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Tuesday, September 27, 2016

he has committed murder of his wife and five daughters on 19.02.2012 between 10.00 and 11.00 p.m. in his house.= mitigating circumstances in the present case in the light of law laid down by this Court on the point. In Bachan Singh v. State of Punjab[10], in paragraph 206, this Court has given examples of some of the mitigating circumstances which include the probability of the accused not committing criminal acts of violence as would constitute a continuing threat to society, and the probability that the accused can be reformed and rehabilitated. Both the courts below, in my opinion, appear to have been influenced by the brutality and the manner in which the crime is committed. But this Court cannot ignore the fact that there are no criminal antecedents of the appellant. Also, it cannot be said that he is continuing threat to the society or that he cannot be reformed or rehabilitated. It is also pertinent to mention here that the accused is from socially and economically disadvantaged strata of the society. Therefore, considering all the facts, circumstances and the established principle of law laid down by this Court, in the present case, sentence of imprisonment for life would meet the ends of justice.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NO(S).162-163 of 2014


DHAL SINGH DEWANGAN                                    ..... Appellant
                                     Versus
STATE OF CHHATTISGARH                                   …. Respondent

                               J U D G M E N T

Uday Umesh Lalit, J.


These appeals by special  leave  challenge  the  judgment  and  order  dated
08.08.2013 passed by the High Court of Chhattisgarh at Bilaspur in  Criminal
Reference No.4 of 2013 and in Criminal Appeal No.563 of 2013  affirming  the
conviction of the  appellant  under  Section  302  IPC  and  confirming  the
sentence of death awarded by the Sessions  Judge,  Durg  in  Sessions  Trial
No.96 of 2012.  The appellant was awarded death sentence on six  counts  for
having caused the deaths of his  wife  and  five  daughters  on  19.02.2012.
While granting special leave to appeal by order dated 17.01.2014 this  Court
stayed the execution of death penalty  till  the  disposal  of  the  present
appeal.

2.    The appellant along with his wife Thaneswari aged about 32  years  and
five daughters, namely, Nisha, Lakshmi, Sati, Nandini and Sandhya, aged  15,
14, 13, 8 and 5 years respectively and his mother Kejabai (examined as  PW-6
in  the  trial)  was  residing  in   Village   Mohandipat,   P.S.   Arjunda,
Chhattisgarh. Their house, a single storey  structure  with  five  rooms,  a
verandah and a courtyard, opened in a gali.  Opposite to  this  house,  were
the houses of Aman  Dewangan,  Khemlal  Dewangan  and  Derha  Dewangan.   On
either side  of  their  house  the  immediate  neighbours  were  Bhan  Singh
Dewangan on one side and Yogendra Sahoo on the other.   The  appellant  with
his wife and two daughters had gone  to  attend  a  marriage  at  Nagpur  on
11.02.2012 and had returned to the village at about 4-5 p.m. on  19.02.2012.
 After having dinner everyone had gone to sleep by about  8:00  p.m.  Nisha,
Lakshmi, Sati and Nandini were with their grandmother Kejabai  in  one  room
while the appellant,  his  wife  and  daughter  Sandhya  had  slept  in  the
adjoining room.

3.    According to the prosecution, at  about  1:30  a.m.  on  20.02.2012  a
report vide General Diary Entry No.671 was made by PW-1 Ishwar  Pradhan  and
PW-2 Santosh Kumar, Village Kotwar.  The entry  Ext.P-37  was  certified  in
the General Diary by PW-13, Sub-Inspector Krishna Murari Mishra and  was  to
the following effect:
      “The information is related  to  the  Station  Officer,  K.M.  Mishra,
Kotwar and Ishwar Pradhan s/o Avadh Pradhan, age 38 years,  R/o  Mohandipat,
are present at the police station  Mohandipat  and  stated  that  sounds  of
shouting are coming out from  the  house  of  the  Dhal  Singh  Dewangan  of
village Mohandipat so that it is expected that  incident  like  beating  has
taken place inside the house. In order to verify the above said incident,  I
departed to the place of occurrence along with my  staff,  1373,  358,  252,
1316, R. 683, 1512, 664 mayak 320 and handed over the  work  of  the  police
station to the HCM -1118.

                                                              Sd/- Illegible
                                                    Station Officer Arjunda,
                                                 Distt. Balod, Chhattisgarh”


4.    According to the  prosecution,  the  police  immediately  reached  the
village and thereafter recorded Dehati Nalisi Ext.P-18 at  the  instance  of
PW-6 Kejabai who allegedly informed that at about 10:00 p.m.  on  19.02.2012
she woke up after hearing cries of her daughter-in-law Thaneshwari  and  had
thereafter seen the appellant attacking his wife and five daughters  with  a
sharp edged object.  This Dehati Nalisi Ext.P-18 was recorded at about  3:00
a.m. on 20.02.2012, whereafter PW-13  Sub-Inspector  Krishna  Murari  Mishra
sent dead bodies of Thaneshwari, Nisha, Lakshmi, Sati, Nandini  and  Sandhya
to  the  mortuary  at  Gunderdehi.   According  to  PW-13,  the  bodies   of
Thaneshwari, Nisha, Lakshmi, Sandhya and Sati were lying in  a  room  marked
as Room No.4 in the site map Ext.P-25 and the appellant was found  lying  in
one corner of the same room in an unconscious position with  an  iron  knife
lying near his left hand.  The body of Nandini was lying in  Room  No.1,  as
mentioned in the site map Ext.P-25.  PW-13 also sent  the  appellant  in  an
ambulance to Primary Health Centre, Arjunda with a constable.

5.    PW-7 Dr. Ajay Pal Chandrakar, Medical Officer, Primary Health  Centre,
Gunderdehi, conducted post-mortem on the dead  bodies  of  Sati,  Nisha  and
Sandhya on 20.02.2012.  The post-mortem began at 10:40 a.m.
a]    In his post-mortem report Ext.P-27, he  found  following  injuries  on
the dead body of Sati:
“(i)  One deep incised wound at the back side of joint of skull and neck  in
the size of 6” x 3”.
One incised wound over right hand at the base of  middle  finger  and  index
finger to wrist joint, of size 5” x  2.5”.”

Both the injuries were caused by sharp edged weapon. In his  opinion,  cause
of death was cardio respiratory arrest due to excessive bleeding on  account
of the said injuries. All the injuries were ante mortem and  the  death  was
homicidal in nature.


b]    PW-7 also conducted post-mortem on the body of  Nisha  and  found  the
following injuries:

“(i)    One deep incised wound at the joint of  skull  and  neck  region  of
size 7” x 4”.
One incised wound at the joint of right hand wrist of size 4” x 3”.
One incised wound below the right hand elbow joint of size 3” x 1”;
One incised wound over right arm of size 2” x 2”.”

All the injuries were ante mortem and caused by sharp  edged  weapon.  Cause
of death was opined as cardio respiratory arrest due to  excessive  bleeding
on account of the said injuries and the death was homicidal in nature.

c]    PW-7 thereafter conducted post-mortem  on  the  body  of  Sandhya  and
found one incised wound on the back of neck of the deceased at the joint  of
skull in the size of 6” x 2”, from the left to right  side  of  neck  region
and all blood vessels were cut. He  opined  that  the  cause  of  death  was
excessive bleeding on account of  above  injury  and  shock  due  to  cardio
respiratory arrest. All the injuries  were  ante  mortem,  caused  by  sharp
edged weapon and death was homicidal in nature.


6.    On the same day, PW-14 Dr. Chandrabhan Prasad, Block Medical  Officer,
Community Health Centre Gunderdehi performed post-mortem on  the  bodies  of
Thaneshwari, Lakshmi and Nandini.

a]    PW-14 vide post-mortem report Ext.P-64 noticed the following  injuries
on the dead body of Thaneshwari:
Deep incised wound  below  left  lower  costal  region  of  size  1”  x  ¼”,
intestines visible through wound;
Deep incised wound below right costal region of size  2”  x  1”  horizontal,
intestines visible;
Deep incised wound over left lower costal region horizontal, of  size  2”  x
½”
Deep incised wound over left dorsal hand of size 3” x 2” horizontal
Deep incised wound over left axillary fossa of size 1” x ½”
Deep incised wound over right dorsal hand of size 3” x ½” horizontal
Deep incised wound over left temporal region of skull of size 2” x ½”
Deep incised wound over right dorsal and palm hand of size 5” x  4”,  carpal
bone cut;
Deep incised wound over left side of nose
Deep incised wound over left eyebrow obliquely placed upto nose of  size  4”
x 2”.”

      According to him, the cause of death was acute hemorrhagic  shock  due
to multiple injuries, all the injuries were ante mortem and  the  death  was
homicidal in nature.

b]    He also conducted autopsy over the dead body of  Laxmi  and  in  post-
mortem report Ext.P-65, he noticed the following injuries:
Deep incised wound over right dorsal hand of size 2” x  ½” x ½”, whole  face
and hand blood stained
Deep  incised wound over left buttock of size 2” x ½”
Deep incised wound over left cheek of size 1” x  ½”
Deep incise wound over right nose upto ear
Deep incised wound over right wrist of size 1” x  ½”
Nape of neck 50% cut
Deep incised wound over right face of size 2” x ½”
Deep incise wound over right shoulder of size 1” x ½”.”

The cause of death was acute hemorrhagic shock  due  to  multiple  injuries,
all the injuries were ante mortem and the death was homicidal in nature.

[
c]    He also conducted postmortem over the dead body of Nandini vide Ext.P-
66, wherein he found that there was one deep incised  wound  over  occipital
region of size 5” x ½” x ¼”. The cause of death was acute hemorrhagic  shock
due to head injury which was ante mortem and  the  death  was  homicidal  in
nature.


7.    Dehati Nalisi Ext.P-18 recorded at 3:00 a.m. led to  the  registration
of FIR Ext.P-51 dated 20.02.2012 bearing No.18 of 2012 at about  4:10  p.m..
On 20.02.2012 the appellant was brought back to the police station at  about
6:30 p.m. whereafter vide Ext.P-16 the clothes of  the  accused  which  were
stated to have blood-stains were taken in custody. The accused was  arrested
vide arrest memo Ext.P-62 on the same day.

8.    During investigation, statements of various witnesses  were  recorded.
On 06.03.2012 PW-6 Kejabai was produced before  Judicial  Magistrate,  First
Class, Gunderdehi, at the request of the  police  to  record  her  statement
under Section 164 of Code of Criminal Procedure (  ‘The  Code’  for  short),
which statement was recorded as under:
      “States on affirmation…  my  name  is  Smt.  Kejabai  w/o  Dan  Singh,
Occupation-Agriculture/Labour,  R/o  Mohandipat,   Police   Station-Arjunda,
District-Balod (Chhattisgarh).

On oath:

(1)   Last month about on date 12-13, my son  and  my  son’s  wife  went  to
Nagpur at marriage function. After 8-10 days, they came to Mohandipat  being
dispute. They went to  Pallekalan  from  there.  Thereafter,  they  came  to
Mohandipat at 4:45 p.m. in the evening. That day was  Sunday.  After  taking
meal and all slept, at night about 10 p.m.  I  heard  a  sound  like  a  cat
howling. I afraid and went towards  daughter-in-law’s  room.  I  saw  there,
dead body of younger child. Thereafter, I  ran  away  shouting.  I  returned
home yet. I came together some people and saw the son was  fainted  and  saw
the dead body of children. I want to say just this.

Typing has done as per my direction Narrator is correct & accepted.

              Sd/- Illegible                    Sd/- Illegible
                    06.03.2012                          06.03.2012
                 Srikant Srivastava                      Srikant Srivastava
                 J.M.F.C., Dondalohara          J.M.F.C., Dondalohara
                 Dist. Chhattisgarh                      Distt. Chhatisgarh

 I, Kejabai Dewangan have signed voluntarily, read out and understood.”

      Thus, as against the version in  Dehati  Nalisi  Ext.P-18  implicating
the  appellant,  her  statement  before  the  Magistrate  did  not  directly
attribute anything to the appellant.

9.    On 19.03.2012 a sealed packet containing  an  iron  knife  along  with
requisition Ext.P-61 was sent to PW-14 Dr. Chandrabhan  Prasad  seeking  his
opinion whether  the  injuries  suffered  by  deceased  Thaneshwari,  Nisha,
Lakshmi, Nandini, Sati and Sandhya could be caused by that  knife.   It  was
of iron metal with total length of 40 cm and the length of the blade  was  5
cm.  The knife was stained with blood.  A  report  in  the  affirmative  was
given by PW-14 on the back  side  of  the  requisition  Ext.P-61  under  his
signature.

10.   After completing the investigation, charge-sheet  Ext.P-74  was  filed
on 27.04.2012  against  the  appellant  for  the  offence  punishable  under
Section 302 IPC on six counts.  The prosecution  examined  14  witnesses  in
support of his case, the noteworthy being:-
      I.    PW-1 Ishwar Pradhan Sarpanch of the village stated  that  around
10:30 p.m. on 19.02.2012, PW-2 Santosh, Village Kotwar  came  to  his  house
and told  him  that  the  appellant  had  killed  his  wife  and  daughters.
Thereafter, PW-1 reached Gandhi Chowk (stated to be at  a  distance  of  100
yards from the house of the appellant)  where he found PW-6 Kejabai  sitting
in the square with PW-2 Santosh Kumar, PW-3  Neel  Kanth,  PW-5  Dan  Singh.
According to the witness, PW-6 Kejabai told  them  that  the  appellant  had
killed his wife and children whereafter  they  went  to  the  house  of  the
appellant and saw that blood was lying near the door  of  the  room  of  the
appellant.  They locked  the  door  of  the  house.  Then  along  with  PW-2
Santosh, Village Kotwar and one Chait Ram Sahu, this  witness  went  to  the
police station Arjunda and gave information which was extracted  in  General
Diary at Ext.P-37.   The  witness  further  stated  that  after  the  police
reached the village, they entered the house and took the  appellant  to  the
hospital in an ambulance as he was in an unconscious condition.

            Thus, the primary source of information of the witness was  PW-2
Santosh, Village Kotwar and after reaching Gandhi Chowk he had  heard  PW-6,
Kejabai implicating the appellant. Though he  went  to  the  police  station
thereafter, Ext.P-37 extract of the General Diary Entry  does  not  disclose
any awareness of the essential features or details of the crime or the  fact
that the murders had taken place.

      II.   PW-2 Santosh,  village  Kotwar,  stated  that  Jeevan  Dewangan,
neighbour of the appellant came to his house at about 11:00  p.m.  and  told
him that the appellant had murdered his wife  and  daughters  with  an  iron
knife, whereafter he along with PW-1 Ishwar Pradhan and PW-3 Neel Kanth  had
gone to the house of the appellant.  They found the  wife  and  children  of
the appellant lying dead and the  appellant  in  an  unconscious  condition.
Thereafter, he along with PW-1 Ishwar Pradhan and  one  Vijay  went  to  the
police station and gave relevant information.  According to the witness,  by
the time they came back, the police had already reached the village and  PW-
6 Kejabai had disclosed to the police that it  was  the  appellant  who  had
killed his wife and five children.  The  witness  further  stated  that  the
appellant was moved to the hospital in an ambulance as he  was  unconscious.


            The source of  information  for  this  witness  was  one  Jeevan
Dewangan.  Going by the version of this witness, he and  PW-1  were  already
aware that the wife and children  were  lying  dead  in  the  house  of  the
appellant before they reached the police station.  However,  extract  Ext.P-
37 of the General Diary does not disclose any such knowledge or awareness.

      III.  PW-3 Neel Kanth stated that at about 12.00  midnight  Ganga  Ram
Sahu and Chait Ram knocked the door of his house and informed him  that  the
appellant had killed his  wife  and  five  daughters.  The  witness  reached
Gandhi Chowk where he found PW-6 Kejabai crying loudly  that  the  appellant
had killed his wife and five children.  All the  villagers  thereafter  went
to the house of the appellant and found that there were blood stains in  the
verandah.  PW-1 Ishwar Pradhan was then sent along  with  PW-2  Santosh  and
Chait Ram to make a report to the police.   According  to  the  witness  the
police reached the village after an hour and thereafter  they  went  to  the
house of the appellant.  The wife and the children  of  the  appellant  were
lying dead while the appellant was lying in an unconscious condition.

            According to the version of this witness, everyone was aware  of
the fact that the murders had taken place.  Yet, the reporting  vide  Ext.P-
37 is otherwise.

      IV    PW-4  Anjor  Singh  Dewangan,  father-in-law  of  the  appellant
stated that he had come to know from the villagers that  the  appellant  had
killed his wife and five daughters. This witness did not  say  that  he  had
heard PW-6 Kejabai implicating the appellant.

      V     PW-5 Dan Singh Dewangan, step father  of  the  appellant  stated
that at about 12 midnight PW-2 Santosh, Chait Ram and  Ganga  Ram  came  and
called him. They also awoke PW-1 Ishwar Pradhan.  According to  the  witness
he went towards the house PW-6 Kejabai along with PW-1  Ishwar  Pradhan  and
found that PW-6 Kejabai was crying aloud that the appellant had  killed  his
wife and five daughters.  According to the witness after  seeing  the  place
of incident PW-1 Ishwar Pradhan, PW-2 Santosh, Village Kotwar and Chait  Ram
went to the police station to lodge the report.  This  witness  also  stated
that when the police came they found the wife  and  five  daughters  of  the
appellant lying dead and the appellant was lying unconscious.

      VI    PW-6 Kejabai in her examination stated as under:

“My son Dhal Singh’s wife’s name is Thaneshwari Bai.   My  son  the  accused
and Thaneshwari Bai had five  daughters  whose  names  are  Sandhya,  Nisha,
Laxmi, Sati, Nandini.  My son was involved in the work of cutting &  selling
chicken.  My daughter-in-law Thaneshwari and above  stated  five  girls  are
dead.  They died during Mahashivratri of this year.

Incident occurred about 8 months back.  Before the  incident,  my  son  Dhal
Singh, daughter-in-law Thaneshwari and  their  two  daughters  had  gone  to
Nagpur to attend the marriage of brother-in-law and sister-in-law of my  son
and they came back on Sunday.  They came back to  home  at  around  5.00  O’
clock in the day.  Incident occurred on same day.  We went to sleep at  8.00
O’clock in the night after taking dinner I and four girls were  sleeping  in
my room.  My son,  the  accused  daughter-in-law  Thaneshwari  and  youngest
daughter Sandhya were sleeping in another room.  I woke up in the night  and
reached to verandah for drinking  water.   I  saw  the  girl  Sandhya  lying
unconscious in the front of room of my son Dhal Singh.  Thereafter,  opening
the door of the house I fled crying outside on the road.  I don’t know  what
I was crying because I was not in conscious state of mind.  As I was  crying
outside like mad, the villagers came there.  I cannot tell the facts  stated
by me to the villagers.  I don’t know if I had  come  back  to  the  village
because I was not in conscious state of mind.”


The aforesaid statement, though  generally  consistent  with  her  statement
under Section 164 of the Code, was against the  assertions  made  in  Dehati
Nalisi Ext.P-18. She was declared hostile and was  permitted  to  be  cross-
examined by the public prosecutor.   She  denied  having  stated  about  the
incident to PW-1 Ishwar Pradhan, PW-2  Santosh,  Village  Kotwar,  PW-5  Dan
Singh and to other villagers as well as to  the  police,  as  alleged.   She
accepted her statement given under Section 164 of the Code.

11.   The medical evidence on record was unfolded through PW-7 Dr. Ajay  Pal
Chandrakar and PW-14 Dr. Chandrabhan Prasad, as stated  above.   PW-13  Sub-
Inspector Krishna Murari Mishra proved extract of  General  Diary  Entry  at
Ext.P-37 and site map Ext.P-25.  He said that he  had  found  the  appellant
lying in an unconscious condition and had sent him  to  the  Primary  Health
Centre, Arjunda with a constable.  In his statement  under  Section  313  of
the  Code  of  Criminal  Procedure,  the  appellant  claimed  innocence  and
submitted that he knew nothing as he was unconscious.

12.    After  considering  the  evidence  on  record,  the  Sessions  Court,
District Durg by its judgment and order dated 23.04.2013  in  Sessions  Case
No.96 of 2012  found  the  appellant  guilty  of  offence  punishable  under
Section 302 IPC on six counts. Though  the  statement  of  PW-6  Kejabai  in
court had not attributed any criminal act to the appellant, in  the  opinion
of the trial court, her version implicating the appellant, as spoken  to  by
PWs 1, 2 , 3 and 5 would be admissible under Section 6 of the Evidence  Act.
 Placing reliance on those statements of PWs 1,  2,  3  and  5  as  well  as
failure on part of the appellant in not offering  any  explanation  how  the
crime was  committed,  the  trial  court  found  that  the  Prosecution  was
successful in bringing home the case  against  the  appellant.  Having  thus
convicted the appellant on six counts under Section 302 IPC, by  a  separate
order  of  even  date,  the  trial  court  awarded  death  sentence  to  the
appellant, subject to confirmation by the High Court in terms of Chapter  28
of the Code.
13.   The Reference under Section 366 of the Code for confirmation of  death
sentence was registered as Criminal Reference  No.4  of  2013  in  the  High
Court of Chhattisgarh at Bilaspur.   The  appellant  also  filed  an  appeal
against his conviction and sentence vide Criminal  Appeal  No.563  of  2013.
The Reference as well as the appeal were dealt with and disposed of  by  the
High Court vide its judgment and order dated 08.08.2013.   It  was  observed
by the High Court as under:
“23.  Minute examination of the evidence, oral and documentary available  on
record, makes it clear that on 19.2.2012 the  accused/appellant  had  killed
his wife and five daughters by causing them  number  of  injuries  on  their
vital parts by chopper/knife used for cutting hen.

24.   As per deposition  of  Kejabai  (PW-6),  on  the  fateful  night,  the
accused/appellant was the only male member in his house and he was  sleeping
along with his wife  Thaneshwari  and  youngest  daughter  Sandhya,  whereas
Kejabai was sleeping with his four daughters in a separate room and door  of
the house was bolted from inside.  Thus the possibility  of  entry  by  some
stranger in the house of the accused/appellant  is  not  there.   Since  the
accused/appellant was the only inmate  of  the  house,  it  is  for  him  to
explain as to how six dead bodies have been found there.  However,  no  such
explanation has been offered by him in his statement under  Section  313  of
Cr.P.C.  As per Section 106 of the Evidence Act,  it  is  the  duty  of  the
accused to explain the incriminating circumstance proved against  him  while
making a statement under Section 313 of  Cr.P.C.   Keeping  silent  and  not
furnishing  any  explanation  is  an  additional  link  in  the   chain   of
circumstances to sustain the charges against him. Furthermore,  as  per  FSL
report Ex.P/69 blood was found on the clothes of the  accused/appellant  and
the weapon of offence chopper/knife and as per serological  report  Ex.P/72,
the blood present on the clothes and the knife was found to be human blood.

25.   The evidence of Kejabai (PW-6) also makes it clear  that  upon  seeing
the dead body of Sandhya,  she  came  out  of  the  house  screaming.   This
witness has expressed her ignorance as to the things  disclosed  by  her  to
the villagers.  However, from the statements of PW-1, PW-2, PW-3  and  PW-5,
it is apparent that immediately after the incident,  Kejabai  informed  them
that it is the accused/appellant who killed his  wife  and  five  daughters.
These  witnesses  have  categorically  stated  that  immediately  after  the
incident  they  came  to  know  about  the  commission  of  murder  by   the
accused/appellant and they also remained firm in their cross-examination.”

The High Court further found the statements of PWs 1, 2, 3 and 5  admissible
under Section 6 of the Evidence Act and stated as under:
“27.  After minute examination of the evidence of PW-1, PW-2, PW-3  and  PW-
5, we are of the considered view that the same is admissible  under  Section
6 of the Evidence Act as res gestae.  For  these  witnesses,  there  was  no
occasion for concoction or improvement by any means at that  juncture.   The
fact that immediately after seeing the dead body Kejabai  came  out  of  the
house and narrated the incident to the villagers has  been  duly  proved  by
these witnesses.”


It was argued on  behalf  of  the  appellant  that  as  stated  by  all  the
prosecution witnesses including the  Investigating  Officer,  the  appellant
was found in an unconscious condition and was removed to  the  hospital  but
no medical reports were placed on  record  by  the  prosecution.   The  High
Court dealt with the submission as under:
“30.  We also find no force in the argument of  counsel  for  the  appellant
that the police has not produced medical report of the appellant  clarifying
his position as to how he fell  unconscious  when  bodies  of  the  deceased
persons were recovered from his house and what treatment was  given  to  him
in hospital.  It appears that  during  killing  of  six  persons  and  after
seeing their blood, the accused/appellant  might  have  tired  or  lost  his
mental balance. In such  a  situation,  even  if  the  appellant  was  lying
unconscious near the  dead  bodies,  it  hardly  makes  any  difference  for
proving his involvement in commission of the offence.  It is  not  the  case
of the defence that some third person had entered the house,  assaulted  the
appellant and then committed murder of six persons.”



      Having affirmed the conviction of the appellant  as  recorded  by  the
trial court, the High Court observed that the instant case did  satisfy  the
parameters  laid  down  by  this  Court  and  was  “rarest  of  rare  cases”
justifying capital punishment.  The High  Court  thus  confirmed  the  death
sentence awarded to the appellant.

14.    In  this  appeal  challenging  the  correctness  of  the  orders   of
conviction and  sentence,  we  have  gone  through  the  entire  record  and
considered rival submissions. The matter principally  raises  two  questions
(a) whether the statements of PWs  1,  2,  3  and  5  are  admissible  under
Section 6 of the Evidence Act and could be relied upon and (b)  whether  the
circumstances on record satisfy the principles laid down by  this  Court  in
its  various  judgments  as  regards  appreciation   of   cases   based   on
circumstantial evidence.

15.   The evidence of witnesses PWs 1  and  2  discloses  that  the  primary
source of their knowledge about  the  crime  was  Jeevan  Dewangan  who  had
disclosed it to PW-2, who in turn disclosed  it  to  PW-1.   Similarly,  the
source of information about the crime for PW-3, was the disclosure by  Ganga
Ram Sahu and Chait Ram.   Chait Ram had also gone along with PWs 1 and 2  to
the police station.  However, none of these three  persons,  namely,  Jeevan
Dewangan, Ganga Ram Sahu and Chait Ram were  examined  by  the  prosecution.
No  reason  for  their  non-examination  is  placed  on  record.   The  non-
examination of these persons goes to the  root  of  the  matter  and  raises
serious doubts.

16.   According to PWs 1 and 2,  after  receipt  of  information  about  the
crime, they had reached Gandhi Chowk where PW-6  Kejabai  was  crying  aloud
that the appellant had killed his wife and children.  Thereafter PWs  1  and
2 along with Chait Ram went to the police  station  and  at  their  instance
information was recorded in General  Diary  at  Ext.P-37.   The  extract  of
General Diary  Entry  is  completely  silent  about  any  relevant  features
regarding the crime or the role of the appellant and in fact shows  lack  of
knowledge about the crime.  All that it says is that they had  heard  sounds
of shouting coming from the house of the appellant. It is not  the  case  of
the Prosecution, that the recording vide Ext.P-37 was in any way  incorrect.
  The version of PWs 1 and 2 in Court is thus completely  inconsistent  with
the contemporaneous record, namely, extract Ext.P-37.  If  they  were  aware
that the appellant had killed  his  wife  and  daughters  even  before  they
reached the police station, as they now claim in Court, the nature of  their
reporting would  have  been  completely  different.   The  fact  that  their
reporting did not disclose any essential features of the crime  is  accepted
on record and their reporting was also never treated as FIR in  the  matter.
We find it extremely difficult to rely on the testimony of PWs 1 and  2  and
would presently eschew from our consideration the statements  of  these  two
witnesses.

17.   We are now left with PWs 3 and 5.  Even according to PW-3  his  source
of knowledge about the crime was disclosure by  Ganga  Ram  Sahu  and  Chait
Ram.  He further said  that  after  reaching  Gandhi  Chowk  he  found  PW-6
Kejabai was crying aloud that it was the appellant who had killed  his  wife
and five children.  To similar effect is the assertion of PW-5.   These  two
witnesses also claim that the villagers had sent PWs 1 and 2 with Chait  Ram
to make a report to the police.  But unlike PWs 1  and  2,  these  witnesses
themselves had not gone to the police station and  therefore  their  version
needs to be considered independently. The question that  arises  is  whether
such assertions on part of PWs  3  and  5  come  within  Section  6  of  the
Evidence Act and could be relied upon.

18.   Before we deal with the applicability of Section  6  of  the  Evidence
Act to the facts of the present  case,  we  may  quote  the  Section  6  and
illustration (a) below said Section:-
“6.   Relevancy of facts forming part of same transaction. -   Facts  which,
though not in issue, are so connected  with a fact in issue as to form  part
of the same transaction, are relevant whether  they  occurred  at  the  same
time and place or at different times and places.”

                                Illustration

“(a)  A is accused of the murder of B by beating him.  Whatever was said  or
done by A or B or the by-standers at the beating, or so  shortly  before  or
after it as to form part of the transaction, is a relevant fact.”


19.   In Gentela Vijayvardhan Rao and anothr v. State of Andhra  Pradesh[1],
a bus was set on  fire  which  resulted  in  the  death  of  23  passengers.
Statements of two seriously injured fellow passengers were recorded  by  the
Magistrate as it was thought that they might succumb to their  injuries,  in
which event their statements could be pressed into service under Section  32
of the Evidence Act.  Fortunately, they survived.  But while  answering  the
question whether those statements could now be relied upon under Section  6,
this Court found that there was appreciable interval  between  the  criminal
act and the recording of their statements by the Magistrate and as such  the
statements could not be relied upon with the  aid  of  Section  6.   It  was
observed:-
“15.  The principle of law embodied in Section 6  of  the  Evidence  Act  is
usually known as the rule of res  gestae  recognised  in  English  law.  The
essence of the doctrine is that a fact which, though not  in  issue,  is  so
connected with the fact in issue “as to form part of the  same  transaction”
becomes relevant by itself. This rule is, roughly speaking, an exception  to
the general rule that hearsay evidence is not admissible. The  rationale  in
making certain statement or fact admissible under Section 6 of the  Evidence
Act is on account of the spontaneity and  immediacy  of  such  statement  or
fact in relation to the fact in issue. But it is necessary  that  such  fact
or statement must be a part of the same transaction. In  other  words,  such
statement  must  have  been  made  contemporaneous  with  the   acts   which
constitute the offence or at least immediately thereafter. But if there  was
an interval, however slight it may  be,  which  was  sufficient  enough  for
fabrication then the  statement  is  not  part  of  res  gestae.  In  R.  v.
Lillyman2 [2]a statement made by a raped  woman  after  the  ravishment  was
held to be not part of the res gestae on account of some  interval  of  time
lapsing between the act of rape and  the  making  of  the  statement.  Privy
Council while considering the extent up to which this  rule  of  res  gestae
can be allowed as an exemption to the inhibition against  hearsay  evidence,
has observed in Teper v. R.[3] thus:

“The rule that in a criminal trial hearsay  evidence  is  admissible  if  it
forms part of the res gestae is based on the  propositions  that  the  human
utterance is both a fact and a means of communication and that human  action
may be so interwoven with words that the significance of the  action  cannot
be understood without the correlative words  and  the  dissociation  of  the
words from the action would  impede  the  discovery  of  the  truth.  It  is
essential that the words sought to be proved by hearsay should  be,  if  not
absolutely contemporaneous with the action or event,  at  least  so  clearly
associated with it that they are part of the thing being  done,  and  so  an
item or part of the real evidence and not merely a reported statement.”

The correct legal position stated above needs no further elucidation.

16.   Here,  there  was  some  appreciable  interval  between  the  acts  of
incendiarism indulged in by  the  miscreants  and  the  Judicial  Magistrate
recording statements of the victims. That interval,  therefore,  blocks  the
statements from acquiring legitimacy under Section 6 of  the  Evidence  Act.
The High Court was, therefore, in error in treating Exts. P-71 and  P-75  as
forming part of res gestae evidence.”


20.   In  Krishan Kumar Malik v. State  of  Haryana[4],  while  testing  the
veracity of the version of the prosecutrix that she was subjected  to  rape,
the fact that she had ample opportunity and  occasion  to  disclose  to  her
mother and sister  soon  after  the  criminal  act,  in  which  case   their
statements could have lent assurance, was taken into  account.   This  Court
observed as under:-
“33.  As per the FIR lodged by the prosecutrix, she  first  met  her  mother
Narayani and sister at the bus-stop at Kurukshetra but they  have  also  not
been  examined,  even  though  their  evidence  would  have  been  vital  as
contemplated under Section 6 of the  Evidence  Act,  1872  (for  short  “the
Act”) as  they  would  have  been  res  gestae  witnesses.  The  purpose  of
incorporating Section 6 in the Act is to complete the missing links  in  the
chain of evidence of the solitary witness. There is no dispute that she  had
given full and vivid description of the sequence of events  leading  to  the
commission of the alleged offences by the appellant and others upon her.  In
that narrative, it is amply clear that Bimla Devi and Ritu  were  stated  to
be at the scene of alleged abduction. Even though Bimla Devi may have  later
turned hostile, Ritu could still have been examined, or at the  very  least,
her statement recorded. Likewise,  her  mother  could  have  been  similarly
examined regarding the chain of events after  the  prosecutrix  had  arrived
back at Kurukshetra. Thus, they would have been the  best  persons  to  lend
support to the prosecution story invoking Section 6 of the Act.

37.   Section 6 of the Act has an exception to the general  rule  whereunder
hearsay evidence becomes  admissible.  But  as  for  bringing  such  hearsay
evidence within the ambit of Section 6, what is required to  be  established
is that it must be almost contemporaneous with the acts and there could  not
be  an  interval  which  would  allow  fabrication.  In  other  words,   the
statements said to be admitted as forming part of res gestae must have  been
made contemporaneously with the act or immediately  thereafter.  Admittedly,
the prosecutrix had met her  mother  Narayani  and  sister  soon  after  the
occurrence, thus, they could have been the best res gestae witnesses,  still
the prosecution did not think it proper to get  their  statements  recorded.
This shows the negligent and casual manner  in  which  the  prosecution  had
conducted the investigation, then the  trial.  This  lacunae  has  not  been
explained by the prosecution. The prosecution  has  not  tried  to  complete
this missing link so as to prove it, beyond any shadow  of  doubt,  that  it
was the appellant who had committed the said offences.”


21.   The  general  rule  of  evidence  is  that  hearsay  evidence  is  not
admissible.   However, Section 6 of the Evidence Act embodies  a  principle,
usually known as the rule of res gestae in English Law, as an  exception  to
hearsay rule.  The rationale behind this  Section  is  the  spontaneity  and
immediacy of the  statement  in  question  which  rules  out  any  time  for
concoction.  For a statement to be admissible under Section 6,  it  must  be
contemporaneous with the acts which  constitute  the  offence  or  at  least
immediately thereafter.   The  key  expressions  in  the  Section  are  “…so
connected… as to form part of the same transaction”.   The  statements  must
be almost contemporaneous as ruled  in  the  case  of  Krishan  Kumar  Malik
(Supra) and there must be no interval  between  the  criminal  act  and  the
recording or making of  the  statement  in  question  as  found  in  Gentela
Vijayvardhan Rao’s case (Supra).  In the latter case, it was  accepted  that
the words sought to be proved by hearsay,  if  not  absolutely  contemporary
with the action or event, at least should be so clearly associated  with  it
that they are part of such action or event.  This  requirement  is  apparent
from the first illustration below Section 6 which states ….   “whatever  was
said or done…. at the beating, or so shortly before or after it as  to  form
part of the transaction, is a relevant fact.”

22.    Considered  in  the  aforesaid  perspective,  we  do  not  find   the
statements attributed to PW-6 Kejabai by PWs 3 and 5 to  be  satisfying  the
essential requirements.  The  house  of  the  appellant,  according  to  the
record, was at a distance of  100  yards  from  Gandhi  Chowk,  where  these
witnesses are stated to have found  PW-6  Kejabai  crying  aloud.   Both  in
terms of distance and time, the elements of spontaneity and continuity  were
lost. PW-6 Kejabai has disowned and denied having made such disclosure.  But
even assuming that  she  did  make  such  disclosure,  the  spontaneity  and
continuity was lost and the statements cannot be said to have been  made  so
shortly after the incident as to form  part  of  the  transaction.   In  the
circumstances, we reject the evidence sought to be  placed  in  that  behalf
through PWs 3 and 5. Even if we were to accept the version of PWs 1  and  2,
the same would also suffer on this count and will have to be rejected.

23.   We are therefore left with certain pieces of  circumstantial  evidence
and have  to  see  if  those  circumstances  bring  home  the  case  of  the
prosecution.   The  principles  how  the  circumstances  be  considered  and
weighed are well settled and summed up in Sharad Birdichand Sarda  v.  State
of Maharashtra[5] as under:
“153.       A close analysis of this decision would show that the  following
conditions must be fulfilled before a case against an accused  can  be  said
to be fully established:

(1) the circumstances from which the conclusion of  guilt  is  to  be  drawn
should be fully established.

It may be noted here  that  this  Court  indicated  that  the  circumstances
concerned “must or should” and not “may be” established. There is  not  only
a grammatical but a legal distinction between “may be proved” and  “must  be
or should be proved” as was held by this Court in  Shivaji  Sahabrao  Bobade
and another v. State of Maharashtra[6] where the observations were made:

“Certainly, it is a primary principle that  the  accused  must  be  and  not
merely may be guilty before a court can  convict  and  the  mental  distance
between ‘may be’ and ‘must be’ is long and divides  vague  conjectures  from
sure conclusions.”

(2) the facts so established should be consistent only with  the  hypothesis
of the guilt of the accused, that is to say, they should not be  explainable
on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible  hypothesis  except  the  one  to  be
proved, and

(5) there must be a chain of evidence  so  complete  as  not  to  leave  any
reasonable ground for the conclusion consistent with the  innocence  of  the
accused and must show that in all human probability the act must  have  been
done by the accused.

154.  These five golden  principles,  if  we  may  say  so,  constitute  the
panchsheel of the proof of a case based on circumstantial evidence.”


24.   We now consider the circumstances which have weighed with  the  Courts
below:-
a]    The appellant was the only male member residing with his mother,  wife
and five daughters.
b]    The house in question which opened in a gali was  bolted  from  inside
on the fateful night.
c]    The appellant was found lying unconscious in a room where  there  were
five dead bodies with another dead body in the adjoining room.
d]    A knife, which could possibly have caused injuries  to  the  deceased,
was lying next to his left hand.
e]    His clothes – “lungi” to be precise, were found  to  be  having  blood
stains with blood of human origin.
f]    He had offered no explanation how the incident  had  occurred  and  as
such a presumption could be drawn against  him  under  Section  106  of  the
Evidence Act.

      In the face of these circumstances, according  to  the  Courts  below,
the only possible conclusion  or  hypothesis  could  be  the  guilt  of  the
appellant and nothing else. The absence of any explanation on  part  of  the
appellant was taken as an additional link in the chain by the High Court.

25.   In Sharad Birdichand Sarda’s case (Supra), the absence of  explanation
and/or false explanation or a false plea was considered in  the  context  of
appreciation of a case based on circumstantial evidence.  It was observed:-
“150.         The High Court has referred to some decisions  of  this  Court
and tried to apply the ratio of those cases to the present  case  which,  as
we shall show, are clearly  distinguishable.  The  High  Court  was  greatly
impressed by the view taken by some courts, including  this  Court,  that  a
false defence or a false plea taken by an accused  would  be  an  additional
link in the various chain of circumstantial evidence and  seems  to  suggest
that since the appellant had taken a false plea that  would  be  conclusive,
taken along with other circumstances, to prove the case. We might,  however,
mention at the outset that this is not what this Court has  said.  We  shall
elaborate this aspect of the matter a little later.

151.     It is well settled that the prosecution must stand or fall  on  its
own legs and it  cannot  derive  any  strength  from  the  weakness  of  the
defence. This is trite law and no decision has taken a contrary  view.  What
some cases have held is only this: where various links in  a  chain  are  in
themselves complete, then a false plea or a  false  defence  may  be  called
into aid only to lend assurance to the court. In other words,  before  using
the additional link it must be proved that all the links in  the  chain  are
complete and do not suffer from any infirmity. It is not the law that  where
there is any infirmity or lacuna in the prosecution case, the same could  be
cured or supplied by a false defence or a plea which is not  accepted  by  a
court.

161.    This Court,  therefore,  has  in  no  way  departed  from  the  five
conditions laid down in Hanumant case[7]. Unfortunately, however,  the  High
Court also seems to have misconstrued this decision and used  the  so-called
false  defence  put  up  by  the  appellant  as  one   of   the   additional
circumstances connected with the chain. There is a vital difference  between
an incomplete chain of circumstances and a  circumstance  which,  after  the
chain is complete, is added to it merely to reinforce the conclusion of  the
court. Where the prosecution  is  unable  to  prove  any  of  the  essential
principles laid down in Hanumant case , the High  Court  cannot  supply  the
weakness or the lacuna by taking aid of or recourse to a false defence or  a
false plea. We  are,  therefore,  unable  to  accept  the  argument  of  the
Additional Solicitor-General.”


26.   Even otherwise, the fact that the appellant was lying  unconscious  at
the scene of  occurrence  is  accepted  by  all  the  prosecution  witnesses
including the Investigating Officer, who sent the appellant to  the  Primary
Health  Centre  for  medical  attention.   Since  he   was   sent   by   the
Investigating Officer himself, the  prosecution  ought  to  have  placed  on
record the material indicating what  made  him  unconscious,  what  was  the
probable period of  such  unconsciousness  and  whether  the  appellant  was
falsely projecting it. However, nothing was placed on  record.  Neither  any
doctor who had examined him was called as witness, nor any  case  papers  of
such examination were made available.  In  the  absence  of  such  material,
which the prosecution was  obliged  but  failed  to  place  on  record,  his
explanation cannot be  termed  as  false.   The  explanation  that  he  knew
nothing as he was unconscious cannot be called, ‘absence of explanation’  or
‘false explanation’. So the last item in the list  of  circumstances  cannot
be taken as a factor against the appellant.

27.   Coming to the circumstance at Sl. No.(e)    as  mentioned  above,  the
clothes of  the  accused  were  not  seized  immediately  at  the  place  of
occurrence.  He was first sent to the  Primary  Health  Centre  for  medical
attention and later in the day was  brought  back  to  the  police  station,
where the seizure took place.  The seizure memo Ext.P-16  does  not  mention
the word “lungi” but uses the expression “Istamali”. Even if  “Istamali”  is
taken to be ‘lungi’, the Arrest Memo Ext.P-62 mentions  his  clothes  to  be
“Full Pant and Shirt” and further mentions, “nothing found on the person  of
the accused except clothes worn by him”. According to  FSL  report  Ext.P-69
and serological report Ext.P-72 what was sent for examination  and  analysis
was a lungi which was found to be stained with blood of  human  origin.   It
is not clear how lungi could be seized if the appellant was  in  ‘full  pant
and shirt” and there was nothing else on his person.  The constable who  had
taken the appellant to the Primary Health Centre and who could  have  thrown
better light on this aspect, was not examined. Apart from the fact that  the
clothes were not seized immediately at  the  place  of  occurrence,  if  the
appellant was found lying in the room in  an  unconscious  state  with  five
dead bodies around, the possibility that  his  clothes   had  otherwise  got
stained with blood which  was  spotted  everywhere  including  the  verandah
cannot be ruled out.  In our  view,  therefore,  this  circumstance  is  not
conclusive in nature and tendency which  could  be  considered  against  the
appellant.

28.   The site map Ext.P-25 shows the house to be a single storey  structure
with a verandah and court-yard open to sky.  Though the door  of  the  house
which opened in the gali was stated to have been  bolted  from  inside,  the
rooms were not locked and the possibility of  a  person/persons  other  than
the inmates of the house  getting  into  the  house  cannot  be  ruled  out.
Furthermore, the fact that  the  appellant  was  lying  unconscious  and  no
material having been placed on record clearly indicating that the  appellant
was falsely projecting to be unconscious, the hypothesis that the  appellant
could be innocent is a possibility.  The  prosecution  did  not  gather  the
finger prints either in the house or  even  on  the  iron  knife  which  was
allegedly used for committing  the  offence  in  question.   If  the  finger
prints on the knife were to be that of  the  appellant  alone,  such  factor
could certainly have weighed against the appellant.   However,  the  absence
of such conclusive material coupled with other circumstances  on  record  do
suggest reasonable  possibility  of  the  hypothesis  of  innocence  of  the
accused.  The law regarding appreciation of cases  based  on  circumstantial
evidence is clear that the chain of evidence must be so complete as  not  to
leave  any  reasonable  ground  for  the  conclusion  consistent  with   the
innocence of the accused and must exclude every possible  hypothesis  except
the one to be proved namely the guilt of  the  accused.  In  our  view,  the
circumstances at Sl Nos. a, b, c  and  d  mentioned  above  do  not  form  a
complete chain of evidence as not to leave any  reasonable  ground  for  the
conclusion consistent with  the  innocence  of  the  appellant  nor  do  the
circumstances exclude every possible hypothesis  except  the  guilt  of  the
accused.

29.  In the circumstances, we hold that the prosecution,  on  the  basis  of
admissible  evidence  on  record,  has  not  proved  its  case  against  the
appellant.
The appellant, therefore, deserves to  be  acquitted.  Concluding  thus,  we
allow these appeals, set aside the  judgments  of  conviction  and  sentence
recorded by the Courts below against the appellant and  acquit  him  of  all
the  charges  leveled  against  him.   The  appellant  be  set  at   liberty
immediately unless his custody is required in any other case.



……………………………..J.
(Ranjan Gogoi)


……………………………..J.
(Uday Umesh Lalit)
      New Delhi,
      September 23, 2016




                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS. 162-163 OF 2014

Dhal Singh Dewangan                           … Appellant

                                   Versus

State of Chhattisgarh                        …Respondent








                               J U D G M E N T


Prafulla C. Pant, J.


I have the benefit of going  through  the  draft  judgment  of  Hon’ble  Mr.
Justice Uday Umesh Lalit.  With great regard,  I  beg  to  differ  with  his
Lordship, on the point that the prosecution has failed to prove  the  charge
against the appellant.

The prosecution  story,  medical  evidence  on  record,  and  statements  of
witnesses of facts have  already  been  narrated  by  his  Lordship  Justice
Lalit.  Briefly stated, prosecution story  is  that  on  19.02.2012  between
10.00 to 11.00 p.m. the appellant Dhal Singh Dewangan has  committed  murder
of his wife Thaneshwari and five  minor  daughters,  namely,  Nisha,  Laxmi,
Sati, Nandini and Sandhya  with  a  knife.   PW-6  Kejabai,  mother  of  the
appellant, came out of the house at  about  10.30  p.m.  shouting  that  the
accused  is  assaulting  his  wife  and  daughters.   PW-1  Ishwar  Pradhan,
Sarpanch of the village, on receiving  information  about  it  through  PW-2
Santosh Kumar Mahar, went to the spot,  whereafter  he  along  with  Santosh
Kumar Mahar and two others went  to  the  Police  Station,  Arjunda  (Distt.
Balod, Chhattisgarh).  The police, on their information, made Entry No.  671
in the  General  Diary  and  PW-13  Krishna  Murari  Mishra,  Station  House
Officer, rushed to the spot at about 1.30 a.m., i.e. in  the  wee  hours  of
20.02.2012.  A Dehati Nalishi (Ext. P-18) at the instance  of  PW-6  Kejabai
was registered at  about  3.00  a.m.  and  the  crime  relating  to  offence
punishable under Section 302 of Indian Penal Code  (IPC)  was  investigated.
The dead bodies were sealed and inquest report prepared by the police.   The
autopsy on three of six  dead  bodies,  namely,  that  of  Sati,  Nisha  and
Sandhya was conducted on 20.02.2012 by PW-7  Dr.  Ajaypal  Chandrakar.   The
post mortem examination of rest of the three dead bodies,  namely,  that  of
Thaneshwari, Laxmi and Nandini was done by PW-14 Dr. Chandrabhan Prasad,  on
the very day (20.02.2012).   Blood stained knife, blood stained clothes  and
blood  stained  soil  etc.  were  seized  by  the   police   and   witnesses
interrogated.   On  completion  of  investigation  charge-sheet  was   filed
against the appellant for trial  in  respect  of  offence  punishable  under
Section 302 IPC.  The case was  committed  to  the  court  of  Sessions  for
trial.  After the charge was framed, total  fourteen  Prosecution  Witnesses
were examined.

Out of the  prosecution  witnesses,  PW-1  Ishwar  Pradhan,  Sarpanch,  PW-2
Santosh Kumar Mahar, PW-3 Neelkanth Sahu, PW-4  Anjor  Singh  and  PW-5  Dan
Singh Dewangan have given evidence as to the fact  that  when  they  reached
the square of the village, they saw  that  PW-6  Kejabai  was  shouting  and
crying loudly about the incident, and told that  the  appellant  has  killed
his wife and daughters.  The appellant was in the house.

Relevant portion of statement  of  PW-1  Ishwar  Pradhan,  Sarpanch  of  the
village, is reproduced below: -
“…..I returned to my house at around 10.30 P.M.  Santosh  Kumar  Mahar  (PW-
2), the village Kotwar, came to my house and told me  that  Dhal  Singh  had
cut his wife and children in his house.  On  receiving  this  information  I
reached Gandhi Chowk on my motor cycle.  I met Santosh  Kumar,  the  Kotwar,
Neelkanth Sahu, Dan Singh Dewangan, Kejabai and Jhaggar  …..  who  all  were
sitting in the square.  Kejabai told there that Dhal Singh has cut his  wife
and children in his house.  On hearing this I didn’t believe,  therefore,  I
suggested that lets go to the spot and see.  Then we went to  the  house  of
Dhal Singh.  Blood was lying near the door of  the  room  where  Dhal  Singh
(was) slept.  We locked the door of the house.  Dhal Singh  was  present  in
his house ………………………. After locking the door, I, (with)  Santosh  Kumar,  the
Kotwar and Chaitram went to Police Station Arjunda and gave information.

      The police came to the village Mohandipat along with us.  The S.P.  ….
also reached there.  The police (interacted) with  Kejabai  there.   Kejabai
told that the accused Dhal Singh has cut his wife and children  with  knife.
The police entered (in) the house and we kept standing  outside  the  house.
We called ambulance No. 108 there and took Dhal Singh to the hospital in  it
because he was in half (un)conscious condition……..”

PW-2 Santosh Kumar Mahar has narrated the incident as under: -
“………… The incident occurred on 19.02.2012 at 11.00 PM.  Jivan Dewangan,  the
neighbour of accused, came to  my  house  and  told  that  the  accused  has
murdered his wife  Thaneshwari  and  daughters  with  iron  knife  used  for
cutting  chicken.   Thereafter,  I,  (with)  Neelkanth  Sahu,  (and)  Ishwar
Pradhan, the Sarpanch went to the house of  accused.   We  went  inside  the
room and saw that the accused was present in the  room  of  his  wife.   His
wife was lying dead there.  The four children were also  lying  dead  there.
Wife of the accused was lying dead on the cot and four children  were  lying
on the ground.  The accused was lying there in unconscious  condition.   One
iron knife was also lying by his side, and one child was lying in  the  room
of her grandmother.  She (the granddaughter) was also dead and back  of  her
neck was cut.  Hand, leg and neck of the wife and children were cut.   Blood
was found on the room and verandah.

      Then I went to Police Station, Arjunda along with Sarpanch  and  Vijay
and gave information about  the  incident.  ………………..  The  police  personnel
enquired about the incident from the neighbours and Kejabai, the  mother  of
the accused.  Kejabai was behaving like mad, but she told that  the  accused
has cut and killed his wife and five children.  The  police  personnel  sent
the accused to the hospital in ambulance No. 108………….

      …… The police seized  one  knife,  bottle  of  liquor,  blood  stained
pillow, plain earth, blood smeared earth from the place of incident  in  the
night of the incident…………”

      The witness has also proved the seizure memo (Ext. P-1 and P-2).   The
witness has further proved the inquest report and other documents.

PW-3 Neelkanth Sahu, corroborating the above facts, states that he  came  to
know about the incident  at  about  mid  night  through  Gangaram  Sahu  and
Chaitram Yadav, who knocked his door.  When he opened the door, he was  told
that Dhal Singh has killed his wife and five daughters.  They  further  told
him that Kejabai, mother of the accused, has told about  the  incident.   He
further told that when he reached Gandhi Chowk, Kejabai was already  present
there and crying loudly.  This witness also corroborates that  Kejabai  told
him that Dhal Singh has killed his five children and wife.

PW-5 Dan Singh Dewangan has also narrated the incident and  stated  that  he
got information about the incident at about  mid  night.   He  further  told
that when he went to the house of Kejabai along with Sarpanch,  Kejabai  was
telling that the accused Dhal Singh had cut his wife and five children  with
the knife.  Corroborating the  fact  that  the  incident  was  got  reported
through Sarpanch to the police,  this  witness  has  also  stated  that  the
deceased Thaneshwari was lying dead on the cot and the  four  children  were
lying dead on the ground.  The accused was also there  lying  on  one  side.
One girl was lying in the room in which Kejabai used to  sleep.   One  knife
was also lying by the side of the accused.

The above statements of the witnesses have been  read  in  evidence  by  the
trial court and the High Court with the aid  of  Section  6  of  the  Indian
Evidence Act, 1872.  My Lord Justice Uday Umesh Lalit has opined that  these
statements do not fulfill the requirement  of  spontaneity  and  continuity,
and as such, cannot be read  with  the  aid  of  Section  6  of  the  Indian
Evidence Act, particularly when Jivan Dewangan, Gangadhar and  Jhaggar,  who
told them about what PW-6 Kejabai was disclosing, were not examined.

However, in my opinion, in the facts and circumstances  of  the  case,  non-
examination of Jivan Dewangan, Gangaram and Jhaggar is  not  sufficient  for
not relying on the statements of PW-1 Ishwar  Pradhan,  PW-2  Santosh  Kumar
Mahar, PW-3 Neelkanth Sahu and PW-5 Dan  Singh  Dewangan  with  the  aid  of
Section 6 of the Indian Evidence Act, 1872.  The courts below  have  rightly
appreciated the entire chain of circumstances  that  has  been  narrated  by
these witnesses, particularly when they have told what PW-6 Kejabai  herself
told them at the square, when they reached there.   The  testimony  of  PW-1
Ishwar Pradhan, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu and  PW-5  Dan
Singh Dewangan is admissible in evidence as being part of  the  res  gestae.
Sections 6, 7, 8 and 9 of the  Indian  Evidence  Act,  1872  deal  with  the
relevancy of facts not in issue but connected with the facts in issue.   The
provisions contained therein provide as to when  the  facts  though  not  in
issue are so related to each other as to form components  of  the  principal
fact.  The facts which are closely or inseparably connected with  the  facts
in issue may be said to be part of the same transaction.

It is also relevant to mention here that PW-4 Anjor Singh Dewangan,  father-
in-law of the appellant,  has  stated  that  deceased  Thaneshwari  was  his
daughter.  He further told that he had also gone to  Nagpur  to  attend  the
marriage in which the appellant and Thaneshwari were present.   The  witness
has further stated that his daughter complained there about the behavior  of
the appellant.  He further told that  the  accused  used  to  say  that  his
family has become large with daughters  only.   PW-4  Anjor  Singh  Dewangan
further told that the quarrel  took  place  between  the  couple  in  Nagpur
itself.   He  further  told  that  after  the   marriage,   the   appellant,
Thaneshwari and their  daughters  came  back  to  their  house.   The  above
statement makes it clear that the appellant had the  motive  for  committing
the murder of his wife and daughters.  The only other inmate in  the  house,
i.e. PW-6 Kejabai had no motive to commit the crime, and had she  attempted,
she could have been  easily  over-powered  by  the  appellant  and  the  six
deceased.

As to the lapses in the investigation pointed out by learned senior  counsel
for the appellant regarding the fact that clothes of the  accused  were  not
seized immediately and seizure memo (Ext. P-16) does not  mention  the  word
“Lungi”, I do not think it  sufficient  to  doubt  the  credibility  of  the
prosecution story.  In paragraph 41 of State of W.B. v.  Mir  Mohammad  Omar
and others[8], this Court has observed as under: -

“…..Castigation  of  investigation  unfortunately  seems  to  be  a  regular
practice when the trial courts acquit the accused in criminal cases. In  our
perception it is almost impossible to come across a single case wherein  the
investigation was conducted completely  flawless  or  absolutely  foolproof.
The function of the criminal courts should not be wasted in picking out  the
lapses in  investigation  and  by  expressing  unsavoury  criticism  against
investigating officers. If offenders are acquitted only on account of  flaws
or defects in investigation, the  cause  of  criminal  justice  becomes  the
victim. Effort should be made by courts to  see  that  criminal  justice  is
salvaged despite such defects in investigation……..”


Normally, it is not the duty of the accused to explain  how  the  crime  has
been committed.  But in the matters of  unnatural  death  inside  the  house
where the accused had his presence, non-disclosure on his  part  as  to  how
the other members of his family died, is an important reason to  believe  as
to what has been shown by the prosecution through the evidence on record  is
true.  It is nobody’s case that any dacoity or robbery had  taken  place  in
the fateful night of the incident.  There are six members of the family  who
have been killed brutally.  Simple reply by the  accused  in  his  statement
under Section 313 CrPC  that  he  did  not  know  as  to  how  the  incident
happened, particularly when he was in the house, does certainly make  easier
to believe the truthfulness of the evidence that has  been  adduced  by  the
prosecution in support of charge against him.  As far as statement  of  PW-6
Kejabai is concerned, she has turned hostile.  But the reason as to why  she
has turned hostile is not difficult to be found  out.    She  was  going  to
lose the only son left with her.

As to the fact that in the General Diary  entry  (Ext.  P-37)  there  is  no
mention of commission of murder of his wife and children by  the  appellant,
it is sufficient to say that the General Diary entries are  summary  entries
relating  to  movement  of  police,  or  relating  to  the  fact  that  some
information regarding an offence has been given at the police station.   The
doubts created in the present case on the ground that what more  could  have
been mentioned in the General Diary, or that there are minor  variations  in
the statements of PW-1  Ishwar  Pradhan,  PW-2  Santosh  Kumar  Mahar,  PW-3
Neelkanth Sahu and PW-5 Dan Singh Dewangan, cannot be said to be  reasonable
doubt.  And this Court cannot close its eyes to the ring  of  truth  in  the
prosecution  evidence.   In  Himachal  Pradesh  Administration  v.  Shri  Om
Prakash[9], in paragraph 7, this Court has observed as under: -
“………..It is not beyond the ken of experienced able  and  astute  lawyers  to
raise doubts and  uncertainties  in  respect  of  the  prosecution  evidence
either during trial by cross-examination  or  by  the  marshalling  of  that
evidence in the manner in which the emphasis is  placed  thereon.  But  what
has to be borne in mind is that the penumbra of uncertainty in the  evidence
before a court is generally due to the nature and quality of that  evidence.
It may be the witnesses as are lying or where they are honest and  truthful,
they are not certain. It is therefore, difficult to expect a  scientific  or
mathematical exactitude while dealing with such evidence or  arriving  at  a
true conclusion. Because  of  these  difficulties  corroboration  is  sought
wherever possible and the  maxim  that  the  accused  should  be  given  the
benefit of doubt becomes pivotal in the prosecution of  offenders  which  in
other words means that the  prosecution  must  prove  its  case  against  an
accused beyond reasonable doubt by a sufficiency of credible  evidence.  The
benefit of doubt to which the accused is entitled is reasonable doubt —  the
doubt  which  rational  thinking   men   will   reasonably,   honestly   and
conscientiously entertain and not the doubt of a  timid  mind  which  fights
shy —  though  unwittingly  it  may  be  —  or  is  afraid  of  the  logical
consequences, if that benefit was not given. Or as one great Judge  said  it
is “not the doubt of a vacillating mind that has not the  moral  courage  to
decide but shelters itself in a vain and idle scepticism”. It does not  mean
that the evidence must be so strong as to exclude even a remote  possibility
that the accused could not have committed the offence. If that were  so  the
law would fail to protect society as in no case can such  a  possibility  be
excluded. It will give room for fanciful  conjectures  or  untenable  doubts
and will result in deflecting the course of  justice  if  not  thwarting  it
altogether. It is for this reason  the  phrase  has  been  criticised.  Lord
Goddard, C.J., in Rox v. Kritz [1950 (1) KB 82 at 90],  said  that  when  in
explaining to the juries what the  prosecution  has  to  establish  a  Judge
begins to use the words “reasonable doubt” and to try to explain what  is  a
reasonable doubt and what is not, he is much  more  likely  to  confuse  the
jury than if he tells them in  plain  language.  “It  is  the  duty  of  the
prosecution to satisfy you of the prisoner’s guilt”.  What  in  effect  this
approach amounts to is that the greatest possible care should  be  taken  by
the Court in convicting an accused who is presumed to be innocent  till  the
contrary is clearly established which burden is  always  in  the  accusatory
system, on the prosecution. The mere  fact  that  there  is  only  a  remote
possibility in favour of the accused is itself sufficient to  establish  the
case beyond reasonable doubt…..”

In the light of the law laid down, as above,  on  careful  scrutiny  of  the
evidence on record, in my opinion, there is no room for reasonable doubt  in
the present case as to the truthfulness of the evidence adduced against  the
appellant that he has committed murder of his wife  and  five  daughters  on
19.02.2012 between 10.00 and 11.00 p.m. in his house.

In the above circumstances, I concur with the view taken by the trial  court
and the High Court that it is proved on record beyond reasonable doubt  that
accused Dhal Singh Dewangan has  committed  murder  of  his  wife  and  five
daughters.  As such, the conviction deserves to be upheld.

Now, I come to the issue of sentence.  Mr. Colin Gonsalves,  learned  senior
counsel appearing for the appellant,  submitted  that  the  High  Court  has
erred in affirming the death  sentence  awarded  by  the  trial  court.   He
further contended that no adequate opportunity was given to the  convict  to
present the mitigating circumstances.  He further argued that the burden  of
proof to show the impossibility of reformation of the  accused  was  on  the
State.

On the other hand, learned counsel for the State submitted that  it  is  one
of the rarest of rare cases.  It is further submitted that  considering  the
brutality of the offence, the convict deserves no leniency  and  the  courts
below have rightly awarded/confirmed the death sentence.

I have carefully considered the aggravating and mitigating circumstances  in
the present case in the light of law laid down by this Court on  the  point.
In Bachan Singh v. State of Punjab[10], in paragraph  206,  this  Court  has
given examples of some of the mitigating  circumstances  which  include  the
probability of the accused not  committing  criminal  acts  of  violence  as
would constitute a continuing threat to society, and  the  probability  that
the accused can be reformed and rehabilitated.

In the instant case, the State has failed to show that the  appellant  is  a
continuing threat to the society  or  that  he  is  beyond  reformation  and
rehabilitation.  Both the courts below, in my opinion, appear to  have  been
influenced by the brutality and the manner in which the crime is  committed.
 But  this  Court  cannot  ignore  the  fact  that  there  are  no  criminal
antecedents  of  the  appellant.   Also,  it  cannot  be  said  that  he  is
continuing  threat  to  the  society  or  that  he  cannot  be  reformed  or
rehabilitated.  It is also pertinent to mention here  that  the  accused  is
from  socially  and  economically  disadvantaged  strata  of  the   society.
Therefore, considering all the  facts,  circumstances  and  the  established
principle of law laid down by this Court, in the present case,  sentence  of
imprisonment for life would meet the ends of justice.

Accordingly,  the  appeals  are  partly  allowed.   The  conviction  of  the
appellant under Section 302 IPC stands affirmed.  However, the  sentence  of
death is set aside, instead the appellant is sentenced to  imprisonment  for
life.


                                                              ………………………………J.
                                                          [Prafulla C. Pant]
New Delhi;
September 23, 2016.

-----------------------
[1]
       (1996) 6 SCC 241
[2]     (1895-99)  All. E.R.  586
      3 (1952) 2 All. E.R. 447

[3]

[4]   4 (2011) 7 SCC 130


[5]    (1984) 4 SCC 116
[6]    (1973) 2 SCC 793
[7]     (1952) SCR 1091
[8]
       (2000) 8 SCC 382
[9]    (1972) 1 SCC 249
[10]   (1980) 2 SCC 684