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Friday, September 30, 2016

These are cases where the courts which tried the suits were ordinary civil court having jurisdiction to grant alternative relief and pass decree under Order VII Rule 7. A court of Rent Controller having limited jurisdiction to try suits on grounds specified in the special Act obviously does not have jurisdiction of the ordinary civil court and therefore cannot pass a decree for eviction of the defendant on a ground other than the one specified in the Act. If, however, the alternative relief is permissible within the ambit of the Act, the position would be different.

CASE NO.:
Appeal (civil) 3406  of  1998



PETITIONER:
RAJENDRA TIWARY

Vs.

RESPONDENT:
BASUDEO PRASAD & ANR.

DATE OF JUDGMENT: 09/11/2001

BENCH:
S.S.N.Quadri, S.N.Phukan




JUDGMENT:


Syed Shah Mohammed Quadri,  J.

This appeal, by special leave, is from the judgment and
order of the High Court of Judicature at Patna in Second Appeal
No.304 of 1990 passed on September 09, 1997.
The parties are referred to as they are arrayed in the trial
court. The respondents-plaintiffs filed Title Suit No.167 of
1982 (12 of 1985) for eviction of the appellant-defendant from
holding No.1600 (new) (old holding No.95) in Ward No.1
having an area of 7-1/2 dhurs, Muhalla Waya Bazar, P.S. Siwan
town P.S.No.231, Siwan, Bihar (for short, the suit premises)
on three grounds -- (1) default of the defendant in payment of
rent from August 14, 1981 under clause (d) of sub-section (1)
of Section 11; (2) reasonable personal requirement in good faith
for the sons of the plaintiffs under clause (c) of sub-section (1)
of Section 11, and (3) damage to the suit premises under clause
(b) of sub-section (1) of Section 11 of The Bihar Building
(Lease, Rent & Eviction) Control Act, 1982 (for short, the
Act). The plaintiffs averred that they purchased the suit
premises under three registered sale deeds of March 17, 1981,
April 09, 1981 and April 14, 1981 from one Kedar Nath Sinha
and immediately thereafter let them out to the defendant on
monthly rent of Rs.300/-; the defendant did not pay the rent
from the date of the commencement of the tenancy.  The
plaintiffs have six sons;  three of them are major.  The plaintiffs
wanted to set up their children in business as they are
unemployed; they, therefore, require the suit premises in good
faith. The defendant contested the suit denying that he took the
suit premises on rent from the plaintiffs.  He stated that he had
taken the suit premises on rent from the said Kedar Nath Sinha
about 33 years back.  He, however, alleged that he entered into
an agreement for purchase of the suit premises and a
Mahadnama (agreement for sale) was executed by the said
Kedar Nath Sinha in his favour on September 14, 1980 and
from that date he has been in possession as owner of the suit
premises.  The defendant also filed Title Suit No.232 of 1983 in
the Court of Sub-Judge, Siwan praying the Court to grant
specific performance of the said Mahadnama  dated September
14, 1980. The said suit is pending.  He denied that the ground
of personal requirement of the plaintiffs was either reasonable
or bonafide.
On April 30, 1985 the trial court after appreciating the
evidence on record dismissed the suit for eviction holding that
there was no relationship of landlord and tenant between the
plaintiffs and the defendant; it found that the plaintiffs had title
to the suit premises; however, finding was recorded on the
question of reasonable personal requirement in favour of the
plaintiffs.  Against the judgment of the trial court, the plaintiffs
filed Title Appeal No.96 of 1985 in the court of 5th Addl.
District Judge, Siwan. On May 26, 1990 the appellate court
affirmed the judgment of the trial court and dismissed the
appeal. The plaintiffs then agitated their claim in Second
Appeal No.304 of 1990 before the High Court of Judicature at
Patna. On September 09, 1997 the High Court allowed the
appeal taking the view that an equitable decree of eviction
could be passed against the defendant on the basis of the title of
the plaintiffs and remanded the case to the first appellate court
on the ground that it did not record any finding on the question
of title of the parties.  That judgment of the High Court is
brought under challenge in this appeal by the defendant.
Mr.P.S.Misra, the learned senior counsel appearing for
defendant, contended that provisions of Order VII Rule 7 of the
Code of Civil Procedure would not be attracted to the suit as the
court was exercising limited jurisdiction under the Act.  Mr.
Misra argued that in a suit for eviction under the Act the
question of title to the suit premises could not be decided and
that had to be done by a civil court in its ordinary jurisdiction
and, therefore, the High Court erred in law in remanding the
case to the first appellate court for deciding the question of title
of the plaintiffs and passing an equitable decree for eviction of
the defendant.
Ms.Asha Jain Madan, the learned counsel for the
plaintiffs, argued that admittedly the suit premises belonged to
the said Kedar Nath Sinha and the plaintiffs purchased the same
under three registered sale deeds from him; they had, therefore,
prima facie title and as admittedly the said Kedar Nath Sinha
had let out the same to the defendant, an equitable decree for
his eviction ought to have been passed by the courts below.
Inasmuch as the trial court on the basis of the sale deeds and
statement of the vendor of the plaintiffs recorded the finding
that the plaintiffs were the owner but the first appellate court
did not go into that question, the High Court was right in
directing the first appellate court to record a finding as to the
title to the suit premises.  Once the plaintiffs established their
title to the suit premises, argued Ms.Madan, even if the
defendant was held not to be the tenant, an equitable decree
could always be passed against the defendant for eviction of the
suit premises.
On the above contentions the question that arises for
consideration is : whether on the facts and the circumstances of
the case the High Court is right in law in holding that an
equitable decree for eviction of the defendant can be passed
under Order VII Rule 7 of C.P.C. and remanding the case to the
first appellate court for recording its finding on the question of
title of the parties to the suit premises and for passing an
equitable decree of eviction against the defendant if the
plaintiffs were found to have title thereto.
It is evident that while dealing with the suit of the
plaintiffs for eviction of the defendant from the suit premises
under clauses (c) and (d) of sub-section (1) of Section 11 of the
Act, courts including the High Court were exercising
jurisdiction under the Act which is a special enactment. The
sine qua non for granting the relief in the suit, under the Act, is
that between the plaintiffs and the defendant the relationship of
landlord and tenant should exist.  The scope of the enquiry
before the courts was limited to the question : as to whether the
grounds for eviction of the defendant have been made out under
the Act. The question of title of the parties to the suit premises
is not relevant having regard to the width of the definition of
the terms landlord and tenant in clauses (f) and (h),
respectively, of Section 2 of the Act.
Inasmuch as both the trial court as well as the first
appellate court found that the relationship of landlord and
tenant did not exist between the plaintiffs and the defendant,
further enquiry into the title of the parties, having regard to the
nature of the suit and jurisdiction the court, was unwarranted.
As the High Court remanded the case to the first
appellate court to decide the question of title of the parties and
grant a decree under Order VII Rule 7, it will be necessary to
quote the said provision here:
 R.7.  Relief to be specifically stated.
Every plaint shall state specifically the relief
which the plaintiff claims either simply or in the
alternative and it shall not be necessary to ask for
general or other relief which may always be given
as the Court may think just to the same extent as if
it had been asked for. And the same rule shall
apply to any relief claimed by the defendant in his
written statement.

A plain reading of Order VII Rule 7 makes it clear that it
is primarily concerned with drafting of relief in a plaint.  It is in
three parts -- the first part directs that the relief claimed by the
plaintiff simply or in the alternative shall be stated specifically.
It incorporates in the second part the well settled principle that
it shall not be necessary to ask for general or other relief which
may always be given as the Court may think just on the facts of
the case to the same extent as if it has been asked for.  The third
part says that in regard to any relief claimed by the defendant in
his written statement, the same rule shall apply.
In Firm Sriniwas Bam Kumar  vs. Mahabir Prasad &
Ors. [A.I.R. 1951 S.C. 177] it is laid down by this Court :
Ordinarily, the Court cannot grant relief to the
plaintiff on a case for which there was no
foundation in the pleadings & which the other side
was not called upon or had an opportunity to meet.
But when the alternative case, which the plaintiff
could have made, was not only admitted by the
defendant in his written statement but was
expressly put forward as an answer to the claim
which the plaintiff made in the suit, there would be
nothing improper in giving the plaintiff a decree
upon the case which the defendant himself makes.
A demand of the plaintiff based on the defendants
own plea cannot possibly be regarded with surprise
by the latter & no question of adducing evidence
on these facts would arise when they were
expressly admitted by the defendant in his
pleadings.  In such circumstances, when no
injustice can possibly result to the defendant, it
may not be proper to drive the plaintiff to a
separate suit.

In that case the plaintiff filed the suit for specific
performance of the contract for sale.  He alleged that he paid
part of the consideration under the contract to the defendant.
The defendant denied the execution of the contract.  However,
he pleaded that he took money from the plaintiff as a loan.  The
plaintiff failed to prove the contract for sale though the plaintiff
did not claim alternative relief for recovery of the amount paid
under the contract.  The Court passed a decree for recovery of
the amount alleged to have been taken by the defendant as a
loan under Order VII Rule 7.
In Bhagwati Prasad  Vs. Chandramaul [A.I.R. 1966 S.C.
735] the plaintiff laid the suit for ejectment of the defendant on
the ground that he let out the building to the defendant on rent
in different portions on completion of construction of each
portion.  The defendant pleaded that he constructed the house
on the land which belong to the plaintiff.  The agreement
between them was that he would remain in possession of the
house until the amount spent by him in construction the house
would be repaid by the plaintiff.  The agreement of tenancy
pleaded by the plaintiff and the case set up by the defendant
were disbelieved by the trial court; nonetheless the trial court
held that there existed the relationship of landlord and tenant,
fixed a reasonable rent and decreed the suit for ejectment of the
defendant and also for recovery of the rent at the rate fixed by
it.  The High Court set aside the decree of the trial court with
regard to the agreement of tenancy but confirmed the decree for
ejectment of the defendant.  On appeal to this Court on a
certificate granted by the High Court, Gajendragadkar, C.J.
speaking for a four-Judge Bench observed :
The general rule no doubt is that the relief should
be founded on pleadings made by the parties.  But
where the substantial matters relating to the title of
both parties to the suit are touched, though
indirectly or even obscurely, in the issues, and
evidence has been led about them, then the
argument that a particular matter was not expressly
taken in the pleadings would be purely formal and
technical and cannot succeed in every case.  What
the Court has to consider in dealing with such an
objection is did the parties know that the matter in
question was involved in the trial, and did they
lead evidence about it? If it appears that the
parties did not know that the matter was in issue at
the trial and one of them has had no opportunity to
lead evidence in respect of it, that undoubtedly
would be a different matter.  To allow one party to
rely upon a matter in respect of which the other
party did not lead evidence and has had no
opportunity to lead evidence, would introduce
considerations of prejudice, and in doing justice to
one party, the Court cannot do injustice to
another.

Where the relief prayed for in the suit is a larger relief
and if no case is made out for granting the same but the facts, as
established, justify granting of a smaller relief, Order VII Rule
7 permits granting of such a relief to the parties.  However,
under the said provisions a relief larger than the one claimed by
the plaintiff in the suit cannot be granted.
These are cases where the courts which tried the suits
were ordinary civil court having jurisdiction to grant alternative
relief and pass decree under Order VII Rule 7. A court of Rent
Controller having limited jurisdiction to try suits on grounds
specified in the special Act obviously does not have jurisdiction
of the ordinary civil court and therefore cannot pass a decree for
eviction of the defendant on a ground other than the one
specified in the Act. If, however, the alternative relief is
permissible within the ambit of the Act, the position would be
different.
In this case the reason for denial of the relief to the
plaintiffs by the trial court and the appellate court is that the
very foundation of the suit, namely, the plaintiffs are the
landlords and the defendant is the tenant, has been concurrently
found to be not established.  In any event inquiry into title of
the plaintiffs is beyond the scope of the court exercising
jurisdiction under the Act.  That being the position the
impugned order of the High Court remanding the case to the
first appellate court for recording finding on the question of title
of the parties, is unwarranted and unsustainable.  Further, as
pointed out above, in such a case the provisions of Order VII
Rule 7 are not attracted.  For these reasons the aforementioned
cases are of no assistance to the defendant.  In this view of the
matter we cannot but hold that the High Court erred in
remanding the case to the first appellate court for determination
of the title of the parties to the suit premises and for granting
the decree under Order VII Rule 7.
However, we make it clear that this judgment does not
preclude the plaintiffs from filing a suit for declaration of title
and for recovery of the possession of the suit premises against
the defendant. If such a suit is filed within three months from
today we direct that the same shall be tried along with suit filed
by the defendant, Title Suit No.232/1983, in the court of Sub-
Judge, Siwan (Exbt.11) for specific performance of the contract
against the said Kedar Nath Sinha and the plaintiffs.
In the result the judgment of the High Court under
challenge is set aside. The suit of the plaintiffs (respondents) is
dismissed.  The appeal of the defendant (appellant) is allowed
accordingly but in the circumstances of the case without costs.








Thursday, September 29, 2016

The appellant had filed writ petition under Article 226 of the Constitution of India as Public Interest Litigation praying for implementation of the recommendation/report of the Lokayukta Uttar Pradesh, dated 22nd February, 2012 = As aforesaid, the relief in the writ petition was limited to directing the Competent Authority to act upon the recommendations made by the Lokayukta. That relief has worked out in view of the direction issued by the Competent Authority to investigate/enquire into the factual matrix noticed in Lokayukta’s report. Further, the law enforcement agencies have moved into action and have collected information and material including with reference to the representations and affidavits received in the course of the said investigation/enquiry. We may, therefore, accede to the request of the law enforcement agencies to give them some more time to complete the investigation/enquiries in relation to the acts of commission and omission of respondent nos.5 and 6 or any other person(s) privy thereto. We make it clear that we are not expressing any opinion on the merits of the matters under investigation/enquiry or the defence that may be available to respondent nos. 5 and 6 in any proceedings to be instituted against them in relation to the said matters.

                                                              (Reportable)

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO. 9442/ 2016
                 (Arising out of SLP (Civil) No.31025/2013)


Jagdish Narain Shukla                              ….…..Appellant

                             Vs.

State of U.P. and Others.                                ……Respondents



                               J U D G M E N T

A.M. KHANWILKAR, J.


Leave granted.


2.    This appeal challenges the decision of the Division Bench of the  High
Court of Judicature at Allahabad, Lucknow dated  16th  July,  2012  in  Writ
Petition No.5744 of 2012.


3.    The appellant had  filed  writ  petition  under  Article  226  of  the
Constitution  of  India  as   Public   Interest   Litigation   praying   for
implementation of the recommendation/report of the Lokayukta Uttar  Pradesh,
dated 22nd February, 2012.  Following reliefs were prayed in the  said  writ
petition:

“Wherefore, it is most  respectfully  prayed  that  the  Hon’ble  Court  may
kindly be pleased, in the interest of justice, to

Issue a writ, order or direction in the nature of  mandamus,  directing  the
Opposite Parties Nos.1, 2 and 3 to implement the  recommendations/report  of
the Opposite Parties No.4 by getting the  issue  enquired  by  the  opposite
party Nos.7 and 8.

To issue a writ, order or direction in the nature of mandamus directing  the
Opposite Parties No.7 and 8 to carry out an enquiry  into  the  misdeeds  of
the Opposite Parties Nos. 5 and 6, in terms of  the  recommendation  of  the
Opposite Party No.4.

Issue any other writ, order or direction as may be deem fit  and  proper  by
this Hon’ble Court for giving just,  proper  and  effective  relief  to  the
petitioner.

Award the costs of the writ petition to the petitioner.





4.    The Lokayukta had submitted the said report under  the  Provisions  of
Section 12 (3) of the U.P. Lokayukta and  Up-Lokayuktas  Act,  1975  to  the
Competent Authority for taking necessary action. The report was the  outcome
of the complaint made by one Shri Jagdish Narain Shukla against  Smt.  Husna
Siddiqui, Member of Legislative Council and Sri  Naseemuddin  Siddiqui,  the
then Cabinet Minister in U.P., respondent no.6  and  5  respectively.  After
due enquiry the Lokayukta arrived at the following conclusion  as  noted  in
the aforesaid report:

      “On the basis of the prima facie evidences collected in the course  of
investigation, I reach the conclusion that the  delinquent  public  servants
had purchased land worth Rs.16,39,99,227/- (as per the market value)  for  a
meager price of Rs.46,32,600/- for their  Private  Society.  They  had  also
purchased agriculture land worth Rs. One crore situated in  Tindwari,  Dist.
Banda for a meager price of Rs.4,50,000/-. They purchased  Bungalow  no.B-3,
Timaiya  Road,  Cantonment,  Lucknow  worth  crores  of  rupees   for   just
Rs.50,00,000/-. They also purchased land worth Rs.3,60,00,000/-  in  village
Ladakapurwa, Dist. Banda for a meager  price  of  Rs.5,50,000/-  by  way  of
involving name of  Smt.  Upma  Gupta,  Smt.  Akrami  Begum  and  Smt.  Arshi
Siddiqui. The Delinquent public servant also purchased 1.2370  hectare  land
in the name of his son Sri Afzal Siddiqui  in  district  Jyotibaphule  Nagar
for setting up an industry A.Q. Frozen Food Pvt. Ltd. and  investigation  to
find out the exact cost of the land and the sources of income  for  purchase
the land is still in progress. It seems that the delinquent public  servants
have purchased all the aforementioned  assets  through  their  income  which
they earned from unknown sources because as per the  income  tax  return  of
both the delinquents, their taxable income  for  the  last  financial  years
comes to Rs.1,93,85,196/-.

69.   In view of the foregoing discussion, I am of the considered view  that
this task should be entrusted to a  specialized  investigating  agency  with
the following tasks:

      1.    The agency should  investigate  the  correctness/genuineness  of
the donations/funds given by persons  (whose  names  are  indicated  in  the
enclosed list provided by the delinquents) by cheque, by demand  drafts  and
by cash to the Registered  Society,  namely,  Q.F.  Shikshan  Sansthan,  49,
Shyam Nagar (Khurram Nagar) Lucknow and also to investigate the  sources  of
income of these individuals.

      2.    Q.  F.  Shikshan  Sansthan,  49,  Shyam  Nagar  (khurram  Nagar)
Lucknow had acquired immovable property in Tehsil Fatehpur, Dist.  Bararanki
through sale deeds. The agency should make inquiry  about  the  persons  who
sold land admeasuring 57 Bigha 18 Biswa 3 Biswansi to Smt.  Husna  Siddiqui,
Secretary, Q. F. Shikshan Sansthan.

      3.    All sale  deeds  of  Village  Nindora,  Tehsil  Fatehpur,  Dist.
Barabanki executed during the last five years should be  examined  in  order
to ascertain the fact as to who had sold their lands in village Nindora  and
what was the actual sale considerations involved in these  transactions  and
from where the funds had come to these individuals.

      4.    2.00  Hectare  land  in  Gata  no.3235  in  village  Ladkapurwa,
Pargana-Tehsil-Dist. Banda was purchased by Smt. Akrami Begum  wife  of  Sri
Jamiruddin Siddiqui, Smt. Arshi Siddiqui, daughter-in-law of Sri  Jamiruddin
Siddiqui, Smt. Arshi Siddiqui, daughter-in-law of  Sri  Jamiruddin  Siddiqui
and Smt. Upma Gupta wife of  Sri  Krishna  Chandra  Gupta,  an  Engineer  in
Nirman Nigam  in  the  year  2008.  The  investigating  agency  should  make
inquiries to  find  out  the  actual  sale  consideration  involved  in  the
aforesaid transaction and what was the source of income for payment  of  the
said cost.

      5.    Investigation should be conducted to  find  out  the  source  of
income which was used for  buying  the  entire  land  in  village  Bachhrau,
Tehsil Dhanaura, Dist. Jyotibaphule Nagar for setting up  A.Q.  Frozen  Food
Private Limited and raising building, etc. for the unit. It is  also  to  be
investigated as to who all  have  invested  their  money  in  the  land  and
building of the Unit and what is their source of income.

70.   In view of the foregoing analysis, I recommend that:-

      1.    The task  of  conducting  investigation  on  the  aforementioned
points should be entrusted to a Central Investigating  Agency  viz.  Central
Bureau of Investigation or the Enforcement Directorate  and  further  action
be taken in accordance with the result of the investigation.

      2.     Compliance report may be made available within one month.



                                             Sd/- illegible
                                        (Justice N.K. Mehrotra)
                                             Lok Ayukt, U.P.



On the  basis  of  the  above  conclusions,  the  Lokayukta  made  following
recommendations:
      70.   In view of the foregoing analysis, I recommend that:-

      1.    The task  of  conducting  investigation  on  the  aforementioned
points should be entrusted to a Central Investigating  Agency  viz.  Central
Bureau of Investigation or the Enforcement Directorate  and  further  action
be taken in accordance with the result of the investigation.

      2.     Compliance report may be made available within one month.



                                        Sd/- illegible
                                  (Justice N.K. Mehrotra)
                                        Lok Ayukt, U.P.



5.    The appellant verily believed that the  Competent  Authority  was  not
taking any steps to comply with the said recommendations of  the  Lokayukta,
for which, filed Writ Petition No.5744 of 2012 on 12th July,  2012  for  the
reliefs as reproduced above.


6.    The Division Bench of the High Court, however, held that  the  opinion
of the  Lokayukta  in  the  report  cannot  be  construed  to  be  final  or
conclusive as it was a fact finding enquiry and a detailed  enquiry  is  yet
to be made after affording opportunity of  hearing  to  the  person  against
whom complaint is made. It further observed that the High  Court  ought  not
to entertain petition for implementation of  recommendations/orders  of  the
Lokayukta  - as there is sufficient provision under the Act  itself  to  get
the same implemented. The Court also opined that there  was  no  element  of
public interest in the grievances made by the appellant.   On  that  finding
the writ petition filed by the appellant was dismissed  in  limine  on  16th
July, 2012.


7.    This decision has been challenged in the present petition filed  under
Article 136 of the Constitution of India. This Court issued  notice  to  the
respondents including the State Authorities. The  respondent  nos.  1  to  3
caused  to  file  affidavit  of  Yatindra  Kumar,  Under  Secretary  in  the
Vigilance Department of the State Government on 9th October,  2014.  Besides
raising preliminary objection, it has been mentioned in this affidavit  that
the Competent Authority has already taken a decision  to  enquire  into  the
aspects noted in the report of the Lokayukta  through  the  State  Vigilance
Establishment by way of an open vigilance  enquiry,  vide  Government  Order
dated 10th July, 2013.


8.     The  respondent  no.8  Directorate  of  Enforcement  caused  to  file
affidavit  of  Gurinder  Singh  Chawla,  Deputy  Director,  Directorate   of
Enforcement, Department  of  Revenue,  Ministry  of  Finance  Government  of
India, New Delhi dated  4th  March,  2015,  stating  that  the  Director  of
Enforcement has been mandated  to  investigate  contraventions  relating  to
Foreign Exchange Management Act,  1999  and  offences  of  money  laundering
under Prevention  of  Money  Laundering  Act,  2002.   Further,  it  had  no
authority whatsoever, to cause investigation in respect  of  offences  under
the Prevention of Corruption Act, 1988 which ought  to  be  investigated  by
the appropriate enforcement agency, namely, Central Bureau of  Investigation
or by State police. This affidavit also mentions that  FIR  No.385  of  2013
dated 6th July, 2013 registered at  Police  Station  Kotwali  Nagar,  Banda,
U.P., for offences punishable under Section 13 (1)  (e)  read  with  Section
13(2) of the Prevention of Corruption Act, 1988 against respondent no.5  and
an ECIR/LKZO/03/2014 has been registered Lucknow Zonal  Office  for  offence
of money laundering under the Prevention of Money Laundering Act, 2002.  The
affidavit  also  mentions  that  an  action  of  provisional  attachment  of
proceeds of  crime  or  property  involved  in  money  laundering  shall  be
undertaken upon filing of a police report under Section 173 (2) of the  Code
of Criminal Procedure 1973, by the law enforcement agency. The other  action
taken for collection of Bank statements, income  tax  returns  and  property
details  of  respondent  no.5  and  his  relatives  by  the  respective  law
enforcement agency has been requisitioned and the document so  received  are
being scrutinized.


9.    Respondent no.7 C.B.I. has caused to file affidavit  of  Rajiv  Kumar,
Deputy S.P., CBI, ACB, Lucknow, in February, 2014.  It  is  stated  in  this
affidavit there is full-fledged State Vigilance Department under  the  State
Government to take follow up action on the basis of recommendations made  by
the Lokayukta. Moreover,  factual  matrix  of  the  present  case  does  not
involve any complexity  or  interstate  ramification  which  may  require  a
specialized  investigation  by  the  C.B.I.,  to  be  treated  as  rare  and
exceptional case.


10.   The respondent no.6 has filed reply affidavit on 23rd July,  2015,  to
oppose this appeal.  In that  reply  affidavit,  it  is  stated  that  on  a
complaint by one  Mr.  Ashish  Sagar  a  vigilance  investigation  has  been
commenced in respect of which FIR No.385/2013 has been registered  and  that
she has participated and fully cooperated in the said investigation.  It  is
prayed by the said respondent that the appeal does not  merit  interference.
 The  respondent  no.5  has  also  filed  an  affidavit  on  same  lines  as
respondent no.6 dated 23rd July, 2015.


11.   When this matter was heard on 22nd July, 2016 this  Court  passed  the
following order:

            “Heard.
Mr. Ravi Prakash Mehrotra, learned counsel for  the  2  respondent-State  of
Uttar Pradesh, submits that taking cognizance of  the  report  submitted  by
the  Lokayukta,  the  State  Government  had   referred   the   matter   for
investigation by the State Vigilance establishment on 10th July,  2013.  The
progress made in that regard is however not immediately  known  to  him.  He
seeks time to take instructions if any action has  been  taken  pursuant  to
the reference made by the Government to  the  Vigilance  establishment.  Our
attention is also drawn to the affidavit filed by respondent no.5, para  (7)
whereof it is inter alia mentioned that  FIR  No.385/2013  dated  6th  July,
2013 has been registered at the Police Station Kotwali Nagar,  Banda,  U.P.,
by the Vigilance establishment on the complaint of one-Mr. Ashish Sagar.  It
is submitted that the  allegations  contained  in  the  said  complaint  are
similar to the ones made in the  report  submitted  by  the  Lokayukta.  Mr.
Mehrotra  does  not  have  any  instruction  as  to  the  progress  made  in
connection with the said FIR also. He may, therefore, file a  status  report
not only in regard to the reference made by  the  State  Government  to  the
Vigilance establishment, pursuant to  the  Lokayukta  report,  but  also  as
regards  the  progress  made  in  FIR  No.385/2013  by  the  police  station
concerned. Mr. Mehrotra also to take instruction whether any  FIR  has  been
registered against respondents No.5 and 6 in any other  police  station  and
if so the progress made in those FIRs. In addition, Mr. Mehrotra  will  take
instruction and state whether  the  State  Government  proposes  to  make  a
reference to the 3 enforcement directorate as recommended by  the  Lokayukta
in his report, in case such a  reference  is  not  already  made.  Mr.  P.K.
Mullick, learned counsel  for  the  Enforcement  Directorate,  submits  that
Enforcement Directorate has registered ECIR on the basis of FIR  No.385/2013
but  no  enquiry  has  been  instituted  nor  any  reference  made  to   the
Enforcement Directorate by the State Government pursuant to  the  report  of
the Lokayukta. Mr. Mehrotra shall do  the  needful  within  two  weeks  from
today. Post after two weeks.

12.   Pursuant to the aforesaid order the Under Secretary in  the  Vigilance
Department at Lucknow Sri Yatindra Kumar, has filed affidavit sworn  on  9th
August, 2016, disclosing the  progress  of  the  respective  case  initiated
against respondent nos.5 and 6. The said affidavit reads thus:
“3.   That, in respectful compliance of  the  said  order  dated  22.07.2016
passed by this Hon’ble Court, the  status  of  various  proceedings  against
respondent Nos.5 and 6 in the present petition, is as under:

Progress regarding reference to the State Vigilance Establishment

4.    That, in this regard it is stated that a complaint  was  filed  before
the Lokayukta Establishment Uttar Pradesh by Sri Jagdish  Narain  Shukla  of
Lucknow against Smt. Husna Siddiqui, Member of U.P. Legislative Council  and
Sri Naseemuddin Siddiqui, ex-Cabinet Minister of Uttar Pradesh,  in  respect
of which after conducting an enquiry,  the  Hon’ble  Lokayukta  vide  letter
dated 22.02.2012, submitted Report no.03-2012 to  the  Competent  Authority,
Government of U.P.

      After due consideration of the said report and recommendations of  the
Hon’ble Lokayukta, vide order dated  10.07.2013,  it  was  directed  by  the
State Government that open enquiry by conducted against the said Smt.  Husna
Siddiqui and Sri Naseemuddin Siddiqui by the U.P.  Vigilance  Establishment,
following the said report by the Hon’ble Lokayukta.

      In compliance with the  said  order  dated  10.07.2013  by  the  State
Government,  whereby  open  enquiry  was  directed  to  be  conducted,   the
Vigilance Establishment completed the enquiry and report  was  submitted  to
the State Government vide letter dated 29.07.2015.
      In the meanwhile, various  representations/affidavits  were  submitted
to the State Government by Smt. Husna Siddiqui and  her  family  members  in
respect of said open enquiry on 04.08.2015, 6.8.2015, 17.8.2015,  18.8.2015,
19.8.2015,  20.8.2015,  21.8.2015,  28.8.2015,   4.9.2015,   10.9.2015   and
14.9.2015, wherein several important issues were  sought  to  be  raised  in
relation to the open enquiry.

      The open enquiry report submitted by the Vigilance Establishment,  and
the representations/affidavits by Smt. Husna  Siddiqui  and  her  relations,
were  comprehensively  considered  by  the  State  Government,   and   after
comprehensive consideration,  after  taking  cognizance  of  all  the  facts
mentioned in the aforesaid representations/affidavits  in  relation  to  the
open  enquiry  conducted  by  the  Vigilance  Establishment,  it  was  found
justifiable to get a factual  report  in  regard  thereto,  after  carefully
examining/scrutinizing   the    documents    enclosed    with    the    said
representations/affidavits. In this view of the matter as  aforestated,  the
State Government vide D.O.  letter  no.  VIP/36/39-4-15-50H  (2)/2013  dated
26.2.2016, has directed the Vigilance  Establishment  to  submit  a  factual
report in regard thereto after enquiring into the matter in detail.


                        Current status of the enquiry

5.    That, it has been informed by the U.P.  Vigilance  Establishment  that
for the purpose of verification of documents in  the  enquiry,  the  revenue
records in the districts of Lucknow,  Barabanki,  Banda  and  Jyotiba  Phule
Nagar and records of related offices as well as records of different  banks,
and verification/examination of the  concerned  bank  accounts,  has  to  be
done. Moreover, the 11 representations and 8 affidavits (totaling 55  pages)
submitted by Smt. Husna Siddiqui and members  of  her  family,  as  well  as
documents enclosed with the said representations (approx. 1068 pages),  have
to be verified. Additionally, enquiry/statements  of  persons  giving  money
and other persons, has to be done, owing to  which  the  enquiry  is  taking
time. At the present time,  supplementary  enquiry  is  in  progress,  which
shall be completed at  the  earliest  and  report  submitted  to  the  State
Government.


Progress in F.I.R. no. 385/13 dt. 6.7.2013 at P.S. Kotwali, Banda

6.    In regard to above, the factual  position  is  that  a  complaint  was
filed against Sri Naseemuddin Siddiqui, former Minister, Government of  U.P.
by  Sri  Ashish  Sagar  Dixit,  District   Banda,   before   the   Lokayukta
Establishment, Uttar Pradesh. Following  the  same,  the  Hon’ble  Lokayukta
after conducting his enquiry, submitted Report no.05-2012 vide letter  dated
24.8.2012 to the Competent Authority of the U.P. Government.

      After due consideration of the said  report  dated  24.8.2012  of  the
Hon’ble Lokayukta, the State Government vide order dated 4.10.2012  directed
the U.P.  Vigilance  Establishment  to  conduct  open  enquiry  against  Sri
Naseemuddin Siddiqui, in regard to recommendation no.1 of the report of  the
Hon’ble Lokayukta.

      In compliance  with  the  State  Government’s  order  dated  4.10.2012
directing an open enquiry, the Vigilance  Establishment  has  completed  the
said open enquiry and its report was submitted to the State Government  vide
letter dated 29.4.2013. On account of the  fact  that  the  expenditure  was
found more than income in the open enquiry, hence it was recommended that  a
criminal case be registered and the same investigated.

      After examination of the said open enquiry report,  in  terms  of  the
recommendation by the Vigilance Establishment,  the  State  Government  vide
order dated 2.7.2013 directed the U.P.  Vigilance  Establishment  to  get  a
case registered under section 13(1) (e) read with section (13)  (2)  of  the
Prevention  of  Corruption  Act  1988  and   the   same   investigated.   In
continuation  with  the  said  direction  of  the  State  Government   dated
2.7.2013, Case Crime no. 407/13 under section 13 (1) (e) read  with  section
13 (2) of Prevention of Corruption Act, 1988 was registered on  6.7.2013  by
U.P. Vigilance Establishment, Allahabad Sector, at  P.S.  Kotwali,  District
banda,  against  Sri  Naseemuddin  Siddiqui,  the  chick  no.  of  which  as
385/2013. It is  stated  that  after  completion  of  investigation  in  the
aforestated Crime no.407/13, the Vigilance Establishment vide  letter  dated
29.7.2015 submitted its investigation report to the State Government.

      In the meanwhile, Sri Naseemuddin  Siddiqui  and  his  family  members
preferred several representations in relation to the said investigation,  on
31.7.2015, 6.8.2015, 14.8.2015, 17.8.2015, 18.8.2015, 19.8.2015,  20.8.2015,
21.8.2015, 28.8.2015, 4.9.2015, 10.9.2015, 14.9.2015 and 31.1.2016,  to  the
State Government, wherein several important issues were raised in regard  to
the investigation report.

      It is further stated that the investigation report  submitted  by  the
Vigilance Establishment, and  the  representations/affidavits  preferred  by
Sri  Naseemudin  Siddiqui  and  his  family  members,  were  comprehensively
examined by the State  Government,  and  after  due  consideration,  it  was
considered appropriate to get a factual  report  in  relation  to  the  said
investigation, in regard almost 14 representations and 8  affidavits  (total
80 pages) and its enclosures  (total  1371  pages)  submitted  on  different
dates by Sri Naseemuddin Siddiqui and his family members.  It  was  directed
that factual  report  be  made  available  after  getting  examined  by  the
Vigilance Establishment, the fact  of  income  and  expenditure  from  valid
sources, by  the  State  Government  vide  D.O.  letter  no.VIP-3/39-4-16-50
N(2)/2012 TC dated 26.2.2016.


                       Current Status of Investigation

7.    That, it has been informed by the U.P.  Vigilance  Establishment  that
for the purpose of verification  of  documents  in  the  said  enquiry,  the
revenue records of District Lucknow,  Banda,  Gautambudh  Nagar,  Barabanki,
and records relating to the offices of various establishments,  as  well  as
verification/examination of records relating to different banks and  related
bank accounts in the concerned districts, have to be examined and  verified.
Moreover, a total of 14 representations and 8 affidavits  (total  80  pages)
submitted by Sri naseemuddin Siddiqui and his  family  members  as  well  as
documents enclosed  therewith  (total  1371  pages)  have  to  be  verified.
Additionally, the enquiry/statements of persons who had given money as  well
as statements of other concerned persons have to be recorded, due  to  which
the enquiry is taking time. Presently, supplementary investigation is  being
conducted, which is likely to be completed shortly and report  submitted  to
the State Government.


                Other proceedings against respondent nos.5&6

8.    That, it has been intimated by the  Vigilance  Establishment  that  in
compliance with the State Government’s order dated  30.11.2013  relating  to
investigation  of   corruption   and   irregularities   committed   in   the
construction of monuments and gardens, as also supply of sand stone  in  the
cities of Lucknow and Noida between 2007  to  2011,  Crime  No.1/2014  under
Sections 409/120-B PIC and Section  13(1)(e)  read  with  Section  13(2)  of
Prevention of Corruption Act, 1988, has been  registered  by  the  Vigilance
Establishment at P.S. Gomti Nagar Lucknow, wherein Sri Naseemuddin  Siddiqui
is also an accused person.  Considerable  progress  has  been  made  in  the
investigation and spot inspection  of  5  construction  sites  (1.  Ambedkar
Samajik Parivartan Sthal, 2. Eco Park, 5. Noida Ambedkar  Park)  and  mining
sites,  have  already  been  conducted.  Opinions  of  various  experts   is
remaining. Statements  of  a  total  of  170  witnesses  have  already  been
recorded  in  the  investigation,  and  most  of  the  documents  have  been
collected. The work relating to collection of the  remaining  documents  and
evidence is being done at a fast speed. The  investigation  in  question  is
progressing speedily, which shall be completed at the  earliest  and  report
submitted to the State Government.

IV.   Proceedings before Enforcement directorate
9.    That, in this regard the Vigilance  Establishment  has  informed  that
with reference to letter dated 29.1.2014  by  the  Enforcement  directorate,
Government of India, requiring information and documents,  by  letter  dated
31.1.2014, a copy of the First Information Report  (Case  Crime  no.407/13),
has been sent to the Joint Director, Enforcement Directorate, Government  of
India, 16 Ashok Marg, Lucknow.”

13.   Today, when the matter was  taken  up  for  further  hearing,  counsel
appearing for the State Authorities as well  as  Union  of  India  submitted
that the enquiries against respondent  nos.5  and  6  are  in  progress  and
effort is being made to conclude the same in right earnest. A chart  of  the
status of those enquiries against respondent no.5 and 6 has  been  furnished
during the hearing, which reads thus:
               Summary of Status Report in SLP (C) No.31025/13
|             |Complaint of JN      |Complaint of     |FIR regarding       |
|             |Shukla               |Ashish Sagar     |Parks/Monuments     |
|             |                     |Dixit            |                    |
|Lokayukta    |Report no.03-2012    |Report no.05-2012|Government Order on |
|Establishment|dt.22.2.2012 against |dt. 24.8.2012    |30.11.2013 for      |
|             |Smt. Husna & Sri     |against Sri      |registration of FIR |
|             |Naseemuddin Siddiqui |Naseemuddin      |(Sri Naseemuddin    |
|             |                     |Siddiqui         |Siddiqui is         |
|             |                     |                 |co-accused)         |
|State        |Open Enquiry on      |Open Enquiry on  |Crime no.1/2014     |
|Vigilance    |10.7.2013            |4.10.2012        |registered in P.S.  |
|Establishment|Report to State      |Report to State  |Gomtinagar, Lucknow |
|             |Government on        |Government on    |under s. 409/120-B  |
|             |29.7.2015            |29.4.2013        |IPC & 13(1)(e) and  |
|             |                     |State Government |13(2) PC Act        |
|             |                     |vide order dated |(corruption &       |
|             |                     |2.7.2013 directed|irregularities in   |
|             |                     |FIR under        |supply of sand stone|
|             |                     |s.13(1)(e) &13(2)|and construction of |
|             |                     |PC Act,          |monuments & parks in|
|             |                     |registered on    |Lucknow/Noida       |
|             |                     |6.7.2013 in P.S. |                    |
|             |                     |Kotwali District |(page 131)          |
|             |                     |Banda (CC 407/13)|                    |
|             |                     |FIR copy given to|                    |
|             |                     |ED on 31.1.2014  |                    |
|Representatio|11 representations   |14               |Considerable        |
|ns &         |between 4.8.2015 to  |representations  |progress made (page |
|Affidavits   |14.9.2015            |between 31.7.2015|132)                |
|             |8 affidavits         |to 31.1.2016     |- Five construction |
|             |                     |8 affidavits     |sites inspected     |
|             |                     |                 |- 170 witnesses     |
|             |                     |                 |examined            |
|             |                     |                 |- Most documents    |
|             |                     |                 |collected           |
|Supplementary|Order for factual    |Order for factual|                    |
|Enquiry      |report on 26.2.2016  |report on        |                    |
|(Factual     |Current status of    |26.2.2016        |                    |
|Report)      |enquiry (page 127)   |Current status of|                    |
|             |                     |investigation    |                    |
|             |                     |(page130)        |                    |


14.   It is submitted by the  counsel  appearing  for  the  concerned  State
agencies  that  having  regarding  to  the  voluminous  documents  and  more
particularly the need to verify the  correctness  of  the  information  made
available during the investigation/enquiry, it would take some more time  to
complete the investigation/enquiry in  the  respective  cases.  The  counsel
appearing for the appellant,  however,  submits  that  the  law  enforcement
agencies  have  not  done  enough  and  are  responsible  for  delaying  the
investigation/enquiry for reasons  best  known  to  them,  which  inevitably
would benefit respondent nos. 5 and  6.   The  counsel  for  the  respondent
nos.5 and 6 has refuted this veiled attack on  respondent  nos.5  and  6  of
being  responsible  for  delay  in  the  enquiry.   He  submits  that  these
respondents have extended full cooperation to the  concerned  agencies  thus
far and would continue to do so even in future. It is unnecessary for us  to
dilate on this aspect.


15.   As  aforesaid,  the  relief  in  the  writ  petition  was  limited  to
directing the Competent Authority to act upon the  recommendations  made  by
the Lokayukta. That relief has worked out in view of  the  direction  issued
by the Competent Authority to investigate/enquire into  the  factual  matrix
noticed in Lokayukta’s report. Further, the law  enforcement  agencies  have
moved into action and have  collected  information  and  material  including
with reference to the representations and affidavits received in the  course
of the said investigation/enquiry. We may, therefore, accede to the  request
of the law enforcement agencies to give them some more time to complete  the
investigation/enquiries in relation to the acts of commission  and  omission
of respondent nos.5 and 6 or any other person(s) privy thereto.


16.   Considering the fact that the law enforcement agencies  are  on  their
job for quite sometime, we express a sanguine hope that they would  complete
the investigation/enquiry at the earliest and  not  later  than  six  months
from today and take the same to its logical end in accordance with law.


17.   We make it clear that we are not expressing any opinion on the  merits
of the matters under  investigation/enquiry  or  the  defence  that  may  be
available to respondent nos. 5 and 6 in any  proceedings  to  be  instituted
against them in relation to the said matters.


18.   This appeal is disposed of in the above terms. No costs.


                                             …………………………..CJI
                                             (T.S.Thakur)


                                                              …………………………….J.
                                             (A.M.Khanwilkar)



New Delhi,
26th                             September                              2016



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