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2001 DIGILAW 514 (MP)

State of M. P. v. Chamru alias Bhagwandas

2001-07-18

C.K.PRASAD, USHA SHUKLA

body2001
JUDGMENT Shukla, J. -- 1. On the night between 18th and 19th May, 1999, a Couple still in its thirtees, and their two minor children were brutally murdered in the courtyard of their house in village Salibada, and two more children of theirs were also assaulted and left as dead by the assailants. For this gruesome incident, accused Chamru alias Bhagwandas was charged under sections 302,307 and 324 of the Indian Penal Code, and co-accused Geetabai alias Shobhabai was charged for these offence with the aid of section 34 of the Indian Penal Code VIth Additional Sessions Judge, Jabalpur, convicted both Chamru and Geetabai of all the offences charged, and while awarding the extreme penalty of death to accused Chamru for this quadruple murder sentenced Geetabai to life imprisonment under sections 302/34 of the Indian Penal Code along with sentence of fine. They were both sentenced to 10 years RI and 3 years' RI on the other two heads of charge along with various sums fine. Both accused Chamru and Geetabai have challenged their conviction sentence by filing Criminal Appeal No. 629/2000 and Criminal Appeal No 628/2000 respectively, while the trial• Court has made the reference for confirmation of death sentence. 2. The case for the prosecution in brief is that sometime prior to this incident, deceased Rarnkishan and his wife deceased Anita were given three acres of land by the latter's father Sevaklal (PW 5). Since then Ramkisha lived in the farmhouse along with his wife and four minor children, namely eldest son Kapil, aged about 12 years, daughter Keerti, son Bantu, and the youngest child Preeti, aged about 7 years. This land was earlier cultivated by Gendalal, the father-in-law of Sevaklal (PW 5), and after the death of Gendalal his son Mangdu and his wife accused Geetabai continued in possession. The fields were later taken back from Mangdu by Sevaklal, and out of it, 3 acres were given. to his daughter deceased Anita and one acre was given Gendalal's widow, who sold it off for her daughter's marriage. This ha enraged Geetabai and her husband who used to abuse Anita and her husband Ramkishan. According to the prosecution, after her husband's death, Geetabai had developed friendly relations with accused Chamru, and the two of the perpetrated this dastardly crime in furtherance of their common intention. 3. This ha enraged Geetabai and her husband who used to abuse Anita and her husband Ramkishan. According to the prosecution, after her husband's death, Geetabai had developed friendly relations with accused Chamru, and the two of the perpetrated this dastardly crime in furtherance of their common intention. 3. According to the prosecution story, both accused Chamru and Geetabai went to the house of Ramkishan at the dead of night and Chamru hacked Ramkishan, his wife and children one by one while they were sleeping in their courtyard. Two of the children, namely, Keerti (PW 3) and Bantu (PW 7), we badly injured, but they could be saved after prolonged hospitalisation. These two children, and Ramkishan's niece Indu Patel, who was on a visit to his place, are said to have witnessed the crime. 4. The first information report Ex. P-4 was lodged next morning by village Patel Bhupatsingh (PW 2). This set the investigation in motion. Dr. A.K. Yadu (PW 9) performed the autopsy and Ex. P-17-A to Ex. P-20A are the post-mortem reports. He testified that all these persons died a homicidal death. 5. Keerti (PW 3) and Bantu alias Anil (PW 7) were rushed to the District Hospital at Jabalpur from where they were shifted to Medical College Hospital at Jabalpur. Dr. Ashish Agrawal (PW 12) has deposed about the injuries suffered by Keerti. He proved the summary report Ex. P-31 and stated that he had found a spine-deep incised wound on the nape of her neck which was 10 c.m. long and 3 c.m. wide. The injury was grievous in nature. Both the cervical and spinal cords were damaged and there was bleeding from the injury which was caused by a hard and sharp object like kulhadi. The injury had resulted in paralysis of both upper and lower limbs. This child had to be hospitalised for treatment for more than five months from 20.4.1999 to 26.9.1999. 6. Dr. Sarita Topo (PW 13) had treated Bantu alias Anil (PW 7) in the Medical College Hospital. She has proved the summary report Ex. P-32. This child also had suffered an incised wound over the nape of his neck which was about 10 c.m. long. The injury was caused by some hard and sharp object. According to Dr. Topo, the injury was simple in nature. Bantu was hospitalised from 19.5.1999 to 25.5.1999. 7. She has proved the summary report Ex. P-32. This child also had suffered an incised wound over the nape of his neck which was about 10 c.m. long. The injury was caused by some hard and sharp object. According to Dr. Topo, the injury was simple in nature. Bantu was hospitalised from 19.5.1999 to 25.5.1999. 7. Both the accused persons were arrested on 21.5.1999. On the information given by accused Chamru, the police seized his trousers from his house while a kulhadi and a baniyan were seized on the information given by accused Geetabai. Accused Chamru was put up for identification by the three surviving children named above. The identification proceedings were conducted by Sub-Divisional Magistrate Shri M.S. Patel (PW 1) on 21.5.1999. Chamru was correctly identified by all three of them. 8. On completion of investigation, a challan was put up against Chamru and Geetabai and the trial resulted in their conviction and sentence as already mentioned above. 9. That Ramkishan, Anita, Kapil and Preeti met with homicidal death that night is not in dispute in this case. This fact is amply established by the post-mortem reports given by Dr. Yadu (PW 9) who found homicidal ante-mortem injuries by hard and sharp weapon on the bodies of all four of them. The post-mortem report Ex. P-17 A shows that Ramkishan was given a single blow on his neck which had cut all the neck muscles and vessels on the right side. The common carotid, jugulars, trachea, body of 6th cervical vertebra and the spinal cord, all showed clear cuts. Anita had sustained as many as six. injuries on her body of which three were on her neck. Child Kapil had also sustained 7 injuries on his body of which 2 were on his neck. Child Preeti died of one single blow on her neck which had cut all the muscles and vessels on the left side of the neck. Both the internal and external jugular veins, common carotid artery, body of 4th cervical vetebra, the spinal cord and trachea were also cut. 10. The injuries inflicted on the four deceased persons clearly show that they were brutally attacked in cold blood with intention to kill. The two survivors were alo mercilessly attacked, and it appears that the assailant left them as dead. 10. The injuries inflicted on the four deceased persons clearly show that they were brutally attacked in cold blood with intention to kill. The two survivors were alo mercilessly attacked, and it appears that the assailant left them as dead. Murder of Ramkishan, Anita, Kapil and Preeti, and attempt to commit murder of Keerti is thus established beyond doubt. That Bantu was also attacked and sustained injuries by sharp and hard object is also proved. 11. But the question whether Chamru was the perpetrator of this crime, and whether Geetabai was also associated with him is not easy to answer. The prosecution had examined Keerti (PW 3), Bantu (PW 7) and Indu (PW 8) as eye-witnesses of the incident. We agree that the presence of all these children at the scene of occurrence cannot be doubted. Keerti and Bantu were themselves victims of this assault. Village Patel Bhupatsingh (PW 2) found them on the spot with injuries on their bodies when he reached there that morning. The third child Indu was also present there. The three children had deposed that Indu had come to their house on a visit about a fortnight back. She was a cousin of Keerti and Bantu. She had a providential escape as she could manage to sneak out and conceal herself in the kitchen. We have examined the evidence of the three children in detail and are satisfied that Indu was also present in the house on the fateful night along with Keerti and Bantu. 12. The fate of this case depends on the evidence of these three child witnesses on whose evidence reliance was placed by the trial Court. The learned counsel for the convicts vehemently argued that the trial Court had gone wrong in appreciating the evidence of these children and had arrived at a totally wrong and perverse conclusion. The learned defence counsel did not dispute the presence of these children on the spot that night. But his contention was that the murderer was a stranger to them and the children could not identify him. It was urged that Chamru and Geetabai had nothing to do with this crime and had been falsely implicated by the Police. 13. The learned defence counsel did not dispute the presence of these children on the spot that night. But his contention was that the murderer was a stranger to them and the children could not identify him. It was urged that Chamru and Geetabai had nothing to do with this crime and had been falsely implicated by the Police. 13. In support of their arguments, the learned defence counsel took us through the evidence of Keerti (PW 3), Bantu (PW 7) and Indu (PW 8) and also Bhupatsingh (PW 2), the village Patel, who had reached the spot in the morning and lodged the FIR (Ex. P-4) at the Police Station. 14. Village Patel Bhupatsingh (PW 2) is the only person examined by the prosecution who had gone to the scene of the crime in the morning and had made enquiries from the three surviving children. He had admitted in his statement that the children had told him that the assailant was an unknown person. And this is what he had told the Police while lodging the FIR. It is significant that the first information report Ex. P-4 records that the crime was committed by an unknown person. 15. We also find that the first information report does not give any description of the looks of the assailants. The only fact mentioned in the report is that he was wearing a black pant and a white baniyan. The report Ex. P-4 also does not refer to the presence of Geetabai at the time of the incident. Her implication is therefore obviously an afterthought. 16. The learned defence counsel also invited our attention to the fact that Bantu (PW 7) and Indu (PW 8) do not say that Geetabai was also present there at the time of the incident. Although Keerti (PW 3) did speak about her presence saying that Geetabai was standing near the mango tree and was exhorting Chamru to kill "ekjks&ekjks" yet her statement does not appear to be true. She did not tell the Police about the presence of Geetabai in her statement Ex. D-3 recorded under section 161, CrPC, and this cannot be said to be a minor or insignificant omission. Furthermore, why should Geetabai have accompanied the assailant, and where was the occasion for her to callout "ekjks&ekjks" when the victims were sleeping targets without resistance? 17. She did not tell the Police about the presence of Geetabai in her statement Ex. D-3 recorded under section 161, CrPC, and this cannot be said to be a minor or insignificant omission. Furthermore, why should Geetabai have accompanied the assailant, and where was the occasion for her to callout "ekjks&ekjks" when the victims were sleeping targets without resistance? 17. The learned defence counsel criticised the identification proceedings conducted by the Police and argued that the proceedings were vitiated by the very fact that the Police had shown the photograph of Chamru to the witnesses. The accused was not kept baparda nor did the persons mixed up with him at the parade resemble him. It was also urged that accused Chamru was by no means a stranger to the children. All three child witnesses have stated that Chamru had worked at their father's house in connection with the construction of a room. He worked there for several days. And all three of them, namely, Keerti (PW 3), Bantu (PW 7) and Indu (PW 8) deposed that although they learnt the name of Chamru only later, they had known him very well since before this incident as "iRFkj QksMus okyk". That Chamru had worked at the house of deceased Ramkishan for breaking stones was admitted by this accused himself in his examination under section 313, CrPC. Had it been true that the assault was made by this accused Chamru on the victims that night, the children would surely have disclosed to the village Patel and the Police that it was the "iRFkj QksM+us okyk" who had killed the victims and assaulted them. That they did not disclose this crucial information goes to show that he was later falsely implicated. 18. We have carefully gone through the evidence and documents on record and we must say that the arguments advanced by the learned defence counsel cannot be said to be without substance. We accept the evidence of Indu (PW 8) that she had dodged the assailant and somehow escaped into the kitchen. We are also prepared to accept her testimony that she had seen the assault from her place of hiding. But that she had recognised the assailant to be this accused Chamru is a difficult pill to swallow. We accept the evidence of Indu (PW 8) that she had dodged the assailant and somehow escaped into the kitchen. We are also prepared to accept her testimony that she had seen the assault from her place of hiding. But that she had recognised the assailant to be this accused Chamru is a difficult pill to swallow. There is much force in the argument that if she had really recognised the accused that night, she would not have hesitated in disclosing it to the villagers and to the Police when they arrived on the scene. She would not have told the village Patel that some stranger had attacked these people. 19. The same criticism applies to Keerti (PW 3) and Bantu (PW 7). Bantu in fact was assaulted while he was asleep. He admitted this in para 11 of his cross-examination. He woke up after the blow on his neck, but pretended to be asleep even after the attack on him. He must have been taken as dead to have been spared by the assailant after a single blow. Bantu was a child aged about 7 years. He must have been too dazed and frightened to be able to understand what was happening. It appears to us to be highly unlikely that he recognised the person who was hacking his near and dear ones one after the other. We are unable to accept his claim that he had recognised Chamru that night. Had this been true, he would have told the village Patel and others that the "HINDI" had committed the crime. The fact that he did not do so goes to show that he could not recognise the assailant that night. 20. This significant omission appears in the statement Ex. D-3 made by Keerti (PW 3) also before the Police. She says that accused Chamru was very well known to her by face whom she knew as the "HINDI" who had worked for her father. Then what prevented her from disclosing his identity to the witnesses and the Police when they arrived on the spot? 21. We also agree with the contention of the learned defence counsel that the identification proceedings held by SDM Shri Patel (PW 1) were only a farce. Both Bantu (PW 7) and Indu (PW 8) admitted in cross-examination that the Police had shown them the photograph of Chamru. 21. We also agree with the contention of the learned defence counsel that the identification proceedings held by SDM Shri Patel (PW 1) were only a farce. Both Bantu (PW 7) and Indu (PW 8) admitted in cross-examination that the Police had shown them the photograph of Chamru. This would render the entire proceedings as useless. And conviction cannot be based on such evidence. 22. Learned counsel for the State pointed out that it was established from the statement of Bhupatsingh (PW 2), Ramesh Kushwaha (PW 4) and Station House Officer D.P. Parwar (PW 14) that on the information given by accused Geetabai, an axe and a baniyan were seized vide seizure memo Ex. P-10, and a pair of trousers was seized from accused Chamru on the basis of his disclosure statement vide seizure memo Ex. P-12. Blood-stains were found on these articles as per Chemical Analyst's report Ex. P-17. This, according to the learned State counsel, was a circumstance proving the guilt of the accused. We are not impressed by this argument. It is significant that the alleged blood-stains were so small that they were not found sufficient for reference to serological examination. This circumstance loses its importance as the origin of blood-stained articles alone cannot be said to be sufficient to hold the accused guilty of the offence of murder. We also find it very unnatural that after perpetrating this terrible crime, accused Chamru would go to Geetabai shouse to leave his baniyan and blood-stained leulhadi with her. We also feel that an axe used in this type of incident wherein multiple injuries were inflicted to as many as six persons cutting arteries and veins through and through, would be soaked with blood. But this axe contained only minor insignificant blood-like stains. It may also be pointed out that nobody says that these articles were kept in sealed cover after the seizure. Evidence of recovery is thus rendered inconsequential. 23. We are very much aware of the gravity of the offence in this case. Four young lives were smothered out in their sleep, and other two children were severely "injured. But this would not relax the standard of proof required for conviction, the standard being that the evidence should prove beyond any reasonable doubt that this accused was the author of the crime. In the instant case, this standard has not been achieved. Four young lives were smothered out in their sleep, and other two children were severely "injured. But this would not relax the standard of proof required for conviction, the standard being that the evidence should prove beyond any reasonable doubt that this accused was the author of the crime. In the instant case, this standard has not been achieved. For the reasons stated earlier, the evidence of the three child witnesses does not establish that they had identified the assailant that night. The identification proceedings held during investigation were useless, and the evidence about 'recovery of blood-stained articles too is of no consequence. 24. For the reasons aforesaid, we do not agree with the conclusions reached by the trial Court that the offences charged have been established. Both the appeals are therefore allowed. The conviction and sentence passed against the appellants are set aside. Accused persons are in jail. They be set at liberty forthwith unless required in connection with some other case. Reference No. 1/2000 stands rejected.