Bombay High Court
State Of Maharashtra vs Manoharsingh S/O Raghuvirsingh Thakur on 11 August, 2003
Author: J.N. Patel
Bench: J.N. Patel, D.D. Sinha, S.T. Kharche
JUDGMENT J.N. Patel, J.
1. In Session Trial No. 28 of 2002, the learned 2nd Additional Session Judge, Khamgaon, by her judgment and order dated 23rd December, 2002, found the appellant-original accused Manoharsingh Raghurvirsingh Thakur guilty of having committed offence punishable under Sections 302 and 201 of I.P.C. and convicted and sentenced him to death by directing that he be hanged by neck till his death, subject to confirmation by this Court. The appellant/accused was also sentenced to pay a fine of Rs. 1,000/on each count, and in default of payment of fine, to suffer R.I. for six months each. In view of the fact that the appellant/accused has been sentenced to capital punishment, a reference was made to this Court for confirmation of the death sentence. The learned trial Court also ordered that the valuable muddemal in V.P. No. 11/02 be handed over to the husband of deceased Vimal, and the ordinary seized property in O.P. No. 59/02 be destroyed after the period of appeal is over. The appellant/accused appealed against his conviction, which came to be registered as Criminal Appeal No. 58 of 2003 and on reference for confirmation of the capital punishment by the learned trial Court, the same came to be registered as Confirmation Case No. 1 of 2003.
2. The appeal as well as the confirmation case was heard by the Division Bench of this Court and by the judgment and order dated 3rd, 4th and 5th April, 2003, the Division Bench observed, "In view of difference of opinion, the matter will have to be placed either before the third Judge or before the larger bench in terms of Section 392 of the Code of Criminal Procedure, 1973. Since the matter involves various questions of law, in our considered opinion, it will be appropriate to place the same before Larger Bench. In view of the appeal being required to be referred to the Larger Bench, hearing on the confirmation case stands adjourned." Pursuant to this decision, the Honble The Chief Justice has referred the matter to the larger Bench.
3. The background facts on the basis of which the appellant/accused was tried, can be summed up as under:
Vasanta s/o Bajirao Deshmukh (P.W.15) was residing in the field Gat No. 32 situated at Chinchola Shivar, near Navoday Vidyalaya, of one Shankarlal Dhanuka with his family consisting of his wife-Vimal, daughter Chanda and son named Sunny alias Pankaj, and was working as a Watchman. Subsequently, the said field came to be purchased by one Ramchandra Joshi, Sir (P.W.2), who continued him in employment and used to pay him Rs. 300/per week. Vimal, the wife of Vasanta Deshmukh also used to do sundry work in the field. This agricultural field had a well fitted with electric motor. Vasanta Deshmukh had purchased a buffalo before 4-5 months of the incident and used to sell milk by delivering the same to Shri Joshi (P.W.2) and others. The milk was also sold to others from the house in the field. Near the field of Mr. Joshi (P.W.2), i.e. at a distance of about 300 to 400 feet, there was a factory for manufacturing cement tiles situated on Shegaon-Khamgaon road near Navoday Vidyalaya, owned by Sandip Janaklal Agrawal (P.W.1). Shankarlal Yavao (P.W.5) was the contractor who was engaged by Shri Agrawal (P.W.1) for carrying out the work of cement tiles and labourers by name Nandkishor, Mohanlal, Raghuvirsingh, (P.W.12), Kishor (P.W.3), Shyam, Nandlal, Mohanlal, Kachru and other workers were engaged by him. The appellant/accused Manoharsingh Thakur who was the resident of Sawarna, earlier used to work in the said factory and also helped Vasanta and his wife in their work.
4. On 23/2/2002, between 8 and 8.30 A.M., Kishor Raghuvirsingh Malviya along with Shyam went to the field of Joshi to purchase milk from the house of Vasanta. Vimal wife of Vasanta gave him milk. At that time, appellant/accused Manohar Thakur was also present. Kishor (P.W.3) noticed that there was quarrel going on between Vimal and appellant/accused Manohar Thakur and they were abusing each other in Marathi. After giving them milk, Vimalbai asked them to go and when they were to proceed, he saw Manohar Thakur assaulting Vimalbai with Tommy on her head. On this Chanda, 11 years old daughter of Vimal, ran towards them and requested them, "Mama, Mama save my mother". That time, suddenly Manohar came there and he caught hold hair of Chanda and took her near the well in the field and assaulted her by giving her Tommy blow and thereafter he threw her in the well. Thereafter, the appellant/accused told them to leave the place and they had not seen anything. Kishor (P.W.3) also noticed that Sunny alias Pankaj, 7 years old son of Vimal, was also present.
5. According to the prosecution, Kishor (P.W.3) and Shyam got frightened so they went to the factory where they met Nandlal and told him the entire incident. Nandlal told this incident to the other co-workers i.e. Santosh, Mohan and Kachru, and all of them came towards the field. At this time, the appellant-accused who was holding a big stone in his hands, prohibited them from entering the field and threatened them of dire consequences. Thereafter, the appellant/accused is alleged to have visited the factory and had threatened their contractor Shankarlal Yadav that whatever they had seen, they should not tell to anybody, otherwise they would be killed, on which the contractor told the appellant/accused to be away from the factory and, therefore, the appellant/accused left the factory Thereafter at about 11 a.m. when Shankarlal and other workers of the factory found Vasanta having returned to his house and searching for his wife and children, they went to his field and told him that the appellant/accused has thrown his wife and children in the well and asked him to lodge the report and thereafter, they returned to their house. Subsequently, in the evening i.e. about 3.30 p.m., Vasanta Deshmukh along with the appellant/accused and two ladies, visited the factory and in their presence, the appellant/accused asked Shankarlal Yadao as to what they had seen, on which Shankarlal Yadao informed him whatever they had seen, they will tell the police. They told the appellant to leave the factory.
6. On 24/2/2002, the A.P.I. Sarangdhar Punjaji Turakmane(P.W.16), was on duty at Police Station, Shegaon. At about 10.15 A.M., he received telephone call from an unknown person that in the field of Shankarlal Dhanuka in the well three dead bodies were seen i.e. there were two dead bodies of children and one of lady. Therefore, he made a station diary entry no.17 (exh.14) and left for the field of Shankarlal Dhanuka in the Jeep along with staff after making an entry to that effect at Sr. No.18 in the station diary. On reaching near Navoday Vidyalaya, he made enquiries about the well of Shankarlal Dhanuka and went towards it. However, he did not see any one or dead bodies in the well. So he made enquiries and summoned the Police Patil Pahurkar of Village Sawarna, and requisition the villagers to help him in finding the dead body. With the help of villagers like Gangaram Shankara Karangale, Namdeo Gawai, Gopal Bhaltadas, Sk. Shahada and others, he could take out the dead bodies of Chanda, Pankaj and Vimal from the well. Thereafter, he prepared the Spot Panchnama exh. 55 and Inquest Panchnama of the three dead bodies in the presence of panchas. While preparing the spot panchnama, he seized spade having blood stains on its wooden handle. The dead bodies were sent for postmortem examination. It is the case of the prosecution that while Police were preparing Spot Panchnama, Vasanta Deshmukh reached there and dead bodies of Vimal, his wife and children i.e. Chanda and Sunny alias Pankaj were identified by him. Similarly, dead bodies were got identified by the Police Patil. A.P.I. Turakmane (P.W.16) thereafter returned to Police Station, Shegaon and lodged First Information Report on the basis of which he registered Crime No. 25 of 2002 of Police Station, Shegaon, in respect of offences under Section 302, 201 of I.P.C. against unknown person after taking Sanha entry no.19. In the mean time, investigation was handed over to SDPO Rathod, who visited the Police Station and as it was the case of triple murder, he took over the investigation of the crime.
7. In the course of investigation, SDPO Rathod recorded statements of Shyam Maurya, Kishor Malviya and other witnesses. As he came to know through Police personnel who had visited the spot, that the incident was witnessed by Shyam Maurya and Kishor Malviya, and as per their statement, he deputed A.P.I. Turakmane to cause arrest of the appellant/accused and produce him before him. On arrest of the appellant/accused, an Arrest Panchnama exh. 61 came to be prepared. S.D.P.O. Rathod was required to proceed to village Janori as there was riot and murder and, therefore, he directed the A.P.I. Turakmane to seek PCR of the accused.
8. On 26/2/2002, the appellant/accused showed his willingness to give statement. He gave statement that he was ready to hand over chisel and was ready to show the same. Thereafter, the Police were able to discover chisel from the well which was on Khamgaon-Shegaon road near mile stone No.11, which was approximately 5 kms. away from the spot. The Chisel Article 13 was taken out from the well by P.C. Chavan and seized in presence of the panchas. Thereafter the appellant-accused took them to his house from where at the instance of the appellant/accused, ash of burnt clothes, which was lying about 25 ft. away from the house of the accused, came to be seized. The appellantaccused was referred to medical examination for taking his blood sample.
9. According to the prosecution, there was illicit relation between the appellant-accused and deceased Vimal and it is due to this illicit relationship and the illicit relationship of Vimal with another man, she had put hurdle in the marriage of the accused and, therefore, the appellant/accused on the unfateful day, went to the house of Vasanta when Vasanta had gone to distribute milk and quarreled with Vimal and out of this quarrel, he committed murder of Vimal by assaulting her with Chhani (Article 13) and so also of Chanda and Sunny alias Pankaj and threw all the three in the well.
10. On conclusion of the investigation, SDPO Rathod filed chargesheet in the Court of J.M.F.C. and that is how, the case was committed to the Court of Sessions for trial.
11. The appellant/accused was charged vide exh. 7 for having committed murder of Vimal wife of Vasanta Deshmukh by means of sharp weapon i.e. Chhani (Article 13) and so also of Chanda daughter of Vasanta and deceased Vimal Deshmukh, aged about 7 years, and of Pankaj alias Sunny by throwing him into the well who died due to drowning. There was also a charge of having caused disappearance of evidence of the offence of murder, which is punishable under Section 201 I.P.C.
12. The appellant pleaded not guilty of the charges framed against him and claimed to be tried. It was the case of the accused that he has been falsely implicated in the case by the witnesses at the behest of Police and that at the relevant time, he had gone for work at Dal Mill.
13. In order to prove their case, the prosecution has examined in all 17 witnesses and also placed reliance on medical and forensic evidence. The prosecution case rests on direct as well as circumstantial evidence. The learned Additional Sessions Judge found that the prosecution has proved that the accused had committed murder of Vimal and Chanda by means of Chisel and that of Pankaj alias Sunny, by throwing him into the well situated in the filed of Joshi Teacher at Chincholi. It further arrived at a finding that death of Vimal, Chanda and Pankaj is homicidal and the prosecution has also proved that on same date, time and place, the accused had thrown the dead bodies of the deceased into the well in order to cause disappearance of the evidence with intention to screen from legal punishment and thereby committed offence under Section 201 of I.P.C.
14. The learned trial Court heard the appellant/ accused on the point of sentence and found that the case against the accused false within the category of rarest of rare cases and, therefore, considering the magnitude of the offences, its motive, manner and socially abhorrent nature of crime, held that if the accused is not punished with death sentence, though he is young and first offender, considering it to be a case of extreme culpability and gravity, i.e. having committed triple murder and, therefore, opted for extreme punishment of death sentence for the accused.
15. The key issues in the case which arose for determination are:
(i)Whether the prosecution proves that Vimal, Chanda and Sunny alias Pankaj died homicidal death?
(ii)Whether the prosecution proves that such death has been caused by or in consequence of the act of the accused?
(iii)Whether the prosecution proves that the said act was done by the accused with the intention of causing death of or causing vital injury sufficient in the ordinary course of nature to cause death and thereby committed an offence of murder punishable under Section 302 I.P.C.
(iv)Whether the prosecution proves that the accused, after committing the murder of Vimal and Chanda, caused evidence thereof to disappear by throwing them in the well and by throwing away the weapon of assault and destroying his clothes by burning same, with an intention to screen himself from legal punishment and, therefore, has committed offence punishable under Section 201 I.P.C.
(v)Whether the death sentence imposed by the trial Court deserves to be confirmed if the accused is found guilty and conviction of the accused by the trial Court for having committed offence under Section 302 I.P.C. is upheld?
16. The fact that Vasanta Deshmukh, his wife and two children were residing in the two rooms and tin shed situated behind those two rooms in the agricultural field bearing Gat No. 32 admeasuring 3 acres 32 gunthas at Chincholi Shivar, is not in dispute. The prosecution has examined Ramchandra son of Aniruddha Joshi (P.W.2) to bring on record the fact that after he retired from service as Head Master of Municipal Council School, Shegaon, he purchased orchard i.e. the field near Navoday Vidyalaya, in the name of his wife Malti in partnership of one Renuka Chavan, from Shankar Dhanuka, sometime in the month of May, 2001 and at that time Vasanta Deshmukh and his wife Vimal were Watchman, residing in the said field since the time of Shankar Dhanuka. In his evidence, this witness has stated that they had one son and daughter namely Sunny and Chanda. Sunny was about 4 years old and Chanda was of 12 years of age. They used to pay Rs. 300/per week to Vasanta Deshmukh and Rs. 30/per day to Vimal as daily wages. He further stated that Vasanta Deshmukh had another source of income as he used to sell milk from buffalo which he had purchased about 4-5 months of the incident. This witness, who is also referred as Joshi Sir, has stated that Vasanta used to give 1 litre of milk by delivering it to his house daily between 7.30 and 8 a.m. In respect of the appellant/accused Manohar, it was his case that he did not know him, but he had seen him 2 to 3 times in his field and identified the appellant/accused in the Court as the same person. He had also reprimanded the appellant-accused not to come in the field without his permission. According to him, as there was Mounje ceremony and Wastushanti of the house of his daughter who resides at Karanja on 25th February, 2002 and 27th February, 2002, he was not at Shegaon and it is only on coming to know from the news published in Tarun Bharat on 25th February, 2002 about the incident, that he returned to Shegaon and with Mr. Talwadi, who was his partner in the field, he went to Police Station, Shegaon and met Deputy S.P. Rathod who recorded their statements.
17. Mr. Joshi (P.W.2) has also deposed in his evidence before the Court that the distance between the well and the rooms where Vasanta was residing, was maximum 35 ft. Well was 70 ft. in depth and had a diameter of about 3 1/2 ft. He has also given the location of the cement tiles factory which, according to him, was 300 meters away from his field and the approach way to his field from Navoday Vidyalaya and that there was a small Nala near these rooms which were in his field and beyond the Nala, there was building of Navoday Vidyalaya and the distance between Navoday Vidyalaya and the rooms where Vasanta was residing, was about 200 ft. Mr. Joshi (P.W.2) has also confirmed that in the Cement Factory, some labourers were working and from the factory, one can see who is going to and standing in the house situated in the field.
18. The prosecution has also examined Sandip son of Janaklal Agrawal (P.W.1) who, in his evidence before the Court, has stated that since 1998, he is having factory at Shegaon for manufacturing cement tiles, which is on Shegaon-Khamgaon road near Navoday Vidyalaya. According to him, near his factory, there is a field of Joshi Teacher, which is 300 to 400 meters from his factory. According to Agrawal (P.W.1), at the time of the incident, the laborers in his factory were from Madhya Pradesh and their contractor was Shankarlal Yadao. He has also given the names of some of the labourers as Nandkishore, Mohanlal, Raghuvirsingh, Kishor, Shyam, Nandlal, Mohanlal, Kachru, and that they were working in his factory since 1 1/2 year on daily wages of Rs. 50/to Rs. 100/-. According to him, he was not present in the factory on 23rd February, 2002 to 24th February, 2002, as he had gone to Bhandara at village Wankhed, Taluka Sangrampur.
19. It appears from the evidence of these two witnesses, i.e. Mr. Joshi (P.W.2) and Mr. Agrawal (P.W.1), that the prosecution has examined them to establish the fact that Vasanta Deshmukh along with his wife Vimal and two children namely Chanda and Sunny, was residing in the agricultural field of Mr. Joshi (P.W.2) and Vasanta Deshmukh (P.W.15) also used to do business in milk having purchased buffalo and that daily he used to go to the house of Joshi Sir who was residing at Shegaon, between 7.30 A.M. to 8 A.M. to deliver one litre of milk. Further Mr. Agrawal (P.W.1) who is the owner of the factory, has confirmed the fact that in his factory which is situated at a distance of 300 to 400 meters from the field of Joshi Teacher, labourers from Madhya Pradesh were working under the Contractor Shankarlal Yadao. Therefore, their presence near the scene of offence was natural is sufficiently established by the prosecution.
20. Another important set of facts which is also not in dispute is that on 24th February, 2002, the dead bodies of Smt. Vimal wife of Vasanta and her two children i.e. Chanda and Sunny alias Pankaj, came to be flushed out from the well in the agricultural field of Mr. Joshi (P.W.2). On 24/2/2002, A.P.I. Turakmane (P.W.16), who was incharge of P.S. Shegaon was on duty. At about 10.10 A.M., he received an anonymous telephone call that there are three dead bodies seen in the well situated in the field of Shankarlal Dhanuka and that two out of them, were of children and one of a lady. On receiving this information, A.P.I. Turakmane (P.W.16) made a Station Diary entry at Sr.No.17 in which time recorded is 10.10 Oclock. The nature of report is, received an anonymous phone call that two children and one woman were in the well and in the column of particulars, he recorded that "At this time, when I, Assistant Police Inspector, S.P. Turakmane, was present at the Police Station, an information was received on an anonymous phone call that two children and one woman were visible in the well in the Mala (farm) of Shankarlalji at the front side of Navoday Vidyalaya. While receiving such information on phone, we asked (the person) as to from where he was talking and who was he. But the said person put down the receiver. Hence an entry was taken." It is pursuant to this information that A.P.I. Turakmane (P.W.16) left for the spot along with Police Staff i.e. Assistant Sub-Inspector B. Nos. 97 and 578 and Police Constables B.Nos. 1640, 1427 and 592 by Government jeep 886 in order to verify facts with regard to the information the entry of which was taken at Station Diary Sanha No. 17. A.P.I. Turakmane also made entry of his departure at Sr. No. 18. Both these entries of the Station Diary has been placed on record by the witness at exh.48.
21. In his evidence before the Court, A.P.I. Turakmane (P.W.16) has deposed that after reaching near Navoday Vidyalaya, he enquired about the well of Shankarlal Dhanuka and went towards it. He did not see anyone nor saw the dead bodies floating in the well. So he again verified that it was the field of Dhanuka. It appears that he called for Police Patil of village Sawarna i.e. Mr. Pahurkar (P.W.7) and villagers to seek their help to search for the dead bodies in the well and, therefore, villagers gathered there with rope and hook. Out of them four persons who were knowing swimming, got down in the well, they were Gangaram Shankara Karangale, Namdeo Gawai, Gopal Bhaltadak, Sk. Shahada. According to him, first the dead body of Chanda was taken out, then the dead bodies of Pankaj was taken out by the process of taking it out of the water through hook and by putting the same on wooden cot and then dragging said rope from upper side of the well. The third dead body which was taken out was of Vimal. After the three dead bodies were flushed out of the well, he prepared the Spot Panchnama (Exh.55), and thereafter Inquest Panchnama of the three dead bodies, in the presence of panchas. The first is of Ku. Chanda (Exh.49), then of Sunny alias Pankaj (Exh.50) and the Inquest Panchnama of Smt. Vimal is at Exh. 51. After the preparation of Spot and Inquest Panchnamas was over, he prepared separate requisitions addressed to the Civil Surgeon for conducting the postmortem examination, which are placed on record vide exhs. 52, 53 and 54, and the dead bodies were sent for postmortem examination. According to him, on the spot, he found one spade having blood stains on its wooden handle, which came to be seized. While preparing the Spot Panchnama, he also prepared map of the spot which he has annexed to the First Information Report and the said map is at Exh.55-A.
22. Mr. R.P. Joshi, the learned counsel appearing for the appellant/accused submitted that the prosecution has failed to examine the panchas who were witnesses to the Spot Panchnama exh.55 and the three Inquest Panchnamas Exhs. 49, 50 and 51. According to Mr. Joshi, the learned counsel for the appellant/accused, the map of the spot exh.55-A which is relied upon by the prosecution does not further the prosecution case and in the absence of any independent witness i.e. Pancha being examined by the prosecution, it is very difficult to arrive at a finding as to the location of the spot where the incident is alleged to have occurred by the prosecution. Mr. Joshi submitted that even there is a discrepancy between version of the owner of the agricultural field about the well and the spot panchnama in respect of the diameter of the well. According to the owner, diameter is 3 1/2 ft., whereas in the panchnama, the diameter measured from the inner girth is measuring 14 ft. and from outer girth, it is 16 ft. and, therefore, it creates doubt in ones mind as to whether the well from which the dead bodies are flushed out is situated in the agricultural field of Mr.. Joshi (P.W.2) or from some other place and this dislodges the prosecution case as regards spot of occurrence. Secondly, Mr. Joshi, the learned counsel appearing for the appellant/accused, submitted that the prosecution has not led any evidence as to where actually the victim Smt. Vimal was assaulted. In reply Mr. Loney, the learned A.P.P. submits that the Spot Panchnama is drawn considering the fact that dead bodies were found from the well situated in the field of Mr. Joshi as till that time, the Police were not aware of the incident as a whole. Mr. Loney further submitted that this is not material discrepancy insofar as mentioning of the diameter is concerned as there is nothing on the record to show that there was some other well from where the dead bodies are flushed out and as there is error in the evidence of Joshi in saying that diameter is of 3 1/2 ft., that itself would not make any difference in the prosecution case.
23. It appears that the error lies in describing the diameter in the evidence of Mr. Joshi (P.W.2) in feet rather than meters. One cannot overlook the fact that Mr. Joshi (P.W.2) did not get the well constructed in his field, but he ha purchased the field along with well in partnership from Shankarlal Dhanuka, his vendor and, therefore, he has given the diameter as 3 1/2 feet. He must have given the diameter in approximate terms as 3 1/2 meters and not feet, but it came to be recorded as 3 1/2 ft. because one thing is clear from the evidence of Turakmane (P.W.16) as well as other witnesses examined by the prosecution that the dead bodies were found in the well of Mr. Joshi (P.W.2) and further the other dimensions as to the depth and the water level is consistent. Therefore, in our opinion, this error of giving diameter of well as 3 1/2 feet is inadvertent and does not, in any manner, affect the location of the spot i.e. well from where the dead bodies came to be flushed out. We may also like to mention at this stage that it is not in dispute that the dead bodies were that of Ku. Chanda, Sunny alias Pankaj children of Vasanta and Smt. Vimal wife of Vasanta. Mr. Pahurkar, the Police Patil (P.W.7) has in terms, supported the prosecution case that he was called to the spot by A.S.I. Turakmane (P.W.16) and was told that they had come to know that three dead bodies are lying in the well and asked him to call some persons to take out the dead bodies from the well. He has also given the dimensions of the well as having depth of 70 to 75 ft. and diameter of 15 to 16 ft. Mr. Pahurkar who is police Patil of the village Sawarna, has identified the appellant/accused as belonging to his village and has also identified the dead bodies as those of Vimal wife of Vasanta Deshmukh, Chanda and Sunny alias Pankaj. Vasanta Bajirao Deshmukh (P.W.15) came to the field on the next date, at the time when the Police had already taken out the dead bodies. In his evidence, he has stated that having not found his wife and children, he went to the Police Station as he was convinced of what Shankarlal Yadao, Contractor, informed him about the appellant/accused having killed his wife and children and that the Police brought him to the Orchard i.e. field where he saw the dead bodies of his wife and children and was got identified by A.P.I. Turakmane from him.
24. A.P.I. Turakmane (P.W.16), after dispatching the dead bodies for postmortem examination, returned to the Police Station with his staff and lodged the report (Exh.56) against the unknown person having committed murder of Vimal and two children which came to be registered vide Crime No. 28 of 2002 for offences under Section 302, 201 I.P.C. and accordingly, also made a Sanha entry at Sr. No. 19 in respect of the lodging of the report and for incorporating same in the printed F.I.R., A.P.I. Turakmane (P.W.16) has informed the same having stated that the contents of the First Information Report are correct which came to be marked as exh.56. According to A.P.I. Turakmane (P.W.16) as it was a case of murder of more than one person, he had informed his superior officer, who, at the relevant time, was SDPO Rathod (P.W.17) who took over the investigation of the crime from him. According to A.P.I. Turakmane (P.W.16), in the course of investigation, it was found that the appellant/accused was the suspect, so he was arrested by him and produced before SDPO Rathod along with the Search Report exh.58.
25. A.P.I. Turakmane (P.W.16), while preparing the Inquest Panchnama of the dead bodies taken out from the well, i.e. exhs. 49, 50 and 51, on noticing the nature of injuries, was satisfied that this was the case of triple murder and had accordingly, sent the dead bodies for postmortem examination. The postmortem examination on the dead bodies of the victims came to be conducted by Dr. Premchand son of Bhikulal Pandit, Medical Officer, Saibai Mote Hospital, Shegaon, who is examined by the prosecution as witness no.13. In his evidence Dr. Pandit has deposed that at the relevant time, he was attached to the said Hospital and P.C. B. No. 350 brought dead bodies of Vimalbai Vasantrao Deshmukh, aged 30 years, Chanda Vasamta and Sunny @ Pankaj Vasantrao Deshmukh on 24th February, 2002, for postmortem, along with requisition. He conducted the postmortem on 25th February, 2002. First, he had done postmortem of the dead body of Vimalbai from 1 P.M. On examination of the dead body, he found the following external and internal injuries as per column nos. 17 and 19 of the postmortem:
As per column no.17 :
(1)Lacerated wound over occipital scalp 10 x 2 x 1 cm. oblique right above downwards.
(2)Lacerated wound of size 3 x 1.5 x 1 cm. occipital scalp 4 cm. below and left lateral to injury No.1. (3)Lacerated wound 2 cm. above right ear of size 1 x 1 x 0.5 cm.
(4)Lacerated wound 4 cm. above left ear on temporal scalp 8 x 2 x 1 cm. oblique anterior posterior. (5)Lacerated wound over left forearm 5 cm. above wrist joint on lateral aspect of size 1 x 1.5 cm.
As per column no.19:
(1)Fractures skull occipital central region 4 x 1 cm. depressed oblique right above downwards.
(2)Fractures skull on temporal region 4 cm. above left mastoid 3 x 1 cm. depressed oblique anterior posterior.
(3)Haematoma lacerations to brain matter in occipital and left temporal region present.
(4)Stomach contains semi-digested food. According to Dr. Pandit (P.W.13), all these injuries were antemortem and injuries nos. 1 and 2 were vital injuries sufficient to cause death in ordinary course.
According to him, the stomach contained some digested food and he had not seen water in lungs and stomach and, therefore, in his opinion, death was not suicidal, but may be homicidal. Dr. Pandit was shown the chhani (Article 13) and he opined that considering the nature of injuries caused to skull, those may cause death and those injuries cannot be self inflicted injuries. He has proved the postmortem report which is in his handwriting and under the signature and the same came to be marked as exh.34. Thereafter he started postmortem of dead body of Chanda Vasant Deshmukh, aged 13 years, which was at about 2.05 P.M. and completed it by 3 P.M. On examination, he found the following external and internal injuries which he has recorded in column nos. 17 and 19 of the postmortem report. As per column no.17 :
(1)Lacerated wound on occipital scalp central part size 4 x 2 x 2 cm. oblique right above downwards, (2)Lacerated wound above 4 cm. above right ear on temporal scalp of size 4 x 2 x 2 cm. oblique anterior posterior, (3)Lacerated wound on lateral margin of left eye orbit of size 1 x 0.5 cm. x 0.5 cm. vertical parallel to margin, (4)Contusion right elbow posterior aspect of size 4 x 2 cm. transverse, (5)Contusion left scalp of 5 x 1.5 cm. transverse.
As per column no.19:
(1)Fracture skull occipital region 2 x 2 cm. depressed central part oblique right above downwards, (2)Fracture skull right temporal region 4 cm. above right mastoid 2 x 2 cm. depressed oblique anterior posterior, (3)Haematoma and laceration to brain matter in occipital in right temporal region.
According to Dr. Pandit, all these injuries were antemortem. Injury nos. 1 and 2 were very serious injuries and they were sufficient to cause death in the ordinary course. He had not seen water either in lungs or stomach. He further stated that injuries were not self inflicted and that it is not the case of suicidal death. In his opinion, in case the persons is thrown into well during he was alive, then water may enter into his lungs and stomach, but in case of already dead person, water may not enter in his body and, therefore, in his opinion, the death of Chanda and Vimal may be homicidal. He has proved the postmortem report of Chanda which is in his handwriting and under his signature and placed at exh.35. In the opinion of Dr. Pandit, in case of persons whose postmortem reports are at exhs. 34 and 35, there can be instant death. In respect of injuries on Chanda which have been noted in column no. 17 of the postmortem report, in the opinion of Dr. Pandit, the same are possible by Article 13 i.e. Chhani.
26. On the same day, he examined dead body of Pankaj Vasantrao Deshmukh, aged 7 years, and performed his postmortem between 3.05 and 4 p.m. On examination, he found following external and internal injuries, which he recorded in column no. 17 as under:
(1)Contusion 1 x 1 cm over frontal scalp central 1 cm. outside hair line;
(2)Lacerated wound left eyebrow 3 x 1 x .5 cm. above 1 cm. above and parallel to eyebrow;
(3)Contusion on right maxila 1.5 x 1.5 cm.;
(4)Contusion over neck 2 cm. below chin central part 1.5 x 1.5 cm.
(5)Abrasion, contusion of size 30 x 4 cm. extending from right axilla to left lower ribs in mid caviculia line.
(6)Abrasion, contusion of size 5 x 3 cm. on left scalp posterior aspect transverse.
According to Dr. Pandit, out of the injuries recorded in column no.17, injury no.1 is severe injury on vital part and this injury may make the person unconscious or semiconscious, and all the above injuries were antemortem and they are not self-inflicted. He further found that Larynx, trachea and bronchi contain fine froth red colour fluid. Both the lungs edematous containing frothy blood stains fluid which he noted in column no.20. In column no.21, he noted that stomach contained semi-digested food material. As per column no.20, there was water in both the lungs and respiratory track and, therefore, in his opinion cause of death must be drowning as per injuries mentioned in the postmortem report which came to be prepared by him under his signature and is marked as exh.36. Dr. Pandit stated that he has preserved the viscera of all the dead bodies and forwarded to Chemical Analyser, but as the report of Chemical Analyser was not placed on record, he could not state the exact cause of death.
27. On receipt of the C.A. report in respect of viscera of Pankaj (Exh.71), of Vimalbai (exh.72) and of Chanda (exh.73), Dr. Pandit was recalled and re-examined. He gave evidence that he has not given definite opinion on postmortem report exh.34 of Vimal and opined that viscera was preserved and opinion was reserved. He was shown C.A. report exh.72 and when he found that as per the C.A. report there is no detection of poison, he opined that the exact cause of death is very extensive head injury. As he was shown postmortem report of Chanda exh.35 and also on having seen C.A. report of viscera of Chanda exh.73, he stated that viscera report does not reveal detection of poison and, therefore, in his opinion, the cause of the death of Chanda was very extensive head injury. Dr. Pandit was then shown viscera report of Pankaj Exh.71, on which he stated that it does not reveal poison, so cause of death is drowning. In his cross-examination, he was questioned about the time required for digestion and in that context, he stated that death of Chanda and Vimal might have caused within three hours after taking meal. He also stated that he cannot say for how much time dead body of Vimal and Chanda were in water.
28. In the opinion of Dr. Pandit, the injuries noted by him in column no.17 of the postmortem report of Sunny, exh.36, can be possible if he was thrown from upper side into the well forcibly and dashes with motor foundation, angle and boundaries of the well and according to him, deceased Sunny might have died some time after he was thrown into the well.
29. In cross-examination of Dr. Pandit, he was questioned about the time of death and he opined that death of Vimal, Chanda and Sunny might have occurred before 24 to 36 hours or even before that. When it was suggested to Dr. Pandit that injury nos. 1 and 2 as mentioned in the postmortem report of Vimal and Chanda, may be because of falling on hard and blunt object. The Medical Officer was also questioned as to when the body would float on water and he stated that he has not seen any injury on the dead body which would have been caused due to taking up of the dead body with rope and hook.
30. Therefore, on the basis of the medical evidence of Dr. Pandit (P.W.13), there can be no doubt that Smt. Vimal and Chanda were killed and then thrown in the well, whereas Sunny @ Pankaj died because of drowning on being thrown in the well, and that all the three died homicidal death considering the nature of the injuries suffered by them and particularly in respect of Sunny @ Pankaj being thrown in the well in an unconscious or semiconscious condition.
31. The appellant has appealed against his conviction and sentence broadly on the grounds that there has been a substantial delay in lodging the F.I.R. which also has been lodged by the Police on 24/2/2002, whereas the incident has occurred in the morning on 23/2/2002. This gave the Investigating Agency sufficient opportunity to manufacture evidence and falsely implicate the appellant-accused, and that Kishor Malviya (P.W.3), the sole eye witness examined by the prosecution, is a got up witness. It is the case of the appellant that Vasanta (P.W.15) who is the husband of deceased Vimal and father of the two children, did not immediately report the incident nor the report was promptly lodged by the eye witnesses or the workers of the factory who, according to the prosecution, had immediate knowledge of the incident which is alleged to have been witnessed by Kishor Malviya (P.W.3) and Shyam. It is contended that the conduct of Vasanta is not only quite surprising, but absolutely unnatural in not going and reporting the matter inspite of having come to know about it on 23/2/2002. On the other hand, he went to the house of his brother and even spent the night there instead of going to the Police Station, or even to the Police Patil of the village and, therefore, considering the overall conduct of Vasanta (P.W.15), the needle of suspicion rather indicates him as the person who has committed the murder of his wife and children, for which he had sufficient motive i.e. his wife had illicit relationship with other men and he had doubt about her character.
32. It is also the case of the appellant that the prosecution having failed to examine material witness namely Nandlal and Shyam and inspite of they being available, and having offered no explanation why it has given up these crucial witnesses, the Court ought to have drawn adverse inference that if these witnesses were examined, they would have given evidence against the prosecution. Further the prosecution has not examined any independent witness as regards the spot where the incident occurred and in absence of such evidence, it cannot be established as to where the actual incident of assault took place particularly when no blood stains or any other incriminating material have been found on the alleged spot. It is further contended that the prosecution did not send the weapon in question i.e. the tommy/Chhanni (Article 13) to the Medical Officer for his opinion as to whether the injuries found on the deceased persons were possible by that weapon or not.
33. It is the case of the appellant that the trial Court erred in placing reliance on the recovery of tommy/Chhanni which was from an open well accessible to all and moreover, there was no blood stains found on the same so as to connect the appellant with the recovery and, therefore, it is submitted that taking into consideration the totality of the facts and circumstances of the case and the evidence on record, the trial Court has erred in arriving at a finding that the appellant was guilty of having committed offence under Sections 302 and 201 I.P.C.
34. The learned A.P.P. has contended that the prosecution has established its case by leading direct as well as circumstantial evidence which prove beyond reasonable doubt that the appellant/accused is the person who has committed this ghastly crime of murdering Smt. Vimal and her children in the absence of her husband. It is submitted that in order to establish their case, the prosecution has examined Kishor Malviya (P.W.3) who is an eye witness to the incident and other witnesses to corroborate his testimony before the Court. It is submitted that the prosecution has sufficiently explained the delay in filing the First Information Report and that the appellant-accused cannot take advantage of the fact by pointing out the needle of suspicion at Vasanta (P.W.15) who has given plausible explanation as to why he did not immediately lodge report of the incident inspite of getting information from the workers of the factory situated near the field where he was residing. It is submitted by the learned A.P.P. that the Court will have to appreciate his conduct by considering the attending circumstances. Vasanta being a rustic villager and a simpleton, did not believe that the appellant-accused has done away with his wife and children and it is only after making efforts to ascertain the truth of the information that he went to the Police Station where he was directed to go to the spot of incident i.e. the field of Joshi, Sir, where the Police had already gone on receiving information from an unknown person through a telephone call. It is submitted by the learned A.P.P. that the discovery of tommy/Chhanni was made at the instance of the appellant-accused and though tommy/Chhanni was not earlier referred to the Medical Officer, the prosecution has brought on record the opinion of the Medical Officer by drawing his attention to tommy/Chhanni(Article 13) and Dr. Pandit (P.W.5) has in term stated that the injuries found on the body of Smt. Vimal and Ku. Chanda could have been caused by the said instrument. The learned A.P.P. submitted that as the prosecution has established its case by bringing on record cogent, consistent and reliable evidence, and taking in to consideration the gravity of the crime committed by the appellant-accused, the trial Court was justified in convicting the appellant-accused for the offences with which he was charged and in sentencing him to the extreme penalty by awarding death sentence.
35. Now let us examine whether the prosecution has been able to prove that it is the appellant-accused who is responsible for causing death or causing bodily injury sufficient in the ordinary course of nature to cause death of the three victims i.e. Smt. Vimal, Ku. Chanda and Sunny. The star witness examined by the prosecution is Kishor Raghuvirsingh Malviya (P.W.3), a 16 years old young boy who has been working in the factory manufacturing tiles which was situated near the field of Joshi, Sir. Kishor Raghuvirsingh Malviya (P.W.3) gave evidence that on 23/2/2003, he along with Shyam, went to the field of Joshi for taking milk from the house of Vasanta at about 8.00 a.m. to 8.30 a.m. Vimalbai had given them milk. That time Vimalbai and Manohar Thakur (appellant-accused), who has been identified by the witness in the Court, were present and there was a quarrel going on between Vimal and appellant. They were abusing each other in Marathi. After giving milk, Vimalbai asked them to go. When they were likely to proceed, the accused inflicted a tommy blow on the head of Vimal. It was iron tommy. Due to it, Vimalbai fell down on which Chanda ran towards them and requested that "Mama, Mama, save my mother". So suddenly accused Manoharsingh came there. He caught hold hair of Chanda and took her near well situated in the field and there he inflicted tommy blow on her head and thereafter threw her into the well. Thereafter the accused told them that they should leave the place and they had not seen anything, due to which they got frightened and then they went to the factory and met Nandlal. They told the entire incident to Nandlal. This is in sum and substance the account given by the sole eye witness examined by the prosecution. It clearly implicates the appellant-accused Manohar Thakur of having given a blow with iron tommy to Vimalbai because of which she fell down and when Chanda came to seek their help, the appellant-accused caught hold of her hair and took her to the well which was in the field at a distance of about 25 to 30 from the house and inflicted tommy blow on her head and threw her in the well.
36. Mr. Joshi, the learned counsel appearing for the appellant, submitted that the prosecution case rests on the sole testimony of this witness, but according to him, he is a got up witness who, at the time of incident, was about 15 years old. It is submitted that the evidence of this witness is unreliable and it does not inspire confidence as his evidence is not corroborated by the prosecution by examining Shyam who had accompanied him to the house of Vasanta. It is further submitted that there is inherent inconsistency in his evidence and that all other witnesses which destroys the very fabric of his testimony and further his conduct is unnatural. According to Mr. Joshi, the learned counsel for the appellant-accused, this witness did not narrate the incident to his own father i.e. Raghuvirsingh (P.W.12) as in the evidence Raghuvirsingh (P.W.12) has stated that Shyam informed Nandlal and not Kishor and does not say anything about his own son telling him about the incident which was in normal course expected of Kishor (P.W.3). According to Mr. Joshi, the learned counsel for the appellant-accused, in the evidence of this witness what has come on record is that the appellant-accused assaulted Vimal and Chanda was assaulted and thrown into the well and he does not speak anything about Sunny alias Pankaj in his examination-in-chief and even if the evidence of this witness is to be accepted, then at the most it can only be considered so far as assault on Chanda and throwing her into the well is concerned. According to Mr. Joshi, the learned counsel for the appellant-accused, the sole eye witness examined by the prosecution does not establish the prosecution case of commission of murder of Vimal and Sunny alias Pankaj and throwing them into the well. Mr. Joshi, the learned counsel for the appellant accused further assailed the evidence of this witness on the ground that though this witness has not seen the murder of the three victims and how their bodies were thrown into the well, still Shankarlal (P.W.5) speaks about the same though there is no evidence brought on record to show that either this witness told Shankarlal (P.W.5) about the incident or Shankarlal made any enquiry from them. According to Mr. Joshi, the learned counsel for the appellant-accused, this witness cannot be relied upon for the reason that when they met Vasanta, this witness did not tell Vasanta having seen appellant accused assaulting his wife and throwing his daughter Chanda into the well nor Vasanta made any enquiry from Shankarlal and other workers of the factory as to who has seen the appellant-accused killing his family members and throwing them into the well. It is, therefore, submitted that the prosecution has no evidence to show the complicity of the appellant-accused insofar as it relates to murder of Smt. Vimal and Sunny alias Pankaj. Mr. Joshi, the learned counsel for the appellant-accused, has further submitted that the prosecution has not shown the Chhani (Article 13) alleged to be recovered by the Police at the instance of the appellant-accused, to this witness in the witness box. It assumes importance in the background that this witness has described the weapon of assault as Tommy whereas according to the prosecution the victims were assaulted by Chhani (Article 13) and that in the cross-examination of this witness, this fact that tommy and Chhani are two different instruments and he knows the distinction between them, is brought on record and, therefore, it will have to be inferred that the Chhani (Article 13) is not the weapon of assault because of which the alleged discovery at the instance of appellant-accused by the police is meaningless.
37. Mr. Joshi, the learned counsel for the appellant-accused, submits that even the conduct of this witness is not above suspicion as this witness, inspite of the fact of having seen the appellant-accused assaulting Vimal and Chanda and throwing her in the well, did not disclose the same to any person or to the Police Patil of the village nor did he go and lodge the report to the Police. Further when on the next day, the Police party reached the scene of occurrence and was present for the whole day flushing all the dead bodies of the victims from the well, preparing Inquest Panchanamas and dispatching the bodies for postmortem examination, Kishor (P.W.3) did not tell the Police that it is the appellant-accused who was responsible for the murder of Vimal and Chanda.
38. Mr. Joshi, the learned counsel for the appellant/accused, has stated that in the cross-examination, Kishor (P.W.3) had candidly admitted that Police recorded his statement on 25/2/2002 i.e. two days after the incident, which is enough to draw a conclusion that this eye witness has been planted by the Police as even S.D.P.O. Rathod (P.W.17) who took over the investigation from A.P.I.. Turakmane (P.W.16), has not stated that he recorded the statement of Kishor (P.W.3) on 24/2/2002. According to Mr. Joshi, the learned counsel for the appellant-accused, if the evidence of this witness is to be believed, i.e. statement was recorded on 25/2/2002, the Police has suppressed this fact from the Court by not filing their statement dated 25/2/2002, therefore, the Court should draw necessary inference that this witness has not given any inculpatory statement against the appellant-accused and that the prosecution has examined him only for the purpose of falsely implicating the appellant-accused.
39. In support of his contention, Mr. Joshi has placed reliance on the case of Padamsingh -vsState of U.P. in order to emphasis that it is the duty of the appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have proved their case beyond reasonable doubt on the said evidence. The credibility of the witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts. It must be remembered that the appellant Court, like the trial Court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through untill he is held guilty by the final Court of appeal and that presumption is neither strengthened by acquittal nor weakened by the conviction in the trial Court.
40. Mr. Joshi, the learned counsel for the appellantaccused, has further submitted that in absence of any evidence on record to show that Kishor (P.W.3) informed anyone that he has witnessed the incident, it is really surprising that how and in what manner the Investigating Officer came to know about this child witness so as to record his statement and this also cast doubt on the prosecution case that Kishor (P.W.3) is an eye witness. Mr. Joshi has placed reliance on the case of Alil Mollah and another vs State of West Bangal , in support of his contention that the entire case revolves around and rests on the testimony of Kishor (P.W.3) only, is not in doubt. It is now well established that the conviction can be based on the single testimony of eye witness provided Court finds from the scrutiny of his evidence that he is wholly reliable witness. Where, however, the Court is of the opinion that single eye witness is only partly reliable, prudence requires that corroboration of his testimony in material particulars should be sought before recording conviction. It is in the light of these well established principles that we should examine the testimony of Kishor (P.W.3). It is submitted that in case, the only eye witness on which the prosecution placed reliance, did not raise any alarm when his master was being assaulted and he did not go near his employer evenafter the assailants had fled away to see the condition in which the employer was after having suffered the assault. According to him, he got frightened and fled away to his home. He also admitted in his crossexaminatioin that neither at his home nor in the village did he disclose what he had seen in the evening of 4/2/1982 to any one. Though in the morning of the following day, the witness went to the brickfields of the deceasedemployer and many of his coemployees were also present there, he admitted that he did not disclose the occurrence to anyone of them and went on to concede that even to the Manager of the brickfields he gave the information about the occurrence only 23 days after the occurrence. His statement was recorded by the police on the next day in the afternoon. This conduct of the witness appears to be rather unnatural and creates an impression that he had not witnessed the occurrence and the Supreme Court in the said case, having found that there was no corroboration to the sole testimony of such a witness, recorded a finding of acquittal and similar is the case in respect of Kishor (P.W.3).
41. From the available evidence on record, let us assess the creditworthiness of this witness i.e. Kishor Malviya (P.W.3), on whose sole testimony, the prosecution case would either stand or fall. In our opinion, Kishor Malviya (P.W.3) is a wholly reliable witness. We have already reproduced his evidence before the Court as regards the incident which he witnessed at the house of Vasanta on 23/2/2002 when he went there to take milk along with Shyam Maurya, who has not been examined by the prosecution. In the crossexamination of this witness, nothing has been brought on record to show that this witness has any animus towards the appellant accused except a suggestion that he is deposing falsely against the accused because he had quarreled with accused Manohar which he had denied and further that he is deposing falsely under the pressure of Dy. S.P. i.e. Investigating Officer and under the pressure of his statement recorded before the Magistrate under Section 164 Cr.P.C. In his evidence before the Court, the witness has given the incident in a very natural manner as had occurred and witnessed by him. If the contention of Mr. Joshi, the learned counsel appearing for the appellantaccused, is to be accepted that he is a got up witness, then the prosecution would not have left the story half way i.e. in respect of Vimalbai and her son Sunny @ Pankaj being thrown in the well. Though this witness has not stated anything in his examinationinchief about Sunny @ Pankaj, a 4 year old child of Vimalbai, probably as the witness did not feel it necessary to mentioned about him for want of any interaction between the appellantaccused and Sunny, but then in crossexamination, Kishor (P.W.3) has categorically marked his presence at the scene of offence when he said that they had seen Sunny there. Therefore,, by examining this witness, the prosecution has proved that at the time the incident occurred, Vimalbai, her children namely Chanda, 1112 years old daughter, and her son Sunny @ Pankaj, about 4 years old son, were present in the house, when they had gone to take milk. The learned counsel for the appellant has tried to make a capital of it by stating that the prosecution has not led any evidence to show that how the dead body of Vimal got into the well and that of Sunny @ Pankaj and submitted that what Kishor (P.W.3) had seen, was only an assault with tommy on Vimal and nothing else.
42. The aforesaid contention of the learned counsel for the appellant, stands negatived by the attending facts and circumstances which can be gathered from the further evidence of Kishor (P.W.3) and all other witnesses along with their conduct.
43. Immediately after witnessing the incident, Kishor (P.W.3) and Shyam, on being threatened by the appellantaccused, went to the factory and met Nandlal. In his evidence before the Court, Kishor (P.W.3) has specifically stated that, "We told the entire incident to Nandlal". This itself shows that Nandlal was informed of what they saw and it is not the prosecution case that only Shyam informed Nandlal as tried to be made out by the appellant accused. In turn, Nandlal told the incident to other coworkers namely Santosh, Mohan and Kachru. This is how the information spread amongst the workers who were working under Shankarlal Yadao (P.W.5), the Contractor in the Tiles Factory owned by Sandip Agrawal (P.W.1). Shankarlal Yadao being their contractor, is an important witness in respect of the subsequent events which took place. The prosecution has examined Shankarlal Yadao (P.W.5). In his evidence before the Court, he has, in terms, corroborated the evidence of Kishor (P.W.3) when he stated that on 23rd February, 2002, his two workers Shyam and Kishor went to the house of Vasanta for purchasing milk at about 7.30 to 8 A.M. At that time, he had gone for latrine. Shyam and Kishor (P.W.3) told Nandlal that accused had thrown Chanda into the well and Nandlal came to him running and told him that the accused (the appellant) had thrown Chanda into the well. Therefore, he along with his other workers, went to the field of Vasanta. They reached upto the ditch and saw the accused throwing the foundation of electric motor into the well. This they had witnessed from a distance of 15 ft. On seeing them, the appellantaccused threatened Kishor and Shyam that if they tell the incident to anybody, he would kill them. Then all of them returned to the factory. This is what Kishor (P.W.3) in his evidence has stated by referring to the accused as Thakur who prohibited them from coming in the field and threatened them that if they come, he would kill them and so they did not go to the field and returned back. It appears from their evidence that the accused then visited the factory between 9.00 to 9.30 A.M. and threatened Shankarlal Yadao and others that they had not seen anything and asked not to tell this fact to anybody. It is at this stage that Shankarlal Yadao (P.W.5) asked the accused as to what happened, he told that, "Tinoko sula diya" and then he further told that "Vasanta ko Sula Denga" and therefore, Shankalal Yadao (P.W.5) told him that he should not talk in his factory, and then the appellantaccused left.
44. The workers of the factory including Kishor (P.W.3) and their contractor Shankarlal Yadao (P.W.5), having now come to know that the appellantaccused has done away with Smt. Vimal, Ku. Chanda and Sunny @ Pankaj, were then waiting for Vasanta and as soon as they sighted Vasanta who returned to his house at about 11 A.M., they all went to him. At that very moment, one Sanjeev Chopde (P.W.6) who, according to the appellant, is a chance witness, also happened to be there. Shankarlal Yadao (P.W.5), then told Vasanta that he should not search for his wife and children as Thakur (i.e. referring to the appellantaccused) has murdered all of them and thrown them into the well and asked him to lodge a report and, therefore, when Shankarlal along with workers of the Factory, including Kishor (P.W.3) communicated to Vasanta about the incident, as learnt by him through his worker, it cannot be said that Kishor (P.W.3)s conduct was unnatural in not disclosing the incident to any other person including his father. Raghuvirsingh s/o Radhakisan Malviya (P.W.12), father of Kishor (P.W.3), in terms, corroborates the fact stated by Kishor and Shankarlal on the point that on 23rd February, 2002, when he was in factory, Kishor (P.W.3) and Shyam went to the house of Vasanta. Then suddenly, Shyam ran to the factory and told Nandlal that Thakur had thrown Chanda into the well so they gathered there and proceeded towards the field. Accused Thakur was there. He was standing near the well and that he had stone in his hands and threatened to kill them, so they got frightened and returned and thereafter Manohar came to their factory in about half an hour and threatened whether they had seen anything and asked not to tell the said fact to anybody. He also speaks about Shankarlal (P.W.5) telling Vasanta that his wife Vimal, daughter Ku. Chanda and son Sunny have been killed and thrown in to the well by the appellantaccused and asked him to lodge a report with the Police, and then Vasanta went. Merely because Raghuvirsingh (P.W.12) does not mention about Kishor telling Nandlal or having told him, in our opinion, makes no difference to the credibility of evidence of Kishor (P.W.3) on account of his conduct in not informing his father about the incident. Kishor and Shyam have directly come to the factory and told the workers about the incident seen by them and, therefore, it cannot be said that conduct of Kishor (P.W.3) in not disclosing the fact to Nandlal or his father Raghuvirsingh will have to be inferred dehors his own evidence where he specifically mentioned of disclosing the fact to the Nandlal being communicated by Shyam. Therefore, it cannot be said that as a result of this, all the persons present in the factory including Raghuvirsingh have come to know that appellantaccused has assaulted Vimalbai and Chanda and thrown them in the well. By examining these witnesses i.e.Kishor (P.W.3), Shankarlal Yadao (P..5) and Sandip Chopde (P.W.6), Raghuvirsingh (P.W.12), the prosecution have been able to prove the fact that on 23/2/2002 in the morning between 8 and 8.30 A.M. when Kishor and Shyam had gone to take milk from the house of Vasanta, they saw that Smt.Vimal, her daughter Chanda and son Sunny @ Pankaj were present and so also the appellantaccused Manoharsingh Thakur. They had reached on the spot when the quarrel was going on between Smt. Vimal and Manohar and it is in the same transaction that Smt. Vimal gave milk to Kishor (P.W.3) and asked them to go and it is at this point of time, Manohar assaulted Vimal who fell down and when Chanda came to them running for seeking help, Manohar followed her and caught hold by her hair, took her near the well, assaulted her with the tommy and threw her into the well and threatened them, so they ran away from the scene of offence and that he disclosed this fact to the factory workers.
45. Now let us examine whether all this evidence go to prove that all the three i.e. Smt. Vimal, Ku. Chanda and Sunny @ Pankaj were done to death by the appellantaccused as the ocular evidence led by the prosecution and as brought on record by examining Kishor (P.W.3) is restricted to assault on Vimal and Chanda who has been thrown in the well, whereas there is no direct evidence as to in what circumstances, Sunny @ Pankaj got into the well and similarly about throwing the dead body of Vimal in the well and by whom.
46. It is common experience in judicial trial that the direct evidence of the most conclusive kind is uncommon. In this case, the direct evidence is in the form of sole testimony of Kishor (P.W.3) which has disclosed certain facts, which throw light on how the event occurred in a particular sequence till the witness left the scene of occurrence. In the present case, it has come on record that Vasanta Bajirao Deshmukh (P.W.15), husband of Smt. Vimal, and father of two children, had gone to deliver milk at the residence of Joshi,Sir, who resides at Shegaon i.e. approximately at a distance of 5 km. from the field where Vasanta was residing. So, the other members of the family who were left in the house were Smt. Vimal, daughter Chanda and son Sunny @ Pankaj. As the appellantaccused, being on friendly terms with the family of Vasanta, was aware of this fact that Vasanta would not be at home after 7.30 or 8 A.M., chose the same time to visit the house of Vasanta when Vimal was alone with her children. The evidence of Kishor (P.W.3) and that of Shankarlal (P.W.5), Raghuvirsingh (P.W.12) sufficiently established the presence of the appellantaccused in the house of Vasanta. Similarly, the prosecution has also proved that when Vasanta left his house, his wife Smt. Vimal and two children were there. Therefore, there can be no hesitation to arrive at a conclusion that after Kishor (P.W.3) and Shyam left the scene of offence, the accused was in the field where Vasanta was residing with his family. By that time, the appellantaccused had already assaulted Vimalbai who had fallen down and had taken Chanda towards the well by holding of her hair and assaulted her with a tommy and threw her in the well. Though Kishor(P.W.3), in his examinationinchief, failed to mention the presence of Sunny @ Pankaj along with Smt. Vimal and Chanda in the house, in his crossexamination, he has stated about the presence of Pankaj in the house. Incident was witnessed by Kishor (P.W.3) between 8.00 to 8.30 A.M. along with Shyam and that they left the scene of occurrence on being threatened or frightened and went towards factory where they informed workers about the incident and by the time workers of the factory accompanied by Shankarlal Yadao (P.W.5) returned to the scene of occurrence, what they noticed was that the appellantaccused Thakur was standing near the well and threatened them of dire consequence by holding stones in his hands. The prosecution having established this fact that when Kishor and Shyam left the scene of offence, only person left behind were the appellant accused Manoharsing Thakur, Smt. Vimal who had fallen down on being assaulted with a tommy i.e. Chhani, and Pankaj, and when they had returned to the scene of offence, they saw only the appellantaccused who was threatening them with dire consequence if they try to come near him and so the victims and the appellantaccused were only persons who were last seen together and, therefore, there can be no hesitation to hold that it is the appellantaccused only who could have thrown the dead body of Vimal into the well as well as Sunny @ Pankaj. When it was put to the appellantaccused in his examination under Section 313 Cr.P.C. as to why the above witnesses are deposing against him, he offered an explanation that on that day, he had gone for work and that he was working in Maroti Dal Mill, i.e. to say that the appellantaccused took a plea of alibi. In Binay Kumar Singh vs State of Bihar the Supreme Court observed; "It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy."
47. Another circumstance which rather can be taken as an conclusive proof of the guilt of the appellantaccused, is finding of the dead bodies of all the three victims in the well, which fact is not much in dispute. Mr. Joshi, the learned counsel for the appellantaccused, tried to raise a doubt in the prosecution case that the prosecution having failed to examine any independent witness in whose presence Spot Panchnama and Inquest Panchnama came to be drawn and the discrepancy in description of the diameter of the well, are sufficient to dislodge the prosecution case, is nothing, but a futile attempt to take advantage of the error committed by Mr. Joshi (P.W.2) in describing the diameter of the well in his field. When the prosecution has established through the eye witness account of Kishor (P.W.3) that Chanda was assaulted and thrown in the well in the field of Joshi,Sir, and where all the three bodies are flushed out in the presence of panchas, Mr. Pahurkar, Police Patil and villagers and workers of the Factory, the matter does not rest at the stage of suspicion because it is nobodys case that after Chanda was thrown in the well by the appellantaccused, he took her out and threw her in another well where the dead bodies of Smt. Vimal and Sunny @ Pankaj were already lying. If the appellantaccused can be held responsible for causing death of Vimal by assaulting her with tommy and throwing her in the well, there is no scope for raising any doubt that Smt. Vimal and Sunny @ Pankaj were also dealt similarly by the appellantaccused and were thrown in the same well from where the bodies were recovered.
48. We have already discussed the medical evidence by analysing the evidence of Dr. Pandit which also corroborates the eye witness account of Kishor (P.W.3) who has stated in his evidence that he saw the appellantaccused assaulting Vimal on her head with tommy because of which she fell down and thereafter he assaulted Chanda with the same tommy and threw her in the well. The nature of injury caused by such assault has been confirmed by Dr. Pandit in his evidence, which we may not again discuss, which sufficiently corroborates the evidence of this sole eye witness.
49. Now let us go to the other corroborative evidence led by the prosecution. One of them is discovery of Chhani (Article 13) from a well, at the instance of the appellantaccused. In order to prove this discovery purported to be done under Section 27 of the Evidence Act, the prosecution has examined the panch Alokkumar Mishra (P.W.4). In his evidence before the Court, Mishra (P.W.4) stated that on 26/2/2002, he was called at Police Station, Shegaon where he went with another witness Ashok Shriram Hingne. In their presence, the appellant made a statement as regards the clothes he was wearing out of which the black pant was already seized by the Police. The appellantaccused has also stated that the iron chisel (tommy) has been thrown by him into the well having little water and situated in the left side field on KhamgaonShegaon road near Savrna Fata. On getting information, the accused was taken by the Police party along with the witnesses in a Police jeep to KhamgaonShegaon road. When they reached near Savarna Fata near the well, the accused had shown the well and threw one stone into the well and showed the place where he had thrown the tommy. One Police Constable Chavan who knew swimming, entered into the well with the help of rope and took out the weapon from the place shown to him by the appellant. The tommy was of iron. Police seized the same under the panchnama. Witness has identified the tommy/chisel (Article 13). In the recovery panchnama, the description of the iron chisel is given as iron chisel (tommy) measuring 31 centimeters in length, the upper side of which is round shaped and the lower side is flat and pointed. It is measuring 9 1/2 cms. in circumference and wieghing about 1 1/2 kgs. It is rusted and the rustmixed stains like that of blood are visible near its round portion, which came to be recorded in the recovery panchnama (Exh.18). This Chhani (Article 13) shown to Dr. Pandit who, in his evidence, opined that in respect of Smt. Vimal, considering the nature of injury caused to the skull, death can be possible by Article 13, i.e. Chhani shown to him and similarly in case of Ku. Chanda, he opined that injuries on Chanda recorded in column no.17 of the postmortem report, are possible by Article 13 i.e. Chhani shown to him. It is only in case of Sunny that he gave negative opinion, but stated that the injuries as per column no.17 of the postmortem report, Sunny @ Pankaj can be possible if he was thrown from the upper side into the well forcibly and dashes with motorfoundation, angle and boundaries of the well. The discovery of Chhani (Article 13) is in consequence of the information received from the accused and that too from a well.
50. It was tried to be urged by Mr.Joshi, the learned counsel for the appellantaccused, that the discovery of this Chhani is nothing but foisted upon the appellantaccused and cannot be taken into consideration as it was from an open place accessible to all, cannot be accepted. There is no doubt that the discovery of the Chhanni (Article 13) was made from a well which was situated in an open place accessible to all, but the fact which is incriminating is the knowledge of the accused that the Chhanni (Article 13) lying in the well and that the accused did not offer any explanation except for stating that the discovery is false rather than offering as to how he gained knowledge of the fact that the Chhani was lying in the well. The fact of discovery is further fortified by the evidence of P.C. Deochand Chavan (P.W.8) who actually got down in the well and brought out the Chhani (Article 13) after its location in the well was shown by the appellantaccused by throwing a stone.
51. Mr. Joshi, the learned counsel for the appellantaccused, canvassed before us that even if Chhani (Article 13) is accepted to be discovered at the instance of the appellant, still for want of evidence to connect it with the appellantaccused, it is not established that it was the instrument which was used for assaulting the victims. He has particularly placed reliance on the description of the instrument given by Kishor (P.W.3) as tommy and in his crossexamination, this witness has specifically admitted that he understands as to what is tommy and Chhanni and that they are two distinct instruments like tommy is used for uprooting nails from the wall and Chhanni is normally used for chiselling or breaking stones. It cannot be overlooked that this witness has seen the incident from a short distance and has been very sure about the instrument by which the appellantaccused assaulted his victims, which he described as iron tommy. The only distinction of which judicial notice can be taken in respect of an iron tommy and Chhanni is that in the bottom, the shape of an iron tommy would be "U" type having a marginal gap in between which facilitates uprooting of nails, whereas that of Chhanni would be sharp like chisel. It is after all the perception of the witness which matters and as rightly pointed out by the learned A.P.P., if a Chhanni is held from the bottom side, then it will be very difficult for any one to say whether it is a tommy or Chhanni as the upper portion of both these instruments of the size would be similar and that is what has happened in the present cases. The size and weight of the instrument i.e. Chhanni (Article 13) justifies the opinion of Dr. Pandit that if any one is assaulted by such an instrument, then it can cause the fatal injury found on the victim which was on vital part i.e. the occipital region which caused the death of the victims.
52. The next important aspect which we are required to examine is in respect of the conduct of Vasanta Bajirao Deshmukh (P.W.15) which, according to Mr. Joshi, the learned counsel for the appellantaccused, is not only unnatural, but also suspicions as Vasanta did not do anything on learning that his wife and children have been killed and thrown into the well. He did not go to the Police and lodge a report, nor did he say anything to the Police when they were preparing the Inquest Panchnama and he had reached the spot. He did not go to the well to verify whether what Shankarlal and other have said is correct or not, nor did he take any step in the right direction i.e. of informing Police Patil, on the other hand, he was calm, quiet and peaceful as if nothing has happened and, therefore, according to Mr. Joshi, the learned counsel for the appellantaccused, there can be only two inferences which can be drawn from such conduct of Vasanta; firstly, that Shankarlal Yadao (P.W.5) or for that reason any worker from the factory did not inform Vasanta about his wife and children being killed by the appellantaccused or anybody else and thrown into the well and probably he found them to be missing and went for searching at his brothers place and even on the next day at his cousins place and then went to Police Station on the next day, for lodging a report that his wife and children are missing or that he himself is responsible for committing this ghastly crime being suspicious of character of his wife. Mr. Joshi, the learned counsel for the appellantaccused, further submits that this inference is strengthened by the fact that it is Vasanta alone who is the only person who could have done it as he had an opportunity and time to do away with his wife and children. In our opinion, this proposition of the learned counsel for the appellant, is not only far fatched but is contrary to the evidence on record. In absence of eye witness, Vasanta, the husband of victim Vimal and father of victims Chanda and Sunny @ Pankaj, would have been the first suspect. We do not find that Vasantas conduct can be called unnatural for the reason that in his evidence before the Court, nothing has been brought in crossexamination to show that Shankarlal Yadao and other workers did not informed him. He gave evidence that on the day of the incident, he left house to deliver milk by 7.30 to 8 A.M. At that time, his wife and children were in the house. Therefore, Vasanta confirms the presence of all the three victims in the house when he left the house and at that time, the appellant accused was not in the house. He gave milk in the house of Shankar and Joshi, Sir. He did not see Joshi Sir in his house and after that he returned to the field at about 11.00 a.m. He did not see his wife and children there. He gave call to them, but he did not receive any response. Then factory workers came to him. They were Shankarlal Yadav and others. Contractor Shankarlal told him that accused had assaulted his wife and children and he had thrown them into the well and he asked him to lodge report. According to Vasanta, in stead of going to Police Station, he went to the house of his brother. He told Latabai i.e. (P.W.9) that his wife and children were killed and thrown into the well by the accused. Vasanta did not believe what the contractor disclosed to him as he was not convinced and, therefore, he asked Latabai to come to the factory to ask the contractor. Latabai along with another sisterinlaw Saraswatibai came in the bus whereas Vasanta returned on his bicycle. When they were proceeding from the bus stop near Navodaya Vidyalaya, towards factory, accused met them. They asked him whether he has killed wife and children of Vasanta. The appellantaccused after taking oath, replied that he had not done so. On this Latabai told him that he should accompany them to Contractor. It is at this time when Saraswatibai told that she is thirsty, so they went to the well and she drunk water and then went to the factory. We take that the well referred to in the deposition of Vasanta is the same well which is situated in the field of Joshi,Sir and as Vasanta did not notice any body in the well, this can be one reason for not believing Shankarlal (P.W.5), the Contractor. In his evidence, he has further stated that he along with Latabai, Saraswatibai and the appellant accused went to the factory. Accused asked the Contractor whether Contractor had seen him killing wife and children of Vasanta. The Contractor told that he would tell whatever he wanted to tell to Police and asked the accused to go and thereafter, his sisterinlaw returned to the house and he went to the house of Latabai. After taking meal, he slept there and woke up next day in the morning. Then he came to the field and milched his buffalo and went to the house of Bhaltadak and demanded him Rs. 50 as his wife and children did not return and he wanted to search them at the house of his brother. Bhaltadak gave him Rs. 50/. He went to Akola at the house of his cousin but his wife and children were not there. Then he went to Police Station as he was convinced on the word of Contractor that accused had killed his wife and children. From the Police Station, Police brought him to the field where he saw the dead bodies of his wife and children. Thereafter, on the next day, the postmortem was done. It is since the date of the incident he is residing in his own house at Shegaon. He had no quarrel with the accused and had no money transaction with him. Vasantas evidence stands well corroborated by Latabai Deshmukh (P.W.9), sisterinlaw of Vasanta. Latabai (P.W.9) speaks of visit of Vasanta on 23/2/2002 on three occasions, one in the early morning i.e. at about 8.30 A.M. and then at 10 A.M. when he asked her whether mother of Chanda, i.e. his wife, has come to her house and thereafter he went away, and thereafter on the third occasion at about 12 noon, when she found him to have frightened. So, she asked him why he was frightened. He told that Manohar had thrown his wife and children after quarrelling with them, into the well. Latabai asked him who stated about this. He told that Contractor of Ganesh Factory told this incident and, therefore, Vasanta asked her to come along with him in the field. Latabai said that she would not come alone and, therefore, she called her other sisterinlaw Saraswatibai and that is how they went to the scene of occurrence by bus whereas Vasanta had gone ahead on his bicycle. While they were at the bus stop of Navodaya Vidyalaya, that was around 1.30 P.M. that time, they saw the appellantaccused coming from the side of the field and Vasanta told him that when he had gone to Shegaon for distribution of milk, Thakur quarrelled with his wife and children and thrown them into well, to which the appellantaccused denied. He also threatened that Vasanta should not take his name otherwise, he would kill all of them one by one. On this Vasanta told him to accompany them to the Contractor. Before proceeding towards factory, Saraswatibai felt thirsty, so they went to the well where she drunk water and thereafter they all i.e. Latabai, Saraswatibai, appellantaccused and Vasanta went to the factory and in the factory, Vasanta asked the Contractor that as he told in the morning that accused, after quarrelling with his wife and children, thrown them into the well, on which accused asked Contractor whether he had seen him while throwing Vimal and her children into the well. Then Contractor told to accused that he should leave that place and they would tell the incident to Police. Thereafter they returned to the field and reached near the well and then returned to home. After half an hour Vasanta came to her house and it is on the next day, i.e. on 24/2/2002, he went to field. In the evening of 24/2/2002, Police came and told her that they had taken out the dead bodies of Vimalbai, Chanda and Sunny from the well situated in Dhanukas field. Thereafter, postmortem of the dead bodies were conducted and they were cremated. Presently Vasantrao is residing by her side at Shegaon. In crossexamination, Latabai(P.W.9) has admitted that Vasantrao had suspicion on the character of his wife Vimal. She admitted that on 23/2/2002, either she or Vasantrao did not try to lodge report as Vasantrao did not believe that the accused would do such an act. It was suggested to her that she was deposing falsely that Manohar met them and had threatened them to kill one by one, near the Factory and that they did not go to the factory and made enquiries. If one analyses the evidence of Vasanta and Latabai, keeping in mind that they are rustic villagers and simpletons, it is clear that Vasanta (P.W.15) did not believe that appellantaccused could have done such a heinous act of killing his wife and children and throwing them into the well as told to him by Shankarlal and that is why, before rushing to the Police, he wanted to be satisfied about the fact and even made efforts to search for his wife and children by going to Akola and when he failed to trace them out, it is on the next day i.e. on 24/2/2002, he went to the Police Station and by that time, the Police had already detected the crime on the basis of the anonymous phone call the Police had received. We do not find that these witnesses would falsely implicate the appellantaccused for no reason and their conduct also does not appear to be unnatural. Vasanta (P.W.15), inspite of being told by Shankarlal (P.W.5) the Contractor of Ganesh Factory about the appellantaccused having killed his wife and children and thrown them into the well and that he should go and lodge a report, did not do so, as he did not believe it to be true and he wanted to be sure about it and, therefore, first he made an attempt to search for his wife and children and after realising that they are not traceable, he thought it better to go to the Police Station. Therefore, this cannot be construed as an unnatural conduct on the part of Vasanta. The evidence of Vasanta (P.W.15) and Latabai (P.W.9) rather supports the prosecution case and also bring on record the possible motive for the appellantaccused to have committed this gruesome murder of Smt. Vimal and her children.
53. Before we go into the investigation aspect of the case, we would like to examine the evidence placed by the prosecution as regards the discovery. We have already discussed the discovery made at the instance of the accused of the Chhanni (Article 13). In the same process, the Police were able to seized ash and charred material which came to be seized by the Police under the Panchnama exh. 18, from the small heap which was lying at the distance of 25 ft. towards north of the house of the accused. According to the prosecution, this ash and charred material were of the clothes worn by the appellant accused at the time of commission of offence and as they were stained with blood, the appellant accused destroyed it by burning it, but unfortunately, though these articles were sent to the Forensic Science Laboratory for their report, same was not placed before the trial Court. We have passed separate orders in the matter wherein we have also expressed our displeasure as what we found was that the C.A.s report in respect of the said articles could not be obtained from the Forensic Science Laboratory as the Regional Foresinc Science Laboratory at Nagpur Region, Nagpur, is understaff to the extent of almost 46% since the year 1996 and the State has failed to fill in the vacancies and equip the Laboratory with men and material and, therefore, the work of analysis is piling up. The C.A.s report which was received and placed before the trial Court at exh. 69, is in respect of clothes of the victims which was found to be stained with blood. The Police, during the course of investigation, had also seized a black full pant which the appellantaccused was wearing,i.e. exh.3 in the C.A.s report which was having stains of blood at zip portion and appears to be washed and in the result of the analysis, it is shown to be human blood. Insofar as blood sample of the accused which was sent to the C.A. the report of which is at exh. 70, is concerned, the blood group could not be determined as the results were inconclusive. It is really very unfortunate that the Investigating Agency as well as Forensic Science Laboratory are not even able to submit proper report of the blood group of even the accused who was available to them, the fault lies either in collection and dispatch of blood sample, or the sample was not taken up by the Forensic Science Laboratory within the time it could have given the result. Though it is not material for the decision of this case that we should make any observation about the manner in which the investigation is conducted and assistance of medical and forensic experts is taken for the said purpose, we are constrained to observe that it is far from satisfactory and its ultimate casualty is administration of justice. In this case, forensic investigation is almost nil and by our separate order we have reminded the State about the pathetic state of affairs in respect of investigation (by Police and forensic) and prosecution of criminal cases resulting into miscarriage of justice.
54. Our Criminal Justice System is essentially an adversarial system in which trial takes a form of a contest between the prosecution and the defence which is governed by the strict rules of evidence and which alone determines whether the accused committed the crime of which he is charged. The pretrial stages merely represent collection of evidence and preparation of cases by each side. The key point is that the evidential burdens of the adversarial system invariably mean that the police will know more than they can prove. The adversarial system also leaves the pretrial stages of the case in the hands of the police, largely uncontrolled by outside interference untill the point at which the police decide to put a case forward for consideration by the criminal Court. The Supreme Court time and again has reminded the High Courts and all subordinate Courts not to interfere in the investigation of crimes so as to give free hand to Investigating Agency in conducting the investigation. The investigation in to the crime is, therefore, one of the primary function of the police and final test of the criminal investigation is in presentation of the evidence in the Court. The fact of existence of crime must be established. The suspect who is held and prosecuted as an accused, must be identified and must be associated with the crime, competent and credible witnesses must be available, physical evidence must be appropriately identified, chain of its custody established and its connection with the accused shown and the whole must be presented in an orderly and logical fashion. The complete process of proof is described in the phrase "establishing elements of offence". The next important step in the investigation of crime is arrest of suspect after receipt of the First Information Report. In the present case, A.P.I.. Turakmane (P.W.16) who was on duty at the Police Station, Shegaon, on 24/2/2003 got an information through an anonymous telephone call that in the well in the field of Shankarlal Dhanuka, three dead bodies were seen, two dead bodies of children and one of woman. Therefore, he made an entry to that effect in the Station Diary which we have already discussed at the beginning of the judgment, and this is how A.S.I. Turakmane (P.W.16) moves to the scene of offence. In order to ascertain the truth of information received by him, he went to the well, but did not see any dead body floating in the well and, therefore, he summoned Police Patil Pahurkar (P.W.7) and sought assistance of villagers. On the Police reaching the scene of occurrence, even the workers from the factory gathered there. Some villagers volunteered to search for the dead body in the well which is 72 feet in depth and 15 ft. in diameter having the water level of 30 ft. The efforts of the villagers who got down into the well bore results and three dead bodies were taken out one by one. A.S.I.Turakmane prepared the Spot Panchnama exh.55, and so also Inquest Panchnama of the dead bodies (Exhs. 49 to 51) and sent the dead bodies for postmortem along with three separate requisitions (Exhs. 52 to 54). In his evidence before the Court, there is no mention whether he made enquiries from the people as to who had given information to the Police on telephone, whether anybody had seen or had any information as to how the dead bodies of Smt. Vimal, Chanda and Pankaj happened to be in the well though he had sufficient staff along with him to undertake this exercise, but he restricted himself to prepare spot panchnama, map, inquest panchnamas and requisitions after taking out the dead bodies of the victims and then went to the Police Station and lodged the report against an unknown person for having committed offence under Sections 302 and 201 I.P.C. He also happened to have seized one spade having blood stains on its handle and then according to him, as it was the case of triple murder, he had informed S.D.P.O. Rathod and handed over the investigation to him and thereafter assisted him in the investigation and that he arrested the appellantaccused and produced before the S.D.P.O. Rathod.
55. A doubt came to be expressed by Mr. R.P.Joshi, the learned counsel appearing for the appellantaccused, as regards complicity of the appellantaccused insofar as it relates to causing death of Sunny @ Pankaj. We may say that the learned trial Court has not dealt with the circumstances which were on record and which clearly indicate the complicity of the appellantaccused in committing murder of Pankaj @ Sunny son of Vasanta Deshmukh. The circumstances have already been discussed by us in the earlier part of our judgment.
56. It appears that the learned Additional Sessions Judge has also misread the statement of Kishor Malviya (P.W.3) as a confessional statement and observations made in paras 19 to 23 of the judgment are uncalled for as it is in context of justifying that the confessional statement of Kishor Malviya as per Exh.42A and 42B is reliable and accepted. The learned trial Court ought to have examined the provisions of Section 164 Cr.P.C. before venturing into this exercise. It appears that the learned trial Court totally misconstrued the provisions which is not expected of a senior Judicial Officer and that too while trying serious case of triple murder. It only shows the casualness with which the Judicial Officer has approached the case. The statement of witness recorded by a Magistrate under Section 164(1) is evidence and has to be considered in proper perspective with necessary caution in view of the fact that the witness had no freedom when he made it if it has been got recorded during investigation and since a witness whose statement is recorded under Section 164 Cr.P.C. comes from the custody of the Police, he may feel tied to that previous statement, the Court must receive the evidence in Court of such witness with caution. It only means that the Court has to scrutinise such evidence little more closely and see other more circumstances support it. But obviously, such a statement of a witness cannot be taken as confessional statement.
57. The prosecution has also relied upon the extra judicial confession which is said to have been made by the appellantaccused after committing murder of the victims, which is spoken of by Shankarlal Yadao (P.W.5). According to Shankarlal Yadao (P.W.5), when they had gone to the field where Vasanta was residing, they saw the appellantaccused and after seeing them, he threatened Kishor and Shyam that if they tell the incident to anybody, he would kill them. Then all of them returned to factory. After half an hour accused came there and told his workers whether they had seen anything and asked not to tell that fact to anybody. When he asked the accused what happened, he told that he had slept all the three persons i.e. "TINOKO SULA DIYA". He further told that he would "SULA DENGA" to Vasanta also in the evening. The learned A.P.P. has urged the Court that this extra judicial confession should also be taken into consideration and that it reinforces the case of the prosecution. According to Mr. Joshi, the learned counsel for the appellantaccused, this cannot be treated as extra judicial confession as it is not expected of an accused to have gone to the factory and disclosed in the presence of all the workers that he had committed the crime and that Kishor Malviya and other witness Raghuvirsingh (P.W.12) do not say so in their evidence before the Court and it is only Shankarlal Yadav (P.W.5) who speaks about it. Mr. Joshi further submitted that "TINOKO SULA DIYA" does not mean that the appellantaccused confessed of having committed murder of Smt. Vimal and her two children. Well, insofar as the words used by the appellantaccused as stated by Shankarlal (P.W.5) are concerned, they are quite clear as to what the appellantaccused meant when he said "TINOKO SULA DIYA" because it was in answer to the query made by Shankarlal (P.W.5) that what he has done when the appellant had come to the factory and threatened to all of them. The words have to be understood in context to the sociological background of the appellant accused and the witnesses in the case. They are not the persons who are residents of Maharashtra, but hail from Uttar Pradesh and Madhya Pradesh, and the appellantaccused has uttered these words to them in order to apprise them of what he had done particularly in the background that he was aware that Shyam and Kishor (P.W.3) had seen him assaulting Smt. Vimal and Ku. Chanda and throwing her into the well. Therefore, his reference to "TINOKO SULA DIYA" was in the context of the act of finishing the three victims and not that he made them to sleep in literal sense. But still we find that it will not be proper to give much weight to this oral extra judicial confession which is a weak piece of evidence though we are conscious of the fact that in a given case, an extra judicial confession, voluntary and truthful, can form basis of conviction without corroboration and has a high probative force, because in the present case, even without this extra judicial confession, there is overwhelming evidence on record to show that the appellantaccused is the author of the crime.
58. Another contention of Mr. Joshi, the learned counsel for the appellantaccused, which we would like to consider at this stage, is that the prosecution has failed to examine material witness i.e. Shyam Maurya who was one of the eye witnesses and Nandlal to whom eye witnesses narrated the incident. It is submitted that in respect of Shyam Maurya even the statement came to be recorded under Section 164 of Cr. P.C. and, therefore, there was no reason why the prosecution should not have examined him as they would have assured the Court that the prosecution has been fair, otherwise, the Court should draw an adverse inference that if these witnesses would have been examined, it would have exposed the falsity of the prosecution case. Well, the law is well settled that it was not necessary to multiply the witness to prove prosecution case once the prosecution case is believed by the Court. Nonexamination of some of the witnesses would not throw out the testimony of the witnesses who are examined and believed by the Court and, therefore, this submission that the Court should draw adverse inference against the prosecution for nonexamination of some of the witnesses, cannot be accepted. In the course of hearing the appeal and the case for confirmation of death sentence, the learned counsel for the appellantaccused so also the learned A.P.P. has cited plethora of cases in order to support their respective cases. It is the settled law that the question of credibility of a witness has primarily to be decided by referring to his evidence and finding out as to how the witness has fared in the crossexamination and what impression is created by his evidence taken in the context of the other facts of the case. Criminal cases cannot be put in a straitjacket. Though there may be similarity between the facts of some cases, there would always be shades of difference and quite often that difference may prove to be crucial. The same can also be said about the evidence adduced in one case and that produced in another. Decided cases can be of help if there be a question of law like the admissibility of evidence. Likewise, decided cases can be of help if the question be about the applicability of some general rule of evidence, e.g. the weight to be attached to the evidence of an accomplice. This apart, reference to decided cases is hardly apposite when the question before the Court is whether the evidence of a particular witness should or should not be accepted. {Charan Singh vs State of Punjab }. And, therefore, we are not referring to all the authorities cited in the matter, but we have kept those principles in mind which have been canvassed by the learned counsel for the appellantaccused as well as the learned A.P.P. while appreciating the evidence on record and forming our opinion and in arriving at a conclusion necessary for the decision of the present appeal.
59.A.P.I. Turakmane (P.W.16) has created a sort of confusion by deposing before the Court that the message he received through the anonymous telephone call was that three dead bodies were floating in the well, whereas the Station Diary entry does not refer to word floating. Much hue and cry has been made by the learned counsel for the defence on this issue. When A.P.I. Turakmane (P.W.16) visited the spot, he could not see the dead bodies floating in the well and that dead bodies were not visible. Then reference has been made to the Text Book of Medical Jurisprudence so as to bring to our notice the period required for a dead body to float on surface if it is thrown in water. In our opinion, there is no necessity of referring to this controversy created merely by using the word floating as that was not the information received by A.P.I. Turakmane (P.W.16). The information received as recorded in Sanha Entry exh. 48 is that two children and one woman were in the well of which further particulars are mentioned as were visible in the well in the farm of Shankarlalji on the front side of Navoday Vidyalaya. For the above purpose, we may only refer to Modis Medical Jurisprudence and Toxicology TwentySecond Edition published by Butterworths, and on page 294 which is the concluding para of Chapter relating to Death from Asphyxia, it has been stated under the subheading "The time for which the body was in the water", "Normally, the human body is slightly heavier than fresh water and immediately, the person becomes unconscious, sinks and goes down to the bottom, unless there is some obstruction in between or there is a strong upward current in the water. Owing to putrefaction and formation of gases, all bodies sooner or later again come up to the surface.It is much quicker in warm water than in cold water. Usually, the sunken body comes to the surface a little distance away from the site of drowning, however, the current, its speed and the tide in sea water are some of the factors." In this case, the incident has taken place on 23/2/2002 and the bodies came to be flushed out from the well on the next day, so there is hardly any possibility of the bodies coming to the surface within such a short time and the fact remains that the unknown person who had given the information was having knowledge of the fact that such a crime has taken place in which Smt. Vimal and her children have been assaulted and thrown into the well, but he was hesitant to give detail information and even to disclose his name, may be due to fear or to avoid unnecessarily getting involved in the process of investigation.
60. A.P.I. Turakmane (P.W.16) handed over the investigation to S.D.P.O. Rathod(P.W.17). According to the evidence of S.D.P.O. Rathod (P.W.17) before the Court, as it was the case of triple murder, he took over the investigation of the case and enquired from the Police personnel who had been to the spot and had taken out the dead bodies from the well, then he came to know that some workers of Ganesh factory who used to go for fetching milk from the house of Vasanta and Gopal Bhaltadak who was neighbourer of Vasanta had knowledge about the incident. Then he enquired of who were those workers who had come to the house of Vasanta and he came to know the names of Shyam Maurya and Kishor. So, it is on 24/2/2002 itself that the Police were aware of the fact that Shyam Maurya and Kishor (P.W.3) are the eye witnesses to the incident. But A.P.I. Turakmane (P.W.16) for the reasons best known to him, did not record their statement which could have been treated as First Information Report or for that reason even the statement of Shankarlal and others who were available to him on the spot when he was in the process of flushing out the dead bodies from the well. This conduct of A.P.I. Turakmane (P.W.16) to himself lodge report in his capacity as an informant against an unknown person as suspect, is shrouded with mystery. A.P.I. Turakmane has failed in his duty in not making necessary enquiry on the spot itself, as can be seen from the evidence of S.D.P.O. Rathod which exposes him when he says that he (Rathod himself) got information from the Police personnel who had gone on the spot and had taken out the dead bodies from the well and this was on 24/2/2002 itself that the Police came to know that Shyam Maurya and Kishor Malviya (P.W.3) were the eye witnesses to the incident and that the fact that the appellantaccused has assaulted the victims and thrown them into the well was known to the workers of Ganesh factory. We fail to understand why the Investigating Agency has failed to record the F.I.R. of the eye witnesses or for that reason any other person who had knowledge about the incident, but opted to lodge the F.I.R. not in the name of the suspect and shown him as unknown person when they were knowing the fact that it was the appellantaccused who was seen by the two eye witnesses. For this folly on the part of A.P.I. Turakmane (P.W.16), the appellant accused cannot take advantage by using the statement of Kishor Malviya (P.W.3) in his crossexamination that his statement came to be recorded on 25/2/2002 and not on 24/2/2002. Kishor Malviya, in his crossexamination has volunteered and made it clear that he was very much present when the Police were undertaking exercise of flushing of the dead bodies and preparing inquest panchnamas. This also meets the other contention of Mr.R.P.Joshi, the learned counsel for the appellantaccused that the conduct of Kishor Malviya (P.W.3), Shankarlal Yadav (P.W.5) and others who came to know about the incident, in not reporting the matter to the Police Patil or to the Police, is unnatural and they are brought up witnesses to frame the appellantaccused. On the other hand, the fault lies with the Police that even after coming to know from them as to how the incident had occurred, they did not think it fit to record their statements and the conduct of Shankarlal Yadav (P.W.5) and his workers including Kishor Malviya (P.W.3) who was eye witness to the incident in not going and reporting the matter to the Police, can also be understood as they had already informed Vasanta (P.W.15), the husband of victim Vimal and father of the children, immediately after the incident when they spotted him and it has come in their evidence that they had told him to go and lodge report with the Police and in all probabilities when they found that almost for a day, Police has not come, someone amongst them made an anonymous telephone call to the Police which activated the Investigating Agency. Mr. Rathod, in his evidence has clearly stated that on the basis of statement of Shyam Maurya and Kishor Malviya (P.W.3), he directed A.P.I. Turakmane (P.W.16) to produce the accused before him and this is how the appellantaccused came to be picked up from his house and brought to the Police Station, and was then arrested by S.D.P.O., Rathod at 10.30 P.M. vide Arrest Panchnama exh.61. In his crossexamination S.D.P.O. Rathod has specifically denied that it is not true that he recorded statement of Kishor on 25/2/2002. The mentioning of incorrect date by Kishor in his crossexamination is evident from the fact that it is on 24/2/2002 itself, the Police had recorded his statement as it led to the arrest of the appellant accused and, therefore, no other statement of Kishor Malviya (P.W.3) was recorded except the one before the Magistrate under Section 164 of the Cr.P.C. S.D.P.O. Rathod has given all the necessary details as to how the investigation in the case was done and on conclusion of the same, he filed chargesheet. Therefore, in our judgment, considering the evidence on record, we find that the prosecution has proved the guilt against the appellantaccused beyond reasonable doubt and for the aforesaid reason, without any hesitation, we have reached to the conclusion that the appellantaccused is guilty of committing murder of Smt. Vimal, Chanda and Sunny @ Pankaj.
61. Now we take up the case of prosecution insofar as the charge against the appellantaccused framed under Section 201 of I.P.C. i.e. whether the prosecution proved that the accused, after committing murder of Vimal, Chanda and Sunny @ Pankaj, caused evidence thereof to disappear by throwing the dead bodies in the well and by destroying the clothes by burning and throwing away the weapon of assault, with an intention to screen himself from legal punishment and, therefore, guilty of having committed the offence punishable under Section 201 I.P.C. Insofar as throwing of the dead bodies of the victims Smt. Vimal and Ku. Chanda, and throwing of Sunny @ Pankaj, in the well is concerned, that itself is the case of the prosecution which has been brought on record by examining eye witness Kishor Malviya (P.W.3) and by placing on record the circumstances and, therefore, this cannot form part of the charge under Section 201 I.P.C., but the fact that the appellantaccused threw the Chhanni (Article 13) in the well which came to be discovered at his instance, has been sufficiently established by the discovery of the Chhanni (Article 13),by examining Alokkumar Mishra (P.W.4) who is panch and witness to memorandum exh.17 pursuant to which Chhanni came to be seized under the recovery panchnama exh. 18 by taking out the same from the well by P.C. Devichand Chavan (P.W.8). Having held that the prosecution has established that the appellantaccused has committed murder of Smt. Vimal and Ku. Chanda, by causing injury on their vital part of the body on the occipital region, which, in the opinion of the Dr. Pandit could be caused by instrument like Chhanni (Article 13), the prosecution has sufficiently proved the same though by way of corroborative evidence. It is this Chhanni (Article 13) which has been described by Kishor (P.W.3) as iron tommy and, therefore, it can be attributed to the appellantaccused that he had reason to believe that having killed his victims by using the said instrument (Article 13), he has caused evidence thereof to disappear by throwing it in the well, but it was discovered and, therefore, the prosecution has established that the appellant has committed offence under Section 201 I.P.C. It was also the prosecution case that the appellant accused has burnt his blood stained clothes immediately after the incident, ash of which was collected from the heap near his house, but unfortunately, the prosecution has not led any forensic evidence in support of this contention so that cannot be considered as a material against the appellantaccused. Therefore, we also find that the appellantaccused is guilty of having committed offence under Section 201 of I.P.C.
62. The trial Court has convicted the appellant accused for having committed murder of Vimal Vasanta Deshmukh, Chanda daughter of Vasanta Deshmukh by means of chisel and for committing murder of Pankaj @ Sunny son of Vasanta Deshmukh by throwing him into the well situated in the field of Joshi, Teacher at Chincholi, and after hearing the accused on the point of sentence, came to a finding that taking into consideration the magnitude of the crime, the personality of the victims of murder i.e. innocent children like Chanda aged about 13 years, and Sunny aged about 7 years and deceased Vimal, a helpless woman who was assaulted in the absence of her husband, and by taking advantage of the dominating position and trust of the deceased and her husband in him, the manner of commission of murder which is committed in an extremely obnoxious, horrible, repulsive and revolting manner as to arise intense and extreme indignation of the community as the victims were assaulted by chisel (Chhanni) and were thrown into the well one by one and that the crime was committed with a motive to do away with Vimal and as there was quarrel between them out of illicit relationship and for no reason, killing her children, shocks the public conscious and, therefore, found that this was a fit case where extreme penalty of death can be awarded and thereby sentenced the appellant to death by ordering that he be hanged by his neck till his death subject to confirmation from this Court. In addition to this, accused has been sentenced to pay fine of Rs. 1,000/on both the counts i.e. for offence committed under Section 302 I.P.C. and Section 201 I.P.C., in default of payment of fine, to suffer Rigorous Imprisonment of six months and further directed that the Death Reference be made to this Court accordingly. As we have already held that the appellantaccused is guilty of having committed offence under Section 302 I.P.C. for having committed murder of Smt. Vimal, Chanda and Sunny @ Pankajk, and so also offence under Section 201 I.P.C., we proceed to examine whether the death sentence imposed by the trial Court, deserves to be confirmed or not.
63. The learned A.P.P., advocating for confirmation of death sentence, claiming that the nature of the offence i.e. commission of murder of hapless woman and two young children aged about 12 and 7 years, the brutal manner in which they were done to death itself, goes to show that the appellant accused has committed the offences which come within the parameter of rarest of rare case considering the magnitude of the crime which indicates that the appellant accused has no concern for human life. Mr. Loney, the learned A.P.P., further submitted that these gruesome murders of three persons who were alone at the moment and residing in the field i.e. away from the human habitation, have sent shock waives in the community and created terror in the mind of villagers. It is submitted that the manner in which the appellant executed the killings itself go to show that it was premeditated and there is no hope of reformation of the appellantaccused. Mr. Loney submitted that the appellantaccused has taken an opportunity to do away with his victims when Vasanta, the only male member of the family, had gone out, and had come armed and prepared to achieve his intention of finishing Smt. Vimal and her innocent children. Mr. Loney submitted that one could understand if the appellantaccused had merely assaulted Vimal if he had any grievance or quarrel with her and stopped at that stage, but his acts show that he was bent upon wiping off the whole family of Vasanta Deshmukh and even did not spare the two children and, therefore, these are aggravating circumstances which call for confirmation of the death sentence and young age of the accused is not mitigating circumstance and, therefore, this Court may confirm the death sentence imposed by the trial Court. The learned A.P.P. has placed reliance on the following cases in support of his contention. (1)Bachan Singh vs State of Punjab (2)Macchi Singh vs State of Punjab (3)Maghar vs State (4)Ramdeo Chauhan vs State of Assam (5)Amrutlal vs State of Maharashtra (6)Omprakash vs State of Uttranchal (7)State of Maharashtra vs Amit Gandhi (2003 All MR (Cri) 710)
64. Mr. Joshi, the learned counsel appearing for the appellantaccused, submits that the case does not fall in the category of rarest of rare case as the offence is not committed in a preplanned manner. According to Mr. Joshi, from the sequence of events, it can only be gathered that the appellantaccused had quarreled with Smt. Vimal and had no intention to kill her. It was in the midst of the quarrel when Smt. Vimal abused him that he lost balance of mind and it was in the fit of anger and at the spur of movement, he is alleged to have assaulted her with the Chhanni (Article 13) which is normally used as a tool and not a weapon. Mr. Joshi submitted that if the appellantaccused had any premeditation or plan to do away with Smt. Vimal, he would have come prepared armed with a weapon like knife or sword, or a sharp instrument and would have taken no chance by assaulting her with a Chhanni (Article 13). It is submitted that after the appellant assaulted Vimal, subsequent assault on the children i.e. Ku. Chanda was impulsive as she ran shouting for help and it is in that state of mind, he might have thrown away Sunny @ Pankaj.
65. According to Mr. Joshi, rarest of rare case would be that if with knowledge murder is committed by professional killer or by members of syndicate of organised crimes or out of greed or any breach of faith and trust reposed like murders committed by domestic servants of aged couples who have been retained by them to look after them or if it is a case of rape and murder or to achieve some political gains or that committed by the psychopath. As these categories of criminals are not likely to mend their ways and cannot be reformed, but such is not the case in respect of the appellantaccused who has no criminal antecedents and was a mere labourer who happened to develope illicit relationship with the victim. It is submitted that the appellantaccused was not working with Vasanta, but was only acquainted with the family and probably because of his closed association, developed illicit relationship with Vimal and as it has come in the evidence of Investigating Officer, Vimal was obstructing him from getting married and resettled in life, he got enraged and killed her. Mr. Joshi has cited the following cases:
(1)Mahendra Nath Das vs State of Assam ((1995) 5 Supreme Court Cases 102) (2)Jai Kumar vs State of M.P. (3)Mohd. Chaman vs State (N.C.T. of Delhi) (2000(8) SCALE 218) (4)Bachittar Singh vs State of Punjab (5)Ashok Kumar Pandey vs State of Delhi, ((2002) 4 Supreme Court Cases 76) (6)Lehna vs State of Haryana ((2002) 3 Supreme Court Cases 76) (7)Ram Anup Singh vs State of Bihar (8)Subhash Chander vs Krishan Lal (9)Vashram Narshibhai Rajpara vs State of Gujarat
66. We have given our anxious consideration to the case of the appellantaccused after carefully examining the evidence and all the material circumstances which are placed on record during trial and the arguments advanced by the learned counsel for the appellant highlighting material infirmities and that of the learned Additional Public Prosecutor and hold that the appellantaccused is guilty of having committed offence under Section 302 I.P.C.
67. Kauntilya in his treatise in Arthshastra has referred to Dand Niti in context to administration of justice i.e. what should be the guiding principle for imposition of punishment by the King. According to him, "whoever imposes severe punishment, becomes repulsive to the people, while he who awards mild punishment, becomes contemptible; but whoever imposes punishment as deserved, becomes respectable punishment when ill awarded under the influence of greed or anger or owing to ignorance excites fury even among hermits and asceties dwelling in forests not to speak of householders."
68. The sentencing of offenders is a subject which maybe considered from many different point of views. There is high philosophical approach which seeks to explain and provide a moral justification for the infliction of punishment by society on offenders. There is criminological and sociological approach which describes what the various forms of sentences entail as far as the person undergoing the sentence is concerned, and may also suggest what sentences are the most effective in delivering and/or reforming criminals.
69. The old Testament concept of an eye for an eye and a tooth for a tooth no longer plays any part in our criminal law. There is, however, another aspect of retribution which is frequently overlooked. It is the society, through the Courts, must show its abhorrence of particular types of crime, and the only way in which the Courts can do this is by the sentence they pass. The Courts do not have to reflect public opinion. On the other hand, Courts must not disregard it. Perhaps the main duty of the Courts is to lead public opinion. The public expected the Courts to deal with the appealing problems of violence and that necessitated in cases of senseless and substantial violence not only a custodial sentence, but also capital punishment.
70. Unfortunately, it is one of the facts of life that there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crime as long as they are able to do so. In this case, the only protection that the public has, is that such person should be locked up for longer period or they deserve to be permanently removed from the society i.e. by imposing death penalty.
71. Whatever may be the case, ultimately, the most important aspect in the theory of punishment is principle of proportionality of the sentence and in our opinion, if one refers to the case of Bachan Singh vsState of Punjab in which the Constitution Bench of the Supreme Court by majority 4 : 1 upheld the validity of capital sentence and held that only in exceptional and rarest of rare cases, death sentence can be imposed and the Court laid down certain principles which came to be explained in the subsequent decision rendered by Supreme Court in Machhi Singh vs State of Punjab which may be summarised as under :
"(i)The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii)Before opting for the death penalty the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime; (iii)Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances; (iv)A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. " Aggravating Circumstances: (i)If the murder has been committed after previous planning and involves extreme brutality; or (ii)if the murder involves exceptional depravity; or (iii)if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed (i)while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder, he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (iv)if the murder is of a person who had acted in the lawful discharge of his duty under section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a public officer demanding his aid or requiring his assistance under section 37 and section 129 of the said Code. Mitigating factors (i)That the offence was committed under the influence of extreme mental or emotional disturbance; (ii)The age of accused. If the accused is young or old, he shall not be sentenced to death; (iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society; (iv) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (iii) and (iv) above; (v) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence; (vi)That the accused acted under the duress or domination of another person; (vii) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct. "
72. Now let us examine the case of the appellant accused within the parameters spelt out in the aforesaid principles drawn from Bachan Sings and Machhi Singhs cases. The appellantaccused has committed these heinous offence of killing Smt. Vimal and her two children due to having illicit relations with Smt. Vimal. Though this fact has been stated by Lata (P.W.9) in her crossexamination, probably Vasanta, husband of Vimal did not want to say so. To put it straight, all these facts have been gathered during the course of investigation and S.D.P.O. Rathod, the Investigating Officer, in his evidence, has stated that during investigation, he came to know that there was illicit relationship between the accused Vimal and Vimal used to maintain illicit relationship with another man and she had put hurdle in the marriage of the accused and, therefore, the accused was aggrieved. It is said that even before this incident, the accused has asked Vimal not to maintain illicit relations with other persons and he had inflicted some injury to himself and it is out come of this illicit relationship that this offence has taken place. We are conscious of the fact that this cannot be considered as substantial evidence so as to bring on record the motive the accused had in committing murder of Smt. Vimal and her children, but what we find that this can be considered while assessing the gravity of the offence. What we can infer from the evidence which has come on record and the material placed before us and before the trial Court, that the appellantaccused used to frequently visit house of Vasanta both in his presence and absence, and even at times used to get his children from their aunts place if it was late evening. That shows that the appellantaccused had gained confidence of the family and developed intimate relationship with them and probably this led to developing of illicit relationship between Smt. Vimal and the appellantaccused. On the day of the incident, the appellant being aware that at the said time Vasanta will not be at home, had visited Smt. Vimal and a quarrel ensued between them. For want of evidence on record, we cannot find out the exact cause of the quarrel, but it was in the form of exchange of abuses as spoken of by Kishor Malviya (P.W.3). It is at this time, Kishor (P.W.3) and Shyam Maurya reached house of Vasanta to fetch milk and Vimal did deliver milk to them while quarreling with the appellantaccused and told these boys to go away. When they were about to leave, they saw the appellantaccused assaulting Smt. Vimal with iron tommy because of which she fell down. As a consequence of which, Chanda who was just 1112 years old, ran towards these two witnesses calling upon them to save her mother, but in the same transaction, the appellant chased Chanda, caught hold of her hair and took her towards well and assaulted her and threw her in the well, and having threatened these two boys, they got frightened and ran towards factory. From this stage onwards, it is only on the basis of the circumstances which are sufficient to show that it was the appellantaccused alone who has done away with Sunny @ Pankaj, so also Vimal and threw their dead bodies in the well. But for this incident, the appellant has no criminal antecedent. His arrest panchnama i.e. in the form of arrest which is placed on record as exh.61, clearly indicates, as we can see from column no. 12, that he is not found to be dangerous, was never armed, had no criminal record, is not recidivist or likely to escape bail and even likely to commit crime or threaten victims/witnesses, nor he was wanted in any other case. Therefore, what we find is otherwise, the appellantaccused was living by doing the labour work having an average income below Rs. 500/ per month. Therefore, taking all these facts and circumstances into consideration, we agree with the submissions made by the learned counsel appearing for the appellantaccused that this is not a fit case in which death sentence awarded by the trial Court deserves to be confirmed and, therefore, though we uphold the conviction of the appellantaccused for having committed offence under Section 302 I.P.C., we are not inclined to confirm the death sentence imposed by the trial Court and instead sentence the appellantaccused to suffer imprisonment for life. We are of the opnion that the appelant can be given an opportunity to reform considering the peculiar facts and circumstances under which he committed the crime.
73. There is no substantive sentence imposed by the trial Court on account of holding the accused guilty of having committed offence under Section 201 I.P.C. probably, in view of the fact that the trial Court chose to impose death sentence and, therefore, in addition to death sentence, the trial Court had imposed fine of Rs. 1000/ on each count i.e. for having committed offence under Section 302 I.P.C. and 201 I.P.C. which is upheld. Therefore, we sentence the appellantaccused for having held him guilty for committing offence under Section 201 I.P.C. to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ in default to suffer R.I. for six months. The substantive sentences on both the counts shall run concurrently.
74. But for the modification in the sentences awarded by the trial Court, the appeal stands dismissed.