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SUPREME COURT OF INDIA
Ranjan Gogoi, Uday Umesh Lalit, Prafulla C. Pant, JJ.
Dhal Singh Dewangan – Appellant
Versus
State of Chhattisgarh – Respondent
Criminal Appeal Nos. 162-163 of 2014
Decided On : 23-09-2016
(a) Indian Evidence Act, 1872 – Section 6 – Statements of PWs 1 and 2 in the court inconsistent with their reporting at police station – Testimony not admissible as evidence. (Para 16)
(b) Indian Evidence Act, 1872 – Section 6 – Rule of res gestae – To be admissible under Section 6, the statement must be contemporaneous with the acts which constitute the offence or at least immediately thereafter – In absence of elements of spontaneity and continuity evidence of PWs 3 and 5 would not be admissible u/s 6. (Para 21, 22)
(1996) 6 SCC 241; (2011) 7 SCC 130 – Relied upon
(c) Circumstantial evidence – Appellant found unconscious – Stating u/s 313 that he knew nothing as he was unconscious cannot be called, ‘absence of explanation’ or ‘false explanation’ – Not an adverse circumstance. (Para 26)
(1984) 4 SCC 116 – Relied upon
(d) Circumstantial evidence – Lungi found stained with human blood – Appellant found in full pant and shirt and nothing else – Seizure of lungi cannot be conclusive evidence against appellant. (Para 27)
(e) Criminal trial – Circumstantial evidence – Main door bolted from inside, rooms not locked – Possibility of a person/persons other than the inmates of the house getting into the house cannot be ruled out – Finger prints on the blood stained knife not taken – Appellant found unconscious – No plea or evidence of appellant feigning unconsciousness – Innocence of appellant may be a possibility. (Para 28)
Per Prafulla C. Pant, J.
(f) Criminal trial – Circumstantial evidence – Not making seizure immediately and non-mentioning of lungi in seizure memo – Not sufficient to doubt credibility of prosecution story. (Para 11)
(2000) 8 SCC 382 – Relied upon
(g) Code of Criminal Procedure, 1973 – Section 313 – Unnatural deaths in the house – Appellant present – Non disclosure as to how his family members died – Important to believe prosecution story. (Para 12)
(h) Indian Penal Code, 1860 – Section 302 – Sentence – Failure of State to show how the appellant is a continuing threat to society or that he is beyond reformation and rehabilitation – No criminal antecedents of the appellant – Sentence of imprisonment for life would meet the ends of justice. (Para 19)
(1980) 2 SCC 684 – Relied upon
Facts of the case:
The appellant was convicted u/s 302 IPC and awarded death sentence on six counts for having caused the deaths of his wife and five daughters on 19.02.2012.
High Court affirmed the conviction and the sentence.
Finding of the Court:
Per Uday Umesh Lalit, J.
The prosecution, on the basis of admissible evidence on record, has not proved its case against the appellant.
Per Prafulla C. Pant, J.
The prosecution has proved its case against the appellant.
Result: Per Uday Umesh Lalit, J. Appeals dismissed. Per Prafulla C. Pant, J. Appeals partly allowed.
JUDGMENT :
Uday Umesh Lalit, J.
1. 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 b
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