IMPORTANT POINT
Wiping out entire family or brutality not enough for death sentence.

JUDGMENT

H. L. Dattu, J.:-

Leave granted.

2. These appeals are directed against the judgment and order passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Reference No. 03 of 2010 and Criminal Appeal No.2246 of 2010, dated 16.01.2012. By the common impugned judgment and order, the High Court has confirmed the judgment and order passed by the Additional Sessions Judge, Satna, in Sessions Trial No.257 of 2007, dated 07.09.2010, whereby and whereunder the learned Sessions Judge has convicted the appellant for offence punishable under Section 302 of Indian Penal Code, 1860 (for short, ‘the IPC’) and sentenced him to death. Facts:

3. The Prosecution case : On 28.05.2007, at around 12:20 p.m., Dehati Nalishi (Ex. P-10) was recorded by the Investigating Officer (PW-19) on the basis of information received from the complainant-Ramesh Prasad Gupta (PW-4) regarding murder of his nephew Sunil Gupta, his daughter-in-law Pushpa Gupta and grandson Gaurav, aged 5 years by the appellant in his rented house. Thereafter, an FIR was registered for the offence punishable under Section 302 of the IPC, inquest proceedings were conducted and the dead bodies were sent for post-mortem examination. On further investigation, blood-stained pieces of wall, cement floor, etc. along with a mobile phone, a Katar (sharp edged weapon) and the Motorcycle of the deceased were seized from the appellant’s house. On 31.05.2007, the appellant was arrested and at his instance an iron knife was recovered and sent for forensic examination.

4. On further investigation it surfaced that the appellant thoroughly detested the association of his wife, Smt. Geeta (A2) with the deceased-Sunil Gupta. It has come on record that the appellant did not like the deceased-Sunil Gupta visiting his house to meet A2 in spite of his strong opposition and therefore, hatched a conspiracy with A2 to murder the deceased persons on the pretext of inviting and hosting them for a lunch. On the basis of the same, the charge-sheet was filed against the appellant and A2 for offences punishable under Sections 302/34 and 120-B of the IPC and the case was committed to trial by order dated 10.09.2001.

5. In the statements recorded under Section 313 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) the appellant has stated that on 27.05.2007, when the school was closed during holidays, the deceased had come to his house in his absence and asked his wife to come to school in the morning insisting upon completion of some pending work. The day next, around 9.00 A.M. the deceased had sent message for A2 again. Then, the appellant had called the deceased and categorically told him that A2 would only go to the school when the school reopens. He has also stated that the same day on returning from the market at 11:30 AM, he heard the cries of A2 for help and noticed the wife of the deceased and the child sitting on the terrace of his house. He has further stated that when he went inside, he saw the deceased attempting to commit rape and was attacking A2 with the knife. On his intervention, the deceased attempted to hit him and a fight ensued where he snatched the knife from the deceased and hit him in order to protect his wife’s modesty and their lives. It is also stated that wife of the deceased and the child intervened between them and therefore suffered serious injuries leading to their death. A2 has supported the said defence in her statement.

6. The Prosecution has examined 19 witnesses in support of its case including three eye-witnesses PWs-5, 7 and 8. We would only notice the evidence of witnesses relevant for the disposal of this appeal, viz., PWs-4, 5, 7, 9 and 18 along with the evidence of Doctors.

7. PW-4 is the informant and has testified that on the fateful day at 12.00 P.M. he overheard a mob in the market that the appellant had committed murder of three persons in his rented house. Upon proceeding towards the said house of Subhadra Jaiswal (PW-5), he found dead bodies