State of M.P. vs Rai Singh

Uma Nath Singh, J.—This judgment shall dispose of both the matters (the Death Reference and the Criminal Appeal, preferred by the accused against his conviction and sentences) arising out of a judgment dated 15.11.2003, passed by the learned Additional Sessions Judge (Jhabua) in the Sessions Trial No. 104 of2003 holding accused appellant Raisingh guilty of offence u/s 302 IPC and sentencing him to death on two counts for murders of Suresh and Amaniya and also convicting him u/s 307 IPC for attempt to murder Hirli Bai (PW4) and sentencing him to 7 years RI on that count.

Briefly stated the facts of the case are that accused Raisingh and deceased Amaniya are the nephews of complainant Keramsingh (PW1) and deceased Suresh and injured Hirli Bai (PW4) are his son and daughter. It is said that the accused was having illicit relationship with his aunt Mesri Bai (PW2) wife of Keramsingh (PW1) and mother of deceased Suresh and injured Hirli Bai (PW4). This fact was also known to PW1 and other villages. On 11.1.2003, the fateful date, at about 10 O''clock Keramsingh (PW1) and his wife Mesri Bai (PW2) had gone to cotton field for weeding out grass. During weeding operation, the accused appeared in the field and holding the hands of Mesri Bai asked her to accompany him. She yelled and hearing that PW1 (her husband) abusively rushed towards the accused with a stone in his hand to assault him. The accused took to his heels while threatening the couple to kill their children. Having apprehended dangers, PW1 followed the accused and from a little distance, he saw the accused emerging and running away from his house. He, therefore, rushed inside the house to see that his nephew 10 years old Amaniya (son of his brother Tersingh) was lying dead in a pool of blood just near the door and in the same condition inside a room of the house, his son Suresh was also found dead. At that moment his sister-in-law Jhagali Bai (PW3) (wife of Tersingh brother of PW1) arrived in tears and informed that the accused had also assaulted Hirli Bai (PW4). A little thereafter Hirli Bai came to the spot and narrated the incident that accused Raisingh had inflicted sword blows on her and had also assaulted deceased Suresh and Amaniya with sword, Geti and knife. Keramsingh (PW1) accompanied by Raju and Pratap carried Hirli Bai to Police Station, Jobat. PW1 lodged a report (Ex.P1) which was registered as Crime No.7/2003 by the Jobat Police under Sections 302 and 307. IPC against the accused. The report contained the necessary details of the background and the actual commission of the offence. It also contained a reference of Jhagali Bai (PW3) and injured eyewitness Hirli Bai (PW4).

During investigation, at the instance of PW1, a spot map (Ex.P2) was prepared and vide Ex.P3, bloodstained earth, controlled earth and a knife were seized from near the dead body of deceased Amaniya. Similarly, vide Ex. P4 blood-stained earth, controlled earth, a Geti and a blood stained sword were seized from near the dead body of deceased Suresh.

The dead bodies were sent for post-mortem examination. Dr.D.L.Sisodiya (PW5) conducted post-mortem of the dead body of Suresh and submitted a report vide Ex.P5. The details of injuries as contained in the post-mortem report are reproduced as under:

(1) Lacerated wound 3-1/2cm x 2-1 /2cm x 2-1 /2 cm x abdominal cavity deep over Rt.side of abdomen. Small intestine coming out from wound;

(2) Lacerated wound 3cm x 2cm x abdominal cavity deep over Rt lumber region;

(3) Lacerated wound 3-1 /2cm x 1 -1 /2cm cronial cavity deep over Lt. parietal region. Fracture in the parietal bone. Brain material was coming out;

(4) Incised wound 2cm x 1-1/2cm x abdominal cavity deep near Lt.side of abdomen just below costal margin inside mammary line;

(5) Incised wound 2cm x 1cm x abdominal cavity deep near Lt.side epigastric region;

(6) Incised wound 2cm x 1-1/2cm x thoracic cavity deep over 2-1/2 cm below Lt.nipple;

(7) Incised wound 2cm x 1-1/2cm x thoracic cavity deep over 2-1/2cm outside Lt. side nipple;

(8) Incised wound 2cm x 1-1/2cm x thoracic cavity deep near Lt.side of the chest.

(9) Incised wound 2cm x 1cm x thoracic cavity deep over 2cm below injury No.8;

(10) Incised wound 2cm x 1-1 /2cm x thoracic cavity deep over 5 cm above Lt.nipple;

(11) Incised wound 2cm x 1-1/2cm x muscle deep over front side of Lt. arm;

(12) Incised wound 2cm x 1-1/2cm x muscle deep over 2-1/2cm below injury No. 11;

(13) Incised wound 3cm x 1-1/2cm x thoracic cavity deep on the Rt.cavical region;

(14) Incised wound 3-1/2cm x 2cm x thoracic cavity deep over Rt.infrascapular region;

(15) Incised wound 4-1/2cm x 2cm x abdominal cavity deep over 3cm towards outer left region.

On dissection:

(1) An incised wound 2-1/2cm x 1cm x 1cm over outer surface of spleen being parallel or corresponding to left injury No.4;

(2) An incised wound 2cm x 1-1/2cm x 3cm situated on the outer surface of the left lung. There were two injuries corresponding to external injury Nos.7 and 10.

(3) An incised wound 1-1/2cm x 1-1/2cm situated on the outer middle lobe. This injury was corresponding to external injuries Nos.8 and 9. The chest cavity was full of blood.

(4) An incised wound 1-1/2cm x 2/3cm x cavity deep over the outer surface of abdomen. This injury was corresponding to external injury No.5;

(5) A lacerated wound of2cm x 1-1/2cm x 1-1/2cm which was present over the frontal and outer surface of the Right knee. This injury was corresponding to external injury No. 1;

(6) Extra dural Haemotoma present over left parietal region of cranial cavity. There was fracture of left parietal bone. Brain matter had come out. This injury was corresponding to external injury No.3;

(7) The chest and abdominal cavities were full of blood.

External injury Nos. 1,2 and 3 had been caused by some hard and blunt object. The rest of the injuries namely, 4,5,6,7,8,9,10,11,12,13,14 and 15 seemed to have been caused by some hard and sharp-edged weapon. External injury Nos. 1,3,4,5,7,8,9 and 10 and their corresponding internal injuries were found to be sufficient to cause death in the ordinary course of nature.

In the opinion of Dr.Sisodiya (PW5), Suresh died due to haemorrhage, shock and coma resulting from the injuries to brain, lungs, spleen and kidney. The death was homicidal in nature. PW5 also conducted post-mortem of the dead body of deceased Amaniya s/o Tersingh. The post-mortem report is Ex.P6, which contained the following details of the injuries:

(1) Incised wound 15cm x 5cm x cranial cavity deep. Cutting of meninges over left parietal region. It was extended upto occipital region, frontal parietal and occipital bones were cut.

(2) Incised wound 12cm x 4cm x cranial cavity deep over 4cm below injury No. 1;

(3) Incised wound 5cm x 3cm over posterior 1/3 of left forearm. Ulna bone was cut into 2 pieces;

(4) Incised wound 2x4cm just below injury No.3 extended upto left hand palm and was bone deep;

(5) Incised wound 5-1/2cm x 2cm with full thickness deep over base of Lt.index finger. Index finger had been severed away;

(6) Incised wound 1-1/2cm x bone deep. Bone cut over Lt. thumb distal phalange and separated;

(7) Incised wound 2-1/2cm x 1/2cm x bone deep over Lt.palm, 1,3,4 and 5 metacarpal bones were cut.

(8) Incised wound 2cm x 1cm x thoracic cavity deep over Rt.side of abdomen just below costal margin in mammary line;

(9) Incised wound 2cm x 1cm x abdominal cavity deep over epigastric region;

(10) Incised wound 2cm x 1cm x abdominal cavity deep over Rt. side of abdomen in upper part;

(11) Incised wound 2cm x 1cm x abdominal cavity deep over 2cm below injury No.10.

(12) Incised wound 2cm x1cm x abdominal cavity deep over 1/2cm below injury No.11;

(13) Incised wound 1/2cm x 1-1/2cm x muscle deep over lateral aspect of upper part of Rt.thigh;

(14) Incised wound 1/2cm x 1-1/2cm x muscle deep over 2cm below injury No. 13;

(15) Incised wound 1/2cm x 1/2cm x muscle deep over lateral aspect of Rt. thigh middle 1/3;

(16) Incised wound 2-1/2cm x 1/2cm x thoracic cavity deep over left scapular region.

(17) Incised wound 2-1/2cm x 1/2cm x abdominal cavity deep over left side of abdomen.

On dissection:

(1) Haemotoma present in Lt. parieto occipital region over brain in continuation of external injury Nos. 1 and 2;

(2) An incised wound 2cm x 1 /2cm x 1 cm deep over superior surface of spleen in continuation of external injury No.17. Abdominal cavity full of blood;

(3) Incised wound 2cm x 1/2cm x 1cm post surface of Lt.lung. Lower lobe in continuation of external injury No. 16;

(4) Incised wound 1/2cm x 1 cm x 1cm over superior surface of liver in continuation of external injury No. 10;

(5) Incised wound 1-1/2cm x 1cm x lumen deep in continuation of injury No. 12.

In the opinion of the doctor, death of Amaniya was caused due to haemorrhage, shock and coma resulting from injuries to liver, lungs and spleen. The death was homicidal in nature.

Dr.Sisodiya(PW5) also examined injured witness Hirli Bai(PW4)and found the following injuries vide the medical report Ex.P7:

(1) Incised wound 10cm x 4cm x bone deep. Bone cut 10cm x 4cm over Lt. frontal, mid frontal and Rt.frontal region extending up to Right upper eyelid.

(2) Incised wound 5-1 /2cm x 3cm x Bone deep over upper aspect of Rt. forearm lower 1/3rd.

The accused appellant was arrested vide arrest memo (Ex.P8) on 15.1.2003 at 1 o''clock. Vide Ex.P9, the incriminating articles were sent to the Asstt.Chemical Examiner, Indore, by the Superintendent of Police for Chemical Examination. The Chemical Examiner''s Report was placed before the Court and exhibited as Ex.P10. On the blood stained earth, Geti, sword, knife and the clothes of the deceased, human blood was found but blood groupings could not be determined due to insufficient quantity of blood. The inquest reports in respect of the dead bodies of deceased Amaniya and Suresh are Ex.P11 and Ex.P12.

After investigation, the accused was tried upon the charges under Sections 302 and 307 IPC, which he denied and pleaded false implication. However, the accused did not adduce any defence evidence. The prosecution led the evidence of Keramsingh (PW1), Mesri Bai (PW2), Jhagali Bai (PW3) and injured witness Hirli Bai (PW4), who are related to deceased Suresh and Amaniya. Other witnesses being Dr.D.L.Sisodia (PW5), TI R.S.Savita (PW6) and ASI Hukumsingh Sisodia (PW7) are only the official witnesses. PW5 is the Assistant Surgeon who conducted the post-mortems of the dead bodies and PW6 and PW7 are connected with investigation.

The learned Trial Court placed reliance on the evidence of Keramsingh (PW1). Keramsingh lodged a named report against the accused soon after the incident and also implicated him in his statement u/s 161, Cr.P.C. as well as in his evidence before the Court. The Trial Court also placed reliance on the statement of Mesribai (PW2) who appeared to have corroborated the testimony of Keramsingh (PW1) in the material particulars, including the fact that the accused had threatened to do away with their children. The Trial Court further placed reliance on the testimony of Jhagali Bai (PW3), (mother of deceased Amaniya and aunt of deceased Suresh and injured witness Hirli Bai (PW4). She also appeared to have lent necessary support to the evidence of PW1. The trial Court also placed reliance on the deposition of Hirli Bai (PW4), (a child but injured witness) who wgs found to be competent to testify before the Court. She was also found to have given a graphic picture of the incident.

The trial court noted that though the prosecution did not produce any independent witness in support of the evidence of aforesaid witnesses said to be related to the deceased yet since their presence on the scene of occurrence appeared to be natural, therefore, their evidence was worthy of credence and could be acted upon. The Trial Court also noted that the evidence of Keramsingh (PW1) found full support from the testimony of ASI Hukumsingh Sisodiya(PW7), the First information Report (Ex.P1), the statement of R.S.Savita TI (PW6) and the medical evidence. The Trial Court observed that the testimonies of prosecution witnesses also received corroboration from the seizures and the chemical examination report even though the blood groupings could not be determined due to insufficient quantity of the blood. Thus, the trial Court looking to the impeccable quality of direct and circumstantial evidence including the nature and the number of injuries and the type of weapons of offence, arrived at the conclusion that the accused appellant intended to cause death of two deceased boys and serious injuries to Hirli Bai(PW4), a girl of 11 years.

We have heard learned Counsel for the parties and perused the records. Learned Senior Counsel Mr.Jaisingh submitted that Keramsingh (PW1) had not seen the accused appellant running from the spot of the incident and he and all other prosecution witnesses have only relied on the statement of injured child witness Hirli Bai (PW4), who could not have resisted the influence of her parents and other family members. Learned Senior Counsel further submitted that the accused was physically involved with Mesri Bai (PW2) wife of Keramsingh (PW1), therefore, he has been falsely implicated in the case. The learned Senior Counsel also submitted that though the offence was committed in day time at about 2 o''clock when independent witnesses were also available but no such witness has been examined by the prosecution. He further submitted that looking to the age of PW4 and the attending circumstances of the case, it was all the more necessary to seek corroboration from independent witnesses. He further submitted that as per the statement of TI R.S.Savita (PW6), apart from complainant Keramsingh (PW1) Jhagali Bai (PW3), and Hirli Bai (PW4), the police also interrogated Eda, Mallu Bai, Raju and Pratap and their statements were recorded u/s 461, Cr.P.C. but the prosecution had not produced them in the witnesses box.

R.S.Savita (PW6) (TI of Police Station, Jobat) in the cross-examination denied the suggestion that witness Raju, Pratap Eda had gone to Jhabua to attend the meeting of Smt.Sonia Gandhi. However, he admitted that he had gone to Jhabua on a Law and Order duty and on his return he had gone to scene of occurrence where he met the witnesses. This witness mentioned that Hirli Bai (PW4) is the eyewitness of the incident. He testified that he had recorded the statement of Hirli Bai three days after the incident because she had been admitted in Alirajpur Hospital. He reiterated that he had taken the statement of Hirli Bai at Alirajpur. He deposed that during investigation it had come to his notice that Mesri Bai (PW2) w/o Keramsingh (PW1) had illicit relationship with the accused.

ASI Hukumsingh (PW7) had recorded the FIR (Ex.P1) lodged by Keramsingh (PW1), who was accompanied by Hirli Bai, Pratap and Raju. He stated in the cross-examination that he had come to the spot of the incident with Keramsingh and sent Hirli Bai to hospital with Pratap and Raju for medical examination and treatment. He had prepared the spot map and TI R.S.Savita (PW6) arrived later on. He denied that the knife was thrown in the courtyard and deposed that it was lying inside the house. He clarified in his cross-examination that a Geti and a sword were lying at the place shown against serial number 3 in the spot map. He also deposed that Jhagali Bai (PW3) was working in the field at a distance of 270 paces from the spot of the incident. According to him, Keramsingh saw the accused running away from his house from a distance of 210 paces. He testified that only at point Nos.7,8 and 12 of the spot map, blood stains were found but not at point No. 11. He seized the blood stained earth and the controlled earth of the places where blood stains of Hirli Bai (PW4) had been found. He mentioned that Muneer Shah, Ratan, Magan, Badiya and Kalusingh were staying at a distance of 1/2 km from the spot of the incident. He also mentioned that almost all the people referred to were found present on the spot. He denied the suggestion that Hirli Bai, Eda, Mesri Bai and Mallu Bai were not present on the scene of occurrence and, hence, they were not called. He clarified that when he was completing the procedural works in the village, at that time, Raju and Pratap had not returned. He also clarified that TI R.S.Savita had recorded the statements of witnesses and stayed in village during the night with him. He also mentioned that the TI had taken the statements of Raju and Pratap in the village in the night itself. However, he could not recollect the time of recording of statements by the TI. He deposed that accused Raisingh is an educated person and he had no information about the accused being visited by intermittent recurrence of fits of violence. He denied that Hirli Bai (PW4) has falsely implicated the accused at the instance of her parents.

Thus, from the statement of the Investigating Officer, it appears that though the statements of Eda, Mallu Bai, Raju and Pratap were recorded by him u/s 161 Cr.P.C., but they were not produced in the witness box. The trial Court has not found any fault with the evidence of other prosecution witnesses merely for that reason. Further, no such suggestion was put to the Investigating Officer to explain as why witnesses Eda, Mallu Bai, Raju and Pratap were not produced in the witness box.

Keramsingh (PW1) admitted in paragraph 11 of his cross-examination that he had not seen the accused entering his house but he only saw him fleeing away from there. He also stated that he saw the accused coming out of his house from a distance of 250 ft. Mesri Bai (PW2) mentioned in paragraph 6 of her cross-examination that her husband Keramsingh (PW1) followed the accused from their field. She also went after them. She clarified that her husband Keramsingh (PW1) rap behind the accused. She could not run, therefore, she only walked behind her husband (PW1). She did not mention anything about the distance wherefrom, Keramsingh (PW1) is said to have seen the accused coming out of his house. In the FIR (Ex.P1), Keramsingh only mentioned that he had seen the accused appellant running away from his house from a short distance. This fact also finds support from the spot map (Ex.P2), wherein this witness (PW1) has pointed out the place wherefrom he had seen the accused coming out of his house and also from the statement of ASI Hukumsingh (PW7), who has prepared the spot map. According to TI R.S.Savita (PW6), Keramsingh showed the place wherefrom he had seen the accused appellant running away. It was at a distance of about 210 paces.

Hirli Bai(PW4) has stated in her cross-examination that the house of accused Raisingh adjoins her house and the houses of Mukam, Eda, Putia and Budhiya are also situated nearby. She deposed that the field of Daliya comes on the way to the field of Jhaali Bai (PW3). She clarified that at the time of the incident Putia, a neighbour, had gone to Indore and Eda was at home. She also clarified that Tersingh and Mukam were not at home and Badiya had gone to field. She stated that deceased Amaniya and Suresh had returned home between 10-11 a.m. for taking meal, after having left their cattle in the forest for grazing. She also stated that Amaniya and Suresh were eating near the door. The accused had killed Amaniya at the door itself and deceased Suresh inside a room near the door. She was cooking vegetables and also taking food. She clarified that all the three victims were sitting closely and taking food. She further clarified that Amaniya was eating outside the room and she and her brother deceased Suresh inside the room. She also stated that Geti, one of the weapons of offence, belonged to her family. She stated that when Amaniya and Suresh had been assaulted, she did not yell. She mentioned that the accused assaulted Amaniya with sword near the door. She also mentioned that at that time her neighbour Badiya and Mukam, were not at home and they had gone to fields. She stated that the husband of Jhagali Bai (PW3) has gone to Jhabua. She also stated that at the time of occurrence, she was at home with the deceased and other small children. She clarified that having been injured, Amaniya and Suresh bled to death. She denied that she had received injuries due to fall near hand pump. She told that the accused had brought a sword and a knife from his house. She mentioned that even from before the incident, her parents were not on talking terms with the accused. She admitted that the accused had been teasing her mother (PW2). She also admitted that the accused wanted to keep her mother as his wife. She admitted that she had seen the accused teasing her mother. About 4-5 days before the incident, the accused had forcibly caught hold of her mother and out of fear she had not disclosed this fact to anyone. This witness mentioned that her father (PW1) who had accompanied her to the court had told her to depose that she had seen the accused inflicting injuries on deceased Suresh and Amaniya. She stated that her father had cautioned her to give a statement carefully in the court. However, she denied a suggestion that she was being tutored by her parents for the past 2-3 months to give the statement. She denied that she had reached home (the scene of occurrence) 1/2 an hour after Jhagali Bai. She voluntarily told that she had returned home soon after Jhagali Bai. However, she clarified that when she reached home, Jhagali Bai (PW3) and her parents were present there. She denied the suggestion that she had not seen the actual incident and she had received the injuries by fall while running away from the spot of the incident.

Thus, from the testimony of this witness, it appears that she was candid and credible in deposing before the court when she stated that her father had cautioned to be careful in her court statement. This may only show an attempt to woo the witness nonetheless that would certainly not make it a case of tutoring. This is only a reaffirmation of the truthfulness of the witness. Inspite of that, eyewitness account of injured star witness Hirli Bai (PW4) gives a graphic detailed description of the occurrence. Her evidence as above is reinforced by the testimonies of her parents PW1 and PW2. PW1 being a special connecting link between the motive and the commission of offence, having followed the accused from field to his house the site of offence saw him running away after commission of offence from the scene of occurrence. Mesri Bai (PW2), mother of PW4 stated that on the day of the incident, residents of her locality had gone to Jhabua. She also stated that she, her husband and children had not gone there. At 8 o''clock in the morning she had gone to field with her husband. Deceased Suresh and Amaniya had gone out for grazing the cattle. Her daughter Hirli Bai (PW4) was at home. She denied the suggestion that she and her husband had gone to field at 10 o''clock. She mentioned that her field was situated at a distance of about 1 km. from her house. She also mentioned that when the accused appeared in her field, only her husband was there working with her. She denied a suggestion that her husband had come when she was talking to the accused. She also denied the suggestion that her son Suresh was born out of her relationship with the accused. She refuted the suggestion that her husband followed her and beat when she was returning home with the accused, as a result, she had fallen down and stayed in the field. She has on the other hand, explained that her husband PW1 had followed the accused having perceived imminent dangers to their children and she went after her husband. She explained that only her husband had run after the accused and she simply walked behind him. She stated that the accused had come to her field empty-handed. She reached the scene of occurrence after her husband. On reaching home, she had met her husband, Jhagali Bai (PW3) and Hirli (PW4). Her husband narrated the incident. She denied a suggestion that PW4 was found lying near the hand pump. When she had reached home, Jhabali Bai (PW3) told her that the accused had assaulted PW4. Jhagali Bai (PW3) was working in her field at that time. The witness admitted that the field of Jhagali Bai was situated at a distance of 1/2 furlong towards the hand pump. She also admitted that the Geti was kept inside her house but the sword and the knife did not belong to her family. The accused would have brought them. She mentioned that the blood stained sword and knife were lying near the dead bodies. She further clarified that deceased Amaniya and Suresh had not returned home at about 12 o''clock but had come an hour earlier at about 11 o''clock. She also mentioned that her daughter Hirli Bai (PW4) was cooking vegetables. The dead body of Suresh was lying inside the house, and that of Amaniya near the door. The dead body of Suresh was lying near Hirli Bai who was cooking vegetables. She denied a suggestion that Hirli Bai (PW4) had run away, and in the process she had sustained injuries by fall. PW2 also denied a suggestion that she had tutored PW4 to give a false statement.

Jhagali Bai (PW3) in paragraph 2 of her cross-examination stated that her son deceased Amaniya was taking food in the house of Keramsingh (PW1), her elder brother-in-law. According to this witness, deceased Amaniya and Suresh having left their cattle for grazing and had come back at 10 o''clock for taking meal. This witness also corroborated in her statement that whenever Mesri Bai (PW2) (elder sister-in-law) would stay home alone the accused would catch hold of her and tease. The accused was an educated person, therefore, his father and uncle would not lodge a report of such incident as they apprehended that the accused may not get a Government job. PW3 denied a suggestion that deceased Suresh was born out of an illicit relationship of PW2 with the accused. This witness clarified that Keramsingh (PW1) was the first person who had seen the dead bodies of Amaniya and Suresh and she was the second one to reach the spot of incident. PW4 had come after them and Mesri Bai (PW2) had reached thereafter. She also clarified that Hirli Bai was found lying in the field and her head injury was bleeding. She admitted that because of illicit relationship of accused with Mesri Bai (PW2), all other family members and villagers were angry with the accused. However, she denied a suggestion that the accused was, falsely implicated.

Thus, this is obvious from the statements of Mesri Bai (PW2) herself, Jhagali Bai (PW3), Hirli Bai (PW4) and R.S.Savita (PW6) that the accused was carrying an illicit relationship with PW2 and on her denial to accompany him, he had threatened her and her husband (PW1) with doing away with their children and in a fit of anger and huff had left the place and committed the murders of deceased Amaniya and Suresh while causing serious injuries to Hirli Bai (PW4).

Keramsingh (PW1) lodged the report (Ex.P1), which contains necessary informations, including a mention of the names of his wife Mesri Bai (PW2), Jhagali Bai (PW3) and his injured daughter Hirli Bai (PW4) as witnesses. The FIR was lodged at the earliest point of time at 12.50 noon after covering a distance of 16 kms at Police Station, Jobat although the offence had taken place only at 12 o''clock. Thus there was no question of tinkering and tampering with material information. The FIR did not mention about presence of any independent witness, therefore, presence of said witnesses appear to be quite natural and probable. The FIR is found to lend unqualified support to the evidence Keramsingh (PW1). The FIR also explains as why an independent witness was not produced in the witness box.

The evidence of Dr.D.L.Sisodiya (PW5) has been placed reliance on. He has proved the post-mortem reports (Exts.P5 and P6) and found as many as 15 external and 7 internal injuries on various parts of the body of Suresh. He further mentioned that all the aforesaid injuries were ante mortem and could be possible from blunt and sharp-edged weapons. He clarified that the external injury Nos. 1,3,4,5,7,8,9 and 10 and also the corresponding internal injuries were sufficient, in the ordinary course of nature, to cause death. Again, in the case of Amaniya, he has noted 17 external and 5 internal injuries. He has clarified that the aforesaid external and internal injuries were possible from a hard and sharp edged weapon. He has further clarified that all the injuries were ante mortem in nature and injury Nos. 1,2,10,12,16 and 17 and also the corresponding internal injuries were sufficient to cause death in the ordinary course of nature.

He also examined Hirli Bai (PW4) and found two incised wounds as aforesaid. According to him these injuries were possible from a hard and sharp-edged weapon.

There is no reason to doubt the credibility of the evidence of the doctor and, thus, the medical reports also lend full corroboration to the evidence of the complainant (PW1). The evidence of Hirli Bai (PW4), a child witness, does not suffer from any serious infirmity. She is truthful throughout in her deposition before the court giving a graphic details of the incident including the fact that while accompanying her to the court, her father cautioned her to be careful in her deposition before the court. We do not find this to be a reason to doubt the credibility of her evidence. Her court statement is not at material variance with her statement u/s 161, Cr.P.C. The motive for commission of offence was quite obvious from the statements of witnesses and it need not be elucidated any further. Suffice it to say that Mesri Bai (PW2) had illicit relationship with the accused and even on the date of occurrence her refusal to accompany the accused and the insults meted out to him by her husband Keramsingh (PW1) enraged him to commit the offence.

The evidence of complainant Keramsingh (PW1) is fully corroborated by the testimonies of his daughter and injured witness Hirli Bai (PW4) his wife Mesri Bai (PW2) and Jhagali Bai (PW3) (mother of deceased Amaniya). In the FIR lodged by this witness, names of PW2, PW3 and PW4 have been mentioned. Besides them, evidence of Dr.D.L.Sisodia (PW5) who conducted postmortems of the dead bodies also support the prosecution case. The post-mortem reports indicate that both the deceased had received a number of serious injuries. In the case of deceased Suresh, external injury Nos. 1,3,4,5,7,8,9 and 10 and their corresponding internal injuries were found to be sufficient to cause death in the ordinary course of nature. Similarly in the case of Amaniya, the doctor found the injury Nos.1,2,10,12,16 and 17 and also the corresponding internal injuries sufficient to cause death in the ordinary course of nature. Likewise injuries lacerated on vital parts of the body of Hirli Bai (PW4) were also found to be serious in nature. The weapons of offence being Geti, knife and sword were found stained with blood and lying near the dead bodies. As discussed hereinabove, the accused had a motive to commit the offence. In the Chemical Examiner''s report (Ex.P 10), on the seized articles, stains of human blood were found but due to insufficient quantity of blood samples, the blood groups could not be determined. Thus the prosecution case stands fully proved by the ocular and the circumstantial evidence, both. A defence contention that only interested witnesses were examined even though the occurrence took place in broad daylight at 12 o''clock does not seem to have any force inasmuch as no such witness was available at the time of offence. Hence, conviction of the accused on two counts u/s 302 IPC for murders of Suresh and Amaniya and u/s 307 IPC for attempt to murder Hirli Bai (PW4) are hereby affirmed. As regards the question of sentence, the learned trial Judge has awarded death sentence on two counts u/s 302 IPC and 7 years RI with a fine of Rs. 1000/- and in default of payment of fine, to further undergo 1 year RI u/s 307 IPC. The learned Judge has considered the age group of deceased children and the number and the nature of injuries as special reasons for passing the capital sentence. The learned Judge has reproduced the relevant portions of judgments of Hon''ble the Apex Court and also of a High Court on the death sentence. They are, (1) Bachan Singh Vs. State of Punjab, ; (2) Machhi Singh and Others Vs. State of Punjab, ; (3) Ravji alias Ram Chandra Vs. State of Rajasthan, and The State Vs. Gani Mohammad, , The State Vs. Gani Mohammad, .

On the basis of guidelines laid down in the aforesaid judgments, the learned Judge has arrived at conclusion that the case on hand falls in the category of the rarest of rare cases.

The prosecution case with respect to actual offences of murders and attempt to murder is only founded on the eyewitness account of Hirli Bai (PW4) a child witness of 11 years. The prosecution has not examined the finger-prints of the accused nor has it established the blood groupings of stains found on the seized articles. No independent witness has been examined in support of the prosecution case. The accused was known to have illicit relationship with Mesri Bai (PW2), mother of deceased Suresh, and the family members and villagers were annoyed with him for that reason. The accused was insulted and abused by the complainant (PW1) soon before the incident when he wanted PW2 to accompany him for a fun. It would appear from the above discussions of evidence that almost all the people around in the family and village knew about the relationship but no one took any serious objection to curb this tendency either by lodging a report or otherwise. It would also appear that though PW2 was an aunt of the accused in relationship but he had always been aspiring to keep her as his wife and having found her alone, he would even tease her. It would further appear that at one stage, the relationship between PW1 and PW2 as husband and wife had critically soured because of latter''s relationship with the accused and even PW2 had gone back to her parents'' house with an intention not to return. It would also appear that the accused had even left the weapons of offence on the spot and had this been a case of pre-planned cold-blooded murder, he would not have left any article behind to connect him with the offence.

Thus, on considering the above circumstances, the acts of the accused cannot be said to be extremely brutal, grotesque,''diabolical, revolting and unpardonable in nature so as to arouse intense and extreme indignation of the community. In passing death sentence only on the basis of eyewitness accounts of Hirli Bai (PW4), an injured child eye-witness, an imminent danger of judicial error is quite possible. Moreover, in deciding criminal cases, no particular factor can be said to have primacy and each case depends on its own facts. In the instant case, there is no such evidence to show that the accused was a professional killer or a hardened criminal. It seems that the accused suffered emotional wrecks on being refused the company of PW2 and thus out of sheer frustration in a huff he committed the offences.

Consequently, looking to the circumstances of the crime and the background of the criminal, and further on assessing the aggravating and extenuating circumstances of the case including physical and mental involvement of the accused with Mesri Bai (PW2), this does not appear to be a gravest case of extreme culpability and thus, it would not be a case of rarest of rare cases warranting extreme penalty of death. Hence, the death sentences on two counts are hereby reduced and commuted to imprisonment for life. Accordingly, the Death Reference is hereby rejected and the criminal appeal is partly allowed to the extent of reduction of death sentences to imprisonment for life. All the sentences including the one u/s 307, IPC are directed to run concurrently.

Appeal dismissed. Death reference answered accordingly.