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Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S).162-163 of 2014

DHAL SINGH DEWANGAN ..... Appellant

Versus

STATE OF CHHATTISGARH …. Respondent

J U D G M E N T

Uday Umesh Lalit, J.

1.These appeals by special leave challenge the judgment and order

dated 08.08.2013 passed by the High Court of Chhattisgarh at Bilaspur in

Criminal Reference No.4 of 2013 and in Criminal Appeal No.563 of 2013

affirming the conviction of the appellant under Section 302 IPC and

confirming the sentence of death awarded by the Sessions Judge, Durg in

Sessions Trial No.96 of 2012. The appellant was awarded death sentence on

six counts for having caused the deaths of his wife and five daughters on

19.02.2012. While granting special leave to appeal by order dated

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17.01.2014 this Court stayed the execution of death penalty till the disposal

of the present appeal.

2.The appellant along with his wife Thaneswari aged about 32 years and

five daughters, namely, Nisha, Lakshmi, Sati, Nandini and Sandhya, aged

15, 14, 13, 8 and 5 years respectively and his mother Kejabai (examined as

PW-6 in the trial) was residing in Village Mohandipat, P.S. Arjunda,

Chhattisgarh. Their house, a single storey structure with five rooms, a

verandah and a courtyard, opened in a gali. Opposite to this house, were the

houses of Aman Dewangan, Khemlal Dewangan and Derha Dewangan. On

either side of their house the immediate neighbours were Bhan Singh

Dewangan on one side and Yogendra Sahoo on the other. The appellant with

his wife and two daughters had gone to attend a marriage at Nagpur on

11.02.2012 and had returned to the village at about 4-5 p.m. on 19.02.2012.

After having dinner everyone had gone to sleep by about 8:00 p.m. Nisha,

Lakshmi, Sati and Nandini were with their grandmother Kejabai in one room

while the appellant, his wife and daughter Sandhya had slept in the adjoining

room.

3.According to the prosecution, at about 1:30 a.m. on 20.02.2012 a

report vide General Diary Entry No.671 was made by PW-1 Ishwar Pradhan

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and PW-2 Santosh Kumar, Village Kotwar. The entry Ext.P-37 was

certified in the General Diary by PW-13, Sub-Inspector Krishna Murari

Mishra and was to the following effect:

“The information is related to the Station Officer, K.M.

Mishra, Kotwar and Ishwar Pradhan s/o Avadh Pradhan, age 38

years, R/o Mohandipat, are present at the police station

Mohandipat and stated that sounds of shouting are coming out

from the house of the Dhal Singh Dewangan of village

Mohandipat so that it is expected that incident like beating has

taken place inside the house. In order to verify the above said

incident, I departed to the place of occurrence along with my

staff, 1373, 358, 252, 1316, R. 683, 1512, 664 mayak 320 and

handed over the work of the police station to the HCM -1118.

Sd/- Illegible

Station Officer Arjunda,

Distt. Balod, Chhattisgarh”

4.According to the prosecution, the police immediately reached the

village and thereafter recorded Dehati Nalisi Ext.P-18 at the instance of

PW-6 Kejabai who allegedly informed that at about 10:00 p.m. on

19.02.2012 she woke up after hearing cries of her daughter-in-law

Thaneshwari and had thereafter seen the appellant attacking his wife and

five daughters with a sharp edged object. This Dehati Nalisi Ext.P-18 was

recorded at about 3:00 a.m. on 20.02.2012, whereafter PW-13 Sub-Inspector

Krishna Murari Mishra sent dead bodies of Thaneshwari, Nisha, Lakshmi,

Sati, Nandini and Sandhya to the mortuary at Gunderdehi. According to

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PW-13, the bodies of Thaneshwari, Nisha, Lakshmi, Sandhya and Sati were

lying in a room marked as Room No.4 in the site map Ext.P-25 and the

appellant was found lying in one corner of the same room in an unconscious

position with an iron knife lying near his left hand. The body of Nandini

was lying in Room No.1, as mentioned in the site map Ext.P-25. PW-13

also sent the appellant in an ambulance to Primary Health Centre, Arjunda

with a constable.

5.PW-7 Dr. Ajay Pal Chandrakar, Medical Officer, Primary Health

Centre, Gunderdehi, conducted post-mortem on the dead bodies of Sati,

Nisha and Sandhya on 20.02.2012. The post-mortem began at 10:40 a.m.

a]In his post-mortem report Ext.P-27, he found following injuries

on the dead body of Sati:

“(i) One deep incised wound at the back side of joint of

skull and neck in the size of 6” x 3”.

(ii)One incised wound over right hand at the base of

middle finger and index finger to wrist joint, of

size 5” x 2.5”.”

Both the injuries were caused by sharp edged weapon. In

his opinion, cause of death was cardio respiratory arrest due to

excessive bleeding on account of the said injuries. All the

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injuries were ante mortem and the death was homicidal in

nature.

b]PW-7 also conducted post-mortem on the body of Nisha

and found the following injuries:

“(i) One deep incised wound at the joint of skull and

neck region of size 7” x 4”.

(ii)One incised wound at the joint of right hand wrist

of size 4” x 3”.

(iii)One incised wound below the right hand elbow

joint of size 3” x 1”;

(iv)One incised wound over right arm of size 2” x 2”.”

All the injuries were ante mortem and caused by sharp

edged weapon. Cause of death was opined as cardio respiratory

arrest due to excessive bleeding on account of the said injuries

and the death was homicidal in nature.

c]PW-7 thereafter conducted post-mortem on the body of

Sandhya and found one incised wound on the back of neck of

the deceased at the joint of skull in the size of 6” x 2”, from the

left to right side of neck region and all blood vessels were cut.

He opined that the cause of death was excessive bleeding on

account of above injury and shock due to cardio respiratory

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arrest. All the injuries were ante mortem, caused by sharp edged

weapon and death was homicidal in nature.

6.On the same day, PW-14 Dr. Chandrabhan Prasad, Block Medical

Officer, Community Health Centre Gunderdehi performed post-mortem on

the bodies of Thaneshwari, Lakshmi and Nandini.

a]PW-14 vide post-mortem report Ext.P-64 noticed the following

injuries on the dead body of Thaneshwari:

(i)Deep incised wound below left lower costal region

of size 1” x ¼”, intestines visible through wound;

(ii)Deep incised wound below right costal region of

size 2” x 1” horizontal, intestines visible;

(iii)Deep incised wound over left lower costal region

horizontal, of size 2” x ½”

(iv)Deep incised wound over left dorsal hand of size

3” x 2” horizontal

(v)Deep incised wound over left axillary fossa of size

1” x ½”

(vi)Deep incised wound over right dorsal hand of size

3” x ½” horizontal

(vii)Deep incised wound over left temporal region of

skull of size 2” x ½”

(viii)Deep incised wound over right dorsal and palm

hand of size 5” x 4”, carpal bone cut;

(ix)Deep incised wound over left side of nose

(x)Deep incised wound over left eyebrow obliquely

placed upto nose of size 4” x 2”.”

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According to him, the cause of death was acute hemorrhagic

shock due to multiple injuries, all the injuries were ante mortem and

the death was homicidal in nature.

b]He also conducted autopsy over the dead body of Laxmi and in

post-mortem report Ext.P-65, he noticed the following injuries:

(i)Deep incised wound over right dorsal hand of size

2” x ½” x ½”, whole face and hand blood stained

(ii)Deep incised wound over left buttock of size 2” x

½”

(iii)Deep incised wound over left cheek of size

1” x ½”

(iv)Deep incise wound over right nose upto ear

(v)Deep incised wound over right wrist of size

1” x ½”

(vi)Nape of neck 50% cut

(vii)Deep incised wound over right face of size 2” x ½”

(viii)Deep incise wound over right shoulder of

size 1” x ½”.”

The cause of death was acute hemorrhagic shock due to

multiple injuries, all the injuries were ante mortem and the death was

homicidal in nature.

[

c]He also conducted postmortem over the dead body of Nandini

vide Ext.P-66, wherein he found that there was one deep incised

wound over occipital region of size 5” x ½” x ¼”. The cause of death

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was acute hemorrhagic shock due to head injury which was ante

mortem and the death was homicidal in nature.

7.Dehati Nalisi Ext.P-18 recorded at 3:00 a.m. led to the registration of

FIR Ext.P-51 dated 20.02.2012 bearing No.18 of 2012 at about 4:10 p.m..

On 20.02.2012 the appellant was brought back to the police station at about

6:30 p.m. whereafter vide Ext.P-16 the clothes of the accused which were

stated to have blood-stains were taken in custody. The accused was arrested

vide arrest memo Ext.P-62 on the same day.

8.During investigation, statements of various witnesses were recorded.

On 06.03.2012 PW-6 Kejabai was produced before Judicial Magistrate, First

Class, Gunderdehi, at the request of the police to record her statement under

Section 164 of Code of Criminal Procedure ( ‘The Code’ for short), which

statement was recorded as under:

“States on affirmation… my name is Smt. Kejabai w/o

Dan Singh, Occupation-Agriculture/Labour, R/o Mohandipat,

Police Station-Arjunda, District-Balod (Chhattisgarh).

On oath:

(1)Last month about on date 12-13, my son and my

son’s wife went to Nagpur at marriage function. After 8-10

days, they came to Mohandipat being dispute. They went to

Pallekalan from there. Thereafter, they came to Mohandipat at

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4:45 p.m. in the evening. That day was Sunday. After taking

meal and all slept, at night about 10 p.m. I heard a sound like a

cat howling. I afraid and went towards daughter-in-law’s room.

I saw there, dead body of younger child. Thereafter, I ran away

shouting. I returned home yet. I came together some people and

saw the son was fainted and saw the dead body of children. I

want to say just this.

Typing has done as per my direction Narrator is correct

& accepted.

Sd/- Illegible Sd/- Illegible

06.03.2012 06.03.2012

Srikant Srivastava Srikant Srivastava

J.M.F.C., Dondalohara J.M.F.C., Dondalohara

Dist. Chhattisgarh Distt. Chhatisgarh

I, Kejabai Dewangan have signed voluntarily, read out

and understood.”

Thus, as against the version in Dehati Nalisi Ext.P-18 implicating the

appellant, her statement before the Magistrate did not directly attribute

anything to the appellant.

9.On 19.03.2012 a sealed packet containing an iron knife along with

requisition Ext.P-61 was sent to PW-14 Dr. Chandrabhan Prasad seeking his

opinion whether the injuries suffered by deceased Thaneshwari, Nisha,

Lakshmi, Nandini, Sati and Sandhya could be caused by that knife. It was of

iron metal with total length of 40 cm and the length of the blade was 5 cm.

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The knife was stained with blood. A report in the affirmative was given by

PW-14 on the back side of the requisition Ext.P-61 under his signature.

10.After completing the investigation, charge-sheet Ext.P-74 was filed on

27.04.2012 against the appellant for the offence punishable under Section

302 IPC on six counts. The prosecution examined 14 witnesses in support

of his case, the noteworthy being:-

I. PW-1 Ishwar Pradhan Sarpanch of the village stated that

around 10:30 p.m. on 19.02.2012, PW-2 Santosh, Village Kotwar

came to his house and told him that the appellant had killed his wife

and daughters. Thereafter, PW-1 reached Gandhi Chowk (stated to be

at a distance of 100 yards from the house of the appellant) where he

found PW-6 Kejabai sitting in the square with PW-2 Santosh Kumar,

PW-3 Neel Kanth, PW-5 Dan Singh. According to the witness, PW-6

Kejabai told them that the appellant had killed his wife and children

whereafter they went to the house of the appellant and saw that blood

was lying near the door of the room of the appellant. They locked the

door of the house. Then along with PW-2 Santosh, Village Kotwar and

one Chait Ram Sahu, this witness went to the police station Arjunda

and gave information which was extracted in General Diary at

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Ext.P-37. The witness further stated that after the police reached the

village, they entered the house and took the appellant to the hospital in

an ambulance as he was in an unconscious condition.

Thus, the primary source of information of the witness was

PW-2 Santosh, Village Kotwar and after reaching Gandhi Chowk he

had heard PW-6, Kejabai implicating the appellant. Though he went to

the police station thereafter, Ext.P-37 extract of the General Diary

Entry does not disclose any awareness of the essential features or

details of the crime or the fact that the murders had taken place.

II.PW-2 Santosh, village Kotwar, stated that Jeevan Dewangan,

neighbour of the appellant came to his house at about 11:00 p.m. and

told him that the appellant had murdered his wife and daughters with

an iron knife, whereafter he along with PW-1 Ishwar Pradhan and

PW-3 Neel Kanth had gone to the house of the appellant. They found

the wife and children of the appellant lying dead and the appellant in

an unconscious condition. Thereafter, he along with PW-1 Ishwar

Pradhan and one Vijay went to the police station and gave relevant

information. According to the witness, by the time they came back,

the police had already reached the village and PW-6 Kejabai had

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disclosed to the police that it was the appellant who had killed his

wife and five children. The witness further stated that the appellant

was moved to the hospital in an ambulance as he was unconscious.

The source of information for this witness was one Jeevan

Dewangan. Going by the version of this witness, he and PW-1 were

already aware that the wife and children were lying dead in the house

of the appellant before they reached the police station. However,

extract Ext.P-37 of the General Diary does not disclose any such

knowledge or awareness.

III.PW-3 Neel Kanth stated that at about 12.00 midnight Ganga

Ram Sahu and Chait Ram knocked the door of his house and informed

him that the appellant had killed his wife and five daughters. The

witness reached Gandhi Chowk where he found PW-6 Kejabai crying

loudly that the appellant had killed his wife and five children. All the

villagers thereafter went to the house of the appellant and found that

there were blood stains in the verandah. PW-1 Ishwar Pradhan was

then sent along with PW-2 Santosh and Chait Ram to make a report to

the police. According to the witness the police reached the village

after an hour and thereafter they went to the house of the appellant.

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The wife and the children of the appellant were lying dead while the

appellant was lying in an unconscious condition.

According to the version of this witness, everyone was aware of

the fact that the murders had taken place. Yet, the reporting vide

Ext.P-37 is otherwise.

IV PW-4 Anjor Singh Dewangan, father-in-law of the appellant

stated that he had come to know from the villagers that the appellant

had killed his wife and five daughters. This witness did not say that he

had heard PW-6 Kejabai implicating the appellant.

V PW-5 Dan Singh Dewangan, step father of the appellant stated

that at about 12 midnight PW-2 Santosh, Chait Ram and Ganga Ram

came and called him. They also awoke PW-1 Ishwar Pradhan.

According to the witness he went towards the house PW-6 Kejabai

along with PW-1 Ishwar Pradhan and found that PW-6 Kejabai was

crying aloud that the appellant had killed his wife and five daughters.

According to the witness after seeing the place of incident PW-1

Ishwar Pradhan, PW-2 Santosh, Village Kotwar and Chait Ram went

to the police station to lodge the report. This witness also stated that

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when the police came they found the wife and five daughters of the

appellant lying dead and the appellant was lying unconscious.

VIPW-6 Kejabai in her examination stated as under:

“My son Dhal Singh’s wife’s name is Thaneshwari

Bai. My son the accused and Thaneshwari Bai had five

daughters whose names are Sandhya, Nisha, Laxmi, Sati,

Nandini. My son was involved in the work of cutting &

selling chicken. My daughter-in-law Thaneshwari and

above stated five girls are dead. They died during

Mahashivratri of this year.

Incident occurred about 8 months back. Before the

incident, my son Dhal Singh, daughter-in-law

Thaneshwari and their two daughters had gone to Nagpur

to attend the marriage of brother-in-law and sister-in-law

of my son and they came back on Sunday. They came

back to home at around 5.00 O’ clock in the day.

Incident occurred on same day. We went to sleep at 8.00

O’clock in the night after taking dinner I and four girls

were sleeping in my room. My son, the accused

daughter-in-law Thaneshwari and youngest daughter

Sandhya were sleeping in another room. I woke up in the

night and reached to verandah for drinking water. I saw

the girl Sandhya lying unconscious in the front of room

of my son Dhal Singh. Thereafter, opening the door of

the house I fled crying outside on the road. I don’t know

what I was crying because I was not in conscious state of

mind. As I was crying outside like mad, the villagers

came there. I cannot tell the facts stated by me to the

villagers. I don’t know if I had come back to the village

because I was not in conscious state of mind.”

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The aforesaid statement, though generally consistent with her

statement under Section 164 of the Code, was against the assertions

made in Dehati Nalisi Ext.P-18. She was declared hostile and was

permitted to be cross-examined by the public prosecutor. She denied

having stated about the incident to PW-1 Ishwar Pradhan, PW-2

Santosh, Village Kotwar, PW-5 Dan Singh and to other villagers as

well as to the police, as alleged. She accepted her statement given

under Section 164 of the Code.

11.The medical evidence on record was unfolded through PW-7 Dr. Ajay

Pal Chandrakar and PW-14 Dr. Chandrabhan Prasad, as stated above.

PW-13 Sub-Inspector Krishna Murari Mishra proved extract of General

Diary Entry at Ext.P-37 and site map Ext.P-25. He said that he had found

the appellant lying in an unconscious condition and had sent him to the

Primary Health Centre, Arjunda with a constable. In his statement under

Section 313 of the Code of Criminal Procedure, the appellant claimed

innocence and submitted that he knew nothing as he was unconscious.

12.After considering the evidence on record, the Sessions Court, District

Durg by its judgment and order dated 23.04.2013 in Sessions Case No.96 of

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2012 found the appellant guilty of offence punishable under Section 302 IPC

on six counts. Though the statement of PW-6 Kejabai in court had not

attributed any criminal act to the appellant, in the opinion of the trial court,

her version implicating the appellant, as spoken to by PWs 1, 2 , 3 and 5

would be admissible under Section 6 of the Evidence Act. Placing reliance

on those statements of PWs 1, 2, 3 and 5 as well as failure on part of the

appellant in not offering any explanation how the crime was committed, the

trial court found that the Prosecution was successful in bringing home the

case against the appellant. Having thus convicted the appellant on six counts

under Section 302 IPC, by a separate order of even date, the trial court

awarded death sentence to the appellant, subject to confirmation by the High

Court in terms of Chapter 28 of the Code.

13.The Reference under Section 366 of the Code for confirmation of

death sentence was registered as Criminal Reference No.4 of 2013 in the

High Court of Chhattisgarh at Bilaspur. The appellant also filed an appeal

against his conviction and sentence vide Criminal Appeal No.563 of 2013.

The Reference as well as the appeal were dealt with and disposed of by the

High Court vide its judgment and order dated 08.08.2013. It was observed

by the High Court as under:

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“23.Minute examination of the evidence, oral and

documentary available on record, makes it clear that on

19.2.2012 the accused/appellant had killed his wife and five

daughters by causing them number of injuries on their vital

parts by chopper/knife used for cutting hen.

24.As per deposition of Kejabai (PW-6), on the fateful

night, the accused/appellant was the only male member in his

house and he was sleeping along with his wife Thaneshwari and

youngest daughter Sandhya, whereas Kejabai was sleeping with

his four daughters in a separate room and door of the house was

bolted from inside. Thus the possibility of entry by some

stranger in the house of the accused/appellant is not there.

Since the accused/appellant was the only inmate of the house, it

is for him to explain as to how six dead bodies have been found

there. However, no such explanation has been offered by him

in his statement under Section 313 of Cr.P.C. As per Section

106 of the Evidence Act, it is the duty of the accused to explain

the incriminating circumstance proved against him while

making a statement under Section 313 of Cr.P.C. Keeping

silent and not furnishing any explanation is an additional link in

the chain of circumstances to sustain the charges against him.

Furthermore, as per FSL report Ex.P/69 blood was found on the

clothes of the accused/appellant and the weapon of offence

chopper/knife and as per serological report Ex.P/72, the blood

present on the clothes and the knife was found to be human

blood.

25.The evidence of Kejabai (PW-6) also makes it

clear that upon seeing the dead body of Sandhya, she came out

of the house screaming. This witness has expressed her

ignorance as to the things disclosed by her to the villagers.

However, from the statements of PW-1, PW-2, PW-3 and PW-5,

it is apparent that immediately after the incident, Kejabai

informed them that it is the accused/appellant who killed his

wife and five daughters. These witnesses have categorically

stated that immediately after the incident they came to know

about the commission of murder by the accused/appellant and

they also remained firm in their cross-examination.”

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The High Court further found the statements of PWs 1, 2, 3 and 5

admissible under Section 6 of the Evidence Act and stated as under:

“27.After minute examination of the evidence of PW-1,

PW-2, PW-3 and PW-5, we are of the considered view that the

same is admissible under Section 6 of the Evidence Act as res

gestae. For these witnesses, there was no occasion for

concoction or improvement by any means at that juncture. The

fact that immediately after seeing the dead body Kejabai came

out of the house and narrated the incident to the villagers has

been duly proved by these witnesses.”

It was argued on behalf of the appellant that as stated by all the

prosecution witnesses including the Investigating Officer, the appellant was

found in an unconscious condition and was removed to the hospital but no

medical reports were placed on record by the prosecution. The High Court

dealt with the submission as under:

“30.We also find no force in the argument of counsel

for the appellant that the police has not produced medical report

of the appellant clarifying his position as to how he fell

unconscious when bodies of the deceased persons were

recovered from his house and what treatment was given to him

in hospital. It appears that during killing of six persons and

after seeing their blood, the accused/appellant might have tired

or lost his mental balance. In such a situation, even if the

appellant was lying unconscious near the dead bodies, it hardly

makes any difference for proving his involvement in

commission of the offence. It is not the case of the defence that

some third person had entered the house, assaulted the appellant

and then committed murder of six persons.”

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Having affirmed the conviction of the appellant as recorded by the

trial court, the High Court observed that the instant case did satisfy the

parameters laid down by this Court and was “rarest of rare cases” justifying

capital punishment. The High Court thus confirmed the death sentence

awarded to the appellant.

14.In this appeal challenging the correctness of the orders of conviction

and sentence, we have gone through the entire record and considered rival

submissions. The matter principally raises two questions (a) whether the

statements of PWs 1, 2, 3 and 5 are admissible under Section 6 of the

Evidence Act and could be relied upon and (b) whether the circumstances on

record satisfy the principles laid down by this Court in its various judgments

as regards appreciation of cases based on circumstantial evidence.

15.The evidence of witnesses PWs 1 and 2 discloses that the primary

source of their knowledge about the crime was Jeevan Dewangan who had

disclosed it to PW-2, who in turn disclosed it to PW-1. Similarly, the source

of information about the crime for PW-3, was the disclosure by Ganga Ram

Sahu and Chait Ram. Chait Ram had also gone along with PWs 1 and 2 to

the police station. However, none of these three persons, namely, Jeevan

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Dewangan, Ganga Ram Sahu and Chait Ram were examined by the

prosecution. No reason for their non-examination is placed on record. The

non-examination of these persons goes to the root of the matter and raises

serious doubts.

16.According to PWs 1 and 2, after receipt of information about the

crime, they had reached Gandhi Chowk where PW-6 Kejabai was crying

aloud that the appellant had killed his wife and children. Thereafter PWs 1

and 2 along with Chait Ram went to the police station and at their instance

information was recorded in General Diary at Ext.P-37. The extract of

General Diary Entry is completely silent about any relevant features

regarding the crime or the role of the appellant and in fact shows lack of

knowledge about the crime. All that it says is that they had heard sounds of

shouting coming from the house of the appellant. It is not the case of the

Prosecution, that the recording vide Ext.P-37 was in any way incorrect. The

version of PWs 1 and 2 in Court is thus completely inconsistent with the

contemporaneous record, namely, extract Ext.P-37. If they were aware that

the appellant had killed his wife and daughters even before they reached the

police station, as they now claim in Court, the nature of their reporting

would have been completely different. The fact that their reporting did not

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disclose any essential features of the crime is accepted on record and their

reporting was also never treated as FIR in the matter. We find it extremely

difficult to rely on the testimony of PWs 1 and 2 and would presently

eschew from our consideration the statements of these two witnesses.

17.We are now left with PWs 3 and 5. Even according to PW-3 his

source of knowledge about the crime was disclosure by Ganga Ram Sahu

and Chait Ram. He further said that after reaching Gandhi Chowk he found

PW-6 Kejabai was crying aloud that it was the appellant who had killed his

wife and five children. To similar effect is the assertion of PW-5. These two

witnesses also claim that the villagers had sent PWs 1 and 2 with Chait Ram

to make a report to the police. But unlike PWs 1 and 2, these witnesses

themselves had not gone to the police station and therefore their version

needs to be considered independently. The question that arises is whether

such assertions on part of PWs 3 and 5 come within Section 6 of the

Evidence Act and could be relied upon.

18.Before we deal with the applicability of Section 6 of the Evidence Act

to the facts of the present case, we may quote the Section 6 and illustration

(a) below said Section:-

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“6.Relevancy of facts forming part of same

transaction. - Facts which, though not in issue, are so

connected with a fact in issue as to form part of the same

transaction, are relevant whether they occurred at the same time

and place or at different times and places.”

Illustration

“(a) A is accused of the murder of B by beating him.

Whatever was said or done by A or B or the by-standers at the

beating, or so shortly before or after it as to form part of the

transaction, is a relevant fact.”

19.In Gentela Vijayvardhan Rao and anothr v. State of Andhra

Pradesh

1

, a bus was set on fire which resulted in the death of 23 passengers.

Statements of two seriously injured fellow passengers were recorded by the

Magistrate as it was thought that they might succumb to their injuries, in

which event their statements could be pressed into service under Section 32

of the Evidence Act. Fortunately, they survived. But while answering the

question whether those statements could now be relied upon under Section

6, this Court found that there was appreciable interval between the criminal

act and the recording of their statements by the Magistrate and as such the

statements could not be relied upon with the aid of Section 6. It was

observed:-

1

(1996) 6 SCC 241

Page 23 23

“15.The principle of law embodied in Section 6 of the

Evidence Act is usually known as the rule of res gestae

recognised in English law. The essence of the doctrine is that a

fact which, though not in issue, is so connected with the fact in

issue “as to form part of the same transaction” becomes

relevant by itself. This rule is, roughly speaking, an exception

to the general rule that hearsay evidence is not admissible. The

rationale in making certain statement or fact admissible under

Section 6 of the Evidence Act is on account of the spontaneity

and immediacy of such statement or fact in relation to the fact

in issue. But it is necessary that such fact or statement must be a

part of the same transaction. In other words, such statement

must have been made contemporaneous with the acts which

constitute the offence or at least immediately thereafter. But if

there was an interval, however slight it may be, which was

sufficient enough for fabrication then the statement is not part

of res gestae. In R. v. Lillyman2

2

a statement made by a raped

woman after the ravishment was held to be not part of the res

gestae on account of some interval of time lapsing between the

act of rape and the making of the statement. Privy Council

while considering the extent up to which this rule of res gestae

can be allowed as an exemption to the inhibition against

hearsay evidence, has observed in Teper v. R.

3

thus:

“The rule that in a criminal trial hearsay evidence is

admissible if it forms part of the res gestae is based on the

propositions that the human utterance is both a fact and a means

of communication and that human action may be so interwoven

with words that the significance of the action cannot be

understood without the correlative words and the dissociation

of the words from the action would impede the discovery of the

truth. It is essential that the words sought to be proved by

hearsay should be, if not absolutely contemporaneous with the

2

(1895-99) All. E.R. 586

3

(1952) 2 All. E.R. 447

3

Page 24 24

action or event, at least so clearly associated with it that they

are part of the thing being done, and so an item or part of the

real evidence and not merely a reported statement.”

The correct legal position stated above needs no further

elucidation.

16. Here, there was some appreciable interval between

the acts of incendiarism indulged in by the miscreants and the

Judicial Magistrate recording statements of the victims. That

interval, therefore, blocks the statements from acquiring

legitimacy under Section 6 of the Evidence Act. The High

Court was, therefore, in error in treating Exts. P-71 and P-75 as

forming part of res gestae evidence.”

20.In Krishan Kumar Malik v. State of Haryana

4

, while testing the

veracity of the version of the prosecutrix that she was subjected to rape, the

fact that she had ample opportunity and occasion to disclose to her mother

and sister soon after the criminal act, in which case their statements could

have lent assurance, was taken into account. This Court observed as under:-

“33. As per the FIR lodged by the prosecutrix, she first

met her mother Narayani and sister at the bus-stop at

Kurukshetra but they have also not been examined, even though

their evidence would have been vital as contemplated under

Section 6 of the Evidence Act, 1872 (for short “the Act”) as

they would have been res gestae witnesses. The purpose of

incorporating Section 6 in the Act is to complete the missing

links in the chain of evidence of the solitary witness. There is

44

(2011) 7 SCC 130

Page 25 25

no dispute that she had given full and vivid description of the

sequence of events leading to the commission of the alleged

offences by the appellant and others upon her. In that narrative,

it is amply clear that Bimla Devi and Ritu were stated to be at

the scene of alleged abduction. Even though Bimla Devi may

have later turned hostile, Ritu could still have been examined,

or at the very least, her statement recorded. Likewise, her

mother could have been similarly examined regarding the chain

of events after the prosecutrix had arrived back at Kurukshetra.

Thus, they would have been the best persons to lend support to

the prosecution story invoking Section 6 of the Act.

37. Section 6 of the Act has an exception to the general

rule whereunder hearsay evidence becomes admissible. But as

for bringing such hearsay evidence within the ambit of Section

6, what is required to be established is that it must be almost

contemporaneous with the acts and there could not be an

interval which would allow fabrication. In other words, the

statements said to be admitted as forming part of res gestae

must have been made contemporaneously with the act or

immediately thereafter. Admittedly, the prosecutrix had met her

mother Narayani and sister soon after the occurrence, thus, they

could have been the best res gestae witnesses, still the

prosecution did not think it proper to get their statements

recorded. This shows the negligent and casual manner in which

the prosecution had conducted the investigation, then the trial.

This lacunae has not been explained by the prosecution. The

prosecution has not tried to complete this missing link so as to

prove it, beyond any shadow of doubt, that it was the appellant

who had committed the said offences.”

21.The general rule of evidence is that hearsay evidence is not

admissible. However, Section 6 of the Evidence Act embodies a principle,

usually known as the rule of res gestae in English Law, as an exception to

Page 26 26

hearsay rule. The rationale behind this Section is the spontaneity and

immediacy of the statement in question which rules out any time for

concoction. For a statement to be admissible under Section 6, it must be

contemporaneous with the acts which constitute the offence or at least

immediately thereafter. The key expressions in the Section are “…so

connected… as to form part of the same transaction”. The statements must

be almost contemporaneous as ruled in the case of Krishan Kumar Malik

(Supra) and there must be no interval between the criminal act and the

recording or making of the statement in question as found in Gentela

Vijayvardhan Rao’s case (Supra). In the latter case, it was accepted that the

words sought to be proved by hearsay, if not absolutely contemporary with

the action or event, at least should be so clearly associated with it that they

are part of such action or event. This requirement is apparent from the first

illustration below Section 6 which states …. “whatever was said or done….

at the beating, or so shortly before or after it as to form part of the

transaction, is a relevant fact.”

22.Considered in the aforesaid perspective, we do not find the statements

attributed to PW-6 Kejabai by PWs 3 and 5 to be satisfying the essential

requirements. The house of the appellant, according to the record, was at a

Page 27 27

distance of 100 yards from Gandhi Chowk, where these witnesses are stated

to have found PW-6 Kejabai crying aloud. Both in terms of distance and

time, the elements of spontaneity and continuity were lost. PW-6 Kejabai

has disowned and denied having made such disclosure. But even assuming

that she did make such disclosure, the spontaneity and continuity was lost

and the statements cannot be said to have been made so shortly after the

incident as to form part of the transaction. In the circumstances, we reject

the evidence sought to be placed in that behalf through PWs 3 and 5. Even if

we were to accept the version of PWs 1 and 2, the same would also suffer on

this count and will have to be rejected.

23.We are therefore left with certain pieces of circumstantial evidence

and have to see if those circumstances bring home the case of the

prosecution. The principles how the circumstances be considered and

weighed are well settled and summed up in Sharad Birdichand Sarda v.

State of Maharashtra

5

as under:

“153. A close analysis of this decision would show that

the following conditions must be fulfilled before a case against

an accused can be said to be fully established:

5

(1984) 4 SCC 116

Page 28 28

(1) the circumstances from which the conclusion of guilt is to

be drawn should be fully established.

It may be noted here that this Court indicated that the

circumstances concerned “must or should” and not “may be”

established. There is not only a grammatical but a legal

distinction between “may be proved” and “must be or should be

proved” as was held by this Court in Shivaji Sahabrao Bobade

and another v. State of Maharashtra

6

where the observations

were made:

“Certainly, it is a primary principle that the accused must

be and not merely may be guilty before a court can convict and

the mental distance between ‘may be’ and ‘must be’ is long and

divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, they should

not be explainable on any other hypothesis except that the

accused is guilty,

(3) the circumstances should be of a conclusive nature and

tendency,

(4) they should exclude every possible hypothesis except the

one to be proved, and

(5) there must be a chain of evidence so complete as not to

leave any reasonable ground for the conclusion consistent with

the innocence of the accused and must show that in all human

probability the act must have been done by the accused.

154. These five golden principles, if we may say so,

constitute the panchsheel of the proof of a case based on

circumstantial evidence.”

6

(1973) 2 SCC 793

Page 29 29

24.We now consider the circumstances which have weighed with the

Courts below:-

a]The appellant was the only male member residing with

his mother, wife and five daughters.

b]The house in question which opened in a gali was bolted

from inside on the fateful night.

c]The appellant was found lying unconscious in a room

where there were five dead bodies with another dead body in

the adjoining room.

d]A knife, which could possibly have caused injuries to the

deceased, was lying next to his left hand.

e]His clothes – “lungi” to be precise, were found to be

having blood stains with blood of human origin.

f]He had offered no explanation how the incident had

occurred and as such a presumption could be drawn against him

under Section 106 of the Evidence Act.

In the face of these circumstances, according to the Courts below, the

only possible conclusion or hypothesis could be the guilt of the appellant

Page 30 30

and nothing else. The absence of any explanation on part of the appellant

was taken as an additional link in the chain by the High Court.

25.In Sharad Birdichand Sarda’s case (Supra), the absence of

explanation and/or false explanation or a false plea was considered in the

context of appreciation of a case based on circumstantial evidence. It was

observed:-

“150. The High Court has referred to some decisions of

this Court and tried to apply the ratio of those cases to the

present case which, as we shall show, are clearly

distinguishable. The High Court was greatly impressed by the

view taken by some courts, including this Court, that a false

defence or a false plea taken by an accused would be an

additional link in the various chain of circumstantial evidence

and seems to suggest that since the appellant had taken a false

plea that would be conclusive, taken along with other

circumstances, to prove the case. We might, however, mention

at the outset that this is not what this Court has said. We shall

elaborate this aspect of the matter a little later.

151. It is well settled that the prosecution must stand or

fall on its own legs and it cannot derive any strength from the

weakness of the defence. This is trite law and no decision has

taken a contrary view. What some cases have held is only this:

where various links in a chain are in themselves complete, then

a false plea or a false defence may be called into aid only to

lend assurance to the court. In other words, before using the

additional link it must be proved that all the links in the chain

are complete and do not suffer from any infirmity. It is not the

law that where there is any infirmity or lacuna in the

Page 31 31

prosecution case, the same could be cured or supplied by a false

defence or a plea which is not accepted by a court.

161. This Court, therefore, has in no way departed from

the five conditions laid down in Hanumant case

7

.

Unfortunately, however, the High Court also seems to have

misconstrued this decision and used the so-called false defence

put up by the appellant as one of the additional circumstances

connected with the chain. There is a vital difference between an

incomplete chain of circumstances and a circumstance which,

after the chain is complete, is added to it merely to reinforce the

conclusion of the court. Where the prosecution is unable to

prove any of the essential principles laid down in Hanumant

case

, the High Court cannot supply the weakness or the lacuna

by taking aid of or recourse to a false defence or a false plea.

We are, therefore, unable to accept the argument of the

Additional Solicitor-General.”

26.Even otherwise, the fact that the appellant was lying unconscious at

the scene of occurrence is accepted by all the prosecution witnesses

including the Investigating Officer, who sent the appellant to the Primary

Health Centre for medical attention. Since he was sent by the Investigating

Officer himself, the prosecution ought to have placed on record the material

indicating what made him unconscious, what was the probable period of

such unconsciousness and whether the appellant was falsely projecting it.

However, nothing was placed on record. Neither any doctor who had

examined him was called as witness, nor any case papers of such

7

(1952) SCR 1091

Page 32 32

examination were made available. In the absence of such material, which the

prosecution was obliged but failed to place on record, his explanation cannot

be termed as false. The explanation that he knew nothing as he was

unconscious cannot be called, ‘absence of explanation’ or ‘false

explanation’. So the last item in the list of circumstances cannot be taken as

a factor against the appellant.

27.Coming to the circumstance at Sl. No.(e) as mentioned above, the

clothes of the accused were not seized immediately at the place of

occurrence. He was first sent to the Primary Health Centre for medical

attention and later in the day was brought back to the police station, where

the seizure took place. The seizure memo Ext.P-16 does not mention the

word “lungi” but uses the expression “Istamali”. Even if “Istamali” is taken

to be ‘lungi’, the Arrest Memo Ext.P-62 mentions his clothes to be “Full

Pant and Shirt” and further mentions, “nothing found on the person of the

accused except clothes worn by him”. According to FSL report Ext.P-69 and

serological report Ext.P-72 what was sent for examination and analysis was

a lungi which was found to be stained with blood of human origin. It is not

clear how lungi could be seized if the appellant was in ‘full pant and shirt”

and there was nothing else on his person. The constable who had taken the

Page 33 33

appellant to the Primary Health Centre and who could have thrown better

light on this aspect, was not examined. Apart from the fact that the clothes

were not seized immediately at the place of occurrence, if the appellant was

found lying in the room in an unconscious state with five dead bodies

around, the possibility that his clothes had otherwise got stained with blood

which was spotted everywhere including the verandah cannot be ruled out.

In our view, therefore, this circumstance is not conclusive in nature and

tendency which could be considered against the appellant.

28.The site map Ext.P-25 shows the house to be a single storey structure

with a verandah and court-yard open to sky. Though the door of the house

which opened in the gali was stated to have been bolted from inside, the

rooms were not locked and the possibility of a person/persons other than the

inmates of the house getting into the house cannot be ruled out.

Furthermore, the fact that the appellant was lying unconscious and no

material having been placed on record clearly indicating that the appellant

was falsely projecting to be unconscious, the hypothesis that the appellant

could be innocent is a possibility. The prosecution did not gather the finger

prints either in the house or even on the iron knife which was allegedly used

for committing the offence in question. If the finger prints on the knife were

Page 34 34

to be that of the appellant alone, such factor could certainly have weighed

against the appellant. However, the absence of such conclusive material

coupled with other circumstances on record do suggest reasonable

possibility of the hypothesis of innocence of the accused. The law regarding

appreciation of cases based on circumstantial evidence is clear that the chain

of evidence must be so complete as not to leave any reasonable ground for

the conclusion consistent with the innocence of the accused and must

exclude every possible hypothesis except the one to be proved namely the

guilt of the accused. In our view, the circumstances at Sl Nos. a, b, c and d

mentioned above do not form a complete chain of evidence as not to leave

any reasonable ground for the conclusion consistent with the innocence of

the appellant nor do the circumstances exclude every possible hypothesis

except the guilt of the accused.

29. In the circumstances, we hold that the prosecution, on the basis of

admissible evidence on record, has not proved its case against the appellant.

The appellant, therefore, deserves to be acquitted. Concluding thus, we

allow these appeals, set aside the judgments of conviction and sentence

recorded by the Courts below against the appellant and acquit him of all the

Page 35 35

charges leveled against him. The appellant be set at liberty immediately

unless his custody is required in any other case.

……………………………..J.

(Ranjan Gogoi)

……………………………..J.

(Uday Umesh Lalit)

New Delhi,

September 23, 2016

Page 36 1

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 162-163 OF 2014

Dhal Singh Dewangan … Appellant

Versus

State of Chhattisgarh …Respondent

J U D G M E N T

Prafulla C. Pant, J.

I have the benefit of going through the draft judgment of

Hon’ble Mr. Justice Uday Umesh Lalit. With great regard, I

beg to differ with his Lordship, on the point that the

prosecution has failed to prove the charge against the

appellant.

Page 37 2

2.The prosecution story, medical evidence on record, and

statements of witnesses of facts have already been narrated

by his Lordship Justice Lalit. Briefly stated, prosecution story

is that on 19.02.2012 between 10.00 to 11.00 p.m. the

appellant Dhal Singh Dewangan has committed murder of his

wife Thaneshwari and five minor daughters, namely, Nisha,

Laxmi, Sati, Nandini and Sandhya with a knife. PW-6

Kejabai, mother of the appellant, came out of the house at

about 10.30 p.m. shouting that the accused is assaulting his

wife and daughters. PW-1 Ishwar Pradhan, Sarpanch of the

village, on receiving information about it through PW-2

Santosh Kumar Mahar, went to the spot, whereafter he along

with Santosh Kumar Mahar and two others went to the Police

Station, Arjunda (Distt. Balod, Chhattisgarh). The police, on

their information, made Entry No. 671 in the General Diary

and PW-13 Krishna Murari Mishra, Station House Officer,

rushed to the spot at about 1.30 a.m., i.e. in the wee hours of

20.02.2012. A Dehati Nalishi (Ext. P-18) at the instance of

PW-6 Kejabai was registered at about 3.00 a.m. and the crime

Page 38 3

relating to offence punishable under Section 302 of Indian

Penal Code (IPC) was investigated. The dead bodies were

sealed and inquest report prepared by the police. The

autopsy on three of six dead bodies, namely, that of Sati,

Nisha and Sandhya was conducted on 20.02.2012 by PW-7

Dr. Ajaypal Chandrakar. The post mortem examination of

rest of the three dead bodies, namely, that of Thaneshwari,

Laxmi and Nandini was done by PW-14 Dr. Chandrabhan

Prasad, on the very day (20.02.2012). Blood stained knife,

blood stained clothes and blood stained soil etc. were seized

by the police and witnesses interrogated. On completion of

investigation charge-sheet was filed against the appellant for

trial in respect of offence punishable under Section 302 IPC.

The case was committed to the court of Sessions for trial.

After the charge was framed, total fourteen Prosecution

Witnesses were examined.

3.Out of the prosecution witnesses, PW-1 Ishwar Pradhan,

Sarpanch, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth

Sahu, PW-4 Anjor Singh and PW-5 Dan Singh Dewangan

Page 39 4

have given evidence as to the fact that when they reached the

square of the village, they saw that PW-6 Kejabai was

shouting and crying loudly about the incident, and told that

the appellant has killed his wife and daughters. The

appellant was in the house.

4.Relevant portion of statement of PW-1 Ishwar Pradhan,

Sarpanch of the village, is reproduced below: -

“…..I returned to my house at around 10.30 P.M.

Santosh Kumar Mahar (PW-2), the village Kotwar,

came to my house and told me that Dhal Singh had

cut his wife and children in his house. On receiving

this information I reached Gandhi Chowk on my

motor cycle. I met Santosh Kumar, the Kotwar,

Neelkanth Sahu, Dan Singh Dewangan, Kejabai and

Jhaggar ….. who all were sitting in the square.

Kejabai told there that Dhal Singh has cut his wife

and children in his house. On hearing this I didn’t

believe, therefore, I suggested that lets go to the

spot and see. Then we went to the house of Dhal

Singh. Blood was lying near the door of the room

where Dhal Singh (was) slept. We locked the door of

the house. Dhal Singh was present in his house

………………………. After locking the door, I, (with)

Santosh Kumar, the Kotwar and Chaitram went to

Police Station Arjunda and gave information.

The police came to the village Mohandipat

along with us. The S.P. …. also reached there. The

police (interacted) with Kejabai there. Kejabai told

that the accused Dhal Singh has cut his wife and

children with knife. The police entered (in) the

Page 40 5

house and we kept standing outside the house. We

called ambulance No. 108 there and took Dhal

Singh to the hospital in it because he was in half

(un)conscious condition……..”

5.PW-2 Santosh Kumar Mahar has narrated the incident

as under: -

“………… The incident occurred on 19.02.2012 at

11.00 PM. Jivan Dewangan, the neighbour of

accused, came to my house and told that the

accused has murdered his wife Thaneshwari and

daughters with iron knife used for cutting chicken.

Thereafter, I, (with) Neelkanth Sahu, (and) Ishwar

Pradhan, the Sarpanch went to the house of

accused. We went inside the room and saw that the

accused was present in the room of his wife. His

wife was lying dead there. The four children were

also lying dead there. Wife of the accused was lying

dead on the cot and four children were lying on the

ground. The accused was lying there in

unconscious condition. One iron knife was also

lying by his side, and one child was lying in the

room of her grandmother. She (the granddaughter)

was also dead and back of her neck was cut. Hand,

leg and neck of the wife and children were cut.

Blood was found on the room and verandah.

Then I went to Police Station, Arjunda along

with Sarpanch and Vijay and gave information

about the incident. ……………….. The police

personnel enquired about the incident from the

neighbours and Kejabai, the mother of the accused.

Kejabai was behaving like mad, but she told that

the accused has cut and killed his wife and five

children. The police personnel sent the accused to

the hospital in ambulance No. 108………….

Page 41 6

…… The police seized one knife, bottle of

liquor, blood stained pillow, plain earth, blood

smeared earth from the place of incident in the

night of the incident…………”

The witness has also proved the seizure memo (Ext. P-1

and P-2). The witness has further proved the inquest report

and other documents.

6.PW-3 Neelkanth Sahu, corroborating the above facts,

states that he came to know about the incident at about mid

night through Gangaram Sahu and Chaitram Yadav, who

knocked his door. When he opened the door, he was told that

Dhal Singh has killed his wife and five daughters. They

further told him that Kejabai, mother of the accused, has told

about the incident. He further told that when he reached

Gandhi Chowk, Kejabai was already present there and crying

loudly. This witness also corroborates that Kejabai told him

that Dhal Singh has killed his five children and wife.

7.PW-5 Dan Singh Dewangan has also narrated the

incident and stated that he got information about the incident

at about mid night. He further told that when he went to the

Page 42 7

house of Kejabai along with Sarpanch, Kejabai was telling

that the accused Dhal Singh had cut his wife and five

children with the knife. Corroborating the fact that the

incident was got reported through Sarpanch to the police, this

witness has also stated that the deceased Thaneshwari was

lying dead on the cot and the four children were lying dead on

the ground. The accused was also there lying on one side.

One girl was lying in the room in which Kejabai used to sleep.

One knife was also lying by the side of the accused.

8.The above statements of the witnesses have been read in

evidence by the trial court and the High Court with the aid of

Section 6 of the Indian Evidence Act, 1872. My Lord Justice

Uday Umesh Lalit has opined that these statements do not

fulfill the requirement of spontaneity and continuity, and as

such, cannot be read with the aid of Section 6 of the Indian

Evidence Act, particularly when Jivan Dewangan, Gangadhar

and Jhaggar, who told them about what PW-6 Kejabai was

disclosing, were not examined.

Page 43 8

9.However, in my opinion, in the facts and circumstances

of the case, non-examination of Jivan Dewangan, Gangaram

and Jhaggar is not sufficient for not relying on the statements

of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar Mahar, PW-3

Neelkanth Sahu and PW-5 Dan Singh Dewangan with the aid

of Section 6 of the Indian Evidence Act, 1872. The courts

below have rightly appreciated the entire chain of

circumstances that has been narrated by these witnesses,

particularly when they have told what PW-6 Kejabai herself

told them at the square, when they reached there. The

testimony of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar

Mahar, PW-3 Neelkanth Sahu and PW-5 Dan Singh

Dewangan is admissible in evidence as being part of the res

gestae. Sections 6, 7, 8 and 9 of the Indian Evidence Act,

1872 deal with the relevancy of facts not in issue but

connected with the facts in issue. The provisions contained

therein provide as to when the facts though not in issue are

so related to each other as to form components of the

principal fact. The facts which are closely or inseparably

Page 44 9

connected with the facts in issue may be said to be part of the

same transaction.

10.It is also relevant to mention here that PW-4 Anjor Singh

Dewangan, father-in-law of the appellant, has stated that

deceased Thaneshwari was his daughter. He further told that

he had also gone to Nagpur to attend the marriage in which

the appellant and Thaneshwari were present. The witness

has further stated that his daughter complained there about

the behavior of the appellant. He further told that the

accused used to say that his family has become large with

daughters only. PW-4 Anjor Singh Dewangan further told

that the quarrel took place between the couple in Nagpur

itself. He further told that after the marriage, the appellant,

Thaneshwari and their daughters came back to their house.

The above statement makes it clear that the appellant had the

motive for committing the murder of his wife and daughters.

The only other inmate in the house, i.e. PW-6 Kejabai had no

motive to commit the crime, and had she attempted, she

Page 45 10

could have been easily over-powered by the appellant and the

six deceased.

11.As to the lapses in the investigation pointed out by

learned senior counsel for the appellant regarding the fact

that clothes of the accused were not seized immediately and

seizure memo (Ext. P-16) does not mention the word “Lungi”, I

do not think it sufficient to doubt the credibility of the

prosecution story. In paragraph 41 of State of W.B. v. Mir

Mohammad Omar and others

8

, this Court has observed as

under: -

“…..Castigation of investigation unfortunately seems

to be a regular practice when the trial courts acquit

the accused in criminal cases. In our perception it is

almost impossible to come across a single case

wherein the investigation was conducted completely

flawless or absolutely foolproof. The function of the

criminal courts should not be wasted in picking out

the lapses in investigation and by expressing

unsavoury criticism against investigating officers. If

offenders are acquitted only on account of flaws or

defects in investigation, the cause of criminal justice

becomes the victim. Effort should be made by

courts to see that criminal justice is salvaged

despite such defects in investigation……..”

8

(2000) 8 SCC 382

Page 46 11

12.Normally, it is not the duty of the accused to explain

how the crime has been committed. But in the matters of

unnatural death inside the house where the accused had his

presence, non-disclosure on his part as to how the other

members of his family died, is an important reason to believe

as to what has been shown by the prosecution through the

evidence on record is true. It is nobody’s case that any

dacoity or robbery had taken place in the fateful night of the

incident. There are six members of the family who have been

killed brutally. Simple reply by the accused in his statement

under Section 313 CrPC that he did not know as to how the

incident happened, particularly when he was in the house,

does certainly make easier to believe the truthfulness of the

evidence that has been adduced by the prosecution in

support of charge against him. As far as statement of PW-6

Kejabai is concerned, she has turned hostile. But the reason

as to why she has turned hostile is not difficult to be found

out. She was going to lose the only son left with her.

Page 47 12

13.As to the fact that in the General Diary entry (Ext. P-37)

there is no mention of commission of murder of his wife and

children by the appellant, it is sufficient to say that the

General Diary entries are summary entries relating to

movement of police, or relating to the fact that some

information regarding an offence has been given at the police

station. The doubts created in the present case on the

ground that what more could have been mentioned in the

General Diary, or that there are minor variations in the

statements of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar

Mahar, PW-3 Neelkanth Sahu and PW-5 Dan Singh

Dewangan, cannot be said to be reasonable doubt. And this

Court cannot close its eyes to the ring of truth in the

prosecution evidence. In Himachal Pradesh

Administration v. Shri Om Prakash

9

, in paragraph 7, this

Court has observed as under: -

“………..It is not beyond the ken of experienced able

and astute lawyers to raise doubts and

uncertainties in respect of the prosecution evidence

either during trial by cross-examination or by the

marshalling of that evidence in the manner in which

9

(1972) 1 SCC 249

Page 48 13

the emphasis is placed thereon. But what has to be

borne in mind is that the penumbra of uncertainty

in the evidence before a court is generally due to the

nature and quality of that evidence. It may be the

witnesses as are lying or where they are honest and

truthful, they are not certain. It is therefore, difficult

to expect a scientific or mathematical exactitude

while dealing with such evidence or arriving at a

true conclusion. Because of these difficulties

corroboration is sought wherever possible and the

maxim that the accused should be given the benefit

of doubt becomes pivotal in the prosecution of

offenders which in other words means that the

prosecution must prove its case against an accused

beyond reasonable doubt by a sufficiency of credible

evidence. The benefit of doubt to which the accused

is entitled is reasonable doubt — the doubt which

rational thinking men will reasonably, honestly and

conscientiously entertain and not the doubt of a

timid mind which fights shy — though unwittingly it

may be — or is afraid of the logical consequences, if

that benefit was not given. Or as one great Judge

said it is “not the doubt of a vacillating mind that

has not the moral courage to decide but shelters

itself in a vain and idle scepticism”. It does not

mean that the evidence must be so strong as to

exclude even a remote possibility that the accused

could not have committed the offence. If that were

so the law would fail to protect society as in no case

can such a possibility be excluded. It will give room

for fanciful conjectures or untenable doubts and will

result in deflecting the course of justice if not

thwarting it altogether. It is for this reason the

phrase has been criticised. Lord Goddard, C.J., in

Rox v. Kritz [1950 (1) KB 82 at 90], said that when

in explaining to the juries what the prosecution has

to establish a Judge begins to use the words

Page 49 14

“reasonable doubt” and to try to explain what is a

reasonable doubt and what is not, he is much more

likely to confuse the jury than if he tells them in

plain language. “It is the duty of the prosecution to

satisfy you of the prisoner’s guilt”. What in effect

this approach amounts to is that the greatest

possible care should be taken by the Court in

convicting an accused who is presumed to be

innocent till the contrary is clearly established

which burden is always in the accusatory system,

on the prosecution. The mere fact that there is only

a remote possibility in favour of the accused is itself

sufficient to establish the case beyond reasonable

doubt…..”

14.In the light of the law laid down, as above, on careful

scrutiny of the evidence on record, in my opinion, there is no

room for reasonable doubt in the present case as to the

truthfulness of the evidence adduced against the appellant

that he has committed murder of his wife and five daughters

on 19.02.2012 between 10.00 and 11.00 p.m. in his house.

15.In the above circumstances, I concur with the view taken

by the trial court and the High Court that it is proved on

record beyond reasonable doubt that accused Dhal Singh

Dewangan has committed murder of his wife and five

daughters. As such, the conviction deserves to be upheld.

Page 50 15

16.Now, I come to the issue of sentence. Mr. Colin

Gonsalves, learned senior counsel appearing for the

appellant, submitted that the High Court has erred in

affirming the death sentence awarded by the trial court. He

further contended that no adequate opportunity was given to

the convict to present the mitigating circumstances. He

further argued that the burden of proof to show the

impossibility of reformation of the accused was on the State.

17.On the other hand, learned counsel for the State

submitted that it is one of the rarest of rare cases. It is

further submitted that considering the brutality of the

offence, the convict deserves no leniency and the courts below

have rightly awarded/confirmed the death sentence.

18.I have carefully considered the aggravating and

mitigating circumstances in the present case in the light of

law laid down by this Court on the point. In Bachan Singh

v. State of Punjab

10

, in paragraph 206, this Court has given

examples of some of the mitigating circumstances which

10

(1980) 2 SCC 684

Page 51 16

include the probability of the accused not committing criminal

acts of violence as would constitute a continuing threat to

society, and the probability that the accused can be reformed

and rehabilitated.

19.In the instant case, the State has failed to show that the

appellant is a continuing threat to the society or that he is

beyond reformation and rehabilitation. Both the courts

below, in my opinion, appear to have been influenced by the

brutality and the manner in which the crime is committed.

But this Court cannot ignore the fact that there are no

criminal antecedents of the appellant. Also, it cannot be said

that he is continuing threat to the society or that he cannot

be reformed or rehabilitated. It is also pertinent to mention

here that the accused is from socially and economically

disadvantaged strata of the society. Therefore, considering all

the facts, circumstances and the established principle of law

laid down by this Court, in the present case, sentence of

imprisonment for life would meet the ends of justice.

Page 52 17

20.Accordingly, the appeals are partly allowed. The

conviction of the appellant under Section 302 IPC stands

affirmed. However, the sentence of death is set aside, instead

the appellant is sentenced to imprisonment for life.

……………………………… J.

[Prafulla C. Pant]

New Delhi;

September 23, 2016.