Dr. Heera Lal, Appellant V. State Of U. P., Respondent.
DATE : 23-02-2001
2001-(107)-CRLJ -2849 -ALL
JUDGE(S) :
Bhanwar Singh
J C Gupta
ALLAHABAD HIGH COURT
J. C. GUPTA, J. :- Appellant-Dr. Heera Lal has been sentenced
to death under S. 302 of the Indian Penal Code for committing
the murder of his wife and three minor children in the early hours
of morning of 26-1-1999 at his in-laws House No. C-33/278, B2
Chandau Chhittupur, Varanasi city within the area of police station,
Sigra, Varanasi. By the impugned judgment dated 8-12-1999 Sessions
Judge, Varanasi has found the appellant guilty under S. 302, I.P.C.
as well as under S. 309, I.P.C. for making attempt to commit suicide.
However, since the appellant has been sentenced to extreme penalty
of death under S. 302, I.P.C. no separate sentence under S. 309,
I.P.C. has been passed by the learned Sessions Judge.
Undisputedly, appellant was married to Smt. Suraj Kumari deceased
about 14-15 years before the incident in question. Out of their
wedlock three children, two daughters, namely, Km. Sajal aged
about 11 years and Km. Priya aged about 8 years and one son Prince
aged about 6 years were born. According to the prosecution case
as revealed from the evidence on record appellant with his family
was residing in village Kishanpura district Ballia. One of appellant's-daughter
however, used to live with the parents of Smt. Suraj Kumar in
the house where the incident occurred. Appellant was in debt of
about Rs. 10 lacs. On the preceding day of incident, appellant
with his wife and the other two children had come to his in-law's
place. Appellant with his wife and all his three children including
the girl who was staying at his in-law's place went to sleep in
the outer most room of the house. At about 5 in the morning of
26-1-1999 Sachchidanand P.W. 1, brother of Suraj Kumar, Suman
Kumari, P.W. 2, Sister of deceased-Suraj Kumar and Lata Devi,
P.W. 3, wife of Sachchidanand P.W. 1 woke up on hearing shrieks
and cries of appellant's-children emanating from the room where
the appellant and his family were sleeping. They all went to the
said room and found the same locked from inside. Sachchidanand
gave a push at the door and saw from the slit of the door that
appellant was having a sickel (hasiya) in his hand and he was
assaulting his children. Smt. Lata Devi, P.W. 3, wife of Sachchidanand
then opened the outer door and witnesses then came into the verandah.
They peeped through his window of the room and saw that head of
Suraj Kumar was lying chopped off, eldest daughter was also lying
in a pool of blood and the other two children were still alive
and were being assaulted by appellant with Hasiya. They also sustained
injuries and fell on the ground. Witnesses raised cries. Appellant
after assaulting his wife and three children also inflicted Hasiya
blows on his own neck, legs and thighs. An electric bulb was throwing
light in the room. In spite of request made by the witnesses appellant
did not open the door. Smt. Lata Devi and Suman Kumari shouted
for help whereupon many persons from neighbourhood collected and
with their help door of the room where the incident had occurred
was got opened. They found Smt. Suraj Kumar and the three children
dead whereas appellant was lying injured and was crying in pain.
When asked as to what had happened, appellant told the witnesses
that since he was in debt of Rs. 10 lacs therefore, he wanted
to finish himself and his entire family.
Appellant was then soon removed to Kabir Chaura Hospital where
his injuries were examined by Dr. Arvind Kumar P.W. 9 at 6.50
a.m. on the same day. Following injuries were found on the person
of appellant.
1. Incised wound 8 cm. x 2 cm. x bone deep on front of left leg
lower part.
2. Incised wound 6 cm. x 0.5 cm. x muscle deep front of left leg
lower part 1 cm. above injury No. 1.
3. Incised wound 9 cm. x 3 cm. x muscle deep on front of left
thigh middle part.
4. Incised wound 7 cm. x 2 cm. x muscle deep on left side of face
near angle of mandible.
5. Incised wound 2 in number, 1 cm. apart, 2 cm. x 0.5 cm. x muscle
deep (parallel) on front of neck.
6. Incised wound 10 cm. x 3 cm. x depth not probed, on right back
of neck.
7. Incised wound 8 cm. x 1 cm. muscles deep on right side root
of neck.
8. Incised wound 4 cm. x muscles deep on right side back of neck
near root.
9. Incised wound 5 cm. x 0.5 cm. x depth not probed, on back of
neck upper part.
10. Incised wound 1.5 cm. x 0.5 cm. x skin deep on back of neck
upper part.
Dr. Arvind Kumar P.W. 9 in his statement recorded before the trial
Court opined that all the aforesaid injuries could be caused by
sharp edged weapon like Hasiya in the morning of 26-1-1999. Hasiya
material Ex. 1 was shown to the doctor in witness-box and he stated
specifically that injuries of appellant-Heera Lal could be caused
by that weapon. He further opined that all the aforesaid injuries
be self-inflicted. Injury report of Heera Lal appellant is Ex.
Ka 23.
After getting appellant admitted in Kabir Chaura Hospital Sachchidanand
P.W. 1 came back home and prepared First Information Report Ex.
Ka 1 in his own hand writing and the same was lodged at Police
Station, Sigra on the same day at 7.20 a.m. He also carried with
him Hasiya, Ex. 1 with which appellant had assaulted the deceased
persons and inflicted injuries on his own person and handed over
the same at the police station which was taken into custody through
memo Ex. Ka 8. Head Constable Ram Asal Yadav P.W. 5 prepared Chik
F.I.R. and registered the case in the general diary. He himself
prepared memo of Hasiya Ex. Ka 8. Since Station Officer Anil Kumar
Rai, P.W. 11 was not present at the police station at the time
when F.I.R. was lodged, Head Constable Ram Asal Yadav gave information
to him on R.T. set. Sub-Inspector Ram Chandra Yadav, P.W. 7 was,
however, present at the police station and he proceeded to the
scene of occurrence for holding inquest. He found all the dead
bodies inside the room of incident. He held inquest proceeding
and prepared necessary papers and sent the dead bodies to mortuary
for post-mortem examination. He also took into his possession
blood stained bed sheets, which were on the cots and also collected
samples of blood stained and plain pieces of the floor of the
room. Station Officer Anil Kumar Rai on getting information of
the incident in question immediately rushed to the place of occurrence.
He made inspection of the scene of occurrence and prepared site
plan Ex. Ka 25. He also recorded on the same day statements of
Sachchidanand, Suman Kumar and others. After completing other
formalities he submitted charge-sheet Ex. Ka 26 against the appellant.
Dr. S. K. Rai P.W. 4 conducted autopsy on the dead bodies of deceased
persons. Following ante-mortem injuries were found on the deceased-Suraj
Kumari :
1. Chop wound (incised) 26 cms. x 6 cms. x bone deep on left side
of neck, 2 cm. outer to mid line of neck back, 4 cm. below the
left ear up to right side of neck, upper part of chest (front)
and right shoulder joint (front) obliquely placed, multiple tailing
present. All the major vessels of neck (right and left), Trachea,
Oesophagus, soft tissues cranial vertebrae right sterno clavicular
joint cut, 4th, 5th and 6th vertebrae were also cut but intact
on right side. Spinal Cord was also cut.
2. Chop incised wound 8 cm. on back of right palm (Dorsal aspect),
4 cm. above right (sic) joint incised cut through and through,
partially intact skin, except right thumb and right small finger,
all the fingers were cut completely from carpo phalangeal joint.
In the opinion of the doctor, death was due to shock and haemorrhage
as a result of cut throat injuries. Post-mortem report of Smt.
Suraj Kumar is Ex. Ka 2.
On the same day at 4.40 p.m. autopsy on the dead body of Km. Priya
was conducted by the same doctor and following ante-mortem injuries
were found :
1. Chop incised wound 9 cm. x 4 cm. x bone deep on back of neck
left side, 2 cm. below left ear with single tailing cutting major
blood vessels, cutting cervical vertebrae C4 and spinal cord at
that level.
2. Chop incised wound 14 cm. x 2 cm. x brain deep, on back of
head and right parietal region with cutting of occipital and right
parietal bone. One tailing.
3. Chop incised wound 13 cm. x 4 cm. x brain deep on back of head,
3 cm. outer of right ear. Cutting occipital left parietal and
left temporal bone. One tailing.
4. Chop incised wound with multiple tailing 7 cm. x 4 cm. x bone
deep on left side of head, 4 cm. above to left ear.
5. Incised chop wound 9 cm. x 2 cm. x brain deep touching to left
ear. Single tailing.
6. Chop incised wound 7 cm. x 0.5 cm. x bone deep on left side
face and nose, nasal bone cut. Tailing single.
7. Incised wound (chop) 3 cm. x 1 cm. x bone deep on left side
of elbow joint.
8. Chop incised slip injury 5 cm. x 6 cm. on back of (dorsal)
right palm. All the fingers of right palm cut and missing.
9. Multiple incised wound 10 cm. x 4 cm. on back of (dorsal) right
palm and hand.
10. Chop incised wound 8 cm. x 3 cm. x muscle deep on left side
thigh outer aspect 4 cm. above to knee joint.
11. Chop incised wound 15 cm. x 3 cm. x muscle deep on back of
left thigh, knee and upper 1/3rd of leg.
12. Incised chop wound 5 cm. x 0.5 cm. x muscle deep on back of
chest, middle part.
According to the opinion of the doctor, cause of death was due
to injuries to spine and spinal cord and injuries to head and
brain. Post-mortem report of K. Priya is Ex. Ka 3.
Post-mortem examination of Km. Sajal was conducted by the same
doctor on the same day at 5.10 p.m. and following ante-mortem
injuries were found :
1. Chop incised wound 14 cm. x 4 cm. x bone on right side face,
neck obliquely placed touching to angle of mouth right side and
right ear. Cutting all major vessels of right side, single tailing.
2. Chop incised wound 7 cm. x 1 cm. x bone deep on right side
of head right temporal and frontal bone cut, single tailing.
3. Chop incised wound 10 cm. x 2 cm. x bone deep on back of neck,
3 cm. behind right ear, single tailing.
4. Chop incised would 10 cm. x 2 cm. x brain deep on back of head
touching to injury No. 3 occipital bone cut single tailing.
5. Chop incised wound 11 cm. x 2 cm. x brain deep on back of neck
1.5 cm. near injury No. 4, single tailing.
6. Chop incised wound 10 cm. x 1 cm. x bone deep on back of head,
1 cm. near injury No. 5, single tailing.
7. Incised wound 7 cm. x 3 cm. x muscle deep, on back of left
shoulder.
8. Chop incised wound 3 cm. x 1 cm. x bone deep on outer and dorsal
aspect of left palm with out of left little finger at carpo phalangeal
joint.
In the opinion of the doctor cause of death was coma as a result
of injury to brain, and other injuries, post-mortem report of
K. Sajal is Ex. Ka 4.
Post-mortem on the dead body of Prince was held on the same day
at 5.30 p.m. by the same doctor and following ante-mortem injuries
were found :
1. Chop slip incised wound 15 cm. x 4 cm. x bone deep on left
side head face, left side of mouth involving upper lip cutting
left ear, obliquely placed. All major vessels and left mandible
cut, single tailing.
2. Chop incised wound 11 cm. x 4 cm. x bone deep on back of neck.
Mostly neck area with single tailing, one tail continues with
injury No. 1 at left ear area cutting all major vessels and occipital
bone; 1st cervical vertebrae (C1) medula oblangata is also cut,
brain matter is coming out. Spinal cord cut.
3. Chop incised wound 8 cm. x 3 cm. x bone deep with double tailing
on back of head, 2 cm. above injury No. 2, occipital bone cut.
4. Incised chop wound 4 cm. x 2 cm. x bone deep on back of left
shoulder at top. Ligaments of scapula humerus joint are ruptured.
5. Chop incised wound 4 cm x 2 cm. x bone deep on top of right
shoulder with dislocation of right shoulder joint.
6. Chop incised wound 3 cm. x 2 cm. on back of chest scapula region
right scapula cut.
7. Incised chop wound 5 cm. x 2 cm. x bone deep on left palm dorsal
aspect and left thumb; left thumb is cut at carpelo phalangeal
injunction.
8. Chop incised wound 5 cm. x 3 cm. x bone deep on front of chin.
Mandible cut and fractured.
In the opinion of doctor cause of death has come as a result of
head and brain injury and injury to spinal cord. Post-mortem report
of Prince is Ex. Ka 5.
To substantiate charges against the appellant, prosecution produced
11 witnesses before the trial Court. They were P.W. 1-Sachchidanand;
P.W. 2, Suman Kumar; P.W. 3 Lata Devi; P.W. 4 Dr. S. K. Roy; P.W.
5 Head Constable Ram Asal Yadav; P.W. 6 Kamlesh Sharma; P.W. 7
S.I. Ram Chandra Yadav; P.W. 8 Vijai Kumar; P.W. 9 Dr. Arvind
Kumar; P.W. 10 Addl. District Magistrate, Arvind Kumar Pandey
and P.W. 11 S.O. Anil Kumar Roy, the Investigating Officer, P.W.
1 Sachchidanand, P.W. 2 Suman Kumari and P.W. 3 Lata Devi are
eye-witnesses of the incident.
P.W. 4 Dr. S. K. Roy deposed that he had conducted autopsy on
the dead bodies of Smt. Suraj Kumar, wife of appellant, Km. Priya
and K. Sajal, daughters of appellant-Heera Lal and Prince son
of appellant-Heera Lal on 26-1-1999 and proved their post-mortem
reports as Ex. Ka 2, 3, 4 and 5. Dr. Roy further stated that ante-mortem
injuries found on the deceased persons were sufficient to cause
their death in ordinary course and they were caused by sharp edged
weapon like Hasiya.
P.W. 5 Head Constable Ram Asal Yadav was posted as Head Moharrir
at P. S. Sigra. He stated that on 26-1-1999 at 7.20 a.m. Sachchidanand
had lodged written report Ex. Ka 1 on the basis of which chik
F.I.R. Ex. Ka 6 was prepared and the case was registered in the
general diary vide copy Ex. Ka 7. He further stated that the first
information had also produced at the police station one Hasiya
Ex. 1, and the same was taken into police custody and kept in
a sealed bundle through memo Ex. Ka 8. He denied the defence suggestion
that the F.I.R. was lodged much later than it purported to be.
P.W. 6 Constable Kamlesh Sharma has stated that he had escorted
the dead bodies of four deceased-persons from the place of occurrence
to mortuary for post-mortem examination. P.W. 7 is S.I. Ram Chandra
Yadav. He stated that on 26-1-1999 case was registered at the
police station in his presence at 7.20 a.m. and he proceeded to
the spot for holding inquest. He proved inquest reports and other
necessary papers. He further stated that he collected blood stained
and plain pieces of the floor of the room where the incident had
occurred and also two blood stained bed sheets.
Vijay Kumar P.W. 8 is a witness of memo through which Hasiya was
taken into possession by police at the police station. He stated
that the same was produced by first informant Sachchidanand in
his presence when Sachchidanand lodged first information report
at the police station.
P.W. 9 is Dr. Arvind Kumar, Medical Officer who had examined injuries
of accused-appellant-Heera Lal on 26-1-1999 at 6.50 a.m. He proved
the injury report as Ex. Ka 23. He further stated that injuries
of accused-appellant were possibly caused by sickel Ex. 1. He
has further opined that all the injuries of accused-appellant
could be self-inflicted. He also proved certificate (Ex. Ka 23A)
appended by him on the statement of accused-appellant recorded
by Executive Magistrate under S. 164, Cr. P.C.
P.W. 10 Arun Kumar Pandey was posed as Additional City Magistrate.
He has stated that on 26-1-1999, he recorded the statement of
accused-appellant under S. 164, Cr. P.C. and whatever was stated
by appellant he reduced the same into writing and proved the said
statement as Ex. Ka 24.
P.W. 11 Station Officer Anil Kumar Roy is the Investigating Officer.
The case of accused-appellant was of denial. In his statement
recorded under S. 313, Cr. P.C. appellant stated that he wanted
to construct his house at Varanasi after purchasing land and he
had told this fact to his brother-in-law Sachchidanand, who informed
him on phone that an amount of Rs. Six lacs would be needed for
getting the sale deed executed and registered. On this information
he along with his family reached at Sachchidanand's house with
the required money. On the asking of Sachchidanand he handed over
the entire amount to him. Thereafter in the morning of 25th he
along with his wife got ready at about 9.30 a.m. and asked Sachchidanand
to proceed for the execution of the sale deed. However, Sachchidanand
told him that as deed writer has gone out it would not be possible
to get the sale deed executed on that day and as registration
officer would be closed on 26th January registration could only
be possible on 27th January. Therefore, he stayed back at Sachchidanand's
house. On 26-1-1999 the incident in question occurred and he himself
was assaulted as a result of which he became unconscious and he
did not know who had committed the murders and assaulted him.
Accused, however, did not produce any witness in defence.
On evaluation of evidence on record, the learned Sessions Judge
has come to the conclusion that it has been established beyond
doubt that in the morning of 26-1-1999 at about 5 O'clock accused-appellant-Heera
Lal committed the murder of his wife Suraj Kumari, daughters K.
Priya and K. Sajal and son Prince with Hasiya in House No. C33/278,
B-2 Chandau Chhittupur, Varanasi and thereafter accused-appellant
made an attempt to commit suicide by inflicting injuries on his
own person from the same Hasiya. According appellant has been
convicted and sentenced to death under S. 302, I.P.C. while no
separate sentence has been passed in respect of offence punishable
under S. 309, I.P.C. He has also made a reference to this Court
for confirmation of death sentence.
Shri Satya Prakash Srivastava argued appeal on behalf of the appellant
while Shri K. C. Saxena made submission on behalf of the State.
In support of its case prosecution produced before the trial Court
three witnesses, namely, Sachchidanand P.W. 1, Suman Kumar, P.W.
2 and Smt. Lata Devi, P.W. 3 who all gave eye-witness account.
Sachchidanand is the brother-in-law of accused-appellant-Heera
Lal. Deceased Suraj Kumar was his real sister who was admittedly
married to appellant. The witness further stated that one day
before the incident in question, appellant had come to his house
along with his wife, one daughter and son Prince. The other daughter
of appellant was already living with Sachchidanand and his family
even before the incident. In the night of 25/26-1-1999 appellant
along with his wife Suraj Kumar and 3 children were sleeping in
the outer most room of Sachchidanand's house. In the morning of
26-1-1999 at about 5 a.m. he heard cries and shrieks of children
coming from the room where appellant was sleeping. He got up and
also awakened his wife and sister Suman Kumar and proceeded towards
the room from where cries were emanating. The room was closed
from inside. He gave a push on the door and saw from the slit
of the door that the children of appellant were weeping inside
the room and running here and there and appellant-Heera Lal holding
a Hasiya (sickle) in his hand was assaulting them. He further
stated that his wife Smt. Lata Devi opened the outer door of the
house and the witnesses came in the verandah. The room where the
incident occurred had a window in this verandah. The witnesses
peeped through the window and saw that head of Suraj Kumar was
lying chopped of; eldest daughter of appellant-K. Sejal was also
lying in a pool of blood. The other two children were still alive
and they were being assaulted by appellant with sickle. They sustained
injuries and fell down on the floor of the room. The witnesses
shouted for help. Accused-appellant after inflicting injuries
on his wife and three children started inflicting Hasiya blows
on his own person. The electric bulb was throwing light in the
room. On the alarm raised by the witnesses many persons from neighbourhood
arrived and with their help door of the room where the incident
occurred was got opened. It was found that Smt. Suraj Kumari and
her three children were already dead. However, appellant was crying
in pain. Blood stained sickle was also lying near him which this
witness picked up. On being asked by the witnesses as to what
has happened, appellant told them that since he had incurred a
debt of Rs. Ten lacs so he wanted to finish himself and his entire
family. Appellant was then soon removed to Kabir Chaura Hospital
where his injuries were examined and he was admitted. Thereafter
Sachchidanand came back home and himself prepared First Information
Report Ex. Ka 1 in his own handwriting. He then went to police
station with the written report and the sickle which he had picked
up from the room where the incident had occurred. In cross-examination
he stated that he had no knowledge if appellant had borrowed Rs.
Ten lacs and if so from whom. In his presence no one had demanded
money from the appellant. However, he was told of that fact by
appellant himself and his sister Smt. Suraj Kumari. He further
stated that it was not within his knowledge if appellant wanted
to purchase a plot of land in Varanasi. He denied the defence
suggestion that he had told the appellant regarding availability
of land for Rs. Six lacs. He further denied that on 23-1-1999
he had informed appellant to come with Rs. Six lacs and accordingly
appellant had come to his house on 24-1-1999 with Rs. Six lacs
which the appellant gave to him. It was suggested to this witness
that in order to usurp appellant's money the entire family of
appellant was done to death by this witness and his family members
but the witness denied this suggestion.
P.W. 2 Smt. Suman Kumari, is the younger sister of deceased-Saroj
Kumari. He stated that on the night of occurrence she was sleeping
in her own room while her brother-in-law, (appellant), her sister
and their three children were sleeping in the outer most room
of the house. At about 5 in the morning she woke up on hearing
cries whereupon she along with her brother Sachchidanand and his
wife Smt. Lata Devi reached at the door of the room where appellant
and his family were sleeping. She fully supported P.W. 1 Sachchidanand
and stated that from the window of the room she was that her sister
Suraj Kumar was lying in a pool of blood on the cot, Km. Sajal
was also lying in a pool of blood and the appellant was assaulting
his two other children. Seeing this ghastly incident she was so
shocked and terrified that she did not enter into the room where
the incident occurred.
P.W. 3 Lata Devi is wife of P.W. 1 Sachchidanand. She also testified
and narrated the entire facts as have been deposed by P.W. 1 Sachchidand.
She has also specifically stated that when her husband asked the
appellant about the incident he told him that he was in debt of
Rs. Ten lacs and, therefore, he decided to finish himself and
his entire family.
It was submitted by learned counsel for the appellant that as
per the evidence of the witnesses the appellant committed the
murder of his wife and three children and also attempted to finish
himself for the reason that he had incurred a debt of Rs. Ten
lacs, but there is no evidence on record to establish this motive.
It was further submitted by the learned counsel for the appellant
that it was highly improbable and unnatural that appellant would
have gone to his in-law's place simply to kill his own wife and
three children there. If he had such an intention he could have
carried out his plan easily at his own house. We have duly considered
the submissions of learned counsel for the appellant but find
no weight therein. It is true that the Investigating Officer did
not try to collect evidence as to whether in fact appellant had
borrowed Rs. Ten lacs and if so from whom but this lapse on the
part of Investigating Officer will have no adverse effect on the
veracity of the prosecution case. It has come in the statement
of P.W. 1 Sachchidanand and his wife P.W. 3 Smt. Lata Devi that
as soon as the witnesses entered into the room of incident, Sachchidanand
inquired from appellant about the incident whereupon appellant
himself told them that he was in debt of Rs. Ten lacs which he
was unable to pay and therefore, he had decided to finish himself
and his entire family. This fact was even mentioned by Sachchidanand
in the F.I.R. Ex. Ka 1 which he lodged at the police station within
a short period. There is nothing on record to indicate that Sachchidanand
and his wife Smt. Lata Devi had any animus or other reason to
depose falsely against the appellant. It was suggested to P.W.
1 Sachchidanand that appellant had come to his house with an amount
of Rs. Six lacs to purchase land as was suggested to him by Sachchidanand
and that money was given to Sachchidanand and, therefore, with
a view to usurp the money, murders were committed and appellant
was also injured. There is no material on record whatsoever to
indicate that the appellant was having Rs. Six lacs when he arrived
at the house of Sachchidanand. To us there seem to be no grain
of truth in this suggestion of the defence. Had the incident occurred
for the reason as stated by the appellant, he would have been
the main target of assailants yet surprisingly he alone survived
and was not given murderous assault, though his innocent wife
and three minor children were butchered in a most cruel manner.
If Sachchidanand and his other family members were real murderers,
it does not sound to reason that they would even kill three minor
innocent children of whom the youngest was of the age of six years.
In that event P.W. 2 Km. Suman Kumari, real younger sister of
the deceased-Suraj Kumar would have been the last person to depose
against the appellant. So far as the argument of learned counsel
for the appellant that it was highly unnatural that the appellant
would have come to his in-law's place to kill his entire family
there, is concerned, it is not easy to find out what actually
operated in the mind of the appellant before committing the crime
in question. There could be various reasons which could be known
only to the appellant and none else at to why the appellant selected
to carry out his design only at the place of his in-laws. It is
not possible to lay hands over them. However, we may mention here
that undisputedly one of the daughter of the appellant was already
staying at the place of appellant's in-laws even before the occurrence
in question. The appellant as per his own statement given to the
witnesses had decided to finish his entire family including the
said daughter. Who knows for this reason he carried out his plan
at his in-laws place as he wanted to kill that daughter also.
Another reason which strikes us could be that the appellant might
have selected his in-laws place so that dead bodies of his entire
family could well be attended and cremated. In any view of the
matter to fasten guilt on accused appellant, we do not think it
necessary to probe any further about the reason as to why crime
was committed by appellant at his in-laws place and not any other
place.
All the three prosecution witnesses undoubtedly are inter-related
with each other but their presence in their own house at 5 in
the morning was most natural and probable. They have given a vivid
account of the incident and their evidence gets full corroboration
from the medical evidence. It is further corroborated by the fact
that sickle Ext. 1 with which assault was made by the appellant
was picked up by P.W. 1 Sachchidanand from the place of occurrence
and was handed over to police when First Information Report was
lodged. P.W. 1 Sachchidanand identified the sickle in Court and
stated on oath that assault was made by the same weapon. Dr. S.
K. Rai P.W. 4 specifically stated that ante-mortem injuries of
all the deceased persons were of sharp edged weapon like Hasiya.
P.W. 9 Dr. Arvind Kumar who had medically examined the injuries
of appellant has stated that injuries of appellant were of sharp
edged weapon. Hasiya (sickle) Ex. 1 was shown to Dr. Arvind Kumar
and he was asked specifically whether injuries found on the person
of appellant could be caused by that weapon and Dr. Arvind Kumar
gave his opinion in affirmative. Dr. Arvind Kumar further stated
that all the injuries of appellant could be self-inflcited. A
perusal of injury report of appellant Ex. Ka 23 leaves no room
for doubt that the injuries were self-inflicted. Injury Nos. 1,
2 and 3 were on left leg and left thigh. Injury No. 4 was again
on left side of face near angle of mandible. Injury No. 5 was
on front of neck. Injury Nos. 6 to 10 were on right side of back
of neck. The seat of injuries and the force with which they were
caused support the prosecution case that those injuries were caused
by appellant himself when he made an attempt to finish himself.
Had the murders been committed by any other person or persons,
appellant would not have been left with either skin or muscle
deep injuries, particularly when other deceased persons were butchered.
Suraj Kumari had two chop incised wounds, first one was a 36 cm.
x 6 cm. chop incised wound which had cut major vessels of neck,
trachea, oesophagus, soft tissues cranial vertebrae, right sterno
clavicular joint also 4, 5 and 6th vertebrae and spinal cord.
Injury No. 2 would show that except right thumb and right small
finger all other three fingers were completedly chopped from carpo
phalangeal joint. Similarly a number of chop incised injuries
were caused to Kumari Priya including on neck and head. All the
fingers of right palm had been cut completely and found missing.
Km. Sajal had also sustained 7 chop incised injuries. Prince,
a child of six years of age, had also sustained six chop incised
injuries. It would thus appear that the assailant who had caused
injuries on the four deceased persons was merciless in inflicting
blows with Hasiya. Injuries were inflicted in such a manner as
to make sure that the victims had no chance of survival. If that
was the situation, it does not sound to reason that the appellant
would have been spared with skin or muscle deep injuries with
no internal damage. All the injuries found on the person of appellant
were within the reach of appellant's right hand. No injury found
on his person was out of reach of appellant's own hand. It is
of common knowledge that where a person himself strikes blows
on his own person, he cannot inflict injuries with a considerable
force on account of natural phenomenon of reflex action. Therefore,
though the appellant intended to kill himself and even tried to
inflict some blows on the back of right side of his neck but none
of them entered very deep so as to cause internal damage which
could prove fatal. The medical evidence brought on record thus
fully corroborates the ocular testimony of the three prosecution
witnesses produced at the trial. The blood stained Hasiya was
also sent for serologist report. However, no definite opinion
could be given as blood had disintegrated when the weapon was
examined by serologist. That, however, would not weaken the prosecution
case in any manner.
The prosecution case that appellant committed the murder of his
wife and three children further gets support from the fact that
on the night of occurrence appellant had slept with his wife and
three children in that very room where the dead bodies were found.
The tell-tale signs of violence were visible all over the room.
It is admitted to appellant that he had come at Sachchidanand's
house one day prior to the date of incident. It is also not denied
by him that he was present in the room on the night of occurrence
with his wife and three children. According to the witnesses the
door of room where incident occurred was chained from inside.
It is nobody's case that any other person was also sleeping in
the same room. It is also in evidence that after witnessing the
ghastly murders, the inmates of the house with the help of their
neighbours broke the door of the room and found appellant present
in that room in an injured state. He was crying in pain. He was
soon removed to hospital where his injuries were examined at 6.50
a.m. by Dr. Arvind Kumar, P.W. 9. A perusal of injury report Ex.
Ka 23 further shows that Heera Lal appellant was carried to hospital
by Sachchidanand, P.W. 1. Had Sachchidanand been the person responsible
for committing murders, he would have been the last person to
remove appellant-Heera Lal for medical aid so that his life could
be saved. This circumstance goes a long way in support of the
prosecution case. Since appellant is brother-in-law of Sachchidanand,
it was most natural for Sachchidanand to have removed him to hospital
for immediate medical help for saving his life as he was found
bleeding. This circumstance completely rules out the allegation
of appellant that Sachchidanand had a hand in the commission of
murders of four persons. It is well settled that a criminal trial
is not like a fairy tale wherein one is free to give fight to
one's imagination and fantasy. In arriving at the conclusion about
the guilt of the accused, the Court has to judge the evidence
with the yardstick of probabilities, its intrisic worth and the
animus of witnesses. Although the benefit of every reasonable
doubt is to be given to the accused, the Court should not at the
same time reject evidence which is ex facie trustworthy on grounds
which are fanciful or in the nature of conjectures. On a close
scrutiny of evidence on record, we find no sufficient ground to
reject the testimony of the three eye-witnesses examined at the
trial and they in our opinion are wholly reliable and trustworthy.
Prosecution also produced P.W. 10 Shri Arvind Kumar Pandey, Executive
Magistrate. He proved statement of appellant recorded by the said
witness under S. 164, Cr. P.C. as Ex. Ka 24. Before this witness,
appellant had stated that he was in debt of about 8-9 lacs of
rupees, therefore, he has committed murder of his wife and children
with sickle and made an attempt to kill himself as he thought
that if he would not remain alive how and by whom his wife and
children would be fed and maintained. Learned Sessions Judge has
placed reliance on this piece of evidence also. It was argued
by appellant's-counsel that Ex. Ka 24 cannot be read in evidence
either as a dying declaration or as a confession of appellant.
We find substance in this submission of the learned counsel for
the appellant. As the appellant has survived, the aforesaid statement
cannot be read in evidence as his 'dying declaration'. The same
cannot also be treated as a judicial confession, because it has
neither been recorded by a Judicial Magistrate nor in accordance
with the procedure laid down under S. 364 of the Cr. P.C. Even
if this piece of evidence is left out from consideration, the
prosecution case still stands established beyond doubt on the
impeaching and trustworthy evidence of the three prosecution witnesses
and the circumstances appearing in the case.
On a careful scrutiny of evidence on record, we have no hesitation
in affirming conclusion of the trial Court that it has been firmly
established beyond doubt that it was appellant alone who committed
murder of his own wife and three children by sickle Ext. I at
the time, place and in the manner alleged by the prosecution.
It has also been established that after committing the murders,
appellant made an attempt to commit suicide by inflicting injuries
on his own person by the same weapon with which he had committed
murder of his wife and three children. The appellant's conviction
under Ss. 302 and 309, I.P.C. and, therefore, maintained.
The next question that arises for serious consideration is whether
imposition of death penalty in the facts and circumstances of
the case is justified ?
Under the old Code of Criminal Procedure ample discretion was
given to Courts to pass death sentence as a general proposition
and the alternative sentence of life term could be awarded in
exceptional cases and that too after advancing special reasons
for making departure from the general rule. The new Code of 1973
has entirely reversed the approach. A sentence for imprisonment
for life is now the rule and capital sentence is an exception.
It has also been made obligatory on the Courts to record special
reasons if ultimately death sentence is awarded. A constitutional
Bench of the Supreme Court in the case of Bachan Singh v. State
of Punjab, AIR 1980 SC 898 while upholding the constitutional
validity of the death sentence voiced that as a legal principle
death sentence is still awardable but only in rarest of rare cases,
when the alternative option of lesser sentence is unquestionably
foreclosed. By enacting S. 354(3), Cr. P.C. it has been made obligatory
for the Courts to assign reasons in support of the sentence awarded
to the convict for an offence punishable with death or imprisonment
for life and further ordains that if the Judge decides to award
the extreme penalty of death he shall record special reasons for
doing so. In other words judge is under a legal obligation to
explain objectively about his choice of sentence. The expression
"special reasons" in the context of Sec. 354(3). Cr.
P.C. as expounded in Bachan Singh's case (supra) means "exceptional
reasons" founded on the exceptionally grave circumstances
of the particular case relating to the crime as well as the criminal.
Under the old Criminal Procedure Code, there was no provision
conferring any right on the accused to have a say in the matter
of sentencing. However, a new provision in the form of S. 235(2),
Cr. P.C. has been inserted in the new Code of Criminal Procedure.
In view of catena of decisions of the Apex Court, it is no more
debatable that provision contained in S. 235(2), Cr. P.C. is mandatory
and an integral part of every criminal trial and confers a right
on the convict to be heard on the question of sentence, which
hearing is not confined merely to hearing oral submission of the
accused and/or his counsel but the same extends to giving of an
opportunity to accused to produce before the Court evidence or
other material having a bearing on the question of sentence. For
that matter reference may be made to Santa Singh v. State of Rajasthan,
AIR 1976 SC 2386 and Alaudin Mia v. State of Bihar, 1989 SCC (Cri)
490 : (AIR 1989 SC 1456).
In the present case in spite of well settled law the learned Sessions
Judge, Varanasi, gave a complete go-bye to this mandatory provision
as he merely heard oral submission of the learned counsel for
the appellant on the question of sentence after finding him guilty
under Ss. 302 and 309, I.P.C. The learned Sessions Judge has taken
into his consideration merely the aggravating circumstances while
awarding death sentence without at all adverting to extenuating
and mitigating circumstances. It is well recognised that while
awarding sentence on one hand the Courts are required to keep
in mind that the offender of the crime is suitably and adequately
punished and the society's cry for justice and judicial conscience
get satisfied, while on the other hand the Courts must also consider
a variety of factors including mitigating and extenuating circumstances.
For arriving at a just conclusion on this sensitive issue neither
aggravating circumstances can be ignored nor mitigating circumstances
overlooked and this task assumes a greater proportion when the
Court is called upon to select one of the two alternative sentences
like death penalty and life term.
The learned Sessions Judge committed a grave error in law in not
giving an opportunity of hearing to the accused as contemplated
under S. 235(2), Cr. P.C. We, therefore, called upon the appellant
at the appellate stage and gave him that opportunity. He was specifically
asked that he has been found guilty under S. 302 of the I.P.C.
for committing murder of his wife Smt. Suraj Kumari, daughters,
Sajal and Priya and son Prince and what he had to say on the question
of sentence. The appellant stated this much that his entire family
has been finished. His age at the time of occurrence was about
36-37 years. He was also asked whether he would like to produce
material or evidence in relation to the question of sentence,
to which the appellant replied in negative.
We also heard learned counsel for the parties on the question
of sentence. In the present case appellant has been found guilty
of committing the murder of his wife and three minor children.
In the case of Anshad v. State of Karnataka (1994) 4 SCC 381 it
was held that the Court must be alive to the legislative changes
introduced in 1973 through S. 354(3), Cr. P.C. Death sentence,
being an exception to the general rule should be awarded in the
"rarest of rare cases" for "special reasons"
to be recorded after balancing the aggravating and mitigating
circumstances, in the facts and circumstances of a given case.
The number of persons murdered is a consideration but that is
not the safe and determining consideration for imposing death
penalty. While deciding the question of appropriate sentence,
the Court must keep in view the nature of the crime, the brutality
with which it was executed, the circumstances in which crime was
committed, the antecedents of the accused, the weapons used etc.
It is neither possible nor desirable to formulate a catalogue
of such factors and they depend upon case to case.
In the case of Balraj v. State of U.P. (1994) 3 JT SC) 649 : (AIR
1995 SC 1935) four members of a family were murdered and the trial
Court awarded death sentence. The Apex Court reduced the sentence
of death to imprisonment for life on the conclusion that while
committing the murders the accused was under the influence of
extreme mental and emotional disturbance as such he could not
be said that he would be a menace to the society, if allowed to
live.
In the present appeal, even as per the prosecution case appellant
committed the murders of his wife and three children and also
wanted to kill himself as he had incurred a debt of Rs. Ten lacs.
It is in the evidence that as soon as the witnesses entered into
the room where the appellant belaboured his wife and three children,
the appellant was also found lying injured and crying in pain.
When he was questioned about the incident he immediately told
the witnesses that since he was in debt of Rs. Ten lacs which
he was unable to repay, he wanted to kill himself and his entire
family as there was no one who could look after his family after
his death. The prosecution agency could not bring on record any
other reason for which the murders were committed. It is thus
apparent that the appellant was in great stress and frustration
and his mental condition was greatly disturbed. Whatever he did,
was done in frustration and in mental and emotional disturbance.
This vital and important mitigating circumstance cannot be overlooked
merely for the reason that in this case four murders were committed
in a brutal and cruel manner. We cannot lose sight of the fact
that the appellant himself tried to commit suicide and inflicted
number of injuries on his own person with the same weapon with
which killed his own wife and three children, that further reflected
his mental disturbance. In our opinion in the facts and circumstances,
the case does not fall within the category of 'rarest of rare'
cases and it cannot be said that imposition of lesser sentence
of life term is altogether foreclosed. We therefore, reduce the
death sentence to imprisonment for life.
For the reasons assigned above while affirming the conviction
of the appellant under S. 302, I.P.C. we set aside the sentence
of death imposed by the trial Court and reduce the same to imprisonment
for life. The appellant is further sentenced to three years R.I.
under S. 309, I.P.C. Both the sentences shall run concurrently.
To this extent the appeal is allowed. The appellant is in jail
and shall be kept there to serve out the sentences as modified
by this Court. Reference made by the learned Sessions Judge is
rejected.
Appeal partly allowed.
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