Satish Kumar vs State of U.P.

Kashi Nath Pandey, J.—This criminal appeal has been filed against judgment and order dated 17.10.2008, passed by Sri. Mool Chand Shukla, Additional Sessions Judge, Court No. 2, Saharanpur in Session Trial No. 803 of 2006 under Sections 302 and 307, I.P.C. P.S. Sarsawa whereby the Appellant has been convicted and sentenced to hang till death u/s 302, I.P.C. and imprisonment for life u/s 307, I.P.C. and fine of Rs. 5,000 in default of payment of fine for a term of three months additional imprisonment. u/s 366, Code of Criminal Procedure reference has also been submitted for confirmation of the death sentence.

According to the first information report as lodged by Kunwarpal son of Phool Singh resident of village Pilkhani, P.S. Sarsawa, district Saharanpur on 27.6.2006, Satish Kumar son of Atar Singh was sleeping on the roof of informant''s brother, Shyam Lal house with his wife and five children. The informant was also sleeping on the adjoining roof of his house, at about 4.30 a.m. In the morning he heard the cry of children, he rushed to the roof where Satish and his children were sleeping and saw that Satish was armed with kulhari in his hand and was assaulting on his wife and children, hearing the cry Beerbal and Telu Ram sons of Simran of the adjoining house and several other co-villagers came to the spot. With the help of all of them the informant apprehended Satish with his axe. Smt. Sanjo, the wife of Satish Kumar died on the spot and his children Amit, Sumit, Sunil, Deepak and Payal who were injured were taken to hospital by co-villagers. Satish was caught on the spot. Several co-villagers were there. The information is being given for necessary action.

The case was registered at Crime No. 147 of 2006 under Sections 307 and 302, I.P.C. against Satish Kumar son of Atar Singh on 27.6.2006 at 6.15 a.m. The distance of place of occurrence is at 7 kilometre from the police station. F.I.R. is exhibit Ka-1. Chik F.I.R. is exhibit Ka-10. According to the recovery memo, exhibit Ka-2 on 27.6.2006 in presence of witnesses Sri. Prakash Chandra son of Sri. Layak and Sri. Om Prakash son of Sri. Ranjeet Singh residents of village Pilkhani, P.S. Sarsawa, district Saharanpur an axe blood stained used in Crime No. 147 of 2006, Sections 307 and 302, I.P.C. was taken into possession by the police and covering its edges by cotton kept it in a sealed cover, specimen seal was prepared. Recovery memo was written and after reading over it to witnesses, there signatures were obtained. Exhibit Ka-3 is recovery memo of blood stained and simple soil, kankrit, cement from the place of occurrence of Case Crime No. 147 of 2006. It were kept in dibba which was kept in seal cover. Specimen seal was prepared. Recovery memo was prepared, read over to witnesses and there signatures were obtained.

After going through the materials laid before the Court, after hearing counsel for the State and defence, charges u/s 302, I.P.C. for the murder of Smt. Sanjo his wife and son Deepak as well as attempt to commit murder of his sons Amit, Sumit, Sunil and daughter Deepali u/s 307, I.P.C. were framed against the accused Satish Kumar which was read over and explained to him in Hindi. He pleaded not guilty and claimed to be tried.

In support of the prosecution case the informant, eye-witness, Kanwar Pal son of Phool Singh resident of village Pilkhani, P.S. Sarsawa, district Saharanpur has been examined. He has stated that the houses of the informant and his brother, Shyam Lal are adjacent to each other. On 27.6.2006 at about 4.20 a.m., in the morning at the roof of the house of his brother Shyam Lal, accused Satish, his wife Sanjo and their five children were sleeping. On the adjoining roof of his own house informant was sleeping. He heard the cry of his children and the children of the accused. His children were sleeping with the children of the accused. Hearing their cries he rushed there and saw Satish armed with axe assaulting his child, his wife was assaulted dead having injury on her neck and chin. His children were also injured. The youngest daughter Payal was also injured on her face. On above cry Beerbal and Telu and other co-villagers of adjoining houses came there. Satish was caught red handed with his axe and was handed over to the police station. The report was written by Tej Pal at the village. It was written at his dictation and signed by him. Tej Pal wrote the same version as was dictated by him. It was read over to him by Tej Pal. The F.I.R. is exhibit K-1. Injured children were taken to the hospital. Out of them Deepak succumbed to death. Rest of the children are alive and are living with their Tau, the elder brother of the deceased. The witness was subjected to cross-examination. He states that he is unable to tell the cause of murder and assault. The axe is material exhibit-1. In a bundle which is marked material exhibit-2 salvar, a kurta, bangles, one pair paijeb of deceased, Sanjo were brought out. One pair chutki and one laung of nose, two chutki and one ring were also brought out from it. One piece of metal was also in it. On salvar material exhibit-3, kurta-4, paijeb-5, chutki-6 and 7. On finger ring material exhibit-8 broken and other bangles, material exhibit-9, on the laung of nose material exhibit-10, on piece of metal material exhibit-11 were maked. All above materials were of deceased which were on her body. Deepak died after 5-6 days of incident. After sunrise at about 6 a.m. in the morning with the accused and other co-villagers they proceeded for the police station and at about 1-1/2 hours they were at the police station during his F.I.R. was lodged. On the date of incident police parties reached to the village of occurrence at about 7 a.m. in the morning. The statement of the informant was recorded. They have gone to the police station on tractor-trolley. It was driven by his uncle Nathi Ram. When he proceeded for the police station, he did not note the time. The case was handed over to the Sub-Inspector at the police station. After the F.I.R. was lodged, the recovery memo was prepared in presence of Om Prakash and Prakash and their signature were obtained. It has been suggested by the accused that he was not present on the date of incident at his village Pilkhani but he was working at the brick kiln of Jamuna Nagar. It has also been suggested that no incident has taken place in his presence and the informant is a professional police witness, therefore he is adducing false evidence. It has also been suggested that the accused has committed no offence. With the conspiracy of the police and partybandi of villagers, he was falsely implicated. All above suggestions have been specifically denied by the informant. Bare suggestion has got no importance unless and until there is some positive evidence in its support. It has not been explained or suggested or given in defence evidence that when and how and where the accused was arrested by the police.

The F.I.R. can be said to be prompt which has been lodged on 6.15 at the distance of 7 kilometre from the place of occurrence at the police station regarding incident of 4.30 a.m. on 27.6.2006. Thus, there is no chance of false implication whether the accused with arms of axe was handed over to the Sub-Inspector at the police station at the time of lodging of F.I.R. or it was recovered from the spot and accused was arrested at the spot by the police, can be said to be a material contradiction between the F.I.R. case, statement of the informant and statement of the Investigating Officer. But there is no dispute that just after the incident at a very short interval at about 7 a.m. the accused was arrested. There is no any suggestion from the side of the accused in cross-examination of the informant or Investigating Officer that he had been arrested from village Jamuna Nagar where at the brick kiln he was employed. Thus, the arrest of the accused just after the incident is proved beyond reasonable doubt. On point of arrest of accused and recovery of axe from the place of occurrence shown by the Investigating Officer comment has been made by the presiding Judge against his conduct and the learned lower Court believed that the axe as well as the accused were handed over to the police at the police station. There is no reason to disbelieve the prosecution case on account of above error committed by the Investigating Officer. We too agree with the views of the learned Court below which is in accordance with law laid down by the Hon''ble Apex Court which has been referred by the learned Judge.

Om Prakash son of Ranjeet Singh has been examined as P.W. 2. He states that on 27.6.2006 at about 4.30 a.m. in the morning accused, Satish has killed his wife Sanjo and assaulted, inflicted injuries on the body of his children, five in number, out of which one child Deepak died after some days on account of ante-mortem injuries received by the assault of Satish, his father. The inquest report was prepared by Investigating Officer in his presence regarding the dead body of Sanjo. He made his signature on it. The axe was taken by the Sub-Inspector in his possession in his presence. The pieces of cement was also taken by the Sub-Inspector from the roof of the incident. Recovery memo was prepared at the spot. He made his signature on the recovery memo. He supports the recovery memo and identifies his signature on it which are exhibit K-2 and exhibit K-3. In cross-examination he states that he had not gone to the police station. The police reached on the spot at about 7.15 a.m. There were Sub-Inspector and constables. The inquest report was written in the chaupal of Nathi Ram sitting on the roof. There was rain in the morning on that date. Neither he had gone to the police station nor he had made any signature on any paper at the police station, nor he is a police witness in any of the case of Pilkhini. It was suggested by the defence counsel that nothing was performed in his presence which was denied by him. It has also been suggested that on account of village partybandi and in the pressure of the police he is adducing false evidence which has been denied by him specifically.

Amit son of Satish aged 13 years has been examined as P.W. 3. He states on oath that the incident is one year old. He with his mother, sister and brothers were sleeping on the roof after taking their dinner in the night. They slept at about 7 p.m. on that date. His father was out of his village. He did not come back. Some person has assaulted them, on account of dark night. He could not recognize him. The weapon of assault was like sword. He became unconscious, therefore, he is unable to tell as to whether Kunwar Pal came for their rescue or not. There was no any quarrel in his presence between their parents. His mother died on the spot then and there after the assault and after some interval his brother Deepak died on account of ante-mortem injuries. All the four living brother and sister were assaulted and received injuries.

The witness was declared hostile and subjected to cross-examination by Additional District Government counsel (criminal). It has been stated by the witness that on the date of incident his father went to Jamuna Nagar where he was working as labour. He came to meet him in the hospital in the noon. Constables were not with him but this version finds no support in the statement of the accused recorded u/s 313, Code of Criminal Procedure Neither this fact was brought to the informant in the form of suggestion in cross-examination by defence counsel nor it has been explained through suggestion put before the informant regarding the time and place of the arrest of the accused, Satish.

The statement of the witness was recorded by Investigating Officer. He states that it is not the case, that all of them were assaulted by his father, resulting into the death of his mother and brother, Deepak. He does not know that Kunwar Pal and Beerbal apprehended his father with the axe and taken him into the police station. He states that on the roof of the house on which they were sleeping is the house of Shyam Lal. He received injuries on his neck. Her sister Payal received injuries on her face. For more than one months he was admitted in hospital. His father was serving at Jamuna Nagar at a brick kiln. He used to come back at the interval of 10 to 15 days for providing maintenance to them. In the preceding night of incident he had not seen his father in the village of incident. They are tenant in the house of Shyam Lal. Shyam Lal is brother of informant, Kunwar Pal. Kunwar Pal was willing to take the house of Shyam Lal. Kunwar Pal was not happy with the family member of accused.

After considering the evidence of the son of the deceased. We do not find any reason for false implication like a case under Sections 302 and 307, I.P.C. There is no any dispute between Kunwar Pal and Shyam Lal. Learned Counsel for the Appellant argued that there is no suggestion from the side of the prosecution that the witness is telling a lie for the sake of saving his father from punishment. The combined effect of his statement reflects that the incident took place at the same place and time as alleged by the informant. It has also been proved beyond all reasonable doubt that the accused was arrested with the axe used in the incident just after the incident without any delay. Therefore, the combined effect of the statement of P.W. 1 and P.W. 3 reflect that the witness P.W. 3 is under pressure of the fact that he has lost his mother as well as one brother. The rest of his brothers and one sister in absence of his father will be orphan. Thus, he is under psychological pressure to save his father although he has not been suggested by the prosecution counsel. He is going to gain nothing by securing conviction of his own father. He has not specifically denied that his father was not apprehended by the informant and the co-villagers from the place of occurrence and handed over to the police with the axe used in the incident. He has admitted that all of his family members including mother, brothers and sister were assaulted and received injuries. Only on the point of assailant he is keeping mum. The combined effect of the statement of P.W. 1, P.W. 2 and P.W. 3 supports the prosecution story.

Dr. P.K. Agrawal has been examined as P.W. 4. He has conducted the post-mortem of the dead body of Sanjo wife of Satish resident of village Pilkhani, P.S. Sarsawa, district Saharanpur which was brought to him in sealed condition with eight police papers by C.P. 4681, Vikas Malik and C.P. 4605 Visham Veer Singh of P.S. Sarsawa. All police papers were produced before him on which he made his initials. There were following pre-mortem injuries on the dead body of Smt. Sanjo. (1) Incised wound 9 cm. x 4 cm. x neck contents deep on the right side of neck, 3 cm. above the sternal notch and 2 cm. below the angle of mandible. The trachea, oesophagus are divided. The 5th cervical vertebra is partially cut. All the major vessels and muscle on the right side of neck are divided. (2) Incised wound 8 cm. x 2 cm. x muscle deep on the left side of neck just below the mandible bone. The cause of death was due to shock and haemorrhage as a result of ante-mortem injuries sustained on 27.6.2006 at about 4.30 a.m. The injuries were caused by sharp edged weapon, it can be an axe. The post-mortem report is in his hand writing and signature which is exhibit K-4. With the dead body inquest report, challan lash, letter to R.I., photo lash, letter to C.M.O., letter to Superintendent of Police, carbon copy of chik F.I.R. were also sent. He could not mark regarding any cutting in the inquest report. There was overwriting of 6.15 regarding the time on inquest report. Papers were received by him at 4.20 p.m. thereafter he conducted the post-mortem prepared report. The time of information to the police station has been entered as 27th June, 2006 at about 5.30 a.m. There is no cutting on it. Thus, on the point of information to the police there is some contradiction which has been well explained by the learned Judge stating it to the act of Investigating Officer for the sake of showing his ability to arrest the accused with arms used in the incident just after lodging of F.I.R. On above ground the learned lower Court did not suspect on the veracity of the prosecution case. Only on the ground of suggestion regarding the death of Sanjo no otherwise conclusion can be drawn when there is clear cut positive evidence of the eye-witness supported by post-mortem report.

P.W. 5 Dr. Chandra Shekhar has been examined. He states that on 27th June, 2006 he was E.M.O. at S.B.D. Hospital. On that date at 5.40 a.m. he examined the injuries of Amit aged 12 years son of Satish resident of Pilkhani, P.S. Sarsawa, district Saharanpur who was brought by Beerbal son of Simroo. He received following injuries:

An incised wound on upper part of front of neck 4.0 x 10.00 cm. in size fresh blood present x muscle deep.

An incised wound on upper part of Rt. side chest 10.5 x 0.5 cm. x muscle deep. Fresh blood present.

An incised wound on upper part of chest (Lt.) side 3.0 x 0.5 cm. in size x muscle deep. Fresh blood present.

He has proved the photo copy of the injury report to be in his hand writing and signature which bears the thumb impression of the injured which is exhibit K-5.

On the same day at 5.45 a.m. he examined the injuries of Suneel aged 7 years son of Satish brought by Beerbal. He received following injuries:

An incised wound on the back of neck 7.00 cm. x 10.0 cm. x muscle to bone deep. Fresh blood present." It is exhibit K-6.

Injuries of Sumit aged 9 years son of Satish were examined by him at 5.55 a.m. on 27.6.2006 brought by Beerbal. He received following injuries:

An incised wound on (Lt.) index finger 1.0 x 1.0 cm. x bone deep. Fresh blood present. Inj. kept U.O. Adv. X-ray.

An incised wound on the middle phalanx of middle finger of (Lt.) side 1.2 x 0.5 cm. in size. Fresh blood present. Inj. kept U.O. Adv. X-ray." It is exhibit K-7.

On the same day at 6.00 a.m. he examined injuries of Deepak aged 3 years son of Satish brought by Beerbal. He received following injuries:

An incised wound on the right side back of chest 2.0 x 1.0 x cavity deep. Fresh blood present. Gen. condition is low." It is exhibit K-8.

On the same day at 6.10 a.m. he examined injuries of Deepali aged 6 months daughter of Satish brought by Beerbal. She received following injuries:

An incised wound on Rt. side front of upper chest and shoulder 8.0 x 1.5 cm. x muscle to bone deep. Fresh blood present. Inj. kept U.O.

A lacerated wound on the Rt. side of face and lower lip 9.0 x 3.0 cm. x muscle to bone deep. Skin lacerated in places. Fresh blood present. Inj. kept U.O.

An incised wound on the upper lip 3.0 x 1.0 cm. in size x bone deep. Fresh blood present. Inj. kept U.O. Adv. X-ray face and chest.

It is exhibit K-9. He has also proved the material exhibit-12, the axe. The injuries caused to the above all injured can be inflicted by material exhibit-12, axe. If the assault is made by opposite side of the sharp edged side, the nature of injury will show to have been inflicted by blunt weapon as can be said regarding the injury No. 2 of Deepali. The margin of the incised wound are clean cut. There is nothing in the statement of the witness in cross-examination by which any chance of suspicion could be presumed. The axe which has been produced before the Court is very light, therefore, it cannot be said to be heavy cutting weapon. Its weight can be said approximately 1.25 kg. If much force is used for assault by axe it can cut bone. Thus, by the statement of Dr. P.K. Agrawal, P.W. 4 and Chandra Shekhar P.W. 5 the prosecution story finds support.

S.I. Shashi Pal Singh has been examined as P.W. 6. He states that he was posted as Head Moharrir second at P.S. Sarsawa, district Saharanpur on 27.6.2006. On that date at about 6.15 a.m. on the basis of written report exhibit K-1 of Kunwar Pal chik F.I.R. was prepared which is in the hand writing and signature of the witness. It has been marked as exhibit K-10. He has also written the G.D. Report No. 12 at 6.15 a.m. regarding the case. Original G.D. is before him. Its carbon copy is in the file. Original G.D. is in his hand writing and signature. He has made his signature on its certified carbon copy. G.D. was marked as exhibit K-11. Time was taken in preparation of chik F.I.R. as well as mentioning it in G.D. 30 to 40 minutes, at the time S.O. was present. Papers were handed over to him. S.O. proceeded for the spot which has been entered into G.D. He had gone on jeep which has been mentioned in the G.D. 3 to 4 persons were with Kunwar Pal who came at the police station. All of them went back with Station Officer to the spot. No arms was shown to him by the informant. It is wrong to say that chik F.I.R. and G.D. was prepared after the post-mortem was conducted. Thus, on the point of arrest of the accused and recovery of axe, the suspicion can be overruled as the station officer who is also an Investigating Officer went to the place of occurrence with all other persons and informant who came to the police station with the accused and arms used by him and he has shown the arrest and recovery of the axe, arms used by him from the spot which has been well explained and discussed by the learned lower Court in his judgment.

Dr. M.R. Singh has been examined as P.W. 7. He states that on 2.7.2006 at 5.45 p.m. he conducted the post-mortem of dead body of deceased, Deepak son of Satish which was brought to him in sealed cover bundle with 10 police papers which was handed over to him by constable No. 1343 Pramod Kumar and Home Guard No. 3885 Om Singh. Post-mortem report No. is 308 of 2006. Deepak died on 1.2.2006 at about 1.25 p.m. at S.B.D. District Hospital, Saharanpur. The pre-mortem injury of Deepak was of 26/27.6.2006 after 12 ''O'' clock in the night. It could be inflicted by axe. He died on account of ante mortem injury. Post-mortem report was prepared by him in his own hand writing and signature. It is in the file marked as exhibit K-12. He has been subjected to cross-examination and stated that the weapon by which the injury was inflicted can be palkati/sword. It was on the chest in the back of scapular bone. There was no any injury or fracture in scapula bone.

P.W. 8 constable Vishambhar Singh had taken dead body of Smt. Sanjo wife of Satish in sealed cover with police papers. Until it was handed over to the doctor, it was in his custody and none was permitted to touch it. It was handed over to the doctor in sealed condition. The dead body was handed over to them at 8.00 a.m. in the morning and he had taken it to the Police Line by 9.00 a.m.

S.I. Shripal Rana has been examined as P.W. 9. On the direction of S.O. he has prepared inquest report which is in his hand writing and signature. At the same time he has prepared the recovery memo of the axe taken from the spot which is exhibit K-2. Recovery memo of soil, kankrit, cement normal and blood stained was also prepared by him in his hand writing and signature that is exhibit K-3. S.O. Sudhir Pal Dhama has also made his signature on these papers. In the same chain he has prepared challan lash, photo lash, letter to R.I., letter to C.M.O. and other police papers. Inquest report is exhibit K-53. Challan lash of Smt. Sanjo K-14, photo lash K-15, letter to R.I. K-16, letter to C.M.O. K-17. He has also prepared the inquest report of dead body of Deepak son of Satish as well as challan lash, photo lash, letter to R.I., C.M.O. in his hand writing and signature. Exhibit K-18 to K-22 have been marked on these papers. Both of the dead body were handed over to four constables in sealed condition. Constable Vikas Malik and constable Vishambhar Singh had taken the dead body of Sanjo Devi and dead body of Deepak was handed over to constable Pramod Kumar and Home Guard Som Singh with all police papers sent for post mortem. In his cross-examination he states that he remained with Sub-Inspector alongwith the police party at the spot for 2,-2 and half hours. He admits that there is overwriting on the point of time but he failed to make his initial on it. It is wrong to say that at the place of 5.30, after cutting, 6.15 was made. Upto 7.50 he completed the preparation of inquest report. Exhibit K-13 does not bear signature of S.O. It is wrong to say that the witnesses of the inquest are pocket witnesses of the police. There is nothing in his cross-examination which can be ground of suspicion regarding the prosecution story. The inquest report was prepared at the roof, the place of occurrence. It was first floor of the house in which in one room accused was residing and in rest of the room there were goods of the landlord. The axe was found at the spot. It was in the west from the dead body.

It was suggested that all the proceeding was performed at the police station at the dictation of S.O. which has clearly been denied by the witness, Ved Prakash, P.W. 10 states that he was S.O. Sarsawa on 7.8.2006. After the transfer of Sudhir Pal he investigated the case. On 12.8.2006, recorded the statement of S.I. Shripal Rana in case-diary and thereafter submitted the charge-sheet in the Court. The charge-sheet is in his hand writing and signature. It is exhibit K-23. He has not recorded statement of any person except S.I. Shripal Rana. Shri Pal Rana S.I. did not tell him regarding preparation of site plan. He made enquiry from the injured and the witnesses but this has not been entered into case-diary. This was suggested that the charge-sheet has been submitted under pressure of his predecessor, S.O. which has clearly been denied by him.

Sudhir Pal P.W. 11 states that on 27.6.2006 he was S.O. at P.S. Sarsawa. The case was registered on the written report of Kunwar Pal son of Phool Singh. He received the investigation. He recorded the statement of Head Constable Shishpal Singh who prepared chik F.I.R., took statement of Kunwar Pal, Beerbal, Teluram eye-witnesses and recorded in the case-diary. Inspected the spot at the identification of the complainant and witnesses and also prepared site plan. It is exhibit K-24. Prepared recovery memo that is exhibits K-3 and K-4 of axe, blood stained and normal soil, entered it into case-diary. Arrested the accused-Satish from the spot. On 27.6.2006, he recorded the statement of the injured and witness of recovery memo, written it into case-diary. Post-mortem of Sanjo was conducted and report was received by him and written in C.D. On 8.7.2006, inquest report of deceased Sanjo was written in case-diary, recorded the statement of constable Vikash Malik and constable Kishan Veer Singh. On 9.7.2006, Deepak son of Satish died. He received his post-mortem report, entered it in case-diary. Inquest report of the dead body was also entered by him in case-diary. Material exhibits collected from the spot of this case were sent to Forensic Science Laboratory through constable No. 801 Sukhpal Singh. Statement of witness of inquest report was recorded on 17.7.2006. On 17.7.2006, he was transferred to Muzaffar Nagar. Rest of the investigation was completed by Ved Prakash.

Thus, on point of recovery of axe and arrest of the accused, there is contradiction, on point of place, that is place of occurrence or concerned police station, where the axe and accused is said to have been handed over by the informant and co-villagers. On this point trial Court believed the version of the complainant and held that showing of recovery of the axe and arrest of the accused from the spot is over acting of the then S.O. but on this ground the whole prosecution story cannot be brushed aside. The theme of the case is that the accused was arrested with the axe just after the incident which has been proved beyond all reasonable doubt. Kunwar Pal came to the police station at about 6.00 a.m. in the morning with 4-5 co-villagers Naresh, Som Nath, Om Prakash, Pooran Singh and Kripa Ram. Their names have been mentioned in the G.D. chik and G.D. was prepared by Head Constable Shishpal. Investigating Officer received copy of F.I.R. and G.D. at 6.30 a.m. in the morning and entered it into case-diary, and thereafter rushed for the place of occurrence. Informant Kunwar Pal was with him. He had gone to the place of occurrence on police jeep. He reached at about 7.0 a.m. Other co-villagers were also with him who went back to the spot. There he recorded the statement of the complainant. He prepared site plan. Shyam Lal is the landlord of the house. He has not recorded his statement as he was not available there. He has not recorded the statement of Nathi Ram and Kripa Ram whose houses are situated in the east and west from the place of occurrence. He denies suggestion that neither he had gone to the spot nor prepared site plan at the spot. Kunwar Pal, Beerbal and Tellu Ram are the eye-witnesses of the occurrence. Prakash Chandra and Om Prakash are witnesses of recovery memo. He recorded the statement of Beerbal and Tellu Ram at the spot. It was 7.30 a.m. in the morning. None injured were present there. They were taken to the hospital. Accused was entered into the police station at 1.00 p.m. His entry has also been mentioned in the general diary. He had also seen the injured person in the hospital. Inquest was prepared under his direction. Exhibit K-2 is recovery memo of axe, exhibit K-3 is recovery memo of concrete, cement simple and blood stained, exhibit K-13 is inquest report, exhibit K-14 is police paper-13, exhibit K-15 is photo lash of Smt. Sanjo Devi, exhibit K-16 is letter to R.I. Police Line, exhibit K-17 is letter to C.M.O. for post-mortem, exhibit K-18 is inquest report of the dead body of mail child, Deepak, exhibit K-19 is police form-13 regarding Deepak, exhibit K-20 is photo lash of the dead body of Deepak, exhibit K-21 is letter to R.I., exhibit K-22 is letter to C.M.O. for post-mortem, exhibit K-24 is site plan of the place of occurrence, were prepared under the dictation of Investigating Officer. It is submitted that there is no any name of the accused person on exhibit papers. It has been argued that the name of accused person was not in light till then but this argument cannot be accepted, because the F.I.R. was lodged at 6.15 a.m. and in general diary there has been specifically mentioned the name of Satish Kumar accused of Crime No. 147 of 2006, Sections 307 and 302, I.P.C. who was in the custody of the public was taken into police custody by the Investigating Officer, therefore, the theme of the prosecution case is that public have apprehended the accused and from whom custody Investigating Officer has taken him in his own custody. Therefore, the handing over of the accused from public custody to police custody is at the spot or at the police station is not very material, as it has been stated by the Investigating Officer that after the F.I.R. was lodged, all the persons who had gone to the police station with informant returned back to the spot with the Investigating Officer, where recovery memo exhibit K-2, exhibit K-3 were prepared. It is not very material that the above exhibits do not bear the name of the accused. He has denied the suggestion that the written report was prepared on his dictation. He also denies the suggestion that in the night of the incident the accused was not present in the village. It has also been denied that the accused was falsely implicated. It is also denied that witnesses are pocket witnesses of the police. It is also denied that he had not inspected the spot and submitted the charge-sheet in a mechanical manner.

Constable 1343 Pramod Kumar, P.W. 12 states that on 1.7.2006 he was posted at P.S. Sarsawa. At mortuary the inquest report of the dead body of Deepak was prepared by Shripal Rana, S.I. on which he has made his signature as witness. In his presence dead body was kept in sealed cover by S.I. Shripal Rana and handed over to him and Home Guard Som Singh. Till then the dead body was in their possession none was permitted to touch it, and in the same sealed condition the dead body was handed over to the doctor for the post-mortem. Police papers and post-mortem report were given to them by the doctor after post-mortem, which were submitted by him to the police station and dead body was handed over to its family member. The dead body was handed over to them at the hospital. From hospital to post-mortem house half hours time was taken in bringing dead body. After scrutinising and analysing the evidence discussed above, it can be concluded that the prosecution has successfully proved the case against the accused, Satish beyond all reasonable doubt.

All above evidences oral and documentary were brought into the notice of the accused for his explanation u/s 313, Code of Criminal Procedure All the allegations have been denied by him. The incident and injuries have not been denied by him. He is expressing his ignorance and innocence. He is not representing any alternative version. He is not forwarding any explanation. If he has not been arrested at the spot by the public and informant and handed over to the police at the police station or the spot, then how and when and where he was arrested by the police has not been explained by him. Although in the normal circumstances it is sufficient for the accused to keep mum and the sole burden lies on the prosecution to prove the case against the accused beyond all reasonable doubt, but in this particular case where his wife has been killed and his little children, five in number, including six months old daughter have been injured by sharp edged weapon, and it is alleged that he was arrested from the spot at the time of occurrence, the circumstances demands that some explanation is expected from the accused regarding incident. It is not satisfactory on the part of the defence to keep mum. It has been stated by him that he has been falsely implicated on account of enmity. But there is nothing in the record by which it can be stated that he will be falsely implicated under offence which is punishable with death sentence or imprisonment for life. It cannot be believed that in a false case which is under Sections 302 and 307, I.P.C. police will act in a mechanical manner, so the suggestion advanced by the defence have got no leg to stand. Tellu Ram is the witness of the F.I.R. His real brother Beerbal and he both reached the spot after the crime. After perusal of the injury reports of the injured, it is clear that they have been taken to hospital by Beerbal. Beerbal has not been examined as prosecution witness.

Tellu Ram has been examined as D.W. 1. He states that Satish is his co-villager. There was murder of the wife and child of Satish two years back. On that date he was in village Pilkhani. Again he has stated that he was not in village Pilkhani and again he has stated that in those days he was living in Pilkhani. Thus, from the very statement of the witness, it appears that his stability is doubtful. The statement does not appear impartial. He could not have decided to state that at the time of incident where he was present in Pilkhani or he was outside of the village Pilkhani but ultimately he stated that in those days he was residing in village Pilkhani. It was into his notice that wife and child of Satish were killed. He came to know about this fact at 8.00 a.m. thereafter he reached to the village at 9.00 a.m. but it has not been stated by him that where he was present from where after hearing the incident he reached to his village at 9.00 a.m. Thus, his statement does not appear to be full of gravity. He reached to the house of Satish where he saw the dead body of his wife. Children were taken to the hospital. He had no knowledge about the person who had killed the wife and child of Satish. At that time Satish was not present in the village. He was at Jamuna Nagar where he was the labourer. In cross-examination he has stated that in the night of incident of the murder of Satish wife and child, Satish was at Jamuna Nagar. He was not at Pilkhani with him. It has not been stated by him clearly that in the night of incident the witness was at Jamuna Nagar then how he can say that Satish was at Jamuna Nagar at the time of the incident. It has also been clearly stated by him that in the night of incident the witness was not at Jamuna Nagar. Satish was not at Pilkhani with him therefore, there is nothing in the statement of the witness by which alibi of the accused can be proved. Therefore, the prosecution story could not have been rebutted by the version of D.W. 1 Tellu Ram but like P.W. 3 under the influence of relationship of father and son, this witness is also appeared to have been influenced on account of relationship of nephew and uncle. It has been stated by the witness that in relation Satish is his nephew. Both belongs to same caste. It is not very material that the prosecution has not suggested in his cross-examination that he is not speaking the truth for the sake of saving his nephew. The Court is free to assess the fact after analysing the whole evidence of the prosecution and defence adduced in the record. Roof of the house of the informant, eye-witness, which is adjacent to the roof of first floor of his brother, Shyam Lal where the accused and his family members were sleeping. The children of the informant''s brother Shyam Lal were also sleeping with them, therefore, it was most natural for the informant to rush to the spot hearing cries of children. The prosecution version has been supported by the informant which finds corroboration from the medical evidence, injury report and post-mortem report. The informant can be said to be impartial. There is no stressed relation with the accused family. P.W. 3 son of the deceased and accused and D.W. 1 the uncle of the accused can be said to be interested witnesses having no interest to prosecute the case. It cannot be said unnatural on their part to save the life of the accused as they have already lost a lady and a child of the family.

There is nothing in record to show that what was the cause of such brutal assault by which the accused was in a mood to end the life of his own wife and all five children, even he had not spared his six months old daughter. This case cannot be said to be a normal case. The very act of the accused was improbable and abnormal. He might have been influenced by some circumstances on account of which he has committed such an act of assault under some dangerous reaction.

We have heard learned amicus curiae for the Appellant and learned A.G.A. for the State. Perused the impugned order and oral as well as documentary evidence in the record. According to the Appellant the learned lower Court failed to appreciate the evidence on record. The incident happened in the dark night. There was no source of light. One eye-witness who was slipping with the deceased and was also the injured witness declared hostile. The Appellant had no motive to commit the murder of his own wife and children. Murder might have been committed by some other person and the Appellant has been falsely implicated by his neighbour. The prosecution story is improbable. It is alleged that the Appellant was caught hold by the informant on the spot but his blood stained clothes were not recovered by the prosecution. The prosecution could not prove the case beyond doubt. The sentence is too severe. After the execution of sentence of death of the Appellant no one would be left behind to take care about his four children. Accordingly it has been prayed that the appeal be allowed and judgment and order dated 17.10.2008, passed by the Additional Sessions Judge, Court No. 2, Saharanpur in Session Trial No. 803 of 2006 under Sections 302 and 307, I.P.C. Police Station, Sarsawa, district Saharanpur be quashed and Appellant be acquitted. Learned Counsel for the Appellant argued that there is contradiction in the F.I.R., recovery memo and the statement of informant on point of the fact that the axe was handed over at the police station by the informant or it was recovered by the police at the spot. After the F.I.R. was lodged whether the accused was handed over at the police station at the time of lodging the F.I.R. or he was at the spot apprehended by the co-villagers. It is to be noted that the theme of the prosecution case is about apprehending the accused with the axe used in the offence of murder. It is also clear that the accused was taken in its custody by the police from the custody of informant and other co-villagers. It is secondary thing that the axe was handed over to S.O. at the police station or he reached to the spot and recovered it. There is no doubt regarding the handing over of the accused at the police station. The accused was arrested at the spot by the villagers with the axe by which the murder was committed there. There is nothing to doubt about the crux of the prosecution case. The confusion and contradiction which appears is on account of the fact that the Investigating Officer twisted the story to some extent for the sake of reflecting his competency to recover the arms and arrest the accused just after a short interval of the incident. All these things have been well explained in the impugned judgment by the learned lower Court. It has also been explained in the statement of the informant, which he has stated that the F.I.R. was written by Tej Pal son of Sri. Ram Das resident of village Pilkhani at the village after the incident, and thereafter with written F.I.R. and arrested accused they went to the police station on a tractor trolley. Therefore. we do not find any cause of suspicion in the prosecution story. It has been believed by the trial Court beyond doubt that the accused arrested by the co-villagers was handed over to the police station with the axe, the arms used in the offence. The recovery memo has been supported by its marginal witness. Thus, there is no material contradiction on account of arrest of the accused on the spot just at the time of the incident and recovery of arms from his hand by the informant with the help of the co-villagers. Therefore, it cannot be said that the learned Judge failed to appreciate the evidence on record. The evidence oral and documentary has been analysed and discussed by the learned Court from each point of view.

Whereas the question of incident of the dark night and there was no source of light is concerned, the Court can take notice of the fact that the incident is of June, 2006 at about 4.30 a.m. when the time of sun rise is very nearer in comparison to other season and without source of light from the close distance everything is visible. Therefore it is well within the reach to identify a person who are well known to each other. Such person can be recognised and identified even from the back side by his movement action and sound, therefore, there is nothing to see the version of the eye-witness with suspicion. Here in the present case the accused and the informant were well known to each other as the accused was tenant in the house of informant''s brother, Shyam Lal. It has also been stated by the informant that the children of his own brother were sleeping with the family members of the accused on the adjoining roof which was adjacent to the roof of the informant where he was sleeping. On the hearing of cry of the children of the accused as well as his own children, he rushed to the spot and saw the incident at a close range, with the help of co-villagers. The accused was arrested on the spot with the axe that is why there is least doubt on the identification of the accused so the argument on the point of dark night and no source of light cannot be accepted.

Where the case is based on positive evidence of eye-witnesses and accused was arrested at the time when he was committing the crime. The point of motive behind the crime become useless having no importance at all. Secondly, it is not possible for the prosecution witness to enter into mind of the accused, therefore, motive behind the offence is worthless needs no consideration. On this point too the learned lower Court''s judgment is well discussed and well explained.

There was no any base for the informant to falsely implicate the accused although it has been stated in the statement of P.W. 3 that the informant was planning to take the house of Shyam Lal in which accused family were tenant that is why there was no good relation between the informant and the family of the accused but this statement does not find support from any other evidence. Accused was tenant of only one room. If there had been bad relation, it was not probable for sleeping of the children of his brother with the children of the accused, therefore, there was no any cause with the informant to falsely implicate the accused. It is also to be noted that there was no suggestion by the defence reflecting to some other accused who might have committed murder of his wife and child assaulting other children. There is no any least suggestion regarding cause of action for some other stranger to commit the crime against the family member of the accused. What was moving in the mind of the accused cannot be identified by the other person. It has also been argued that the prosecution story is not probable as to killing his own wife and children by the accused but it is more improbable for some other stranger to kill the wife of the accused and attempt to kill rest of his five children out of whom one succumbed to death by the assault. The manner of the incident reflect that there was some pressure in the mind of the accused against this wife and children which can only be explained by the accused. Regarding family affairs of the accused, deceased and the injured children, it is not probable for other person to explain the thing. It has also been explained by the informant in his statement that accused was not insane but he was under stress.

Whereas the question of non-recovery of blood stained clothes of the accused is concerned, on this point the judgment of the learned lower Court has been explained stating that it was a summer season of June and on account of humidity in the climate it becomes more severe, therefore, it was not very uncommon that the accused was naked having least clothes on his body. Other blood stained clothes have been recovered which were subjected to expert report and on that point evidence have been adduced by the prosecution which will be discussed later on, therefore, there is nothing which can be a cause for seeing the prosecution case with suspicious eyes. Every point of doubt is not to be considered but only reasonable doubt can be a ground for the defence and the grounds mentioned in the memo of appeal cannot be said to be a reasonable ground which can be cause of doubt about the veracity of the prosecution case.

Exhibit Ka-5 is injury report of Amit aged 12 years son of Satish having three incised wound with fresh blood on upper part of front of neck, upper part of right side chest, upper part of left chest. Exhibit Ka-6 is injury report of Suneel son of Satish having incised wound on the back of neck with fresh blood. Exhibit Ka-7 is injury report of Sumit aged 9 years son of Satish having two incised wound, one of left index finger and the other on the middle phalanx of middle finger of left side fresh bleeding is present. Exhibit-8 is injury report of Deepak aged 3 years son of Satish having one incised wound on right side back of chest. Exhibit Ka-9 is injury report of Dipali aged 6 months daughter of Satish having three incised wound, on right side front of upper chest and shoulder, second incised wound on upper lip and a lacerated wound on the right side of her lower lip, fresh blood present. Thus, all of his five children have been assaulted by sharp edged weapon. There was no even any scratch wound on the body of children of Shyam Lal who were sleeping on the same roof besides them. Thus, assaulting on the five children and attempt of their murder can only be said to be under severe reaction which can be attributed to the accused not to some unknown strangers. Even six months old daughter was not exempted from the assault. Thus, the probability can be interpreted otherwise which is against the accused not against some strangers. Sanjo wife of Satish has received two incised ante-mortem injury on her neck. The trachea, oesophagus are divided. The 5th cervical vertebra is partially cut. All the major vessels and muscle on the right side of neck are divided. Incised wound 8 cm. x 2 cm. x muscle deep on the left side of neck just below the mandible bone. All above injuries reflects against the accused about brutal assault against his own wife and children. Post-mortem report of Sanjo is exhibit K-4 and post-mortem report of Deepak is exhibit K-12.

The report of Joint Director, Forensic Science Laboratory, Agra also supports the prosecution case. According to which on materials exhibits 1 to 9, i.e., kulhari, pieces of cement of the roof, kurta, salvar, pieces of bangle, payal, bichhiya, keel and pieces of metal the spot of blood were found. On material exhibits 1 to 4 human blood was found. It has also been reported that blood stained materials as well as simple materials were similar to each other regarding its physical properties.

In above circumstances learned Counsel for the Appellant argued that this is not one of the rarest of the rare case in which death sentence is to be awarded. This is the first offence of the accused. He is not a habitual offender. There is no evidence against accused person to hold that he is menace to the society. It has been argued that the death sentence may be modified into imprisonment for life. In support of his argument learned Counsel has submitted Ram Anup Singh and Ors. v. State of Bihar 2003 (2) JIC 558 : 2003 (1) ACR 303 (SC). In above case accused persons were real brother of deceased. There were dispute regarding gift of land. Six prosecution witnesses were related to the accused. Their testimonies were reliable and trustworthy. Four persons were done to death. Versions of eye-witnesses were natural. Prosecution case finds support from medical evidence. In above circumstances the Hon''ble Supreme Court modified the death sentence awarded by the trial Court and confirmed by the High Court to Appellant-Lallan Singh and Babban Singh into imprisonment for life with the condition not to be released before completing actual term of 20 years including period already undergone by them. In this case the alternative defence case was of dacoity with murder but it was not believed by the Court because no attempt of informing the police about the offence committed against their real brother. Here in present case before the Court no alternative theory was advanced by the accused. Where out of six members of his family his wife and one child succumbed to death and rest all the four were badly injured by sharp edged weapon, it was natural on his part to advance some theory, if he was not present at the spot at the time of incident and was not arrested by the informant and co-villager with the arms axe used in the incident. It has also been held in above case that only on account of minor contradiction testimony of the eye-witness cannot be seen with suspicious eyes.

Prakash Dhawal Khairnar (Patil) v. State of Maharashtra 2003 SCC 281 with State of Maharashtra v. Sandeep alias Babloo Prakash Khairnar (Patil) has also been submitted. In this case the accused has gunned down his own brother, brother''s family members, four in number, and his mother on account of the property dispute. Accused was working as Senior Scientific Assistant having no criminal tendency. Murder was committed on account of the fact that his brother was not partitioning the alleged joint property. It was not held to be one of the rarest of rare case and death sentence was reduced to life imprisonment with the direction that accused shall not be released from prison unless he had served at least 20 years of rigorous imprisonment. Hon''ble Court held that facts and circumstances of the case reveal that he has killed his brother, brother''s wife and children because of frustration, as his brother was not partitioning the alleged joint property. No doubt, it is heinous and brutal crime but at the same time it will be difficult to hold that it is rarest of rare cases. It is also difficult to hold that Appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. In above case accused was absconding living the place of occurrence after the incident was a circumstances against him. There was confessional statement of accused son which corroborate the proved circumstances which has not been explained by the accused under his statement recorded u/s 313, Code of Criminal Procedure In present case, before the Court it was expected from the accused to forward some explanation of the incident and of his arrest and recovery of axe from him but he kept mum, did not forward any defence in support of any alternative theory. Bare suggestion cannot be said to be sufficient in his defence.

On the basis of the discussion made above, the findings of the learned lower Court is based on evidence in record. The judgment is well discussed and reasoned and needs no interference except on point of death sentence, as it is not one of the rarest of the rare case, therefore, the conviction of death sentence u/s 302, I.P.C. is set aside and he is sentenced to serve out the imprisonment for life. Accordingly, the appeal is partly allowed on point of death sentence and Reference No. 13 of 2008 u/s 366, I.P.C. is rejected. Conviction and sentence of imprisonment for life and fine of Rs. 5,000 in default of payment of fine to undergo additional sentence for three months u/s 307, I.P.C. is confirmed.