Allahabad High Court
Ravindra Kumar Verma vs State Of U.P. on 2 May, 2014
Author: Amar Saran
Bench: Amar Saran, Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Case :- CAPITAL CASES No. - 2880 of 2013 Appellant :- Ravindra Kumar Verma Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Ashish Pandey,Vijay Singh Gour,Vinod Kumar Singh Parmar Counsel for Respondent :- Aga Hon'ble Amar Saran J.
Hon'ble Mrs. Sunita Agarwal,J.
(Delivered By Hon'ble Mrs. Sunita Agarwal,J) Heard Shri Vijay Singh Gour, learned counsel for the appellant, Shri Akhliesh Singh, learned Government Advocate and Shri Anand Tiwari and Shri R.K. Singh, learned A.G.A. for the State.
The present capital appeal is directed against the judgment and order dated 27.5.2013 passed by the Additional District and Sessions Judge, Court no.7, Ghaziabad. By judgment and order dated 27.5.2013 passed in S.T. No. 1523 of 2009, the appellant was convicted and sentenced to death under Section 302 I.P.C. with a fine of Rs. One lac.. In default, he has to undergo additional imprisonment of five years. It was further directed that against P.W.5 Smt. Durgawati wife of the appellant the proceedings under Section 344 Cr.P.C. shall be initiated. The death reference no. 8 of 2013 was also sent by the trial court for confirmation.
The prosecution case is that a written report was submitted by one Amit Kumar Verma son of Ram Pravesh Verma on 8.6.2009 at about 8 A.M. In the report, it was stated by the informant Anil Kumar Verma that on 8.6.2009 at about 6.30 A.M. in the morning when he reached the house of his elder brother Ravindra Kumar Verma,i.e. the appellant, he saw him sitting at the door of his house. There was blood in his hands. When the informant asked him about the cause of blood, he did not reply. The informant went inside the house and found that Anjali aged about 13 years; Priti aged about 11 years; Priyanka aged about 9 years;( three daughters of Ravindra Kumar Verma) and son Devraj aged about 5 years were lying in a pool of blood in one room of the house. In another room, his sister-in-law Smt. Durgawati aged about 35 years and youngest son of the appellant Yuvraj aged about 9 months were lying on the floor.
He further stated in the report that his brother was mentally disturbed and alcoholic and thus at times he used to loose his mental balance. Earlier also he made an attempt on the life of his family members. He used to say that one day he would kill all of them. Today, he was passing through the same mental state and in a fit or rage, he killed his five children by causing serious injuries on their head. The informant further stated that his sister-in-law made an effort to save her children, however, the appellant also caused serious injuries to her. She was admitted in G.T.B. hospital in serious condition.The appellant Ravindra Kumar Verma also tried to injure himself at various parts of his body through sharp edged weapon(blade). On the said written report, the chik F.I.R. exhibit Ka 2 was lodged and G.D. entry Rapat no.10 was made as exhibit ka 3.
The inquest of Yuvraj aged about 9 months, Km. Anjali aged about 12 years and Priyanka aged about 10 years was done by S.I. Rajendra Kumar Verma, P.W.9 exhibited as (Exhibits Ka.9, Ka 10 and Ka 11); respectively. The inquest of Km. Priti and Devraj was done by S.I. Ramvir Singh, P.W.10 exhibited as Ka 19 and Ka 20; respectively. The postmortem was conducted by Dr. Prem Prakash Verma, P.W.7 on 8.6.2009. The prosecution in support of its case has examined R.P. Verma, P.W.1 father of the appellant;Awadesh Verma P.W.2,brother of the appellant; Amit Kumar Verma, the informant (P.W.3) and brother of the appellant; Subhash Verma, P.W.4 brother of the appellant and Smt. Durgawati P.W.5, wife of the appellant as witnesses of fact.
P.W.6 Surendra Kumar, head Constable was examined who had deposed that he was deployed at the Police station, Vijaynagar on 8.6.2009 and chik F.I.R. was lodged by him on the basis of written report given by Amit Kumar Verma,the informant. The entries were made in G.D. and thereafter he left for place of occurrence of the incident.
Dr. Prem Prakash Verma,Additional C.M.O. was examined as P.W.7. He had deposed that he commenced postmortem of the deceased Km. Anjai at about 5 P.M. In continuation of the same, he also conducted the postmortem of deceased Yuvraj, Km. Priti, Km. Priyanka and Devraj. The injuries found on the bodies of the deceased were almost similar in nature and appeared to have been caused by some heavy object such as brick,stone, Danda or any other weapon like this Kundala. There was possibility of these injuries having been caused in the night of 7/8-6-2009 prior to 6.30.A.M. Dr. D.C. Tiwari, P.W. 8 S.H.O. who was deployed in the police station on 8.6.2009 deposed that he entered the report in Hindi in C.D. and nakal G.D. was also entered in Parcha Nakal C.D.. He further deposed that he reached the place of the incident and witnessed the deceased Anjali, Priti, Priyanka and Devraj lying in one room and Yuvraj in another room. The children were sent to the District hospital through police jeep as they apprehended that the children might be in a state of unconsciousness. The informant Amit Kumar Verma told him that injured Durgawati( his sister in-law) and appellant Ravindra Kumar Verma were sent to the hospital along with his brother Subhash Verma. The murder weapon blood stained "Sil Batta"(stone) was recovered from the room in which the bodies of four children were lying and exhibited as (exhibit Ka 13).
He further deposed that on the same day one blood stained Kamani Loha (length four feet.) was also recovered from the same room and exhibited as exhibit Ka 14.The bloodstained and plain earth were recovered from both the rooms in the house and were exhibited as exhibits Ka 15,Ka16. One blade( Wilkinson(R)) which was bloodstained was recovered from the room in which the youngest son Yuvraj was murdered and exhibited as (exhibit ka 17). He further deposed that he had seen the photocopy of the medical reports of Smt. Durgawati and appellant Ravindra Kumar Verma on 11.8.2009.
In his cross examination he deposed that 'Kamani' (Loha) was not sent for chemical examination. However, all other items recovered including clothes of the deceased were sent to the laboratory for chemical examination.
Rajendra Kumar Verma (P.W.9) was witness of the inquest of Yuvraj, Anjali and Priyanka and also prepared photolash of the deceased.
Ramveer Singh (P.W.10) was witness of inquest of Priti and Devaraj.
The post-mortem report shows that injuries of the deceased on head and face are almost similar in nature. The cause of death was due to shock and haemorrhage as a result of antemortem injuries. Time of the death was within half day as opined by the doctors.
The serologist report dated 5.2.2011 indicates that human blood was found in the bloodstained earth recovered from both the rooms. On Sil Batta (stone) blood was disintegrated. Apart from this, human blood was found on the clothes of the deceased Anjali (items no 1 and2), Yuvraj(items no. 7 to 9); Priti(items no. 12 and 13), Priyanka (items no. 15 and 16); Devraj(items no. 20 and 21). The report is that blood was found on the large portions of items no. 1 to 28 (i.e. all the items sent for chemical examination).
Ram Pravesh Verma, (P.W.1) father of the appellant, in his examination had deposed that he was living in a Juggi adjacent to the house of the appellant. At about 6.30 A.M. in the morning on 8.6.2009 younger son of P.W.1, namely, Amit told that he broke open the door of the house of Ravindra Kumar Verma and when he entered inside the house, he found five children of his brother dead having serious injuries on their head. Smt. Durgwati wife of Ravindra Kumar Verma was found seriously injured.
This witness further deposed that when he reached the spot he found Ravindra Kumar Verma was sitting inside the house in a state of intoxication. There were injuries in his hand. He could not talk to Ravindra Kumar Verma. He further stated that the appellant Ravindra Kumar Verma was a truck driver and was in the habit of taking alcohol and Bhang. Normally his behaviour with his wife and children was amicable. He never indulged in Marpeet with them. Neither his wife nor his children had ever made any complaint about any Marpeet. The wife of Ravindra Kumar Verma was unconscious and as such she could not disclose anything about the incident. This witness was declared hostile. However, he was cross examined by the prosecution. On suggestion made by the prosecution that Ravindra Kumar Verma assaulted his children and wife earlier also and on the incident he tried to commit suicide by cutting veins of his wrist. This witness had categorically denied the said suggestion and further deposed that the fact that the appellant was facing a financial crisis for the past 5-6 months was correct and on account of the same he started taking alcohol. However, P.W.1 denied the suggestion that the appellant murdered his five children and tried to cause serious injuries to his wife on account of his poverty. P. W.1 had denied the suggestion that Ravindra Kumar Verma made an attempt to commit suicide.
P.W. 2 Awadesh Verma, younger brother of the appellant Raivndra Kumar Verma, deposed that the appellant was a truck driver. He used to take alcohol. His behaviour with his wife was good. P.W.2 further deposed that the appellant had never assaulted his wife and children earlier in the state of intoxication.
P.W.2 further deposed that he was informed about the incident through telephone by his niece Minu, daughter of Subhash Verma that some incident had occurred in the house of his brother Ravindra Kumar Verma. After receiving the information he reached the spot and found his brother unconscious but alive. His sister-in-law Durgawati was seriously injured and was also unconscious. Similarly there were serious injuries on the bodies of the five children of Ravindra Kumar Verma. Ravindra Kumar Verma and Durgawati were taken to the hospital. Ravindra Kumar Verma was treated in M.M.G hospital and Durgawati was referred to the G.B.T. hospital. He further deposed that in the state of intoxication Ravindra Kumar Verma never lost his mental balance or reached the stage of madness. He did not know about the incident and his sister-in-law did not tell anything about the incident when she gained conciousness. This witness was declared hostile and was cross-examined by the prosecution.
In his cross examination he reiterated his version in his chief and denied all suggestion of Marpeet and stated that his brother used to take alcohol some time and his mental state has always been good after taking alcohol.
P.W.3 Amit Kumar Verma , brother of the appellant and informant stated in his examination in chief that he was living in the same colony. At about 6.30 A.M. On 8.6.2009, he came to know that an incident had occurred in the house of his brother. He reached the spot and saw his brother Ravindra Kumar Verma sitting outside the house in an injured condition and there was blood in his hand. However, this witness has changed his version in examination-in chief and stated in the very next sentence that the appellant was lying inside the room. Apart from Ravindra Kumar Verma, Aanjali, Priya, Priti and Devraj the children of the appellant were lying in a pool of blood and were dead. In another room his sister-in-law Durgawati and nine months old Yuvraj ( son of Ravindra Kumar Verma) were lying in a pool of blood.
P.W.3 further submitted that Ravindra Kumar Verma was in an unconscious state and he did not give any reply when he was asked about the incident. When the informant came out of the house, his father Ram Pravesh Verma and other brothers Awadesh Verma, Subhash Verma reached the spot. The informant and his brother took Ravindra Kumar Verma and his wife Durgawati to the M.M.G. hospital Ghaziabad where Ravindra Kumar Verma was admitted but Durgawati was referred to the G.B.T. Hospital, Shahadra. Thereafter he and his brother Subhash Verma went to the police station. The police went to the spot along with them and after returning to the police station, the police officer told him to give a written First Information Report. On the instruction of the police officer he gave the written report in his hand writing. This witness stated that the written report was not submitted by him rather he had only copied the report given by the police on a paper. His statement under section 161 Cr.P.C. was also recorded on the basis of written report given by him.
P.W.3 further stated that he had no idea as to who had committed the murder of the children of his brother and caused injuries to his sister-in-law. His brother Ravindra Kumar Verma was not in the habit of taking alcohol and never made an attempt earlier on the life of his sister-in-law and children nor ever threatened them. This witness was declared hostile and was allowed to be cross- examined. In his cross examination he reiterated that his brother had not committed the murder of five children nor injured his sister-in-law. He denied the suggestion that the statement under section 161 Cr.P.C. was not made by him on the basis of letter(Majmun) given by the police on the basis of which he gave the written report.
P.W.3 further stated that the appellant was a truck driver and his financial and mental condition was sound and he was not in the habit of taking alcohol. When he reached the spot, the appellant Ravindra Kumar Verma and his wife Durgawati were unconscious and the incident had been committed by an unknown person and not by the appellant. He denied the suggestion that the map of the spot of the incident was prepared by the Investigating Officer in his presence. He accepted his signature on the inquest and stated that he was not aware of the content of the inquest report as he had studied upto class VIII only and on the written report he only wrote his name and address but did not sign the same . The written report was submitted under the threat of the police.
Subhash Verma (P.W.4) brother of the appellant stated in his cross examination that the appellant was a truck driver and seldom used to take alcohol. He never assaulted the children and his sister-in-law earlier nor gave any threat to them. This witness was also declared hostile and was allowed to be cross examined. This witness also denied the suggestion that his brother Ravindra Kumar Verma was doing Marpeet with his wife and children and threatened them earlier. He denied the contents of his statement under section 161 Cr.P.C. which was read to him. P.W.4 further stated in his cross examination that Ravindra Kumar Verma was financially sound and used to love his wife and children. None of them had any complaint about the behaviour of Ravindra Kumar Verma. The incident had been caused by some unknown person. P.W.4 further stated that he had no suspicion on any other person who could have committed the crime.
Smt. Durgawati P.W.5 wife of the appellant stated in her chief that she along with her husband Ravindra Kumar Verma and youngest son Yuvraj were sleeping in one room and her three daughters and one son Devraj were sleeping in the other room. The incident was about at 11.30-12 A.M. when they were in sound sleep and one unknown person came inside the house and assaulted her on head. She could not see the weapon from which she was assaulted as it was dark. She became unconscious on account of the said injury and did not know what had happened thereafter with her children and her husband. When she gained consciousness she found herself in the hospital. After being discharged from the hospital she went to her home and asked about her children and husband from her brother-in-law and sister-in-law but nobody told her anything. When she again went to the hospital for a check up she heard the doctors talking about the murder of her five children. She also received serious injuries, however she was saved. When she went to meet her husband Ravindra Kumar Verma in the hospital, she came to know that the police had taken him to jail. She was not aware of the incident and did not know that who had committed the murder of her children. This witness was also declared hostile and was allowed to be cross examined.
In her cross examination she stated that, her husband and children were in the house and no other person was in the house at the night of the incident. There was only one entrance in the house and nobody could enter the house from any other direction. The main door of the house was closed,however it was not bolted from inside. They had electricity connection but on the fateful night there was rostering and on account of which there was darkness in the house. She further stated that they used to close the door daily before going to sleep but they did not bolt the door from inside. Her husband was a truck driver and did not take alcohol. He did not go on duty for 10-15 days prior to the incident. She denied that her husband had committed the murder of their children.
In her examination- in- chief she also stated that after coming back from the hospital she was residing with her sister- in- law Nitu. She thought of saving her husband and the family members also thought the same. However she did not give any statement under the pressure of her in- laws. In her statement under section 161 Cr.P.C. she stated that she never told police that her husband was 'Mand budhhi' and in the habit of intoxication. She never told that her husband was insane. She was not aware of the fact that her husband made an attempt to commit suicide by cutting the veins of his hand.
In her cross examination by ADGC she further stated that they had sufficient means of livelihood and there were no financial constraints. After coming back from the hospital she came to know that a theft had been committed in the house at the night of the incident and some household items, jewellery and some money were stolen. She further stated that there were more than one person who committed the crime. Those unknown persons first assaulted her husband and caused injuries to him after doing Marpeet with him, thereafter, they assaulted her and her children. The murder had been committed by some unknown person with the intention of robbery.
Surendra Kumar (P.W.6) who was posted as head constable at Police station Vijay Nagar on 8.6.2009 proved chik F.I.R. and made entries in the G.D. in his handwriting. He stated that after entering the written report given by the informant case was recorded in G.D. no. 10 at 8 A.M. and thereafter he went to the spot along with S.H.O. D.C. Tiwari and after coming back from the place of incident, seven sealed packets of recovery were deposited with Seal Mohar. The entries were made in the G.D. no. 7 on the same date. In his cross examination he stated that report was not written by the informant at the police station. The informant remained at the police station for about 10-15 minutes and a copy of the report was given to him. The informant put his signature on the receipt of the report. Copy of the report was sent to the Circle Officer on the same day. He denied the suggestion that report was lodged as antetimed.
Dr. Prem Prakash, Additional Chief Medical Officer proved the postmortem conducted by him and the injuries found on the body of the deceased. The time of the incident has been suggested by him and the weapon from which injuries could have been inflicted upon the deceased.
P.W.8 Shri D.C. Tiwari who was posted as S.O. Vijay Nager deposed that the statements of the witnesses were recorded at the place of incident and he supported the version of the First Information Report. The place of incident was inspected at the pointing out of the informant. The statements of five witnesses were recorded on the spot . The recovery memos were prepared separately. The first recovery memo was of one Sil Batta stained with blood.
The statement of the appellant under section 313 Cr.P.c. was recorded on 5.4.2013. He simply denied the questions put to him and stated that he did not know as to why the case had proceeded against him. He did not offer any explanation in defence. However, the appellant entered in the witness box and was examined as D.W.1. In his examination in chief he stated that on the date of the incident he along with his wife and one child were sleeping in one room and the other four children were sleeping in another room. The house was closed from inside but the door was not bolted. They never bolted the door from inside every night. He did not know who caused the injuries to his wife and children. He became unconscious after receiving injuries. After eight days of the incident when he became conscious he found himself in jail. His brother lodged the First Information Report under the pressure of the police. No recovery of Sil Batta and iron rod was made from his house. As it was dark, he could not see the weapon from which injuries were inflicted on him. In his cross examination he reiterated that he never quarrelled with his wife. There were two rooms in his house and on the night of the incident there was no electricity though he had an electricity connection. He denied the suggestion that he used to bolt the door from inside before going to sleep. He had received injuries in his hand and head. He denied that he had murdered his children and caused serious injuries to his wife.
Learned counsel for the appellant submits that the First Information report registered by the police was an after thought. The report was lodged after the appellant and his wife(P.W.5) were taken to the hospital. The informant (P.W.3) rushed to the police station to lodge the First Information Report but the police without reducing substance with regard to the incident in the G.D. at once deliberately accompanied the informant to the place of occurrence and thereafter the First Informant Report was lodged at the dictation of the police officer. The content given to the informant was copied by him. The informant P.W.3 in his statement categorically stated that the First Information Report was written by him at the dictation of the police authorities.
Further submission of the learned counsel for the appellant is that the investigation was made by the police authorities in haste, eschewing significant compliance of regulations and statutory provisions. The inquests of the deceased children were conducted at the M.M.G. Hospital but on the contrary P.W.9 and P.W.10 in their statements have wrongly submitted that the inquest was prepared by them at the place of incident. Thus the testimony of P.W.9 and P.W.10 could not prove the inquests of the deceased children.
He further submits that no recovery was made by the police at the instance of the appellant. The recovery memo indicates that Sil Batta was lying in the room where the police found the dead bodies of four children. The Iron "Kamani" was also found in the same room. One blade having blood on it was found from another room in which the dead body of Yuvraj, younger son of the appellant-accused, was lying. Thus these recoveries are not the recoveries under Section 27 of the Evidence Act and,therefore, are not sufficient to connect the appellant with the crime.
He further pointed out that the appellant was apprehended by the police from the hospital. The memo of arrest of the appellant was also not proved by the Investigating Officer. No independent witnesses i.e neighbours who were natural witnesses of the crime were examined by the prosecution. As it is apparent from the site plan that their houses were adjacent to each other. It was a Rosy colony 'Jugghi Jhopari' and there was no distance between the house of the appellant and the houses of persons whose names have been indicated in the site plan. From the manner in which the investigation was done shows that the case was solved in a causal manner and it resulted in letting loose the real culprit. It amounts to dereliction of the duty on the part of the police officer which is apparent on the face of the record.
Learned counsel for the appellant further pointed out that it is a case of circumstantial evidence and in such a case motive assumes great importance. Prosecution has failed to bring out the motive. There is no suggestion to any of the witnesses that the appellant was habitual of intoxication or his mental condition was not sound, and further his behaviour with his wife and children was bad. There is no evidence of previous conduct of the appellant from which an inference can be drawn to establish any other motive in order to bring home the charge incriminating the appellant beyond reasonable doubt.
Moreover the fact that the appellant accused did not abscond but was found unconscious at the place of occurrence shows the absence of motive which is one factor that weigh in favour of the appellant. There is also no eyewitness to the incident and the case is based only on circumstantial evidence. There is no dispute about the fact that the wife of the appellant was found injured and unconscious at the place of incident. She was in a critical condition and was referred to another hospital for her treatment.
Smt. Durgawati, P.W. 5 (wife) deposed that she was sleeping along with appellant and infant child in the room. At around midnight she was hit by an unknown person on her head as a result of which she became unconscious. She came to know about the death of her children after she was discharged from the hospital and again went to visit the doctor for her follow up when she overheard the doctor talking about the murder of her five children. In so far as the circumstances found against the appellant, learned counsel for the appellant submits that there is no dispute about the fact that the appellant used to reside at the place of incident. However, so far as the time of occurrence is concerned, the same could not said to be around midnight as the postmortem report indicates that rigor mortis on the person of the deceased children was 100 % which might have started 24 hours before the time of autopsy. He further submits that the neighbours must have heard the screams of the victims. The crime weapon i.e. Sil Batta alleged to have been recovered from the place of incident was planted by the police. Moreover F.S.L. report indicates that blood on the 'Sil Batta' was found disintegrated and further no fingerprint of the appellant was taken to match with the fingerprint on 'Sil Batta'. Thus, the prosecution has failed to connect the crime weapon 'Sil Batta' with the appellant on the basis of corroborative scientific proof. The testimony of the injured witness P.W.5 i.e. wife of the appellant was in favour of the appellant and wholly reliable and credit worthy. P.W.5 remained unshaken throughout her testimony. This circumstance being in favour of the appellant. The prosecution has failed to complete the chain of the circumstances from which conclusion of guilt of the appellant could be drawn.
From the testimony of P.W.2, P.W.3 and P.W.4 it is apparent that the appellant was found unconscious on the place of occurrence and he was taken to the hospital for medial treatment. The fact that the appellant was arrested from the hospital was not proved. Further the prosecution did not prove the injury of the appellant. Further investigating officer while shifting the appellant from M.M.G. Hospital to the jail hospital did not get the appellant medically examined in order to know the reason behind his injuries. The circumstances being missing link in the chain of circumstances leads to no other hypothesis than that of the innocence of the appellant. It is well settled that the prosecution must stand and fall on its own legs and It cannot derive any strength from the weakness of the defence. Before using the additional link it must be proved that all links in the chain are complete and do not suffer from any infirmity. The fact that door of the house was not bolted from inside and certain house articles were found stolen is ground of another hypothesis on the basis of which inference with regard to involvement of third person as author of crime may be drawn.
He further submits that there were only two persons namely, the appellant and his wife(P.W.5) who could have special knowledge with regard to the manner in which incident took place. But the prosecution was not able to prove the fact relating to the health and mental state of both the persons, as such the prosecution has failed to discharge the burden of proof on the basis of evidence on record from which inference with regard to another hypothesis can be drawn to establish other than the innocence of the appellant. It is trite law that initially onus of proof never shifts from its shoulders and only when the prosecution has discharged its initial burden of proof the defence plea has to be considered to judge the veracity of the prosecution case. The defence of an accused can be looked into only to lend the credence or negate the prosecution story in its initial burden of proof which never shifts from its shoulders. This principles runs through out in the scheme under Sections 101 to 106 of the Evidence Act (hereinafter referred to as the 'Act'). Aid of Section 106 of the Act can be had only in the cases where prosecution could not produce the evidence regarding commission of crime but brings all other incriminating circumstances and sufficient material on record to prima facie probablise it's case against the accused and no plausible explanation is forthcoming from the accused regarding fact within his special knowledge about the incident. In the circumstances of the present case, Section 106 of the Act cannot be said to have any application whatsoever.
Learned counsel for the appellant further submits that all the incriminating circumstances were not put to the appellant while examining him under section 313 Cr.P.c. in order to meet the requirement of principle of natural justice. The circumstance which are not put to the accused in his examination under section 313 Cr.P.C. cannot be used against him and must be excluded from consideration. There is presumption of innocence of the appellant as the appellant did not decamp but remained at the place of incident. He was found unconscious and moreover none of the witnesses had supported the prosecution story. All the witnesses are family members including the wife and in case the appellant was in the habit of any kind of misbehaviour with his wife and children, the family members would have gone against him to support the prosecution story. More so even the wife whose five children were murdered had not blamed the appellant for having committed the crime. No motive like poverty, insanity etc. could be proved by the prosecution. The prosecution has not been able to establish any scientific link between the appellant and modus-operandi of the crime which is sufficient to presume that the appellant was in no way connected with crime, hence in the absence of cogent, reliable and credit worthy evidence benefit of doubt goes in favour of the appellant and hence he is liable to be acquitted.
On the question of sentence, learned counsel for the appellant submits that there are mitigating circumstance which are to be taken into consideration. The said circumstances are that :-
(1) No previous criminal antecedents of the appellant have been found on record.
(2)The conduct of the appellant prior, during and after the incident do not suggest that the appellant is a menace to the society.
(3)His age is about 45 years and he may be reformed or rehabilitated .
(4)Though the insanity of the appellant could not be proved due to laches of the prosecution,however it may be inferred from the fact of intoxication of the appellant that he was not habitual to commit barbaric, diabolic, heinous and brutal crime.
(5)The crime appears to have been committed under some compelling circumstances and as such the person does not fall in the category of 'rarest of the rare case' and, therefore, sentence may be reduced on the ground of humanity.
Refuting the submission of the learned counsel for the appellant, Shri Akhliesh Singh, learned Government Advocate assisted by Shri Anand Tiwari and Shri R.K. Singh submits that in the present case five innocent children were brutally murdered by their father in his own house in a diabolic manner. It is an undisputed fact that the place of occurrence of the incident is the house of the appellant. Though witnesses were declared hostile yet they had admitted the place of incident. The appellant in his statement submits that he had no enmity with any one and he and his wife were living peacefully.
He further submits that though initially the burden was on the prosecution to establish the case beyond reasonable doubt, however, in the instant case as the offence was committed in secrecy inside the house, there is a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed, in view of Section 106 of the Evidence Act. And once the prosecution has been able to show that at the relevant time, the place of incident was in the exclusive occupation of the appellant, the burden of proving that fact is upon him, the prosecution has discharged its burden and proved the circumstances inculpating the accused appellant.
He further submits that admittedly contents of Section 106 of the Act are not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt. But the section would apply to the cases where the prosecution has succeeded in proving the facts from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the court to draw a different inference.
Learned Government Advocate further submits that blood stained piece of stone (Sil Batta), Kamani, and blade were found on 8.6.2009. The recovery of these weapons in the house of the appellant fully corroborates the medical evidence. Apart from this there is no suggestion that any other person had any motive to commit this heinous crime by causing the death of five innocent children in almost a similar manner.
In the present case, as per the version of the informant the appellant was sitting at the main gate of the house when he reached on the spot. The informant saw the blood on the hands of the appellant and on his questioning the appellant did not respond. When the informant went inside the house he found the dead bodies of five children of the appellant and found the wife of the appellant in an unconscious condition. He further submits that appellant was arrested on 9.6.2009 from the hospital. Although the injuries of the appellant have not been proved by the prosecution, the same cannot be said to be fatal for the case of the prosecution. On the basis of evidence on record it can be safely concluded that the injuries caused to the appellant were minor in nature and they could be self inflicted. Appellant in his deposition submitted that he remained unconscious for the period of eight days from the date of incident. The said deposition made by him in the court is a false statement as in his examination under section 313 Cr.P.c. he did not mention the same. The deposition before the court was nothing but an after thought. Moreover the contention that all the incriminating circumstances were not put the accused in examination under Section 313 Cr.P.C. is of no consequence as the accused himself appeared in the witness box as D.W.1. Thus he had opportunity to explain all the incriminating circumstances against him.
In so far as the motive is concerned it is well settled that in every case it is not possible to know the motive as it may be in the mind of the accused at that time. The prosecution found it difficult to explain or establish the same to substantiate its evidence. Even the absence of motive is not fatal to the prosecution case.
Further submission is that the witnesses though turned hostile, yet it is well settled in a catena of judgment of the Apex Court that the evidence of such witnesses cannot be treated as effaced or washed off. The statement of the hostile witnesses can be taken into consideration as far as it supported the prosecution story though the entire version of the witnesses was not found dependable. In the F.S.L. blood found on the 'Sil Batta' was disintegrated. However in view of the dictum of the Apex Court in State of Rajasthan Vs. Teja Ram and others, reported in (1999)3 SCC 507 the said fact is not of material significance so as to dislodge the prosecution case. The argument of the learned counsel for the appellant that the First Information Report was antetimed is misconceived as it has come in the evidence of P.W.6 that report was sent to the Circle Officer on the same day.
On the question of sentence the learned Government Advocate submits that looking to the brutal murder of five innocent helpless children in a most diabolic manner, the offence committed by the appellant falls within the purview of 'rarest of the rare case' hence reference sent by the trial court is liable to be affirmed.
Having heard learned counsel for the parties and on a careful perusal of the record, we find that the prosecution has examined five witnesses of fact. All these witnesses are related to the appellant-accused. These witnesses were declared hostile and were allowed to be cross examined by the prosecution by the trial court. It is settled law that merely because the witness is declared hostile his entire evidence can not be excluded from consideration. In an appropriate case the court can rely upon the part of the testimony of such witnesses if that part of the deposition is found to be credit worthy. The reference may be made to Bhagwan Singh Vs. State of Haryana (1976) 1 SCC 389; Guru Singh Vs. State of Rajasthan (2001)2 SCC 205; Ramesh Harijan Vs. State of U.P. (2012),5 SCC, 777; Haradhan Das Vs. West Bengal 2013(2) SCC 197; Sathya Narayanan Vs State Represented by Inspector of Police (2012)12 627; Bhajju Vs State of M.P. (2012) 12 SCC 327, Keeping in mind the above legal position we proceed to examine the statements of witnesses of fact namely P.W.1, P.W.3 and P.W.5.
P.W.1 father of the appellant-accused in his statement in chief submitted that he was informed by his younger son Amit i.e. informant at about 6.30 A.M. that he broke open the door of the house of the appellant and found five children of the appellant lying dead having serious injuries on their heads. Wife of the appellant was also seriously injured. Upon information received he reached on the spot and witnessed that Ravindra Kumar Verma was lying in his house in the state of intoxication. He further submits that he could not talk to Ravindra Kumar Verma when he found that Ravindra Kumar Verma was not in a condition to talk. P.W.1 further deposed that Ravindra Kumar Verma was habitual of taking alcohol and Bhang etc. but he had never misbehaved with his wife and children. No one had made a complaint about the misbehaviour of Ravindra Kumar Verma earlier. In his cross examination P.W.1 submitted that Ravindra Kumar Verma was facing a financial crisis for the last five to six months, prior to the incident and he was taking alcohol on account of this. However he denied the suggestion that Ravindra Kumar Verma had murdered his five children and injured his wife treating them as a burden on his life. He also denied the suggestion that Ravindra Kumar Verma had made any effort to commit suicide.
In so far as the statement of P.W.3 is concerned, he was the informant and in his examination in chief he stated that he was living in the same colony in a separate house near the house of Ravindra Kumar Verma.On the date of incident at about 6.30 A.M. he came to know about the untoward incident that occurred in the house of his elder brother Ravindra Kumar Verma. When he reached there he found that Ravindra Kumar Verma was sitting outside the house in an injured condition and there was blood on his hands. After making the said statement this witness has changed his version and stated that Ravindra Kumar Verma was lying inside the room in an unconscious state. When this witness asked Ravindra Kumar Verma as to what had happened in the house, Ravindra Kumar Verma did not give any reply. In the meantime his father P.W.1 and other brothers P.W.2 and P.W.4 also reached the spot. The informant along with the other brother got Ravindra Kumar Verma and his wife admitted in the hospital in an unconscious state. Ravindra Kumar Verma was admitted in M.M.G.hospital Ghaziabad and P.W.5 wife of the Ravindra Kumar Verma was referred to the G.T.B. hospital Sahadara. Thereafter the informant and the other brother went to the police station and informed the police. The police reached the spot along with them and after making an inspection of the place of occurrence came back to the police station. Thereafter police told the informant to lodge First Information Report and he wrote 'Taharir' at the dictation of the police. This witness denied the suggestion that Ravindra Kumar Verma had murdered his children and injured his wife. He also denied the suggestion that the financial condition of Ravindra Kumar Verma was not good. Rather in his cross examination he deposed that the perpetrator of the crime was some unknown person/miscreant.
P.W.5 wife of the Ravindra Kumar Verma deposed that the incident was of about 11.30 to 12 at night. They were sleeping and some unknown person came inside the house and attacked on her head and thereafter she became unconscious. She did not know as to what had happened to his children and husband thereafter.
In her cross examination she deposed that there was only one door for entering the house. The house was closed but was not bolted from inside. There was no electricity though they had an electricity connection. She could not see anything as it was dark. She further deposed that they never used to bolt the house from inside in the night. During her cross examination she told that some house hold goods, ornaments and money were found stolen from the house when she came back from the hospital. She denied the suggestion of the crime having been committed by her husband Ravindra Kumar Verma.
From the deposition of these witnesses we find that all the witnesses had deposed that Ravindra Kumar Verma was in the habit of taking alcohol and was in the house at the time of incident. In so far as P.W.1 is concerned he categorically stated in his examination in chief that Ravindra Kumar Verma was lying in the house in a state of intoxication and was habitual of taking alcohol and Bhang. He was also facing financial crises. The informant (P.W.3) changed his version in the examination in chief. In the first sentence of his examination in chief he started narrating about what he had witnessed in the morning at about 6.30 A.M. when he reached the place of occurrence. He deposed that Ravindra Kumar Verma was sitting outside the house in an injured condition with blood on his hands. The statement of the informant fully corroborates the version in the 'Taharir' which was given by him in his own handwriting. Thus suggestion given by the witness later on in his examination in chief and cross examination that the police had dictated the First information report and he had simply copied what was dictated to him is unbelievable. Even otherwise, the informant is the real brother of Ravindra Kumar Verma. There is nothing on record to suggest that there was any pressure upon him to give the report in writing to the police.
P.W.5 in her statement deposed that the house was not bolted from inside and some miscreant had committed the crime. She also tried to suggest that there was some loot in the house as she found her belongings missing when she came back from the hospital. No other witnesses had deposed either in the examination in chief or in cross examination that any loot had occurred in the house. One circumstance to be noted is that none of the witnesses had stated that Ravindra Kumar Verma was badly injured though they deposed that he was unconscious and could not speak.
P.W.3 and P.W 1 who were amongst the first persons to reach the place of occurrence i.e the house of Ravindra Kumar Verma only stated that they witnessed blood on the hand of Ravindra Kumar Verma. It may also be important to note that the prosecution has examined formal witnesses who have proved the lodging of the First Information Report by the informant P.W.3.
P.W.6 Surendra Kumar, who was a witness of chik F.I.R. categorically deposed that he made entries in the G.D. after cutting chik F.I.R. He also deposed that the report was sent to the Circle Officer on the same day. His statement was recorded by S.H.O. soon after the report was lodged. He categorically denied the suggestion that the report was antetimed though it is an admitted fact that it was lodged after the police came back from the spot of occurrence. The time of chik F.I.R. is 8 A.M. and the distance of the police station from the house of the appellant as mentioned in the First Information Report is 1 Km.
In view of the above evidence, we find there is no substance in the submission of the learned counsel for the appellant that the First Information report was antetimed and suggestion of the defence that it was lodged at the dictation of the police and is unworthy of belief.
In so far as the suggestion of the defence and witnesses that the incident had been caused by some unknown person who had entered the house at around midnight, it is important to note that the appellant in his statement under section 313 Cr.P.C. made only a bold denial about the incriminating circumstances put to him. He did not give any explanation in his defence in his statement under section 313 Cr.P.C.He later on entered in the witness box and was examined as defence witness D.W.1.
In his defence, the appellant while narrating the incident deposed that he was sleeping inside the house along with his wife and a child in one room, and the other four children were sleeping in the other room. The main door of the house was closed but it was not bolted from inside. He further submitted that he had no idea as to who had murdered his children and injured his wife.
He further deposed that he was injured by the persons who entered inside the house while he was sleeping and he became unconscious. He could gain consciousness only after eight days when he found himself in jail. The report was lodged by his brother under the pressure of the police. In his cross examination he stated that he had no enmity with anybody. He further deposed that he used to tell his wife to bolt the door from inside but she refused to do so. He further deposed that he received injuries on his hand and head.
From a careful consideration of the statements of all these witnesses including the defence of the appellant, it is fully established that Ravindra Kumar Verma had no enmity with anybody and no robbery or loot had occurred in the house on the fateful night. The suggestion of the witnesses that some unknown person entered the house and murdered all the five children of Ravindra Kumar Verma aged between 13 years to 9 months, and seriously injured the wife of Ravindra Kumar Verma cannot be accepted in the absence of evidence of enmity and loot in the house. The statement of P.W..5, wife of the appellant in her cross examination stating that certain items were found missing from the house when she came back from the hospital is clearly an after thought and shows her desperate effort to save her husband, the appellant. Further one of the important circumstances that both the inmates of house i.e. appellant and his wife Durgawati deposed that they did not bolt the main door of the house from inside daily, clearly shows that they had no worries about loot or any kind of theft in the house. The appellant in his defence had categorically stated that he had no enmity with anyone. This apart, it is also noteworthy that all five children of the appellant were attacked and murdered in a similar manner. Their injuries were similar in nature. In case if any miscreant entered the house with an intention to commit theft or loot, he would have injured the appellant and his wife, rather than inflicting serious injuries upon the nine month old child who was sleeping with them. Thus the defence plea that some unknown person was the perpetrator of the crime is not acceptable.
Having gone through the entire evidence on record it is fully established that the five children of the appellant were murdered with a blunt heavy object like a brick, stone, Danda or any kind of 'Kunda' as deposed by P.W.7 the postmortem doctor. The blood stained "Sil Batta" (stone) recovered from the room where the bodies of the four children were lying. As per the serologist report human blood was found on a large portion of all the items sent for chemical examination though the blood found on the (Sil Batta,) murder weapon was disintegrated. The injuries described on the person of all the deceased children were lacerated wounds on their heads either on the left or right side. The injuries on the head were deep as the Parietal and temporal bones of the children were found broken by the postmortem doctor.
Having considered the entire evidence on record and the fact that there is no eyewitness in this case and this is a case of circumstantial evidence, the question, arises as to whether the presumption under Section 106 of the Evidence Act can be drawn against the appellant in the facts of the case. It is established that the appellant was in the house at the fateful night. Though his injury report was not proved by the prosecution, however from the statement of prosecution witnesses in their examination in chief, it is established that the appellant did not have serious injuries on his person. The appellant was having special knowledge with regard to certain facts and the burden of proving those facts can be cast upon him by law. In the case of State of Rajasthan Vs. Kashi Ram, reported in (2006)12 SCC 254, the Apex Court had observed that whether an inference ought to be drawn under Section 106 of the Evidence Act is a question which must be determined by a reference to proven facts. It is ultimately a matter of appreciation of evidence and, therefore, each case must rest on its own facts.
In the said case it was held that the deceased wife was last seen with the accused in his house. The appellant did not offer any explanation as to when he parted company from his wife, nor did he offer any exculpatory explanation to discharge the burden under Section 106 of the Evidence Act. Moreover from the trend of the answers given by the accused in his examination under Section 313 Cr.P.C.,it appears that the accused made only a bold denial of all the incriminating circumstances put to him and had no explanation to offer.The accused failed to explain the facts which were within his special knowledge, it must be held that he had failed to discharge the burden cast upon him under Section 106 of the Evidence Act. This circumstances therefore provides missing link in the chain of circumstances which prove his guilt beyond reasonable doubt.
In Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 10 SCC, it has been held in paragraph 15 which is quoted below :-
"15 Where an offence like murder is committed in secrecy inside a house, the initial burden to establish the case would undoubtedly be upon the prosecution, but the nature and amount of evidence to be led by it to establish the charge cannot be of the same degree as is required in other cases of circumstantial evidence. The burden would be of a comparatively lighter character. In view of Section 106 of the Evidence Act there will be a corresponding burden on the inmates of the house to give a cogent explanation as to how the crime was committed. The inmates of the house cannot get away by simply keeping quiet and offering no explanation on the supposed premise that the burden to establish its case lies entirely upon the prosecution and there is no duty at all on an accused to offer any explanation."
In State of W.B. Vs. Mir Mohammad Omar and others (2000)8 SCC 382 the question of burden of proof where some facts are within the personal knowledge of the accused was examined, the court took note of the provisions of section 106 of the Evidence Act as laid down in paragraph 31:-
"31.The pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The doctrine of presumption is not alien to the above rule, nor would it impair the temper of the rule. On the other hand, if the traditional rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage the offenders in serious offences would be the major beneficiaries, and the society would be the casualty."
The Court took note of the provisions of Section 106 of the Evidence Act and laid down the following principle in paras 32 to 34 of the judgment "32. In this case,when prosecution succeeded in establishing the afore narrated circumstances, the court has to presume the existence of certain facts. Presumption is a course recognised by the law for the court to rely on in conditions such as this."
"33. Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the court exercises a process of reasoning and reaches a logical conclusion as the most probable position.The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the court to presume the existence of any fact which it thinks likely to have happened. In that process court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case."
"34.When it is proved to the satisfaction of the court that Mahesh was abducted by the accused and they took him out of that area, the accused alone knew what happened to him until he was with them. If he was found murdered within a short time after the abduction the permitted reasoning process would enable the court to draw the presumption that the accused have murdered him. Such inference can be disrupted if accused would tell the court what else happened to Mahesh at least until he was in their custody. "
In Sathya Narayanan Vs. State Represented By Inspector of Police reported in (2012) 12 SCC 627 after considering earlier judgment in the State of Rajasthan Vs. Kashi Ram (Supra) in paragraph 34 as under :-
"34.The appellants-accused having been seen last with the deceased, the burden of proof rests upon them to prove what had happened thereafter since those facts were within their special knowledge. In the absence of any explanation, it must be held that they failed to discharge the burden cast upon them by Section 106 of the Indian Evidence Act, 1872.Admittedly, none of the appellants explained what had happened to the deceased even in their statements under Section 313 of the Code."
In the instant case, prosecution has succeeded in establishing that the incident occurred inside the house in the mid night. The appellant accused was residing in the same house with his deceased children and injured wife. All the inmates of the house except the appellant received serious injuries, on account of which five children of the appellant died. Wife of the appellant was admitted in the hospital in serious condition and was referred to another hospital on account of her injuries. Though the prosecution did not prove the injury report of the appellant and his wife, however none of the witnesses suggested that the appellant was seriously injured, rather P.W.1 in his examination in chief stated that the appellant was lying in the house in a state of intoxication when he reached the spot in the morning after receiving information. The informant also deposed that the appellant was sitting outside the house with his injured hand when he reached the spot at 6.30 A.M. From the deposition of the informant P.W.3 it is established that he was the first person to reach the spot though he resiled from his first sentence in examination in chief and stated that the appellant-accused was lying unconscious inside his house. However his deposition in examination- in- chief which is also corroborated from the hand written First Information Report fully supports the prosecution case that the appellant was having special knowledge about the incident of murder occurred in his house.
Further the appellant -accused had failed to give any explanation as to what had happened in the night and further he gave a false explanation about the incriminating circumstances when he entered in the witness box to defend himself. He gave a false explanation in his deposition that he received injuries on his head and remained unconscious for eight days, when he gained consciousness he found himself in jail. It may also be noted from his statement under section 313 Cr.P.C. that he did not give any explanation with respect to the incriminating circumstances associated with him. When he was asked by the trial court to state something in his defence in question no.9 put to him, he did not offer any explanation. It was obligatory on the part of the appellant while being examined under Section 313 Cr.P.C. to furnish some explanation with respect to incriminating circumstances associated with him as has been held in Sunil Clifford Daniel Vs. State of Punjab reported in (2012) 11 SCC 205. Thus in the facts and circumstances of the present case the burden of proof under Section 106 of the Act would be attracted and as the accused has failed to offer any cogent explanation, rather he offered an explanation which is untrue, therefore, it will be treated as an additional link in the chain of circumstances against the accused to make it complete.
In so far as the contention of the learned counsel for the appellant that the prosecution has not examined any independent witness. It may be noted that the incident had occurred inside the house in the midnight. None of the neighbours came forward to support the prosecution case as is apparent from the statements of the witnesses present on the spot and their statement under section 161 Cr.P.c. was recorded by the Investigating Officer. All these witnesses in their statements under section 161 Cr.P.C. had submitted that they will not enter in the witness box. Thus, the prosecution had examined all the witnesses who reached the spot of the occurrence namely P.W.1, P.W.2 P.W.3 and P.W.4 and the inmate of the house i.e wife of the accused (P.W.5) who could have thrown light on the gruesome murder of five innocent children inside the house. All these witnesses are blood relations of the accused and have turned hostile. In the circumstances of the present case we hold that non examination of independent witnesses is not fatal to the prosecution case.
In so far as the arguments of defence counsel regarding motive is concerned, undoubtedly in a case of circumstantial evidence motive bears significant importance. The submission of the defence counsel that there is no motive stated by the informant from the evidence on record it is clear that the accused appellant was passing through financial crisis and was also in the habit of intoxication. Being a father he was finding it difficult to make both ends meet for the seven members of his family including himself. The only motive which could be culled out from the record was that in a fit or rage he killed his family as he was feeling helpless. In the case of Mulakh Raj and others vs. Satish Kumar and others (1992) 3 SCC 43 the Apex Court has held that when facts are clear it is immaterial that no motive has been proved as sometimes motive is such that it is locked up in the mind of the accused and it is difficult to unlock the same. The failure to discover the motive of an offence does not signify its non-existence and is not fatal as a matter of law.
The next submission of the learned counsel for the appellant is that the investigation was done by the police in haste eschewing significant compliance of statutory provisions. To deal with this submission it may be noted that there is nothing on record to indicate that the procedure has not been followed by the police during the investigation. The inquests of the deceased children were conducted and the memos prepared. The articles recovered from the place of occurrence were sent for chemical examination. The statements of all the witnesses on the spot were recorded under section 161 Cr.P.C. Apart from the prosecution witnesses of fact other witnesses on the spot who were five in number were also interrogated and their statements under section 161 Cr.P.C. were recorded . These witnesses refused to appear in the witness box. The investigation was conducted and the charge sheet was submitted in the court.
Thus, from the above discussion it cannot be accepted that police has conducted the investigation in haste and in a routine manner as suggested by the learned counsel for the appellant.
Further submission of the learned counsel for the appellant is that all the incriminating circumstances were not put to the appellant while recording his statement under Section 313 Cr.P.C. and as such the appellant was not in a position to gave his explanation. This fact itself is sufficient to discard the prosecution case. In this regard it may be noted that it is a settled legal proposition that in a criminal trial the purpose of examining the accused under section 313 Cr.P.C. is to meet the requirement of the principles of Natural Justice. It is noteworthy that in the instant case the appellant has himself appeared in the witness box and examined himself as a defence witness as D.W.1 and as such he has got a full opportunity to explain all the incriminating circumstances against him. In view of the said fact, no prejudice has been caused to the appellant and the argument of the learned counsel for the appellant in this regard is devoid of force.
It is further noteworthy that the present case is a case of circumstantial evidence. There is no eyewitness account. The prosecution has to prove its case by cogent and reliable evidence.
It is also noteworthy in the present case that the incident had occurred at the four corners of the house of the appellant at midnight. Thus once the prosecution has been able to establish from evidences on record that the appellant is the perpetrator of crime, the appellant was under an obligation to give his explanation under Section 106 of the Evidence Act. The act of the appellant was not offering a proper explanation and giving a false explanation of the incident that occurred inside the house, provides an additional link in the missing circumstances and thus completes the chain of circumstances so as to prove the guilt of the appellant beyond doubt Having heard learned counsel for the parties and after carefully examining the entire record we find that the prosecution in the present case has succeeded in proving the following circumstances;
(1) The incident occurred inside the dwelling house where the appellant was normally residing with his family.
(2) The information was given by the brother of the appellant who was the first person to reach the place of occurrence.
(3)The informant in his examination in chief reiterated his averment in the First Information Report that he saw the appellant sitting at the main door with blood in his hand when he reached his house. When asked, the appellant did not speak at all .
(4)The appellant was in the house on the fateful night.
(5)The postmortem report, the statement of the doctor and the murder weapon found on the spot fully corroborated the injuries found on the persons of all the five deceased children.
(6) According to the doctor the injuries were caused by a blunt object which clearly relates to the murder weapon(Sil Batta) found in the room where the bodies of these four children were lying. Blood was found on the "Sil Batta" though the serologist's report shows that it was disintegrated.
(7)There is no report regarding robbery by the informant.
(8)Further the witnesses though turned hostile have not suggested that any loot had occurred in the house, (9) Wife of the appellant (P.W.5) in her cross examination as an after thought stated that certain articles of the house were missing though she has not given a description of the same.
(10)P.W.1 father of the appellant had deposed that the appellant was passing through a financial crisis.
(11)No explanation was offered by the accused appellant in his statement under Section 313 Cr.P.C. statement as to what had happened on the fateful night.
In view thereof the presumption under Section 106 of the Evidence Act would come into play.
After analysis and carefully examining the evidences on record we find that the evidences led by the prosecution unerringly, points out to prove the guilt of the appellant. However looking to the facts and circumstances of the case, we find that appellant is the worst sufferer of the incident occurred as he had killed his five innocent children in the heat of passion. It is further apparent from the record that the appellant had committed the crime under compelling circumstances on account of his poor financial condition and that is the reason why he was sitting at the door of the house in a state of shock and he did not abscond . It has also come up on the record that the appellant was in an inebriated condition and could not speak when his brother asked him about the incident. We may also note that poverty stricken people in our society some time commit such offences when they find themselves helpless to meet both ends of the day for their family. Thus on the question of sentence guided by the principle as laid down in Ram Naresh and Vs. State of Chhattisgarh(2012) 4 SCC 257;Shankar Kisanrao Khade Vs. State of Maharashtra, (2013) 5 SCC, 546 and the Constitution Bench judgment in Bachan Singh Vs. State of Punjab reported in 1980 (2) SCC 684, we proceed to consider the aggravating and mitigating circumstances in the present case. The aggravating circumstances are :-
(1) The offence of heinous crime of murder of five innocent children who were fast asleep was committed by the appellant.
(2) The offence was committed inside the house by the appellant,who was having a relationship of trust with the deceased children and his injured wife.
(3) The murder was a cold blooded murder without provocation.
(4) The murder was committed brutally on five helpless children who could not have even screamed or made any effort to save themselves. Even the nine month old child was murdered in the same manner as other children by hitting their head with stone (Sil Batta) with such a force that they died on the spot while they were fast asleep. The wife was also badly injured and on account of her serious injuries she was referred to another hospital for treatment.
Now the mitigating circumstances are that :
(1) There is no criminal antecedent of the appellant.
(2)The appellant was poverty stricken.
(3)The appellant was in drunken state.
(4) The appellant committed crime in a fit or rage and in the state of helplessness under compelling circumstances.
(5) The fact that the appellant did not abscond but was sitting outside the house awestruck shows his mental condition and the compelling circumstances in which he had committed the murder of his five children and caused injuries to his wife.
Upon proper appreciation of evidence it appears that the crime was not committed in a pre-organised manner but was on account of frustration. Subsequent to the commission of the crime, the appellant hurt himself in his hand which is clear from the recovery of a (Wilkson) blade. The human blood was found on the same. It is further submitted that the prosecution witnesses found that the appellant was carrying an injury on his hand. He felt remorseful and was sorry of his act but later on he tried to defend himself and desperately made an attempt to save his life. His injured wife also turned hostile in order to save the life of her husband as she had already lost her five children. Thus as a result of commission of the crime the appellant himself is the greater sufferer. He lost his children, whom he had brought up for years. The circumstances suggested the existence of mental imbalance of the accused or the state of intoxication and frustration at the moment of commission of crime.
Considering the above aspect, though we hold that by any stretch of imagination the accused was not justified in committing the crime, however it is not a case which falls in the category of 'rarest of rare case' where imposition of death sentence is imperative, rather imposing of life imprisonment in place of death sentence would serve the ends of justice and would be adequate. Further looking to the balance of aggravating and mitigating circumstances drawn above and having examined them in the light of facts and circumstances of the present case, we have no hesitation in coming to the conclusion that appellant's case would be considered for remission or premature release under the guidelines for all purposes i.e. under the jail manual etc. or even section 433 A Cr.P.C.. The appellant accused shall be considered for remission as soon as he completes the minimum period of 14 years of imprisonment( as mandated under Section 433 A Cr.P.C.) In view of above facts and circumstances, we uphold the judgment of the trial court dated 27.5.2013 convicting the appellant Ravindra Kumar Verma with the modification of the sentence from death to life imprisonment. The reference for confirmation of death sentence is rejected.
With the above modification, the appeal is dismissed.
Date:2.5.2014 Aks.