Palta vide Ex. P-2 which is Article 1. After this, the Sub Inspector handed over the investigation to the Station House Officer. B.R. Mandavi (P.W. 17) has stated that on 3rd 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 and seized the clothes of accused Brijpal viz., one Baniyan & one Gamcha 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 arc Ex. P-42, Ex. P-43 and Ex. P-44 and the report of the Scrologist is Ex. P-45. After completion of the investigation, charge-sheet was filed against the accused.
6. The learned Additional Sessions Judge after hearing the arguments framed the charges against the accused for the offences punishable under Section 302 of the IPC and Section 25(1B)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 the offences against the accused/appellant, examined in all seventeen witnesses. The statement of accused/appellant Brijpal was recorded under Section 313 of the Cr.PC 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, Shafeen (D. W. 1). After hearing the arguments of the Public Prosecutor and 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 IPC and sentenced him to death and 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 Govt. Advocate for the State/respondent.
8. As far as the nature of deaths of deceased Surajbai, Prabhabai, Dhaneshwari and Domar Singh being homicidal is concerned, the learned Counsel for the accused/appellant has not disputed this fact. Dr. C.S. Mansi (P.W. 6) has stated that on 3-6-2000 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 Surajbai, w/o Brijpal and on examination he found the following injuries on her body :--
(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 medical 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 lateral 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 right shoulder joint 2 x 1 cm hone 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. (i) was dangerous in nature and other injuries were simple. The cause of the death was due to shock. The post mortem report is Ex. P-21.
On the same day, he conducted the post mortem on the dead body of Prabhabai and found the following injuries on her body :--
(i) One incised wound over the neck above the thyroid cartilage of the size of 15 x 1 cm skin deep subcutaneous tissues, all muscles, all arteries/veins, trachea and cervical vertebra were incised.
(ii) Incised wound over the posterior surface of neck at the level of first cervical vertebra of the size of 5 x 1 cm skin deep. The doctor opined that both the injuries were caused by a sharp edged object and were ante mortem in nature. The cause of the death was due to shock. The post mortem report is Ex. P-22.
On the same day, the post mortem examination on the dead body of Dhancshwari 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 vertebra, subcutaneous tissues, muscles, trachea, cartilage and vessels were incised. The doctor opined that the injuries were ante mortem in nature and caused by sharp edged object. The cause of the death is due to shock. The post mortem report is Ex. P-23.
On the same day, the doctor also conducted the post mortem examination on the dead body of Domar Singh and following injury was found on the body :--
(i) Incised wound over the neck above the thyroid cartilage of the size of 7 x 1/2 cm deep up to vertebra; skin, subcutaneous tissue, muscles, vessels and trachea arc incised.
The doctor opined that the above injury was ante mortem in nature and caused by a sharp edged object. The cause of death was due to shock. The report is Ex. P-24. The doctor further stated that 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 death of Surajbai, Prabhabai, Dhaneshwari and Domar Singh were homicidal.
10. Now, coming to the question of involvement of the accused/appellant in the murder of the deceased persons namely, Surajbai, Prabhabai, Dhaneshwari and Domar Singh, there is no direct and ocular evidence in this case to prove the offence against the accused/appellant. The whole case rests on the circumstantial evidence and the law on the point is that in a case based on circumstantial evidence the Court can 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 as to unerringly point only the guilt of the accused and are not capable of any explanation which is not consistent with the hypothesis of the guilt of the accused.
11. As far as the question of admissibility of merg intimation (Ex. P-32), given by the accused himself at Police Station, Berla is concerned according to the prosecution, the accused/appellant had confessed that he had committed the murder of his wife Surajbai, daughters Prabhabai and Dhaneshwari and son Domar Singh with the Patta and Tangia as he was doubting the fidelity/chastity of his wife Surajbai and suspected that she was having illicit relations with someone else and 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 as per the law laid down by the Hon'ble Apex Court in the case of Aghnoo Nagesia v. State of Bihar, reported in AIR 1966 Supreme Court 119, the above statement of the accused in the FIR (Ex. P-32), is not admissible in evidence. Therefore, this FIR is not of any assistance to the prosecution in proving the offence against the accused/appellant.
12. Now, we shall proceed to examine the circumstantial evidence adduced by the prosecution in order to prove the offence against the accuse/appellant. The prosecution has adduced the evidence on the following circumstances :--
(i) Motive 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 and all the three children namely, Prabhabai, Dhaneshwari and Domar 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 Babulal (P.W. 4).
(iii) The accused and the deceased persons were seen alive together in the morning at the residence of the accused by Rekha (P.W. 10).
(iv) The weapons of offence, the sword like iron sharp edged Patta and the Tangia were recovered at the instance of the accused and the same were found stained with human blood.
13. As far as the motive of the crime is concerned, the prosecution has examined Sewaram (P.W. 7), 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 Village Chikhla with one Likhiram as his wife. She lived with Likhiram for one and half years. Thereafter, she deserted Likhiram and started residing with another person of the same village as his wife, whose name he does not know, but who was by caste Satnami. Surajbai stopped coming to his place and he did not have any contact with her thereafter. Surajbai delivered two daughters and one son, while she was residing as wife of one Satnami person. Now she has died.
14. Itwari (P.W. 3) has turned hostile to the prosecution and in the cross-examination by Public Prosecutor, he has stated that a Panchayal was convened and the Panchayat imposed fine on Panda alias Samaliya and on the direction of the Panchayat he hosted a feast to the villagers. P.W. 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 Bhagchand (P.W. 8). He has stated that he knows Panda alias Samaliya who resides at Village Berla. He has further stated that Surajbai, the wife of the accused, was caught 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 and was asked 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 Panda (P.W. 12) himself with whom the accused/appellant was suspecting the illicit relations of deceased Surajbai. Samaliya Panda (P.W. 12) 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. P.W. 12 has further stated that the Panchayat 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. Accordingly, 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 why he was punished. In the cross-examination, this witness has stated that it is true that he was not having illicit relations with Surajbai.
17. Kanakram (P.W. 13) 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 village in connection with the relations of his father with Surajbai and 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. Aashadas (P.W. 15) has been declared hostile, but he has also stated that Panda had hosted a feast to the villagers, he docs not know why he hosted the feast. He has further stated in Para 4 of his evidence that the accused had said that he would not keep Surajbai as she was having illicit relations with Panda. It is true that in the Panchayat, Panda was asked about his physical relations with Surajbai and he had admitted about his physical relations with Surajbai. Therefore, Panda was punished to pay Rs. 2,001/- and one coconut. It is also true that the Panchayat had advised Panda and Surajbai that in future they would not indulge in such activities.
19. It is clear from the above evidence that deceased Surajbai was a lady of easy virtue and she was in the habit of changing husbands very frequently. As per the evidence of her own father namely, Sewaram (P.W. 7) 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 Panda 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 this there is no evidence that on account of this, the accused by his conduct or words showed his anger against his wife or children and there is no evidence also to show that he was disturbed or gave any indication to commit such a ghastly crime to eliminate his whole family.
20. As far as the extra judicial confession made by the accused is concerned, other witnesses have turned hostile except only one witness namely, Babulal (P.W. 14). His evidence has not been believed by the 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 that the accused admitted before the Panchayat, in which he was present, about committing of the murder of his wife and children and said that he assaulted his wife and children by the Palta. But in the cross-examination, in Para 8 he has stated that the villagers said that accused Brijpa! has murdered the children, but Brijpal has not stated before him that he has murdered his wife and children. He further stated that he has not given any statement before the Police in this regard and for the first time he was given the statement before the Court that the accused said before the villagers that he had murdered his wife and children. He stated that if this fact is not recorded in his statement before the Police (Ex. D-2), he can not give any reason for that. Therefore, this witness has not stated in his statement before the Police (Ex. D-2), that the accused confessed before the Panchayat in his presence that he has committed the murder of his wife and children and he has stated this fact for the first time before the Court. Therefore, this, is an improvement in his evidence before the Court, which can not be believed. Moreover, in Para 8, he has stated that Brijpal has not confessed before him that he has murdered his wife and children. No other member of the Panchayat has been produced by the prosecution as witness. Therefore, the prosecution has 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, Rekha (P.W. 10) after being declared hostile, in cross-examination by the Additional Public Prosecutor has stated in Para 2 of her evidence that it is correct that on the fateful day she was taking water from the tap and at that time she saw Surajbai coming out from her house and her husband Brijpal was carrying a Tangia. It is also correct that when she was taking water from the tap she saw that accused Brijpal was calling his children from the house and thereafter she heard that Brijpal has murdered his wife and children in the field, but she docs not know the name of the person from whom she heard this information. In cross-examination, in Para 4 she has stated that it is true that she has not heard all these things and it is also correct that she had not seen Surajbai and children. Therefore, in view of the above wavering statements of this witness, her evidence becomes doubtful and can not be relied upon, as the same docs not inspire confidence.
22. Basanti (P.W. 11) has stated that she heard through one Asha that accused Brijpal has murdered his wife and three children. She has further stated that she saw the accused and the family members in their house in the morning when they were taking tea and thereafter, she does not know what happened. In the cross-examination, she has staled that it is true that the relations between the husband, wife and children were cordial.
23. Therefore, in view of the above evidence it is clear that P.W. 11 has also made wavering statements. Even if, her statement is believed that she saw the accused, his wife and children together in the morning at the residence of the accused when they were taking tea together, even then, this circumstance itself does not connect the accused with the murder of his wife and children for the reason that it was but natural that the husband, wife and children will remain together at their residence and there was nothing abnormal in their conduct and this circumstance can not be made much off. The wife and children of the accused were not found dead in the house, but they were found dead in the agricultural field and there is no evidence of any witness that the accused was seen along with his wife and children at the field, where the dead bodies were found. Therefore, this circumstance is of no assistance to the prosecution to connect the accused/appellant with the murder of his wife and children.
24. On the circumstances of the recovery of the weapon of offence, the Patta, at the instance of the accused, the recovery witnesses are Ajuram (P.W. 1) and Lakhan (P.W. 2). Ajuram (P.W. 1) has stated that the accused told the police on enquiry that he has murdered his wii'c and children by Tangia & Farsa and left those weapons in the field and the same were recovered in his presence. Memorandum (Ex. P-1) and recovery memo (Ex. P-2) bears his signature. In Para 4 of his cross-examination, this witness has stated that at the time of recovery of the weapons in the field, accused Brijpal was not present with the police. He further slated that at the time of the preparation of the map by the Patwari, the police was not present there.
25. Lakhan (P.W. 2) has stated in Para 3 of his evidence that Brijpal, on enquiry by the police, informed that Farsa & Tangia arc lying near a tree near the body of his elder daughter. The police recovered these weapons, which were stained with blood. Memorandum (Ex. P-1) and recovery memos (Ex. P-2 to Ex. P-7) bear his signature. In cross-examination, this witness has stated that it is true that Brijpal has not stated anything from his mouth to the police that where the weapons of offence were kept. It is true that he has not read memorandums (Ex. P-1 to Ex. P-7) and he has signed on these papers on being asked by the police without reading the same, so, in view of the above evidence of the Panch witnesses, it has to be held that the recovery was not effected at the instance of accused Brijpal. Therefore, the evidence of these witnesses i.e., P.W. 1 and P.W. 2 is of no assistance to the prosecution as they have stated that the recovery was not effected at the instance of the accused/ appellant.
26. Moreover, J.S. Chauhan (P.W. 16), the Investigating Officer has categorically stated in Para 1 of his evidence that memorandum (Ex. P-1) does not bear the signature of the accused. No explanation has been offered as to why memorandum (Ex. P-1) does not bear the signature of the accused. Therefore, the evidence of giving of the information to the police under Section 27 of the Evidence Act itself becomes doubtful. Moreover, looking to the evidence of the two Panch witnesses, who have stated that they signed on the blank papers on being asked by the police and the accused has not said anything from his mouth, it is clear that the prosecution has not been able to prove the recovery of the weapon of offence at the instance of the accused. Moreover, even if it is believed that the recovery was effected from the place where the prosecution wants to establish, even then the recovery was from an open place, i.e., agricultural field where the dead bodies were lying and it has come in the evidence that being an open place lot of villagers went to sec the dead bodies and everything had access to that place being open place. Therefore, it can not be said that the weapons were in exclusive possession of the accused and that was only within his knowledge and no one else knew about lying of these weapons of offence at that place. Therefore, this recovery of the weapon of offences, i.e., sword like iron Patta & Tangia can not connect the accused/appellant with the murder of his wife and children.
27. Even otherwise, when the accused gave merg intimation (Ex. P-32), at Police Station, Berla, in the merg intimation itself, in the last paragraph, the accused had disclosed that the weapon of offences, i.e., sword like sharp edged iron Patta and the Tangia are lying near the body of Prabhabai. When this fact was already known to everyone on account of this merg intimation, there was no question of giving any information under Section 27 of the Evidence Act. Therefore, the document (Ex. P-1) is not admissible in evidence and any recovery in pursuance of that would be of no assistance to the prosecution.
28. Coming to the evidence of blood stains found on the two articles, as per the Scrologist's report, both these articles were found stained with human blood but that report itself says that blood group could not be ascertained. Therefore, there is no evidence that the blood, which was found on these weapons, was the blood of the deceased persons. For this reason also, recovery of these weapons can not be considered as one of the circumstances, which can connect the accused/appellant with the murder of the deceased persons.
29. In view of the above, the prosecution has not been able to prove by producing legal and convincing evidence that the accused/appellant is the person who had committed the murder of his wife Surajbai and three children and that there is no possibility that someone else has committed this heinous crime. The learned Trial Court has committed illegality by placing reliance on the prosecution evidence and reaching the conclusion that the prosecution has been able to prove the offence against the accused/appellant beyond reasonable doubt based on the circumstantial evidence. The learned Trial Court has not appreciated the evidence of the prosecution properly for the reasons indicated in the earlier part of this judgment. Therefore, the judgment of conviction of the accused/appellant for the commission of the offences punishable under Section 302 of the IPC and Section 25(1B)B read with Section 4 of the Arms Act can not be sustained and the same is liable to be set aside.
30. It is unfortunate that for a ghastly crime of this magnitude, i.e., murdering four persons no one is being held responsible. But as discussed in the earlier part of this judgment, there is not an iota of evidence by which the accused can be connected with this crime.
31. In the result, the appeal of accused/appellant Brijpal succeeds and the same is allowed. The impugned judgment of the learned Trial Court convicting and sentencing the accused/appellant for the commission of the offences under Section 302 of the IPC and Section 25(1B)B read with Section 4 of the Arms Act is set aside. The accused/appellant is acquitted of the above charges. He be set at liberty forthwith if not required in any other case.
32. Consequently, the reference made by the learned Additional Sessions Judge for confirmation of the death penalty can not be accepted. Therefore, the same is rejected.