DHAL SINGH DEWANGAN Vs. STATE OF CHHATTISGARH
Supreme Court of India (Full Bench (FB)- Three Judge)
Appeal (Crl.), 162-163 of 2014, Judgment Date: Sep 23, 2016
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