[ 1 ]

A.F.R.

Court No. - 9

Case :- CAPITAL SENTENCE No. - 1 of 2016

Appellant :- State of U.P.

Respondent :- Ramanand @ Nand Lal Bharti

Counsel for Appellant :- Govt. Advocate,Amicus Curaie,Rajesh

Kumar Dwivedi

Connected with

Case :- CRIMINAL APPEAL No. - 1959 of 2016

Appellant :- Ramanand @ Nandlal Bharti (Jail Appeal)

Respondent :- State of U.P.

Counsel for Appellant :- Jail Appeal,Rajesh Kumar Dwivedi

Counsel for Respondent :- Govt. Advocate

Hon'ble Ramesh Sinha, J.

Hon'ble Rajeev Singh, J.

(Per : Ramesh Sinha, J. for the Bench)

1 The appellant Ramanand alias Nandlal Bharti was charged by

the Sessions Judge, Lakhimpur Kheri in Sessions Trial No. 379

of 2010 for offence punishable under Section 302 Indian Penal

Code. Vide judgment and order dated 04.11.2016, learned

Sessions Judge convicted and sentenced him under Section 302,

I.P.C. to death and fine of Rs.20,000/- and in default of payment

of fine to undergo imprisonment for one year.

2 Aggrieved by his conviction and sentence, Ramanand alias

Nandlal Bharti has preferred, in this Court, Criminal Appeal

No. 1959 of 2016 from jail.

Neutral Citation No. - 2021:AHC-LKO:24599-DB

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3 Capital Sentence Reference No. 1 of 2016 arises out of the

reference made by the learned trial Court under Section 366 (1)

of the Code of Criminal Procedure, 1973 to this Court for

confirmation of the death sentence of Ramanand alias Nandlal

Bharti.

4 Since Criminal Appeal No. 1959 of 2016 and Capital Sentence

Reference No. 1 of 2016 arise out of a common factual matrix

and impugned judgment, we are disposing them of by this

judgment.

5 Shortly stated, the prosecution case runs as under:

On 22.01.2010, when informant Shambhu Raidas (P.W.1) was

present at his home situate in Village Namdarpurwa, Police

Station Dhaurhara, District Lakhimpur Kheri, his brother-in-law

(sala) Ramanand alias Nand Lal (accused/appellant herein),

who is the resident of Namdarpurwa, hemlate of Amethi, Police

Station Dhaurhara, Lakhimpur Kheri, came at his house at

about 06:30 a.m. and told him that in the intervening night of

21/22.01.2010, he (accused/appellant Ramanand alias Nand

Lal) along with his wife (Smt. Sangeeta) and daughters were

sleeping in his house. In the night, at 1:00 a.m., someone

knocked his door. Thereupon, accused/appellant asked that who

was knocking his door but there was no response. Thereafter, he

(accused/appellant) went at the roof of his house and saw that

among them one person was a resident of Village Basheda, who

[ 3 ]

fired a shot upon him (accused/appellant), however, he escaped

unhurt. Thereafter, accused/appellant jumped at the ground

floor. At the same time, one of the miscreant gave a blow at his

head with the butt of gun. Thereupon, he (accused/appellant)

ran away from there and by concealing himself in the field, saw

that the miscreants have jumped in to his house and thereafter

smoke was coming out from his house. He (Ramanand) reached

at Behman Purwa at the crusher of Khalik as well as at Ram

Nagar Lahbadi and told about the incident but no one came to

help him.

After hearing the aforesaid narrated version from

accused/appellant, the informant-Shambhu Raidas (P.W.1)

along with his nephew Pratap reached at the house of the

accused/appellant and saw that Sangeeta, wife of

accused/appellant and his daughters Tulsi aged about 7 years,

Lakshmi aged about 5 years, Kajal aged about 3 years and

another daughter aged about one and a half month, have been

murdered and their dead bodies were burning. On seeing this,

the informant and his nephew Pratap started pouring water in

order to extinguish the fire. In the meanwhile,

accused/appellant started enjoying heat by sitting near fire in

the courtyard. The informant and his nephew snubbed him

saying that his wife and children have been murdered and he

was still enjoying the heat. On this, accused/appellant became

angry and went away from there. The dead bodies were lying

there. The informant Shambhu Raidas (P.W.1) went to P.S.

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Dhaurhara and narrated the said incident to the police and

lodged the F.I.R. at police station Dhaurhara.

6 The Head Constable Dhani Ram Verma (P.W.10) deposed that

on 22.01.2010, he was posted as Head Moharrir at Police

Station Dhaurhara. On the basis of written report submitted by

the informant Shambhu Raidas (P.W.1) on 22.01.2010, at 09.45

a.m., he registered the F.I.R., on the basis of which, case crime

No. 49 of 2010, under Section 302, I.P.C. was registered against

four unknown persons. A perusal of the chik F.I.R. also shows

that the distance between the place of the incident and the

police station was four and half kilometres. He sent the

appellant Ramanand alias Nandlal Bharti to the Community

Health Centre, Dhaurhara along with Constable Brij Mohan

Singh for treatment.

7 The evidence of S.I. Yogendra Singh P.W. 7 reveals that on

22.01.2010, he was posted as Incharge Inspector at Police

Station Dhaurhara. On the date itself i.e. on 22.01.2010, he took

investigation of the case on its own. He immediately had

recorded the statement of scriber of the F.I.R. Head Constable

Dhaniram Verma (P.W.10) and informant Shambhu Raidas

(P.W.1) and left for the place of the incident. On the pointing

out of the informant Shambhu Raidas (P.W.1), he inspected the

spot, prepared the site plan (Ext. Ka.6) and also recorded

statements of Ahmad Hussain and Nizamuddin, who was

present there. The inquest proceedings were also initiated. The

[ 5 ]

panchanama of the deceased was also prepared. Thereafter, the

deadbody of the deceased was sealed and the impression of seal

was taken and the challan nash was prepared. On 23.01.2010,

he recorded the statements of Chatrapal Raidas (P.W.2) and

Rustam Raidas. On 24.01.2010, accused/appellant-Ramanand

alias Nandlal Bharti was arrested and he recorded his statement.

On the pointing out of the accused/appellant, the weapon of

offence banka was recovered and also prepared site plan of the

spot of recovery. Thereafter, on 25.01.2010, he recorded the

statements of Chaila Bihari Raidas, Balgovind Raidas, Ram

Kumar, Baburam Hans. The sample of blood stained as well as

sample of earth were taken from the spot and were taken into

possession vide Ext. Ka-9. The inquest papers of the deceased

persons were prepared by S.I. Nand Kumar in his supervision.

P.W.7 has also proved the panchnama and other related

document of deceased Sangeeta Devi as Ext. Ka-10 to Ext. Ka

15. The panchnama and other related papers of deceased Tulsi

were proved as Ext. 16 to Ext.. 21. The panchnama and other

related papers of deceased Kajal were proved as Ext. Ka 22 to

Ext. Ka-27. The panchnama and other related papers of

deceased Laxmi were proved as Ext. Ka-28 to Ext. Ka. 33. The

panchnama and other related papers of deceased Km. Chhoti

were proved as Ext. Ka-34 to Ext. ka 39. On 05.02.2010, he

recorded the statements of witnesses of recovery memo S.I.

Nand Kumar, S.S.I. Uma Shankar (P.W.6), Constable Usman,

[ 6 ]

Constable Prabhudayal, Constable Santosh, Constable Shrawan

Kumar.

8 P.W.7 Inspector Yogendra Singh has also deposed that after

completion of the investigation, the accused/appellant was

charge-sheeted vide charge-sheet (Ext. Ka-8).

9 The Sub-Inspector Uma Shanker Mishra P.W.6, in his

deposition, before the trial Court stated that on 24.11.2010, he

was posted as Senior Sub-Inspector at Police Station

Dhaurhara. The appellant, who was arrested in the present case,

was interrogated. Appellant Ramanand has confessed the crime

and disclosed that he had concealed ‘banka’ used in the incident

and his blood stained shirt and paint at unknown place and can

get recovered the same. Thereafter, at the instance of appellant,

police officials along with public witness Chhatrapal and Pratap

took the accused/appellant to Village Namdarpurwa. Appellant

Ramanand took the police and witnesses on the road of village

Bhakuraiya to Ram Nagar and at a distance of about 100 steps

from his house, he took out one ‘Banka’ and a blood stained

shirt and paint from the shrubbery on the corner of the road

opposite to field one Kafeel. Appellant Ramanand told that this

‘Banka’ was used by him in committing the murder of his wife

and children. The recovered ‘Banka’, shirt and paint were

sealed at the spot and were taken into police possession vide

recovery memo Ext. Ka-5.

[ 7 ]

10The injuries of accused/appellant Ramanand alias Nandlal

Bharti was examined by P.W. 9 Dr. Ankit Kumar Singh on

22.01.2010 at 10:30 a.m. in Community Health Centre,

Dhaurhara. He deposed that on 22.01.2010, he was posted as

Medical Officer at Community Health Centre, Dhaurhara. After

examination of accused/appellant Ramanand alias Nandlal

Bharti, he found following injuries :

“Injuries of Ramanand alias Nandlal Bharti (appellant)

(1) C.L.W. on the left side of head 2 cm x

0.5 cm in length 10 cm above from left ear.

(2) C.L.W. on the middle of Head 5 cm x

0.5 cm in length 2 cm from injury No. (1).

(3) C.L.W. on the middle of Head 4.5 cm x

0.5 cm in length 1 cm from injury No. (2).

(4) Superficial burn injuries on the left side

of neck in length 8 cm x 6 cm.

(5) Superficial burn injuries on the (Rt)

side of neck in length 10 cm x 7 cm.

In the opinion of P. W. 9 Dr. Ankit Kumar Singh, all

injuries are simple in nature. Injuries No. (1), (2) and (3) were

caused by hard and blunt object, whereas injuries No. (4) and

(5) were caused by burn. During examination, he also opined

that smell of Kerosene Oil were coming from his body and

cloth.

11The post-mortem on the corpse of the deceased Sangeeta aged

about 35 years and Km. Tulsi, aged about 7 years were

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conducted, on 23.01.2010 (on the next date of incident) at 4.00

p.m., by P.W.8 Dr. S.V. Singh at District Hospital, Kheri, who

found on it the ante--mortem injuries enumerated below:-

“Ante-mortem injuries of deceased Sangeeta, aged

about 35 years, wife of appellant Ramanand alias

Nandlal Bharti

1. Incised wound 25 c.m. x 1 c.m. x cranial deep

on Rt side of head 3 c.m. above (L) ear underlying

(R) temporal and parietal bones found fractured

and brain cut.

2. Incised wound 20 c.m. x 1 c.m. x brain deep

(bone deep) over back of head Rt side of Neck

below Lt. ear underlying muscles and vessels

found cut.

Postmortem injuries of deceased Sangeeta

Superficial to deep burn all over body head, Neck.

Burn 90%.

In the opinion of P.W.8 Dr. S.V. Singh, deceased

Sangeeta died due to shock and hemorrhage as a result of

ante-mortem injuries.

Ante-mortem injuries of deceased Km. Tulsi, aged

about 7 years, Daughter of appellant Ramanand alias

Nandlal Bharti

Multiple incised wound in an area of 20 c.m. x 10

c.m. x cranial cavity deep on Rt. side of head

including (R) ear and Rt eye largest 10 c.m. x 1

c.m. x cranial cavity deep. Smallest 4 c.m. x 0.5

c.m. x bone deep underlying vessels muscles and

temporal bone (R), parietal bone found fracture,

membrane & brain found cut (cooked).

[ 9 ]

Postmortem injuries of deceased Tulsi

Deep burn all over body charred and blackened.

In the opinion of P.W.8 Dr. S.V. Singh, deceased Tulsi

died due to shock and hemorrhage as a result of ante-mortem

head injuries.

12In his deposition, in the trial Court, P.W.8-Dr. S.V. Singh has

deposed that on 23.01.2010, he was posted as Senior

Consultant, Orthopedic Surgeon at District Hospital, Lakhimpur

Kheri and on 23.01.2010, at 4:00 p.m., he did post-mortem on

the corpse of the deceased Km. Tulsi and post-mortem on the

corpse of deceased Smt. Sangeeta Devi at 4:30 p.m. In his

deposition, P.W.8 has stated that on external examination, he

found that deceased Km. Tulsi was aged about 7 years; on

account of burial, her body became charred and blackend and

bones were exposed; lower part of both hands and foot were

found missing; and her scalp hair was burnt. P.W.8 has further

stated that on external examination on the corpse of deceased

Smt. Sangeeta, he found that at the time of death, deceased Smt.

Sangeeta was aged about 35 years; on account of burial, her

body became charred and blackend; both foot and legs found

missing; bones were exposed; her body was at fencing attitude;

her scalp hair was burnt. He has also stated that injuries

sustained by the deceased Km. Tulsi and Smt. Sangeeta as per

the report of post-mortem may be caused by sharp edged

weapon like banka. He categorically stated that on account of

burial badly the body of the deceased, the time of death cannot

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be ascertained. He, in his cross-examination, has deposed that

90% of the body of the deceased Sangeeta was burnt, whereas

100% of the body of the deceased Tulsi was burnt.

13The post-mortem on the corpse of the deceased Km. Laxmi,

aged about 5 years, Kajal aged about 3 years and Chhoti

alias Guddi, aged about 1/2 month were conducted at 4.00

p.m., on 23.01.2010 (on the next date of incident) by P.W.5 Dr.

A.K. Sharma at District Hospital, Kheri, who found on it the

ante--mortem injuries enumerated below:-

“Ante-mortem injuries of deceased Km. Laxmi,

aged about 5 years, daughter of appellant

Ramanand alias Nandlal Bharti

1. Incised wound 20 c.m. x 1 c.m. x cranial cavity

deep on left side of head 3 c.m. above left ear

underlying left temporal and parietal bone

membran and brain found cut.

2. Incised wound 15 c.m. x 1 c.m. x Brain deep

over back of head right side just below left ear

underlying occipital bone, membrane and brain

found cut.

3. Incised wound 20 c.m. x 1 c.m. x cranial cavity

deep over right side of neck face including Rt ear

underlying muscles, vessels upper and lower row

of right side, Rt ear found cut.

Postmortem injuries of deceased Laxmi

Superficial to deep burn all over body except head

and neck and upper part of chest.

[ 11 ]

In the opinion of P.W.5 Dr. A.K. Sharma,

deceased Laxmi died due to shock and hemorrhage as

a result of Ante-mortem head injuries.

Ante-mortem injuries of deceased Kajal, aged

about 3 years, daughter of appellant Ramanand

alias Nandlal Bharti

Multiple incised wound in an area of 15 c.m. x 5

c.m. x cranial cavity deep on left side of head

including left ear and left eye. Largest 10 c.m. x

0.5 c.m. x cranial cavity deep, smallest 6 c.m. x 0.5

c.m. x bone deep underlying muscle, vessels and

left temporal and parietal bone, orbital bone,

membrane and brain found cut.

Postmortem injuries of deceased Kajal

Post mortem deep burn all over body except

forehead and left side of head.

In the opinion of P.W.5 Dr. A.K. Sharma, deceased

Kajal died due to shock and Hemorrhage as a result of Ante-

mortem head injuries.

Ante-mortem injuries of Km. Chhoti alias

Guddi, aged about 1/2 month, daughter of

appellant Ramanand alias Nandlal Bharti

1. Incised wound 8 c.m. x 1 c.m. x cranial cavity

deep over Rt. side of Head above Rt. Ear.

Underlying Rt. temporal and parietal bone

membrane and brain found cut clotted blood

present in cranial cavity and brain.

2. Incised wound 5 c.m. x 1 c.m. x scalp deep

over left side of head 3 c.m. above left ear.

Postmortem injuries of Km. Chhoti alias Guddi

[ 12 ]

Deep burn all over body charred and blackened.

In the opinion of P.W.5 Dr. A.K. Sharma, deceased

Km. Chhoti alias Guddi died due to comma as a result of

ante-mortem head injury.

14It is pertinent to mention that in his deposition before the trial

court Dr. A.K. Sharma (P.W.5) reiterated the said cause of death

and stated that the deceased could have died on account of the

ante-mortem injury suffered by them. He also stated therein that

on account of burial, the body of the deceased Laxmi, Kajal and

Chhoti alias Guddi became black and chard, therefore, time of

the death of the deceased cannot be ascertained. He also stated

that injuries sustained by the deceased as per the report of post-

mortem may be caused by sharp edged weapon like banka.

15The case was committed to the Court of Sessions by the learned

Magistrate, where the appellant was charged for offence

punishable under Sections 302 I.P.C. He pleaded not guilty to

the charges and claimed to be tried. His defence was of denial.

16During trial, in all, the prosecution examined ten witnesses,

namely, P.W. 1 Shambhu Raidas, who is the informant and

brother-in-law (Sala) of the accused-appellant, P.W.2 Chatra Pal

Raidas, who is the brother-in-law (Sala) of the accused-

appellant, and real brother of the deceased Sangeeta, P.W.3

Babu Ram Hans and P.W.4 Ram Kumar, before whom extra

judicial confession has been made by the accused/appellant,

[ 13 ]

P.W, 5 Dr. A.K. Sharma, who conducted the post-mortem on the

corpse of Km. Laxmi, Kajal, Chhoti alias Guddi, P.W.6 Uma

Shankar, who had prepared the fard recovery memo of blood

stained weapon of assault i.e. banka and blood stained shirt of

the accused/appellant, P.W.7 Yogendra Singh, who is the

Investigation of the case, P.W.8 Dr. S.V. Singh, who conducted

the post-mortem on the corpse of Km. Tulsi and Smt. Sangeeta

Devi, P.W.9 Dr. Ankit Kumar Singh, who had examined the

injuries of accused/appellant and P.W.10 Head Constable Dhani

Ram Verma, who had registered the F.I.R. on the basis of

written report of the informant P.W.1 Shambhu Raidas.

17The accused/appellant was examined under Section 313 of the

Code of Criminal Procedure, wherein he had denied the

prosecution evidence and took the plea that earlier his brother

Siyaram was murdered by one Ramakant, Kamalkant and

Manua alias Ramakant. He had lodged a report about the said

incident. His wife Sangeeta and daughter of Siyaram, namely,

Gudiya, were eye-witnesses in that case. The accused persons

of that case, in order to eliminate the evidence of that case, have

burnt him and his wife by pouring kerosene. They wanted to

kill him and have poured kerosene over him. Daughter of

Siyaram, namely, Gudiya has died due to illness. The present

incident was committed by Ramakant, Kamalkant and Manua

alias Ramakant.

[ 14 ]

18It is pertinent to mention that the accused/appellant had also

filed a written statement under Section 233 of the Code of

Criminal Procedure but no evidence was led by him in his

defence.

19We would first like to deal with the evidence of informant

Shambhu Raidas P.W.1. Since in paragraph 5, we have set out

the prosecution story primarily on the basis of recitals contained

in his examination-in-chief, for the sake of brevity, the same is

not reiterated. P.W.1 Shambhu Raidas has further deposed that

about six months back, when he was present at his house, at

about 06:30 a.m., accused/appellant Ramanand came there and

told him that in the night, he along with his children and wife

was sleeping in his house. At around 01:00 a.m., in the night,

someone knocked his door. He awoke and asked as to who was

knocking the door, but no one responded. Ramanand went at

the roof of his house and saw that four persons were standing

outside his home and one of them was a resident of village

Basdhiya. One of the miscreant fired a shot at the

accused/appellant, however he escaped unhurt. Thereupon,

Ramanand jumped on the ground floor. One of the miscreant

gave a blow at the head of Ramanand with the butt of Gun.

Ramanand further told the informant P.W.1 that he fled in to a

field and saw that the alleged bandits have jumped into his

house and thereafter smoke was coming out from his house.

Ramanand further told him that he went to Behan Purwa,

[ 15 ]

Kalikpurwa and Lehbadi and told about the incident but no one

came from there. Thereafter, Ramanand came to P.W.1.

20P.W.1 further stated that after coming to know the aforesaid

facts from Ramanand, he along with Pratap and

accused/appellant Ramanand went to the house of the

accused/appellant Ramanand, where they saw that flame of fire

were coming in the house. The deadbodies of Sangeeta and his

four daughters including Tulsi were burning. There were signs

of injuries on the dead bodies. P.W.1 and Pratap started

extinguishing the fire by water, however, accused/appellant

started enjoying heat in the courtyard by putting his Banyan in

the fire. P.W.1 snubbed him saying that he was extinguishing

the fire and he (Ramanand) was enjoying heat despite that his

wife and children have to be murdered. Thereafter, P.W.1 left

Pratap at the spot and went to police station Dhaurahara and

submitted a written complaint against unknown persons.

21P.W.1 Shambhu Raidas has further stated that accused

Ramanand was having illicit relation with one Manju and due

to this illicit relationship, Manju has sustained pregnancy.

Thereafter, brother of Manju has fixed her marriage with

accused Ramanand. The “Chidna” and “Tilak” ceremony have

taken place. In the meanwhile, a case was registered under

Section 307 I.P.C. against accused/appellant Ramanand. In that

case, Ramanand was sent to jail, on account of which, the

marriage of Manju with accused Ramanand could not be

[ 16 ]

solemnized. Thereafter, the family members of Manju have

married her at some other place. After marriage, Manju came

to her parental home and thereafter she never returned back to

her matrimonial home. Manju still wanted to marry with

accused/appellant Ramanand only. For the marriage of Manju

and Ramanand, the wife of the accused Ramamand, namely,

Sangeeta was not ready. Accused Ramanand wanted to get

compensation from the Government for which the

accused/appellant Ramanand committed murder of his wife

Sangeeta and his daughters and burned their dead bodies.

22P.W.1 has also stated that earlier the murder of Siyaram, who

was the brother of the accused/appellant, has taken place and

the accused/appellant has got about Rs.4-5 Lakhs as

compensation. He has stated that after filing of his report

police came at the spot and the panchnama proceedings of the

deceased persons were conducted. The deadbodies were sealed

and were sent for post-mortem. The site plan of spot was also

prepared.

23P.W.1, in his cross-examination before the trial Court, has stated

that earlier Ramanad resided at Basdhiya village. Siyaram was

the real brother of Ramanand. Siyaram was murdered three

years back, for which a report was lodged by Ramanand against

Ramakant, Kamlakant and Munuwa at police station Basdhiya,

Ishanagar. At the time of murder of Siyaram, his daughter,

Gudiya, was alive. The incident of murder of Siyaram was seen

[ 17 ]

by Gudiya and wife of Ramanand, namely, Sangeeta. They

were the eye-witnesses. Thereafter, Gudiya died due to illness.

In the said case, daughter of Siyaram, namely, Gudiya had

received compensation from the Government but he did not

know how much amount the compensation was given to him.

Prior to one month of the murder of Siyaram, Ramakant had

lodged an F.I.R. against Ramanand and Siyaram under Section

307 I.P.C., in which Siyaram and Ramanand were sent to jail

and after detaining 7-8 days in jail, they were released on bail.

24P.W.1, in his cross-examination, has further deposed that

Ramanand had two brothers and one sister, namely, Kushuma.

The sister of Ramanand, namely, Kushuma, was married with

him (P.W.1) and from their wedlock, four children were born,

who are still alive and are with him. His wife Kushuma

deserted him one year back and gone to village Bauri started

living with Guddu in his house. P.W.1 has further deposed that

prior to three months of the murder of the wife and children of

Ramanand, his wife Kushuma deserted him and had gone to

village Bauri to the house of Guddu and since then, she is

residing there. P.W.1 has also stated that the case, which was

lodged by Ramakant under Section 307 I.P.C. against

Ramanand and Siyaram, he was doing pairvi and had spent 10-

12 thousands rupees for the same. The said money was not

returned by Ramanand till date and after the murder of Siyaram,

Ramanand came to his village Namdarpurwa. This witness has

[ 18 ]

further stated that he had given his field to Ramanand for

construction of his house. He, however, denied the suggestion

that the field, upon which Ramanand constructed the house,

was sold by him to the Ramanand on taking Rs.50,000/- from

him and inspite of repeated request, he has not executed a sale

deed.

25P.W.1, in his cross-examination, has further stated that

Chatrapal resides in his village and is the brother of the

deceased Sangeeta. Chatrapal had married his sister Sangeeta

(deceased) in village Bahad with one Pairu. Sangeeta resided

eight days in her in-law’s house and, thereafter, she had fled

from her in-law’s house with Ramanand and performed Court

marriage with him, due to which, Chatrapal faced great

humiliation and since then Chatrapal is inimical to Ramanand.

This witness has further stated that the distance of house of

Ramanand from his house is one kilometre. On the date of

incident, Ramanand came to his house in the morning at 6:30

a.m. and he reached to his house by foot. He (Ramanand)

appeared to be in much perturbed condition. Ramanand told

him (P.W.1) that 4-5 persons of village Basadiya had entered his

house and set afire. He (Ramanand) had further told him

(P.W.1) that he (Ramanand) came to his house stealthily.

Thereafter, this witness along with Pratap went to the house of

Ramanand, where he saw the door of the house of Ramanand

was opened and in the house, corpses were burning in flames.

[ 19 ]

Approximately 4-5 minutes, flames came out from the corpse.

The corpses were burning in the kothari (closet) in the house.

He along with Pratap started extinguishing the fire by water.

Ramanand was taking the heat of fire in a courtyard. There was

a tap at a distance of 4-5 steps, from which he carried 4-5

buckets (balti) of water and poured it over the fire and 4-5

buckets of water were poured by Pratap over the fire. All

corpses were completely burnt. Out of the burnt corpses, one

girl from neck to the head was found half burnt, whereas in rest

of the corpses, burnt bones were left only. This witness has

further deposed that the distance of police station from village

Namdarpurwa is 09 kilometers. He went to police station to

lodge the F.I.R. by bicycle. He told the whole incident to the

Inspector after reaching the police station. Thereafter, on the

behest of the Inspector, report Ext. Ka.1 has been written. The

tahriri report was not written at police station in his presence.

He did not know the scriber of the tehriri report. The report

was written at the chauraha (crossroads). The distance between

the chaurha (crossroad) to police station is one mile. He put

thumb impression at the chauraha (crossroad). This witness

also stated that he did not know Manju. He had came to know

about pregnancy of Manju when Ramanand told him. The

marriage of Manju was performed prior to one year of the

incident and since then, Manju is residing in law’s house or he

did not know whereabout she is. He also deposed that two

months prior to the incident, Ramanand, his wife Sangeeta and

[ 20 ]

his children has adopted Islam. The Inspector had not

interrogated him at the police station. The Inspector reached at

the police station with police van. He went at about 2:00 a.m.

from the police station. He remained present at police station

from lodging of the report till 2:00 a.m. and Ramanand was also

present at police station. He was not present at the place where

the police had sealed the corpses. The constable left him at 2

O’clock in the night in his house. Ramanand was stopped at the

police station. The Inspector did not meet with Ramanand nor

he was called. He went to police station along with Pratap and

Chatrapal and in his presence, the Inspector did not put

signature of Chatrapal and Pratap to any paper. Ramanand was

challaned by the police after three days of the incident and

since then, Ramanand was continuously at the police station.

He denied the suggestion that he cultivated the field of

Ramanand. He further denied the suggestion that after his wife

deserted him, Ramanand has made a complaint against him to

the police and due to this grudge, he is falsely deposing against

the appellant.

26P.W.2 Chhatrapal Raidas, who is the real brother of deceased

Sangeeta Devi, has deposed that his sister Sangeeta Devi has

solemnized Court marriage with accused/appellant Ramanand

about 12 years prior to the incident. Thereafter, Ramanand

started living with his wife at a distance of about 500 meters

from his village, while originally he was a resident of village

[ 21 ]

Basdhiya. Out of this marriage, there were five children of

Ramanand and Sangeeta Devi. The name of the eldest one

among them is B.R. Ambedkar, aged about 10 years. The

remaining daughters were Tulsi aged 07 years, Laxmi aged 05

years, Kajal aged 03 years and the youngest one Guddi aged

1 ½ month. At the time of incident, B.R. Ambedkar was not

present at the house. About 2 ½ years prior of the incident,

accused/appellant Ramanand has started living in his village

Naamdar Purwa as he has constructed a house at the land of his

brother-in-law’s Shambhu Raidas. Ramanand was a person of

rakish and immoral character. About 02 years prior of the

incident, he has developed illicit relationship with Km. Manju

resident of village Pakariya, District Sitapur. Accused

Ramanand used to visit there and due to his illicit relationship,

Manju became pregnant. After coming to know about it, the

father of Manju talked about her marriage with

accused/appellant Ramanand. The marriage was fixed with the

accused/appellant. P.W.2 Chhatrapal Raidas further stated that

his sister Sangeeta was an illiterate and simple lady and in the

influence of her husband Ramanand, she became ready for

marriage of Ramanand with Manju. Thereafter, ‘Tilak’ and

‘Chhedna’ ceremony has taken place. Accused Ramanand has

incurred about Rs.80-90 thousands in ‘Tilak’ ceremony. In the

meanwhile, one Manua lodged a case under Section 307 I.P.C.

against accused/appellant Ramanand. In that case,

accused/appellant Ramanand was sent to jail, on account of

[ 22 ]

which, his marriage with Manju could not be solemnized.

Thereafter, father of Manju has married her at some other place.

After release from jail, accused/appellant Ramanand again

started contacting Manju and made talk for marriage with her.

In the month of the incident itself, Manju Devi came to the

house of accused/appellant Ramanand and after staying 2-3

days there, she went back to her house. This time, his sister

Sangeeta was not ready for marriage of accused/appellant

Ramanand with Manju. Accused/appellant has threatened her

that if she (Sangeeta) does not became ready for his marriage

with Manju, he would kill her and thereafter would marry with

Manju.

27P.W.2 has further deposed before the trial Court that about 10

days prior to the incident, Sangeeta came to his house and has

told him about these facts. At that time, Ruttam and his

neighbours Chhail Bihari and Bal Govind were also present.

They tried to console Sangeeta and sent her back to her

matrimonial home by saying that they would make Ramanand

understand. On the next day, P.W.2 and above named persons

went to the house of accused Ramanand and tried to make him

understand but accused/appellant Ramanand paid no heed and

went away. P.W.2 Chhatrapal Raidas has further stated that on

the night of 21/22.01.2010, the accused/appellant Ramanand

murderd his sister Sangeeta and her daughters Tulsi, Laxmi,

Kajal and Guddi and burnt their deadbodies. Accused/appellant

[ 23 ]

Ramanand has committed these murder due to the fact that his

marriage could not take place with Manju.

28P.W.2, in his cross-examination, has denied that he had married

his sister Sangeeta with one Pairu. He further stated that

Sangeeta had eloped from his house and gone with Ramanand.

This incident is of 12 years back i.e. in the year 1998. He did not

lodge any report for the said incident. He had denied the

suggestion that he had married his sister Sangeeta with one Pairu

twelve years back. He also denied the suggestion that Sangeeta

had eloped with Ramanand after one year. He did not feel any

humiliation when his sister Sangeeta eloped with Ramanand but

he had married his sister with Ramanand. This witness has

further stated that Ramanand was living in his village

Naamdarpurwa prior to two years and before that he was living

at village Bhasadiya. He, in his cross-examination, has stated

that prior to 3-4 years, brother of Ramanand, namely, Siyaram,

was murdered, for which Ramanand had lodged an F.I.R. against

Ramakant, Kamlakant and Munuwa, who were the residents of

village Bhasadiya and they were sent to jail in the said case. In

the said case, daughter of Siyaram, namely, Guddi and wife of

Ramanand, namely, Sangeeta were eye-witnesses as they were

present at the time of the incident. After 1 ½ years of the murder

of Siyaram, Gudia died on account of illness and after her death,

Ramanand had received compensation from the Government. He

used to visit the house of Siyaram. Siyaram and Ramanand used

[ 24 ]

to live in one house and in the said house, daughter of Siyaram,

namely, Gudia, Ramanand, wife of Ramanand, namely, Sangeeta

and their children also used to live. His sister Sangeeta had

married 12 years back after she eloped with Ramanand and since

then Sangeeta used to live with Ramanand. In the last 12 years,

his sister Sangeeta had made several complaints against her

husband (Ramanand) viz. not providing food, clothes and not

permitting her to go elsewhere and also made illicit relationship,

but she used to live with Ramanand as wife till the incident.

However, he did not lodge any report to the police station against

the complaint made by his sister. His sister used to visit his

house and after staying about 1-2 months, she went back to the

house of Ramanand. He had heard that Ramanand and his wife

Sangeeta and their children adopted Islam prior to the date of

incident. At that relevant time, he was outside the village for a

period of one month and when he returned after one month, then,

he came to know from the villagers that Ramanand, his wife and

their children adopted Islam. Thereafter, he had much persuaded

Sangeeta and Ramanand, then, they lived as such as it was.

29P.W.2, in his cross-examination, has further stated that he had

seen Km. Manju and she and her father used to visit the house of

Ramanand six months prior to the incident. He did not know

whether marriage of Manju had taken place prior to the incident.

The fact that Ramanand and Manju had illicit relationship and

Manju became pregnant, has been told to him by his sister

[ 25 ]

Sangeeta when she came to his house. When she told the said

fact, 10-20 persons were present in his house. Prior to 1-2

months of the incident, Sangeeta told the aforesaid fact outside

the house where 20-25 persons were present. Thereafter,

Sangeeta went to the house of Ramanand. Neither he nor

Sangeeta had lodged any report in this regard. This witness has

also stated that he came to know about the incident at 07:00 a.m.

in the morning from Ramanand, who had came to his house at

about 07:00 a.m. At that relevant time, Ramanand was alone and

he told him that his wife and children have been burnt in the

house and someone after murdering him burnt them. On saying

the aforesaid, Ramanand went away to his house. Thereafter,

Pratap and Shambhu and he reached to the house of Ramanand

by bicycle and by foot, respectively. When he reached to the

house of Ramanand, then, Pratap and Sambhu extinguishing the

fire from water and Ramanand was taking the heat by sitting near

fire and villagers were standing there. The cloth of Ramanand

was blood stained. After sometime, the Inspector had arrived and

other officials had also arrived at the place of occurrence. The

police had taken Ramanand. When it was ascertained that

Ramamanand had murdered his wife and their children and post-

mortam has been conducted/completed, then, he reached to the

police station. The report was lodged by Sambhu. This witness

has stated that he did not aware of about the fact as to whether

ceremony of Tilak of Ramanand with Manju had taken place or

not. He denied the suggestion that Sangeeta had married with

[ 26 ]

one Pairu prior to 12 years back. He further denied the fact that

Sangeeta Devi had eloped from her in-law’s house with

Ramanand and married him due to which his family faced

humiliation. He also denied the suggestion that he was inimical

with Ramanand and Sangeeta and he did not have any

relationship with them because of which he had falsely deposed

against the appellant.

30P.W.3 Babu Ram Hans, in his examination-in-chief, has deposed

that he is the leader of Bahujan Samajwadi Party and earlier he

was the President of the said party in Dhaurahara Assembly

Constituency. In the morning of 23.01.2010, at about 09:00 a.m.,

accused/appellant Ramanand alias Nand Lal came at his house

and told him that a big mistake has taken place from him. He

(accused/appellant) told him (P.W.3) that though he wanted to

marry with one Manju r/o Pakariya, P.S. Tambaur, District

Sitapur but his wife Sangeeta was not agreeable for the said

marriage, therefore, he (accused/appellant), on 21/22.01.2010, at

about 01:00 a.m., after committing brutely murder of his wife

Sangeeta and daughters Tulsi, Laxmi, Kajal and Guddi with

banka, burnt their deadbodies on bed in the house.

Accused/appellant has further stated to P.W.3 Baburam Hans that

he (P.W.3) is a big leader and there is Government of B.S.P. and

that he has good hold in the Government and thus

accused/appellant requested him (P.W.3) to save him from the

alleged crime. Thereupon, P.W.3-Baburam Hans told the accused

[ 27 ]

appellant that as he is a criminal, thus, he cannot help him and

turned Ramanand out from his house. P.W.3 has also stated that

his statement was recorded by the police.

31In cross-examination, P.W.3-Baburam Hans has denied the fact

that he has been informed by the accused/appellant to the fact

that some miscreants entered in his house and committed the

murder of his wife and children and also assaulted him. P.W.3, in

his cross-examination, has deposed that when accused/appellant

left his house, he immediately informed about the incident to the

Incharge of police station Dhaurhara from his mobile number

9838278181. Thereafter, he reached at the place of occurrence at

about 09.00 a.m. He also stated that deceased Sangeeta Devi was

the daughter of his brother-in-law and wife of the

accused/appellant. The marriage of deceased Sangeeta was held

12-13 years ago. Thereafter, deceased Sangeeta run off secretly

and got married with accused/appellant Ramanand, upon which

Chattrapal and father of Chattrapal, his brother-in-law and father

of deceased Sangeeta felt insulted. Thereafter, there was no talk

between Sangeeta and her father till the death of deceased

Sangeeta. Earlier Ramanand resided at village Bhasadiya, where

his brother Siyaram was murdered and at that time, he had gone

there. For the murder of his brother Siyaram, appellant

Ramanand had lodged a report against Ramakant and others.

32P.W. 3 has denied the suggestion that Ramanand had not

confessed his guilt before him and as Sangeeta was the daughter

[ 28 ]

of his brother-in-law (Sadru), therefore, he is falsely deposing

against Ramanand.

33P.W.4- Ram Kumar, in his examination-in-chief, has deposed

that about one year back, he was in B.S.P. Party and was a

member of Zila Panchayat. In the morning at about 06.30 a.m.,

on which incident took place, accused/appellant Ramanand

came at his home and stated that his wife and childrens have

been murdered and asked P.W.4 to help him. P.W.4 asked him

to disclose true facts and only then he could help him. On

inquiry, the accused/appellant Ramanand stated that he himself

has committed the murder of his wife and children and has burn

their bodies and asked P.W.4 to save him. On asking about the

reason for committing murders, the accused/appellant

Ramanand also told P.W.4 that he wanted to marry one Manju

of Tambaur but his wife was opposing the same and due to this

reason, he committed this incident. P.W.4 has further stated that

the son of Ramanand used to live with a police man in District

Mau. Only one week back, Ramanand has left his son at Mau.

Son of Ramanand was brought by that constable and by that

time after the post-mortem of the deceased persons, their dead

bodies have been brought in the village. Seeing his son,

accused Ramanand was wept bitterly and stated that he has

committed the murder of his mother and sisters. P.W.4 has

refused to help the accused. P.W.4 also stated that his statement

was recorded by the police.

[ 29 ]

34P.W.4, in his cross-examination has further deposed that he is

residing at village Dhaurhara. The distance from the village of

Ramanand to Dhaurhara is 6-7 kilometers. Ramanand reached

to his house by foot. The police station Dhaurhara from his

house is 40-50 steps. He was the elected Member of the Zila

Panchayat from Bahujan Samaj Party. At that relevant time,

Government of Bahujan Samaj Party was in the State of U.P.

He had good relationship with the Inspector of police station

Kotwali Dhaurhara and he used to visit every day to the police

station. He knew Babu Ram Hans, resident of village

Dhaurahara, who was the President of the Assembly

Constituency Dhaurhara from Bahujan Samaj Party at the time

of incident. He was told by Ramanand that his wife and

children were done to death by some unknown persons.

Thereafter, he questioned from Ramanand as to why the said

persons had only killed his wife and children and not him. This

witness has further stated that when Ramanand came to him, he

bear pant and shirt and blood was oozing out from his head and

his pant and shirt were blood stained. Ramanand came to him

between 6 ½ to 7 and stayed there about 10 minutes and

thereafter, he went from there on its own. This witness further

deposed that he went to the police station Dhaurhara at 7 ½

a.m. on the date of incident, wherein he was informed that all

officials had gone to the place of incident. He, thereafter,

reached at the place of incident at about 09:00 a.m. and at that

[ 30 ]

relevant time, Ramanand was gone for treatment to Dhaurhara

hospital. He narrated the facts of Ramanand to the police

officials, then, the police had arrested Ramanand at 9-9.15 a.m.

This witness denied the suggestion that he is related to

Chatrapal and Ramanand is connected to Bahujan Samaj Party

and used to sing a song for Bahujan Samaj Party. He denied the

suggestion that Ramanand wanted to contest the election

against him for Zila Panchayat, due to which he has falsely

deposing against him.

35The learned trial Judge accepted the testimony furnished by

P.W.1 Shambhu Raidas and P.W.2 Chatra Pal Raidas as also the

extra judicial confession made by the accused/appellant before

P.W.3 Babu Ram Hans and P.W.4 Ram Kumar, the post-mortem

report furnished by P.W.5 Dr. A.K. Sharma and P.W.8 Dr. S.V.

Singh, motive of murdering the deceased, recovery of banka

and paint and shirt on the pointing out of the accused/appellant,

the statement of P.W.9 Dr. Ankit Kumar Singh regarding

presence of burn injury on the body of the accused/appellant

and smell of kerosene oil was coming out from the body and

clothes of the accused/appellant and report of the FSL, which

showed that samples of earth were put in envelop in the

laboratory itself after examination of blood spots and the nature

of earth of both the samples i.e. blood stained as well as of

simple earth, was found identical. Accordingly, the trial Court

[ 31 ]

convicted and sentenced the accused/appellant in the manner as

stated in paragraph 1 hereinabove.

36Hence, this appeal and reference.

37We have heard Mr. Rajesh Kumar Dwivedi, Amicus Curiae for

the convict/appellant and Sri Vimal Kumar Srivastava, learned

Government Advocate, assisted by Sri Chandra Shekhar

Pandey, learned Additional Government Advocate for the State

of U.P. in Criminal Appeal No. 1959 of 2016 and Sri Vimal

Kumar Srivastava, learned Government Advocate, assisted by

Sri Chandra Shekhar Pandey, learned Additional Government

Advocate for the State of U.P. and Mr. Rajesh Kumar Dwivedi,

Amicus Curiae for the convict/appellant in Capital Sentence

Reference No. 1 of 2016. We have also perused, the depositions

of the prosecution witnesses; the material exhibits tendered and

proved by the prosecution, the statement of the appellant

recorded under Section 313, Cr.P.C.; and the impugned

judgment of the trial Court.

38While challenging the impugned judgment, Sri Rajesh Kumar

Dwivedi, learned Amicus Curiae appearing on behalf of the

accused/appellant has contended that there are several lacuna in

conducting the investigation viz. F.I.R. is ante-dated and ante-

timed; the F.I.R./Special Report was not forwarded to

Magistrate concerned forthwith; the scribe of the written report

was not produced in the witness box by the prosecution; blood

[ 32 ]

stained and plain earth soil was not recovered by the

Investigating Officer from the spot; and Investigating Officer

also did not take and send the samples of blood stained and

plain plaster from the room in which the dead bodies were

allegedly burning after assault, for chemical examination to

Forensic Science Laboratory. In the inquest reports of the

deceased, the date and time when the corpses were dispatched

to mortuary for autopsy is not mentioned. In support of his

contention with regard to unexplained delay in dispatch of the

F.I.R. to Magistrate, he has relied upon the judgment of the

Apex Court in Marudanal Augusti Vs. State of Kerala : 1980

SCC (Cri.) 985.

39Mr. Dwivedi has contended that there is no eye witness of the

alleged incident. The prosecution case is based on

circumstantial evidence and extra judicial confession of the

accused before the P.W.3-Babu Ram Hans and P.W.4 Ram

Kumar. He has contended that the alleged extra judicial

confession made by the accused/appellant are not reliable for

the reason that P.W.3-Babu Ram Hans is a related, interested

and inimical witness, whereas there are variations,

inconsistencies and major contradictions in the testimony of

P.W.4-Ram Kumar, who is also an inimical witness. Thus, the

trial Court has erred in relying the unreliable witnesses P.W.3

and P.W.4 while passing the impugned judgment. The extra-

judicial confession cannot form the basis of conviction of the

[ 33 ]

appellant since it has no corroboration and when examined in

light of the settled principles of law, it is inconsequential, thus,

the appellant is entitled to the benefit of doubt.

40Elaborating his submission, Mr. Dwivedi, learned Amicus

Curiae appearing for the appellant has contended that the

testimonies of P.W.1 and P.W.2 are not reliable as P.W.1 and

P.W.2 are related, inimical and interested witnesses. He

contended that P.W.1 was married to the sister of the

accused/appellant and the sister of the accused/appellant has

deserted P.W.1. Similarly, P.W.2 was the brother of deceased

Sangeeta and he (P.W.2) was inimical to the accused/appellant

as his sister has married the accused/appellant against the

wishes of her family members.

41It has further been contended by Sri Dwivedi that no motive has

been established by the prosecution against the

accused/appellant to commit the murder of his own wife and

four minor daughters. He also contended that according to

recovery memo, blood stained banka i.e. a weapon of assault

and blood stained clothes (Pant & shirt) were recovered under

Section 27 of the Evidence Act on 24.01.2010 at 09.50 a.m. on

the pointing out of the accused/appellant but it is a fake

recovery as it is not made in accordance to the provisions of

Section 27 of the Evidence Act. The disclosure statement under

Section 27 of the Evidence Act should be made voluntarily

without any duress or coercion in the presence of independent

[ 34 ]

witnesses. In support of his contention, he relied upon the

judgments of the Apex Court reported in AIR 1956 SC 217 :

Aher Raja Khima Vs. The State of Saurashtra and in AIR

2002 SC 3040 : Harjit Singh and others Vs. State of Punjab.

42Sri Dwivedi has further contended that it has been alleged that

appellant was arrested by the police on 24.01.2010 at 06:30

p.m. from Taxi Stand and the recovery was made under Section

27 of the Evidence Act on 24.01.2010 at 09:50 a.m. This shows

that his arrest on 24.01.2010 at 06:30 p.m. is fake as no arrest

memo of the accused/appellant has been prepared and no public

witness has been mentioned before whom the arrest of the

accused was made and in the Fard recovery, there is no

signature of Senior Sub-Inspector, who scribed the fard Ext.

Ka-5, witnesses of recovery as well as the signatures of the

accused to whom the copy of the fard was given.

43Mr. Dwivedi has also contended that the investigation of the

case has been conducted in highly careless manner and the

charge-sheet has been filed by the Investigating Officer P.W.7

S.I. Yogendra Singh without collecting sufficient evidence in

support thereof. The trial Court has also erred to consider that

the prosecution has not produced the best evidence to prove it’s

case and deliberately withheld the material witnesses, namely,

Manju, her father Kandhai Raidas and husband of Manju to

prove the guilt of the accused/appellant, for which presumption

under Section 114 (g) of the Evidence Act was desired to be

[ 35 ]

drawn against the prosecution. He has contended that the case

of the prosecution is based on circumstantial evidence and

chain of circumstances proved by the prosecution is not

complete and the prosecution has miserably failed to establish

the fact that only the accused/appellant and no one else except

him could have committed the offence.

44Learned Counsel for the appellant has further submitted that the

trial Court had found conviction against the appellant in view of

the provisions of Section 106 of the Evidence Act, 1972. He

submitted that onus is on the prosecution to prove the case

beyond reasonable doubt against the appellant and the

presumption, which has been raised against the appellant for

recording his conviction in the present case, is not sustainable

in the eyes of law. He has drawn the attention of the Court

towards the judgments of the Apex Court reported in 2013 (3)

JIC 548 (SC) : Joydeb Patra & others Vs. State of West

Bengal.

45Lastly, Mr. Dwivedi has contended that the extreme penalty of

death awarded to the accused/appellant by the trial Court is too

harsh and excessive in nature and as an alternate penalty the

punishment of imprisonment for life would meet the ends of

justice if this Court arrives at a conclusion otherwise as the case

of the prosecution is solely based upon the extra-judicial

confession, which confession is neither reliable nor has been

recorded in accordance with law. In support of his argument,

[ 36 ]

he has placed reliance upon the judgment of this Court reported

in 2020 (3) JIC 125 (All HC DB) : Najeem Miyan Vs. State of

U.P. and judgments of the Apex Court reported in 2020 (2) JIC

491 (SC) : Manoj Suryavanshi Vs. State of Chhattisgarh,

and in 2019 (107) ACC 731 (SC) : Vijay Kumar Vs. State of J

& K.

46Per contra, learned Counsel appearing for the State, while

supporting the impugned judgment of the trial and pleaded for

confirmation of death penalty, argued that the appellant was

living along with his wife and children in the same house, in

which the incident had taken place. The appellant, in his

statement under Section 313 Cr.P.C., has not denied his

presence at the place of occurrence and on the other hand,

injuries sustained on his person goes to show that he was

present at the time of the incident and has committed the

murder of his wife and four minor children. The motive for the

appellant to commit the murder of the deceased has been

proved by the evidence of P.W.2- Chatra Pal Raidas, who is real

brother of the deceased Sangeeta. The recovery of blood

stained banka and clothes of the appellant at his pointing out

further shows the incriminating circumstance against the

appellant for his involvement in the present incident. He has

also submitted that extra-judicial confession made by the

appellant before P.W.3-Babu Ram Hans and P.W.4-Ram Kumar

goes to show that the said confession made by the appellant

[ 37 ]

before the said witnesses is admissible one as the appellant was

also the active member of a political party BSP, in which P.W.3-

Babu Ram Hans and P.W.4-Ram Kumar were holding the good

position and were able to help him out of the present case. He

next submitted that the explanation given by the appellant for

the death of his wife and children, in his statement under

Section 313 Cr.P.C., is self-contradictory to his written

statement under Section 233 Cr.P.C. He argued that the

appellant had given a false explanation about the death of his

wife and children and the trial Court has rightly rejected the

defence version.

47Learned Counsel for the State has further contended that the

present case is of circumstantial evidence and the prosecution

has succeeded in establishing every circumstance of the chain

of events that would fully support the view that the

accused/appellant is guilty of the offence. The trial court while

dealing with the judgment under appeal, upon proper

appreciation of evidence, thus, has come to the right

conclusion.

48We have given a thoughtful consideration to the rival

submissions advanced by learned Counsel for the parties and

have gone through the lower Court record and the impugned

judgment and order passed by the trial Court.

[ 38 ]

49In the instant case, there is no eye-witness of the incident and it

is a case of circumstantial evidence. In a case of circumstantial

evidence, the onus lies upon the prosecution to prove the

complete chain of events which shall undoubtedly point

towards the guilt of the accused. Furthermore, in case of

circumstantial evidence, where the prosecution relies upon an

extra-judicial confession, the court has to examine the same

with a greater degree of care and caution. It is a settled principle

of criminal jurisprudence that extra-judicial confession is a

weak piece of evidence. Wherever the Court, upon due

appreciation of the entire prosecution evidence, intends to base

a conviction on an extra- judicial confession, it must ensure that

the same inspires confidence and is corroborated by other

prosecution evidence. If, however, the extra- judicial confession

suffers from material discrepancies or inherent improbabilities

and does not appear to be cogent as per the prosecution version,

it may be difficult for the court to base a conviction on such a

confession. In such circumstances, the court would be fully

justified in ruling such evidence out of consideration.

50The present case rests on circumstantial evidence and the

appellant has been convicted and sentenced to death by the trial

Court for murdering his wife and children vide impugned

judgment. In respect to convict the person in a case of

circumstantial evidence, the Apex Court in the celebrated case

of Sharad Birdhichand Sarda v. State of Maharashtra: AIR

[ 39 ]

1984 SC 1622, has held that the following conditions must be

fulfilled before a case against an accused can be said to be fully

established:-

“1. The circumstances from which the conclusion

of guilt is to be drawn should be fully established;

2. The facts so established should be consistent

with the hypothesis of guilt and 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.”

51The aforesaid principles of law, which have been laid down by

the Apex Court, shows that while dealing with circumstantial

evidence, the onus is on the prosecution to prove that the chain is

complete and the infirmity of lacuna in prosecution cannot be

cured by false defence or plea.

52In a case of circumstantial evidence, conditions precedent

before conviction could be placed on circumstantial evidence,

must be fully established such as (1) the circumstances from

which the conclusion of guilt is to be drawn should be fully

[ 40 ]

established. The circumstances concerned ‘must’ or ‘should’

and not ‘may be’ established; (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.

53Keeping in mind the aforesaid principles of law, we proceed to

examine the instant case whether the prosecution has been able

to establish a chain of circumstances so as to not leave any

reasonable ground for the conclusion that the allegations

brought against the accused persons are sufficiently proved and

established.

54Learned Counsel for the appellant has raised an argument that

the motive, which has been suggested by the prosecution to

commit the murder of his wife and children by the appellant is

absolutely a weak one as the prosecution has failed to prove the

same but the said argument of the learned Counsel for the

appellant does not appear to have much substance.

[ 41 ]

55In the present case, as is apparent from the evidence on record

that there appears to be a motive for the appellant to commit the

murder of his wife Sangeeta along with her children, which is

established from the evidence of P.W.2-Chatra Pal Raidas, who

is the real brother of deceased Sangeeta. P.W.2, in his deposition

before the trial Court, has stated that his sister Sangeeta, who

used to come to his house and stayed there for about 1-2 months,

had made a complaint to him about the illicit relationship of the

appellant with Manju; Manju had become pregnant from the

appellant; and the appellant wanted to marry with Manju, which

was objected by his sister Sangeeta; and the appellant was

adamant to marry with Manju, on account of which, the

appellant committed the murder of his wife deceased Sangeeta

along with four minor children, who was living along with the

appellant in his house. P.W.2-Chatra Pal Raidas has further

stated that when Sangeeta had come to his house, she told about

the aforesaid fact. He also stated, in his evidence, that ten days

prior to the incident, the deceased Sangeeta had come to his

house and in the presence of his neighbours, namely, Chailbihari

and Balgovind, had also disclosed about the illicit relationship of

the appellant with Manju. Thus, the motive to commit the

murder of the deceased Sangeeta along with her children stands

proved from the evidence of P.W.2 and there is no reason for

him to depose falsely against the appellant.

[ 42 ]

56The fact that the evidence of witness P.W.2-Chatra Pal Raidas

could not be relied upon on account of the fact that he happens

to be the real brother of deceased Sangeeta and as Sangeeta had

eloped the appellant Ramanand against the wishes of her family

members, therefore, witness was falsely deposing against the

appellant, cannot be accepted to the fact as quoted his testimony

with respect to the motive, which has been categorically stated

by him for the cause of murder of his wife Sangeeta and her four

minor children.

57Here it would also be pertinent to mention that another motive of

the appellant to commit the murder of his wife and his children,

as has been apparent from the evidence of P.W.1 and P.W.2, that

the appellant, on taking advantage of the murder of his wife and

children, wanted to get compensation from the State

Government as earlier also the appellant had taken the

compensation for the murder of his real brother Siyaram, which

was paid by the State Government to the tune of Rs.4-5 Lakhs,

and which was, in fact, given to the daughter of deceased

Siyaram, namely, Gudiya but he managed to take the said

compensation from Gudiya, who died on account of illness.

58From the aforesaid analysis of the evidence on record, it is

established that the prosecution has proved beyond doubt that

the appellant has motive to commit the murder of his wife and

his four minor children and, therefore, the contention of the

[ 43 ]

learned Counsel for the appellant on this score is not

sustainable and the same is rejected also.

59The next contention of the learned Counsel for the appellant is

that the appellant is innocent and he has falsely been implicated

in the case on account of enmity and further the appellant has

not committed any offence.

60The circumstance, which shows the involvement of the

appellant in the present case is that in the medical examination

of the appellant, which was conducted by P.W.9-Dr. Ankit

Kumar Singh on 22.01.2010, at 10:30 A.M., P.W.9 opined that

the smell of kerosene oil are coming from the body of the

appellant. The appellant, in his statement under Section 313

Cr.P.C., has stated that the miscreants of the incident have

poured kerosene over his body so as to burn him, whereas in his

statement under Section 233 Cr.P.C., the appellant has stated

that when he reached at village Namdarpurwa for help, some

villagers have poured kerosene over his injuries. Moreover,

injuries no. 4 and 5, which were superficial burn injuries on the

person of the appellant further goes to show that his presence at

the place of occurrence is also established and the explanation,

which he had given for the same, in his statement under Section

313 Cr.P.C. and written statement under Section 233 Cr.P.C.,

are self contradictory. The kerosene oil found on the body of

the appellant along with superficial burn injuries on his person

has further goes to show that he had committed the murder of

[ 44 ]

his wife and children and after causing injuries to them, he had

burnt their dead bodies as post-mortem burns are found on the

person of all the deceased. Moreover, the prosecution has

established that prior to the commission of crime, the appellant

and the deceased were living together in their house and the

explanation, which has been offered by the appellant regarding

how the deceased died, is not at all substantiated in the facts

and circumstances of the case. Thus, the contention of the

appellant that he has not committed the murder of his wife and

his four minor children is bogus and false and is also rejected.

61The argument of the learned Counsel for the appellant that the

recovery, which has been made of blood stained banka and

blood stained clothes of the appellant on his pointing out, is not

in accordance with Section 27 of the Evidence Act, hence the

said recovery is a false one and the appellant be acquitted on

this ground alone, is also not acceptable as it is apparent from

the fard recovery memo of the two articles Ext. Ka.5, which

was proved by P.W.6-Uma Shankar and P.W.7-Yogendra Singh.

Moreso, the legal position regarding scrutiny of recovery

memo, statement recorded under Section 27 of the Indian

Evidence Act is well settled by the Apex Court in the case of

Golakonda Venkateswara Rao vs. State of Andra Pradesh :

AIR 2003 SC 2846, wherein the Apex Court once again

reconsidered the entire issue and held that merely because the

recovery memo was not signed by the accused, will not vitiate

[ 45 ]

the recovery itself, as every case has to be decided on its own

facts. In the event that the recoveries are made pursuant to the

disclosure statement of the accused, then, despite the fact that

the statement has not been signed by him, there is certainly

some truth in what he said, for the reason that, the recovery of

the material objects was made on the basis of his statement.

62From perusal of the record, it revealed that the police arrested

him on 24.01.2010 and kept him in police lock up. On the

interrogation, the appellant disclosed the P.W.7- Inspector

Yogendra Singh, who was the Investigating Officer, that he can

get the blood stained banka and his clothes, which was used in

the crime and wearing at the time of the incident. On this

information given by the appellant to P.W.7, the appellant was

taken out from the lock up and on his pointing out, the

appellant was taken along with other police personnel by P.W.7

with witnesses Chatra Pal Raidas (P.W.2) and one Pratap son

of Basartilal Raidas to the field of one Kafil, from where blood

stained banka and blood stained clothes were recovered by

P.W.7, which was concealed in the shrubs and the appellant has

also disclosed him that he had concealed the blood stained

banka and blood stained clothes after the murder. The said

recovery was made on the pointing out of the appellant on

24.01.2010 at 09.15 a.m. A fard recovery memo regarding the

blood stained banka and blood stained clothes was prepared by

P.W.7 at the place of occurrence and the same was also signed

[ 46 ]

by the witnesses and the appellant and copy of the same was

also given to the appellant. As per the Forensic Report of the

recovered items, blood was found on the said recovered items.

63In the light of the aforesaid facts and circumstances of the case

and also keeping in mind the law laid down by the Apex Court

in Golakonda Venkateswara Rao vs. State of Andhra

Pradesh (supra), the plea of the learned Counsel for the

appellant in this regard is not acceptable and the same is

rejected.

64The other circumstance, which goes against the appellant, is his

conduct. The conduct of the appellant is apparent from the

record as he had gone to the house of P.W.1 -Shambhu Raidas

at 6:30 a.m., in the morning, who is his brother-in-law and

informed him about the incident, wherein he stated that some

unknown miscreants of village Bardhiya had come to his house

in the mid night and knocked the door and when he gone to see

them from roof, he identified one person of village Bardhiya

and one of the miscreants had fired at him, upon which he came

down from the roof and thereafter, one of the miscreants had

assaulted him from butt of the gun and then he fled from his

house in a field and by concealing himself, he saw that

miscreants had jumped into his house and smoke coming out

from his house. On receiving the said information, P.W.1-

Shambhu Raidas along with his nephew Pratap reached the

[ 47 ]

house of the appellant and saw the dead-bodies of his wife

Sangeeta and four minor children burning. Thereafter, P.W.1

and Pratap extinguished fire by pouring water and the appellant

was noticed by P.W.1-Shambhu Raidas taking the heat by

sitting near fire in the courtyard, on which, P.W.1 Shambhu

Raidas asked him that his wife and her minor children has been

burnt and he takes the heat of the fire, then, the appellant went

away from his house as he felt annoyed. The said conduct of

the appellant goes to show that he did not make any effort to

save his wife Sangeeta and four minor children, firstly from the

alleged miscreants and instead fled away from his house and

watching the entire incident from a short distance of his house

from a field and further when the miscreants had went away

from his house after the incident, he did not make any effort to

extinguish fire at the place of occurrence nor he went to the

house of P.W.1-Shambhu Raidas or P.W.2-Chatra Pal Raidas

immediately after the incident, who were living in the village

(Namdarpurwa) of the appellant at a short distance from his

house as it has come that P.W.1-Shambhu Raidas was living at

a distance of one kilometer from the house of the appellant.

65It further connects important feature which was inference

against the appellant is that he was admittedly living in his

house along with his wife Sangeeta and four minor daughters,

who were murdered in a brutal manner and the appellant has

failed to explain the death of his wife and his children and the

[ 48 ]

explanation, which was given by him for their death was false,

firstly on the ground that from perusal of the post-mortam

report of the deceased shows that all the deceased had received

injuries by sharp edged weapon as the incised wound were on

their persons, which could be caused by Banka and the same

has been recovered at the pointing out of the appellant.

Secondly, after causing injuries to the five deceased persons,

their deadbodies were burnt as there are post-mortam burn upon

all the five deceased as it is apparent from their post-mortam

report.

66P.W.7- S.I. Yogendra Singh, in his deposition, has also deposed

that after arrest of the appellant and on interrogation, appellant

has disclosed that after the murder of his real brother, namely,

Siyaram, he has started to even keeping the daughter of his real

brother, namely, Gudiya as a wife and later on, daughter of

Siyaram, namely, Gudiya, has committed suicide. This evidence

of P.W.7 also shows the conduct of the appellant was immoral as

has been apparent from the record that after eloping with two

married ladies, he has not spared even his own niece.

67Another strong circumstance, which appears against the

appellant, is that the reason for the appellant for killing his minor

daughters and his wife Sangeeta appears to be that he wanted to

escape his responsibility of his four minor daughters of their

clothing, studies and further their marriage after they would have

grown up, therefore, the appellant thought to eliminate them

[ 49 ]

along with his wife. It is noteworthy to mention here that the

appellant had an elder son, who was aged about ten years and

whom he had left at Mau with a police constable for studies one

week ago from the date of the incident and he did not kill him

for oblique motive being a male child. The appellant appears to

be a very clever person and not innocent. He had earlier taken

compensation for the murder of his brother, namely, Siyaram

and now with a motive to take compensation for the death of his

wife and minor children because of the present incident.

68Had the incident been caused by the alleged unknown

miscreants, who have entered the house of the appellant, as has

been stated by the appellant Ramanand and who also saw the

incident, but he has not stated that miscreants were armed with

any sharp edged weapon and on the other hand, appellant has

stated that one of the miscreants fired at him and also caused

injuries by the butt of the gun but no cartridge was found from

the place of occurrence when he saw them from the roof of his

house. Thus, it goes to show that the explanation, which has

been given by the appellant, is absolutely bogus and false one.

69The argument of the learned Counsel for the appellant that the

F.I.R. is the ante-dated and ante-timed, has also not legs to

stand as it is evident from the statement of P.W.10-HCP Dhani

Ram Verma that the informant had come with his written report

to the police station on 22.01.2010 and handed over to him, on

the basis of which, he lodged the F.I.R. of the incident at

[ 50 ]

concerned police station and thereafter police personnels visited

the house of the appellant and conducted the inquest

proceedings and sent the corpses for post-mortem etc. and at the

same time, higher officials had reached at the place of

occurrence. Thus, it is established from the evidence of P.W.10

that the F.I.R. has been lodged on the date and time as has been

suggested by the prosecution.

70The argument of the learned Counsel for the appellant that

special report of the incident was sent to the Magistrate

concerned after a great delay, also has no much bearing on the

prosecution case as if there had been some lapses on the part of

the investigating agency that cannot said to be a fatal one

particularly that has not caused any prejudice to the appellant.

71It is relevant to mention here that the legal effect of any delay in

sending the special report of the incident to Magistrate has also

been dealt with by the Apex Court in Ombir Singh Vs. State of

Uttar Pradesh and others : AIR 2020 SC 2609. The relevant

part of the report is reproduced as under :

“4. There was undoubtedly a delay in compliance

of section 157 of the Code, as the FIR was

received in the office of the Chief Judicial

Magistrate with a delay of 11 days. Effect of delay

in compliance of Section 157 of the Code and its

legal impact on the trial has been examined by

this court in Jafel Biswas v. State of West Bengal:

(2019) 12 SCC 560 after referring to the earlier

case laws, to elucidate as follows:

“18. In State of Rajasthan [State of Rajasthan v.

Daud Khan, (2016) 2 SCC 607 : (2016) 1 SCC

[ 51 ]

(Cri) 793] in paras 27 and 28, this Court has laid

down as follows: (SCC pp. 620-21) “27. The

delay in sending the special report was also the

subject of discussion in a recent decision being

Sheo Shankar Singh v. State of U.P. [Sheo

Shankar Singh v. State of U.P., (2013) 12 SCC

539 :(2014) 4 SCC (Cri) 390] wherein it was held

that before such a contention is countenanced,

the accused must show prejudice having been

caused by the delayed dispatch of the FIR to the

Magistrate. It was held, relying upon several

earlier decisions as follows: (SCC pp. 549-50,

paras 30-31) ‘30. One other submission made on

behalf of the appellants was that in the absence

of any proof of forwarding the FIR copy to the

jurisdiction Magistrate, violation of Section 157

CrPC has crept in and thereby, the very

registration of the FIR becomes doubtful. The

said submission will have to be rejected,

inasmuch as the FIR placed before the Court

discloses that the same was reported at 4.00

p.m. on 13-6-1979 and was forwarded on the

very next day viz. 14-6-1979. Further, a perusal

of the impugned judgments of the High Court

[Sarvajit Singh v. State of U.P., 2003 SCC OnLine

All 1214 : (2004) 48 ACC 732] as well as of the

trial court discloses that no case of any prejudice

was shown nor even raised on behalf of the

appellants based on alleged violation of Section

157 CrPC. Time and again, this Court has held

that unless serious prejudice was demonstrated

to have been suffered as against the accused,

mere delay in sending the FIR to the Magistrate

by itself will not have any deteriorating (sic) 1

(2019) 12 SCC 560 effect on the case of the

prosecution. Therefore, the said submission

made on behalf of the appellants cannot be

sustained.

31. In this context, we would like to refer to a

recent decision of this Court in Sandeep v. State

of U.P. [Sandeep v. State of U.P., (2012) 6 SCC

107 : (2012) 3 SCC (Cri) 18] wherein the said

position has been explained as under in paras

62-63: (SCC p. 132) “62. It was also feebly

contended on behalf of the appellants that the

express report was not forwarded to the

Magistrate as stipulated under Section 157 CrPC

instantaneously. According to the learned counsel

[ 52 ]

FIR which was initially registered on 17-11-2004

was given a number on 19-11-2004 as FIR No.

116 of 2004 and it was altered on 20-11-2004 and

was forwarded only on 25-11-2004 to the

Magistrate. As far as the said contention is

concerned, we only wish to refer to the reported

decision of this Court in Pala Singh v. State of

Punjab [Pala Singh v. State of Punjab, (1972) 2

SCC 640 : 1973 SCC (Cri) 55] wherein this Court

has clearly held that (SCC p. 645, para 8) where

the FIR was actually recorded without delay and

the investigation started on the basis of that FIR

and there is no other infirmity brought to the

notice of the court then, however improper or

objectionable the delay in receipt of the report by

the Magistrate concerned be, in the absence of

any prejudice to the accused it cannot by itself

justify the conclusion that the investigation was

tainted and the prosecution insupportable.

63. Applying the above ratio in Pala Singh [Pala

Singh v. State of Punjab, (1972) 2 SCC 640 :

1973 SCC (Cri) 55] to the case on hand, while

pointing out the delay in the forwarding of the FIR

to the Magistrate, no prejudice was said to have

been caused to the appellants by virtue of the

said delay. As far as the commencement of the

investigation is concerned, our earlier detailed

discussion discloses that there was no dearth in

that aspect. In such circumstances we do not find

any infirmity in the case of the prosecution on that

score. In fact the above decision was

subsequently followed in Sarwan Singh v. State

of Punjab [Sarwan Singh v. State of Punjab,

(1976) 4 SCC 369 : 1976 SCC (Cri) 646] , Anil

Rai v. State of Bihar [Anil Rai v. State of Bihar,

(2001) 7 SCC 318 : 2001 SCC (Cri) 1009] and

Aqeel Ahmad v. State of U.P. [Aqeel Ahmad v.

State of U.P., (2008) 16 SCC 372 : (2010) 4 SCC

(Cri) 11] ”’

28. It is no doubt true that one of the external

checks against antedating or ante-timing an FIR

is the time of its dispatch to the Magistrate or its

receipt by the Magistrate. The dispatch of a copy

of the FIR “forthwith” ensures that there is no

manipulation or interpolation in the FIR.

[Sudarshan v. State of Maharashtra, (2014) 12

SCC 312 : (2014) 5 SCC (Cri) 94] If the

[ 53 ]

prosecution is asked to give an explanation for

the delay in the dispatch of a copy of the FIR, it

ought to do so. [Meharaj Singh v. State of U.P.,

(1994) 5 SCC 188 : 1994 SCC (Cri) 1391]

However, if the court is convinced of the

prosecution version's truthfulness and

trustworthiness of the witnesses, the absence of

an explanation may not be regarded as

detrimental to the prosecution case. It would

depend on the facts and circumstances of the

case. [Rattiram v. State of M.P., (2013) 12 SCC

316 : (2014) 1 SCC (Cri) 635] ”

19. The obligation is on the IO to

communicate the report to the Magistrate. The

obligation cast on the IO is an obligation of a

public duty. But it has been held by this Court

that in the event the report is submitted with

delay or due to any lapse, the trial shall not be

affected. The delay in submitting the report is

always taken as a ground to challenge the

veracity of the FIR and the day and time of the

lodging of the FIR.

20. In cases where the date and time of the

lodging of the FIR is questioned, the report

becomes more relevant. But mere delay in

sending the report itself cannot lead to a

conclusion that the trial is vitiated or the

accused is entitled to be acquitted on this

ground.

21. This Court in Anjan Dasgupta v. State of W.B.

[Anjan Dasgupta v. State of W.B., (2017) 11 SCC

222 : (2017) 4 SCC (Cri) 280] (of which one of us

was a member, Hon'ble Ashok Bhushan, J.) had

considered Section 157 CrPC. In the above case

also, the FIR was dispatched with delay.

Referring to an earlier judgment [Rabindra Mahto

v. State of Jharkhand, (2006) 10 SCC 432 :

(2006) 3 SCC (Cri) 592] of this Court, it was held

that in every case from the mere delay in

sending the FIR to the Magistrate, the Court

would not conclude that the FIR has been

registered much later in time than shown.”

(Emphasis supplied)

[ 54 ]

72The issue whether the infirmities in investigation and

discrepancies pointed out in the prosecution evidence make out

a ground for rejecting the prosecution version was explained at

length in the case of State of Karnataka Vs. Suvarnnamma :

2015 (88) ACC 317, wherein the Apex Court, after taking note

of Zahira Habiullha Sheikh (5) vs. State of Gujarat : (2006)

3 SCC 374 and other reports, has held that mere lapses on the

part of the Investigating Agency could not be enough to throw

out overwhelming evidence clearly establishing the case of the

prosecution.

73In the instant case, from perusal of the record and the evidences

brought on record, we are of the view that though there is some

lapses on the part of the Investigating Agency in the

investigation but the prosecution has established the case

against the appellant beyond reasonable doubt. Therefore, the

plea of the appellant in this regard is not sustainable and is,

accordingly, rejected.

74The argument of the learned Counsel for the appellant

regarding the arrest of the appellant on 24.01.2010 at 06:30

a.m. and the recovery, which has been made on the same date at

09:50 a.m., is also of no significance as the same has been dealt

with by the trial Court in the impugned judgment, which, in our

view, has rightly been dealt with giving sound reasoning.

[ 55 ]

75The other argument of the learned Counsel for the appellant that

the evidence of P.W.1-Shambhu Raidas and P.W.2-Chatra Pal

Raidas, who are highly interested and inimical to the appellant,

is also of no significance as P.W.1-Shambhu Raidas narrated the

facts about the murder of his sister and her children by the

appellant himself in the morning at 06:30 a.m. at his house.

Similarly, P.W.2-Chatra Pal Raidas, who is the real brother of

the deceased Sangeeta, has categorically disclosed about the

motive of the appellant in the murder of his wife and children,

cannot be discarded on the ground that he happens to be the real

brother of the deceased Sangeeta as it is well settled law that

simply because a witness being related to the deceased or

injured, his testimony cannot be thrown for this ground alone

but on the other hand, his evidence has to be examined

minutely with a great caution. From the entire evidence of

P.W.1 and P.W.2 goes to show that their testimony has been

consistent one regarding the fact that the appellant had

disclosed about the incident to P.W.1 and also P.W.2 and in their

cross-examination, nothing has been carved out by the defense,

which may come to this Court to discard their testimony.

76Here, it is out of place to mention that the extra-judicial

confession, which has been made by the appellant before

P.W.3-Babu Ram Hans and P.W.4-Ram Kumar, is also relevant

in order to determine the guilt of the appellant as the appellant

himself was connected with a political party i.e. Bahujan Samaj

[ 56 ]

Party. P.W.3 was the District President of the Bahujan Samaj

Party and P.W.4 was the Member of Zila Panchayat of the

Bahujan Samaj Party. Both these witnesses holding a good

position in Bahujan Samaj Party, were competent enough to get

the appellant exonerated from the charges, which he had

committed and confessed before them but after hearing the

accused/appellant that he himself had killed his wife and

children in a brutal manner, they refused to help him and on the

other hand, they informed the police about the incident, to

which in the place of occurrence, the other high officials also

reached there and the appellant was taken by the police after

being satisfied that it was he (appellant), who had killed his

wife and children, and was challaned in the present case and

the recovery, thereafter, was made from him of the weapon of

assault Banka along with his blood stained cloths. The

suggestions, which have been given for disbelieving the extra

judicial confession made by the appellant before P.W.3 and

P.W.4, had happened to be related to P.W.2-Chatra Pal Raidas

as the deceased Sangeeta was the daughter of his brother-in-

law, hence, they were falsely deposing against him, is not at all

acceptable and their evidence cannot be disbelieved on the said

counts. Taking into account the other circumstances, which has

been referred hereinabove, which speaks out the guilt of the

appellant in the present case.

[ 57 ]

77At this juncture, it would be apt to deal with some of the

judgments of the Apex Court on this aspect.

78In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC

259], the Apex Court stated the principle that an extra-judicial

confession, by its very nature is rather a weak type of evidence

and requires appreciation with a great deal of care and caution.

Where an extrajudicial confession is surrounded by suspicious

circumstances, its credibility becomes doubtful and it loses its

importance.

79In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Apex

Court held that it is well settled that it is a rule of caution where

the court would generally look for an independent reliable

corroboration before placing any reliance upon such extra-

judicial confession.

80Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Apex

Court stated the dictum that there is no doubt that conviction

can be based on extrajudicial confession, but it is well settled

that in the very nature of things, it is a weak piece of evidence.

It is to be proved just like any other fact and the value thereof

depends upon veracity of the witnesses to whom it is made.

81While explaining the dimensions of the principles governing

the admissibility and evidentiary value of an extra-judicial

confession, the Apex Court in the case of State of Rajasthan v.

[ 58 ]

Raja Ram [(2003) 8 SCC 180] stated the principle that an

extra-judicial confession, if voluntary and true and made in a fit

state of mind, can be relied upon by the court. The confession

will have to be proved like any other fact. The value of

evidence as to confession, like any other evidence, depends

upon the veracity of the witness to whom it has been made.

The Apex Court, further expressed the view that such a

confession can be relied upon and conviction can be founded

thereon if the evidence about the confession comes from the

mouth of witnesses who appear to be unbiased, not even

remotely inimical to the accused and in respect of whom

nothing is brought out which may tend to indicate that he may

have a motive of attributing an untruthful statement to the

accused.

82In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12

SCC 230], the Apex Court, while holding the placing of

reliance on extra-judicial confession by the lower courts in

absence of other corroborating material, as unjustified,

observed:

“87. Confession ordinarily is admissible in

evidence. It is a relevant fact. It can be

acted upon. Confession may under certain

circumstances and subject to law laid down

by the superior judiciary from time to time

form the basis for conviction. It is, however,

trite that for the said purpose the court has

to satisfy itself in regard to: (i) voluntariness

[ 59 ]

of the confession; (ii) truthfulness of the

confession; (iii) corroboration.

XXX XXX XXX

89. A detailed confession which would

otherwise be within the special knowledge

of the accused may itself be not sufficient to

raise a presumption that confession is a

truthful one. Main features of a confession

are required to be verified. If it is not done,

no conviction can be based only on the sole

basis thereof.”

83Accepting the admissibility of the extra-judicial confession, the

Apex Court in the case of Sansar Chand v. State of Rajasthan

[(2010) 10 SCC 604] held that :-

“29. There is no absolute rule that an extra-

judicial confession can never be the basis of

a conviction, although ordinarily an extra-

judicial confession should be corroborated

by some other material. [Vide Thimma and

Thimma Raju V. State of Mysore, Mulk Raj

V. State of U.P. Sivakumar V. State (SCC

paras 40 and 41 : AIR paras 41 & 42),

Shiva Karam Payaswami Tewari V. State of

Maharashtra and Mohd. Azad v. State of

W.B.

In the present case, the extra-judicial

confession by Balwan has been referred to

in the judgments of the learned Magistrate

and the Special Judge, and it has been

corroborated by the other material on

record. We are satisfied that the confession

[ 60 ]

was voluntary and was not the result of

inducement, threat or promise as

contemplated by Section 24 of the Evidence

Act, 1872.”

84Dealing with the situation of retraction from the extra-judicial

confession made by an accused, the Apex Court in the case of

Rameshbhai Chandubhai Rathod v. State of Gujarat

[(2009) 5 SCC 740], held as under :

“It appears therefore, that the appellant has

retracted his confession. When an extra-

judicial confession is retracted by an

accused, there is no inflexible rule that the

court must invariably accept the retraction.

But at the same time it is unsafe for the

court to rely on the retracted confession,

unless, the court on a consideration of the

entire evidence comes to a definite

conclusion that the retracted confession is

true.”

85Extra-judicial confession must be established to be true and

made voluntarily and in a fit state of mind. The words of the

witnesses must be clear, unambiguous and should clearly

convey that the accused is the perpetrator of the crime. The

extra-judicial confession can be accepted and can be the basis

of conviction, if it passes the test of credibility. The extra-

judicial confession should inspire confidence and the court

should find out whether there are other cogent circumstances on

record to support it. [Ref. S.K. Yusuf v. State of W.B. [(2011)

[ 61 ]

11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC

165].

86Upon a proper analysis of the above-referred judgments of the

Apex Court, it would be apt to state the principles which would

make an extra-judicial confession an admissible piece of

evidence capable of forming the basis of conviction of an

accused. These precepts would guide the judicial mind while

dealing with the veracity of cases where the prosecution heavily

relies upon an extra-judicial confession alleged to have been

made by the accused. The Principles, thus, comes out are that

(i) The extra-judicial confession is a weak evidence by itself. It

has to be examined by the court with greater care and caution;

(ii) It should be made voluntarily and should be truthful; (iii) It

should inspire confidence; (iv) An extra-judicial confession

attains greater credibility and evidentiary value, if it is

supported by a chain of cogent circumstances and is further

corroborated by other prosecution evidence; (v) For an extra-

judicial confession to be the basis of conviction, it should not

suffer from any material discrepancies and inherent

improbabilities; and (vi) Such statement essentially has to be

proved like any other fact and in accordance with law.

87Having regard to the aforesaid principles, while examining the

acceptability and evidentiary value of the extra- judicial

confession, we may now refer to the extra-judicial confession in

the case before us. The extra-judicial confession is alleged to

[ 62 ]

have been made by the accused/appellant before P.W.3-Babu

Ram Hans and P.W.4-Ram Kumar.

88As per the case of the prosecution, the deceased were murdered

on 21/22.01.2010. The dead bodies of the deceased were taken

into custody by the police in the morning of 22.01.2010. Both

P.W.3-Babu Ram Hans and P.W.4 Ram Kumar had categorically

made statement on oath that the accused/appellant Ramanand

came to their house in order to get help from them as they are

the members of the Bahujan Samaj Party in the morning of

23.01.2010 and told them that he (accused/appellant) did a

mistake as he murdered his wife Sangeeta and his children with

banka and thereafter he burned their deadbodies on bed in the

house. The trial Court, after discussing this issue in detail, has

opined that testimony of P.W.3 and P.W. 4 is consistent and

credible. Both the witnesses were in such a position that it was

natural on the part of the accused/appellant to think that they

may help him from saving this crime. Both the witnesses have

consistently deposed that the accused/appellant has admitted

before them that he had committed the murder of his wife and

children in order to marry Manju and has sought their help.

When P.W.3 has refused to help him, the accused/appellant had

approached P.W.4 for the help. Both the witnesses were

politically known to accused/appellant as earlier he was also in

the same party. The trial Court has further found that there is

absolutely nothing that these witnesses were inimical towards

[ 63 ]

the accused/appellant nor there were any such reasons that why

they would depose falsely against the accused. In these

circumstances, the trial Court has rightly came to the

conclusion that the admission of guilt by the accused before

P.W.3 and P.W.4 falls in the category of extra judicial

confession and the extra judicial confession made by the

accused/appellant before P.W.3 and P.W.4 is found fully reliable

and the same can safely be used against the accused/appellant.

89The fact that defense version, which has been pleaded by the

appellant, is a plausible one or not, has been considered in great

detail by the learned trial Court, which after going through the

entire defense evidence found to be false one. Here, it would

not be out of place to mention that the burden to prove his case

lies on the prosecution and the accused/appellant is not

expected to prove its case beyond doubt. From perusal of the

post-mortem report of the deceased persons, it is apparent that

they were done to death in a brutal and barbaric manner.

90Thus, this Court comes to the conclusion that the

accused/appellant Ramanand alias Nandlal Bharti had strong

motive to commit the murder of his wife; at the time of the

incident, the appellant and the five deceased were the only

occupants in the house, in which they were living together; after

the arrest of the appellant at his pointing out the weapon of

murder i.e. ‘blood stained Banka’ and his ‘blood stained

clothes’ were recovered which he had concealed; soon after the

[ 64 ]

incident, the appellant made an extra-judicial confession before

P.W.3-Babu Ram Hans and P.W.4- Ram Kumar admitting his

guilty; the conduct of the appellant which is totally inculpatory

as he never tried to inform the police about the incident but on

contrary he concocted a false and baseless story of the

occurrence; the appellant even did not inform about the

incident to P.W.1-Shabhu Raidas and P.W.2-Chatrapal Raidas,

who were the resident of the same village, where the

accused/appellant had gone to seek help from other villagers;

the defense taken by the appellant under Section 313 Cr.P.C. is

self-contradictory to his written statement under Section 233

Cr.P.C.; the appellant has not even denied his presence at the

place of occurrence, moreover, it found established as the

appellant has sustained two burn injuries on his person and

further the presence of kerosene oil over his body and clothes.

These facts go to show that the appellant was involved in the

incident and in that transaction, he sustained burn injuries and

kerosene oil was found on his body and clothes.

91Hence, from the totality of circumstances and entire evidence

on record, it stands proved that it was none else but the

appellant and he alone, who committed the murder of his wife

and four minor daughters. The prosecution has been able to

established the chain of circumstances, which are in themselves

complete and the same are conclusive in nature and excludes all

[ 65 ]

possible hypothesis except the fact that it was the appellant

alone who is guilty of the crime.

92Taking all these aspects of the matter, we are of the view that

the trial Court was fully justified in convicting the accused

appellant under Section 302 of IPC .

93While upholding the conviction of the accused/appellant, we

now proceed to consider the question of 'death sentence'

awarded to him by the trial Court under Section 302 of IPC.

94It is true that capital punishment has been the subject-matter of

great social and judicial discussion and catechism. From

whatever point of view it is examined, one indisputable

statement of law follows that it is neither possible nor prudent

to state any universal form which would be applicable to all the

cases of criminology where capital punishment has been

prescribed. Thus, it is imperative for the Court to examine each

case on its own facts, in the light of enunciated principles and

before opting for the death penalty, the circumstances of the

offender are also required to be taken into consideration along

with the circumstances of crime for the reason that life

imprisonment is the rule and death sentence is an exception.

95Before going into the legality and propriety of question of

sentence imposed upon the accused/appellant by the trial Court

by means of the impugned order, we deem it apt to have a

[ 66 ]

glance at the various decisions of the Hon’ble Supreme Court

on the issue.

96The decision pronounced by the Constitutional Bench of

Hon’ble Supreme Court in the case of Bachan Singh v. State

of Punjab : AIR 1980 SC 898 stands first among the class

making a detailed discussion after the amendment of Code of

Criminal Procedure in 1974. The Constitutional Bench of

Hon’ble the Supreme Court in Bachan Singh v. State of

Punjab (Supra), while upholding the constitutionality of death

penalty under Section 302 of Indian Penal Code and the

sentencing procedure embodied in Section 354 (4) of the Code

of Criminal Procedure, struck a balance between the

protagonists of the deterrent punishment on one hand and the

humanity crying against death penalty on the other ane

elucidated the strict parameters to be adhered to by the Courts

for awarding death sentence. While emphasizing that for

persons convicted of murder, life imprisonment is the ‘rule’ and

death sentence an ‘exception’, the Hon’ble Supreme Court

observed that a rule abiding concern the dignity of the human

life postulates resistance in taking the life through laws

instrumentality and that the death sentence be not awarded

“save in the rarest of the rare cases” when the alternative option

is foreclosed. The relevant paragraphs of the said judgment are

reproduced herein below:-

"132. To sum up, the question whether or not death

penalty serves any penological purpose is a difficult,

[ 67 ]

complex and intractable issue. It has evoked strong,

divergent views. For the purpose of testing the

constitutionality of the impugned provision as to death

penalty in Section 302 of the Penal Code on the ground

of reasonableness in the light of Articles 19 and 21 of the

Constitution, it is not necessary for us to express any

categorical opinion, one way or the other, as to which of

these two antithetical views, held by the Abolitionists and

Retentionists, is correct. It is sufficient to say that the

very fact that persons of reason, learning and light are

rationally and deeply divided in their opinion on this

issue, is a ground among others, for rejecting the

petitioners argument that retention of death penalty in the

impugned provision, is totally devoid of reason and

purpose. If, notwithstanding the view of the Abolitionists

to the contrary, a very large segment of people, the world

over, including sociologists, legislators, jurists, judges

and administrators still firmly believe in the worth and

necessity of capital punishment for the protection of

society, if in the perspective of prevailing crime conditions

in India, contemporary public opinion channelized

through the people's representatives in Parliament, has

repeatedly in the last three decades, rejected all

attempts, including the one made recently, to abolish or

specifically restrict the area of death penalty, if death

penalty is still a recognised legal sanction for murder or

some types of murder in most of the civilised countries in

the world, if the framers of the Indian Constitution were

fully aware -- as we shall presently show they were -- of

the existence of death penalty as punishment for murder,

under the Indian Penal Code, if the 35th Report and

subsequent reports of the Law Commission suggesting

retention of death penalty, and recommending revision of

the Criminal Procedure Code and the insertion of the

new Sections 235 (2) and 354 (3) in that Code providing

for presentence hearing and sentencing procedure on

conviction for murder and other capital offences were

before the Parliament and presumably considered by it

when in 1972-1973 it took up revision of the Code of

1898 and replaced it by the Code of Criminal Procedure,

1973, it is not possible to hold that the provision of death

penalty as an alternative punishment for murder, in

Section 302 of the Penal Code is unreasonable and not

in the public interest. We would, therefore, conclude that

the impugned provision in Section 302, violates neither

the letter nor the ethos of Article 19.”

“200. Drawing upon the penal statutes of the States in

U.S.A. framed after Furman v, Georgia, in general, and

Clauses 2(a), (b), (c), and (d) of the Indian Penal Code

(Amendment) Bill passed in 1978 by the Rajya Sabha, in

particular, Dr. Chitale has suggested these "aggravating

circumstances":

“Aggravating circumstances : A Court may, however, in

the following cases impose the penalty of death in its

discretion:

(a) if the murder has been committed after previous

planning and involves extreme brutality; or

(b) if the murder involves exceptional depravity; or

[ 68 ]

(c) if the murder is of a member of any of the armed

forces of the Union or of a member of any police force or

of any public servant and was committed-

(i) while such member or public servant was on duty; or

(ii) in consequence of anything done or attempted to be

done by suc member or public servant in the lawful

discharge of his duty as such member or public servant

whether at the time of murder he was such member or

public servant, as the case may be, or had ceased to be

such member or public servant; or

(d) if the murder is of a person who had acted in the

lawful discharge of his duty under Section 43 of the

CrPC, 1973, or who had rendered assistance to a

Magistrate or a police officer demanding his aid or

requiring his assistance under Section 37 and Section

129 of the said Code.

201. Stated broadly, there can be no objection to the

acceptance of these indicators but as we have indicated

already, we would prefer not to fetter judicial discretion by

attempting to make an exhaustive enumeration one way

or the other.

204. Dr. Chitaley has suggested these mitigating factors:

"Mitigating circumstances":- In the exercise of its

discretion in the above cases, the Court shall take into

account the following circumstances:

(1) That the offence was committed under the influence

of extreme mental or emotional disturbance.

(2) The age of the accused. It the accused is young or

old, he shall not be sentenced to death.

(3) The probability that the accused would not commit

criminal acts of violence as would constitute a continuing

threat to society. (4) The probability that the accused can

be reformed and rehabilitated. The State shall by

evidence prove that the accused does not satisfy the

conditions 3 and 4 above.

(4) The probability that the accused can be reformed and

rehabilitated. The State shall by evidence prove that the

accused does not satisfy the conditions 3 and 4 above.

(5) That in the facts and circumstances of the case the

accused believed that he was morally justified in

committing the offence.

(6) That the accused acted under the duress or

domination of another person.

(7) That the condition of the accused showed that he was

mentally defective and that the said defect unpaired his

capacity to appreciate the criminality of his conduct.

207. We will do no more than to say that these are

undoubtedly relevant circumstances and must be given

great weight in the determination of sentence.

209. There are numerous other circumstances justifying

the passing of the lighter sentence; as there are

countervailing circumstances of aggravation. "We cannot

obviously feed into a a judicial computer all such

[ 69 ]

situations since they are astrological imponderables in an

imperfect and undulating society." Nonetheless, it cannot

be over-emphasised that the scope and concept of

mitigating factors in the area of death penalty must

receive a liberal and expansive construction by the

courts in accord with the sentencing policy writ large in

Section 354 (3). Judges should never be bloodthirsty.

Hanging of murderers has never been too good for them.

Facts and figures albeit incomplete, furnished by the

Union of India, show that in the past Courts have inflicted

the extreme penalty with extreme infrequency - a fact

which attests to the caution and compassion which they

have always brought to bear on the exercise of their

sentencing discretion in so grave a matter. It is,

therefore, imperative to voice the concern that courts,

aided by the broad illustrative guidelines indicated by us,

will discharge the onerous function with evermore

scrupulous care and humane concern, directed along the

high-road of legislative policy outlined in Section 354 (3),

viz., that for persons convicted of murder, life

imprisonment is the rule and death sentence an

exception. A real and abiding concern for the dignity of

human life postulates resistance to taking a life through

law's instrumentality. That ought not to be done save in

the rarest of rare cases when the alternative option is

unquestionably foreclosed."

97In Machhi Singh v. State of Punjab : (1983) 3 SCC 470, a

Three Judges Bench of the Hon’ble Supreme Court formulated

the following two questions to be considered as a test to

determine the ‘rarest of rare’ cases, in which death sentence can

be inflicted. The same are reproduced hereinbelow :-

“(i) Is there something uncommon, which tenders

sentence for imprisonment for life inadequate

calls for death sentence ?

(ii)Rather the circumstances of the crime such

that there is no alternative, but to impose the

death sentence even after according maximum

weightage to the mitigating circumstances

which speaks in favour of the offender ?”

98Hon’ble Supreme Court in Machhi Singh v. State of Punjab

(supra), then, proceeded to lay down the circumstances in

[ 70 ]

which death sentence may be imposed for the crime of murder

and has held as under :

"32. The reasons why the community as a whole

does not endorse the humanistic approach reflected

in "death sentence-in-no-case" doctrine are not far

to seek. In the first place, the very humanistic

edifice is constructed on the foundation of

"reverence for life" principle. When a member of the

community violates this very principle by killing

another member, the society may not feel itself

bound by the shackles of this doctrine. Secondly, it

has to be realized that every member of the

community is able to live with safety without his or

her own life being endangered because of the

protective arm of the community and on account of

the rule of law enforced by it. The very existence of

the rule of law and the fear of being brought to book

operates as a deterrent for those who have no

scruples in killing others if it suits their ends. Every

member of the community owes a debt to the

community for this protection. When ingratitude is

shown instead of gratitude by "killing" a member of

the community which protects the murderer himself

from being killed, or when the community feels that

for the sake of self- preservation the killer has to be

killed, the community may well withdraw the

protection by sanctioning the death penalty. But the

community will not do so in every case. It may do so

"in rarest of rare cases" when its collective

conscience is so shocked that it will expect the

holders of the judicial power centre to inflict death

penalty irrespective of their personal opinion as

regards desirability or otherwise of retaining death

penalty. The community may entertain such a

sentiment when the crime is viewed from the

platform of the motive for, or the manner of

commission of the crime, or the anti-social or

abhorrent nature of the crime, such as for instance:

I. Manner of commission of murder

33. When the murder is committed in an extremely

brutal, grotesque, diabolical, revolting or dastardly

manner so as to arouse intense and extreme

indignation of the community. For instance,

(i) when the house of the victim is set aflame with

the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of

torture or cruelty in order to bring about his or her

death.

(iii) when the body of the victim is cut into pieces or

his body is dismembered in a fiendish manner.

[ 71 ]

II. Motive for commission of murder

34. When the murder is committed for a motive

which evinces total depravity and meanness. For

instance when

(a) a hired assassin commits murder for the sake of

money or reward

(b) a cold-blooded murder is committed with a

deliberate design in order to inherit property or to

gain control over property of a ward or a person

under the control of the murderer or vis-a-vis whom

the murderer is in a dominating position or in a

position of trust, or

(c) a murder is committed in the course for betrayal

of the motherland.

III. Anti-social or socially abhorrent nature of the

crime

35. (a) When murder of a member of a Scheduled

Caste or minority community etc., is committed not

for personal reasons but in circumstances which

arouse social wrath. For instance when such a

crime is committed in order to terrorize such

persons and frighten them into fleeing from a place

or in order to deprive them of, or make them

surrender, lands or benefits conferred on them with

a view to reverse past injustices and in order to

restore the social balance.

(b) In cases of "bride burning" and what are known

as "dowry deaths" or when murder is committed in

order to remarry for the sake of extracting dowry

once again or to marry another woman on account

of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion. For

instance when multiple murders say of all or almost

all the members of a family or a large number of

persons of a particular caste, community, or locality,

are committed.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent

child who could not have or has not provided even

an excuse, much less a provocation, for murder (b)

a helpless woman or a person rendered helpless by

old age or infirmity (c) when the victim is a person

vis-a-vis whom the murderer is in a position of

domination or trust (d) when the victim is a public

figure generally loved and respected by the

community for the services rendered by him and the

murder is committed for political or similar reasons

other than personal reasons.

[ 72 ]

38. In this background, the guidelines indicated in

Bachan Singh case will have to be culled out and

applied to the facts of each individual case where

the question of imposing of death sentence arises.

The following propositions emerge from Bachan

Singh case.

(i) The extreme penalty of death need not be

inflicted except in gravest cases of extreme

culpability.

(ii) Before opting for the death penalty the

circumstances of the 'offender' also require to be

taken into consideration along with the

circumstances of the 'crime'.

(iii) Life Imprisonment is the rule and death

sentence is an exception. In other words death

sentence must be imposed only when life

imprisonment appears to be an altogether

inadequate punishment having regard to the

relevant circumstances of the crime, and provided,

and only provided, the option to impose sentence of

imprisonment for life cannot be conscientiously

exercised having regard to the nature and

circumstances of the crime and all the relevant

circumstances.

(iv) A balance-sheet of aggravating and mitigating

circumstances has to be drawn up and in doing so

the mitigating circumstances has to be accorded full

weightage and a just balance has to be struck

between the aggravating and the mitigating

circumstances before the option is exercised."

99In the aforesaid case i.e. Machhi Singh Vs. State of Punjab

(supra), the Hon’ble Supreme Court has confirmed the death

sentence awarded to Kashmir Singh, who was one of the

appellants as he was found guilty of causing death to a poor

defenceless child, namely, Balbir Singh, aged about 6 years.

The appellant Kashmir Singh was categorized as a person of

depraved mind with grave propensity to commit murder.

100The ratio laid down by the Hon’ble Supreme Court in Bachan

Singh v. State of Punjab (Supra) and Machhi Singh Vs. State

of Punjab (supra), continue to serve as the foundation-stone of

[ 73 ]

contemporary sentencing jurisprudence though they have been

expounded or distinguished for the purpose of commuting death

sentence, mostly in the cases of (i) conviction based on

circumstantial evidence alone; (ii) failure of the prosecution to

discharge its onus re: reformation; (iii) a case of residual

doubts; (iv) where the other peculiar ‘mitigating circumstances

outweighed the ‘aggravating circumstances’.

101The issue has again came up before Hon'ble Supreme Court in

Ramnaresh & others v. State of Chhattisgarh : (2012) 4 SCC

257, wherein the Hon’ble Supreme Court reiterated 13

aggravating and 7 mitigating circumstances as laid down in the

case of Bachan Singh v. State of Punjab (Supra) required to

be taken into consideration while applying the doctrine of

"rarest of rare" case. The relevant para of the aforeaid judgment

of the Hon’ble Supreme Court reads as under :

"76. The law enunciated by this Court in its recent

judgements, as already noticed, adds and

elaborates the principles that were stated in the case

of Bachan Singh (supra) and thereafter, in the case

of Machhi Singh (supra). The aforesaid judgments,

primarily dissect these principles into two different

compartments - one being the "aggravating

circumstances" while the other being the "mitigating

circumstances". The Court would consider the

cumulative effect of both these aspects and

normally, it may not be very appropriate for the Court

to decide the most significant aspect of sentencing

policy with reference to one of the classes under any

of the following heads while completely ignoring

other classes under other heads. To balance the two

is the primary duty of the Court. It will be appropriate

for the Court to come to a final conclusion upon

balancing the exercise that would help to administer

the criminal justice system better and provide an

effective and meaningful reasoning by the Court as

contemplated under Section 354 (3) of Cr.P.C.

[ 74 ]

Aggravating Circumstances:

(1) The offences relating to the commission of

heinous crimes like murder, rape, armed dacoity,

kidnapping etc. by the accused with a prior record of

conviction for capital felony or offences committed

by the person having a substantial history of serious

assaults and criminal convictions.

(2) The offence was committed while the offender

was engaged in the commission of another serious

offence.

(3) The offence was committed with the intention to

create a fear psychosis in the public at large and

was committed in a public place by a weapon or

device which clearly could be hazardous to the life of

more than one person.

(4) The offence of murder was committed for ransom

or like offences to receive money or monetary

benefits.

(5) Hired killings.

(6) The offence was committed outrageously for

want only while involving inhumane treatment and

torture to the victim.

(7) The offence was committed by a person while in

lawful custody.

(8) The murder or the offence was committed to

prevent a person lawfully carrying out his duty like

arrest or custody in a place of lawful confinement of

himself or another. For instance, murder is of a

person who had acted in lawful discharge of his duty

under Section 43 Cr.P.C.

(9) When the crime is enormous in proportion like

making an attempt of murder of the entire family or

members of a particular community.

(10) When the victim is innocent, helpless or a

person relies upon the trust of relationship and social

norms, like a child, helpless woman, a daughter or a

niece staying with a father/uncle and is inflicted with

the crime by such a trusted person.

(11) When murder is committed for a motive which

evidences total depravity and meanness.

(12) When there is a cold blooded murder without

provocation.

(13) The crime is committed so brutally that it pricks

or shocks not only the judicial conscience but even

the conscience of the society.

Mitigating Circumstances:

(1) The manner and circumstances in and under

which the offence was committed, for example,

[ 75 ]

extreme mental or emotional disturbance or extreme

provocation in contradistinction to all these situations

in normal course.

(2) The age of the accused is a relevant

consideration but not a determinative factor by itself.

(3) The chances of the accused of not indulging in

commission of the crime again and the probability of

the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was

mentally defective and the defect impaired his

capacity to appreciate the circumstances of his

criminal conduct.

(5) The circumstances which, in normal course of

life, would render such a behavior possible and

could have the effect of giving rise to mental

imbalance in that given situation like persistent

harassment or, in fact, leading to such a peak of

human behavior that, in the facts and circumstances

of the case, the accused believed that he was

morally justified in committing the offence.

(6) Where the Court upon proper appreciation of

evidence is of the view that the crime was not

committed in a pre-ordained manner and that the

death resulted in the course of commission of

another crime and that there was a possibility of it

being construed as consequences to the

commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the

testimony of a sole eye-witness though prosecution

has brought home the guilt of the accused."

102Having noticed the legislative mandate laid down in Section

354 (3) of the Code of Criminal Procedure and the decisions of

the Hon’ble Supreme Court on the aspect of imposition of death

sentence in the ‘rarest of rare’ cases, we deem it expedient to

revert to the factual position in the instant case in our quest for

the appropriate sentence.

103In the instant case, the accused/convict Ramanand has

committed murder of his wife and four minor innocent

daughters aged about 7 years, 5 years, 3 years and the youngest

[ 76 ]

one aged about one and a half month. It transpires from the

evidence on record that the criminal act of the accused/convict

was actuated to pave a way to marry with one lady, namely,

Manju, who was already married. It was the deceased Sangeeta

(wife of the appellant), who opposed his marriage with Manju

but the accused/convict was adamant to marry with Manju at

any cost and in order to marry with Manju, accused/convict

murdered not only murder his own wife but also his own four

innocent minor daughters aged between one and half month to

eight years in a most brutal and barbaric manner without their

no fault and without any rhyme or reason. Before murdering the

deceased, the accused/convict had also chopped of various parts

of their bodies and inflicted severe incised wounds as is evident

from the post-mortem report.

104Keeping in mind the law laid down by the Apex Court in

Machhi Singh v. State of Punjab (Supra) as well as various

other pronouncement of the Hon’ble Supreme Court and also

considering the law on the issue by the Hon’ble Supreme Court

that a balance sheet of aggravating and mitigating

circumstances has to be drawn up and in doing so, the

mitigating circumstances have to be accorded full weightage

and just balance has to be struck between the aggravating and

the mitigating circumstances before the option is exercised, the

trial Court has recorded the aggravating circumstances looking

to the evidences brought on record and we deem it appropriate

[ 77 ]

to reproduce the same in order to reach logical end in respect of

awarding the appropriate sentence. The same is reproduce as

under :-

“1- The accused has committed murder of his

wife and four minor daughters aged 7, 5, 3 years

and the youngest one was just one and a half

month old. The accused was in a dominant

position and a position of trust as the head of

family. The accused betraying the trust and

abusing his position murdered his wife and

children. Instead of protecting them, the accused

himself became devourer of his own offspring.

2- The murders were committed in an extremely

brutal, grotesque, diabolical, revolting, or

dastardly manner so as to arouse intense and

extreme indignation of the community. There

were severe incised wounds on the bodies of all

the accused persons. The various parts of their

dead bodies like hands and feet were chopped off

from their bodies. Some parts of their bodies

were found missing. After committing the

murders, all the deceased persons were put on

fire. There were superficial to deep burns all over

their bodies.

3- The callousness and depravity of the accused

may also be seen from the fact that after the

incident when the complainant/PW 1 reached at

the spot and seeing the scene, started pouring

water to extinguish the fire, the accused sat

around fire and started enjoying heat as it was a

winter season. When the complainant snubbed

him saying that his wife and children have been

murdered and he was still enjoying the heat, the

accused went away. His conduct show extreme

depravity and diabolical nature.

4- The crime committed by the accused is

enormous in proportion, as the accused has

murdered as much as five members of his family.

The murders of the deceased were cold blooded

and without any provocation. The murders were

committed so brutally that it shocks not only the

judicial conscience but even the conscience of

the society.

5- The deceased included four innocent children,

who could not have provided even an excuse,

much less a provocation, for the crime and a

helpless woman, who was none but his own wife.

Its beyond imagination that the deceased girls

aged 3, 5 and 7 years might have given any

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excuse or provocation. The youngest deceased

was an infant aged just one and a half month.

The accused just butchered five persons to death

including four minor girls in most inhuman, cruel

and merciless way.

6- All the facts and circumstances go to show that

the deceased were murdered in the mid night

while they were in sleep.

7- The accused being married with the deceased

Sangeeta since long, developed illicit relationship

with another woman. He did not stop this

relationship even after marriage of that woman

and wanted to marry her. The accused committed

murder of his wife and four hapless minor

daughters to pave a way for his marriage with that

lady. The murders were committed for a motive

which evidences total depravity and meanness.

8- The evidence shows that the accused is a

person of rakish, depraved and immoral

character.

9- The victims were innocent, helpless and they

relied upon the trust of relationship and social

norms, as the victims included the four minor

daughters of the accused, the youngest one aged

one and a half month and a helpless woman, his

wife, who loved the accused and was opposing

his second marriage with another lady. The

accused has betrayed their faith and hope.

10- The facts and circumstances show that the

accused has deliberately planned crime and

meticulously executed it to pave a way for his

marriage with alleged Manju. He chose the time

of midnight when there is no one around the spot

and the victims were alseep. He arranged a

‘banka’ to commit murders and also arranged

kerosene to burn their dead bodies.”

105The mitigating circumstances as observed by the Trial Court is

as under :

“1- The accused is not a previous convict.

2- There was no eye-witness of the incident and

the case is based on circumstantial evidence.”

106From a perusal of the above, it is clear that the special reasons

assigned by the trial Court for awarding extreme penalty of

death are that the murder was horrifying as the accused-

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appellant was in a dominant position; victim was helpless being

children aged about 7, 5, 3 years and the youngest one was just

one and a half month old and the murder was pre-meditated and

pre-planned one with a motive and committed in a cruel,

grotesque and diabolical manner. The accused is a menace to

the Society and, therefore, imposition of lesser sentence than

that of death sentence, would not be adequate and appropriate.

In these circumstances, the trial Court has held that the balance-

sheet of the aggravating and mitigating circumstances was

heavily weighed against the appellant making it the rarest of

rare cases and consequently awarded the death sentence.

107Having gone through the facts and circumstances of this case,

we find that there was ample evidence on record to establish

that the accused/convict committed pre-planned and pre-

meditated murder of his wife and minor innocent children and

such evidence has been led by the prosecution to establish this

fact. Moreso, the appellant cut the body of the deceased and

inflicted severe incised wounds. Thus, it is beyond doubt that

the manner in which crime is committed by banka and

thereafter buried the deadbodies by pouring kerosene oil, is

brutal, cruel and gruesome.

108The trial Court also called for a report from the District

Probation Officer who also reported that there was no

possibility of reformation of the accused/appellant. From the

facts and circumstances of the case particularly the report of the

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District Probation Officer, we are in agreement with the

findings recorded by the Trial Court with regard to no

possibility of the appellant of reformation. Moreso, learned

Government Advocate, during the course of argument, has

vehemently argued that there is no chance of the

accused/appellant for reformation.

109For the reasons aforesaid, we are of the view that we are in

complete agreement with the view taken by the trial Court

convicting and sentencing the accused for the offence

punishable under Section 302 I.P.C. The instant case falls in the

category of 'rarest of rare case', warranting capital punishment.

Hence, the death sentence awarded to the appellant under

Section 302 of IPC is liable to be confirmed.

110In view of the above and for the reasons stated hereinabove,

Criminal Appeal No. 1959 of 2016 filed by the appellant from

jail fails and the same deserves to be dismissed and is,

accordingly, dismissed. However, we confirm the death

reference under Section 366 (1) of the Code of Criminal

Procedure, 1973. made by the learned Sessions Judge,

Lakhimpur Kheri in the light of discussions made above.

111Before we part with the case, we must candidly express our

unreserved and uninhibited appreciation for the distinguished

assistance rendered by Mr. Rajesh Kumar Dwivedi, learned

Amicus Curiae in the instant appeal and, therefore, we deem it

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appropriate to direct for payment to Mr. Rajesh Kumar

Dwivedi, learned Amicus Curiae for his valuable assistance as

per Rules of the Court.

112Let Mr. Rajesh Kumar Dwivedi, learned Amicus Curiae be paid

as per Rules of the Court within a month.

113The Senior Registrar of this Court is directed to communicate

this order to the District & Sessions Judge, Lakhimpur Kheri,

who shall further communicate this order to the appellant,

where he is confined in jail forthwith.

114Registry is directed to transmit the original lower Court record

to the Court concerned forthwith.

(Rajeev Singh, J.) (Ramesh Sinha, J.)

Order Date : 09

th

July, 2021

Ajit/-