JUDGMENT R.N. Misra, J.
1. This appeal has been preferred by the accused-appellant, Babu Ram, who has been convicted for the offence, punishable under Section 302 I.P.C. by Sri M.K. Mittal, the then Sessions Judge, Jalaun at Orai vide judgment and order dated 18.8.1999. The accused-appellant is in jail and from jail itself, he preferred this appeal.
2. The facts giving rise to this unfortunate case are as under:
The appellant is resident of village Dadri, P.S. Ata, district Jalaun. The deceased Smt. Sarman was his wife and Km. Kapoori was his daughter. The complainant-informant Mahipal Singh, resident of village Dhamni, P.S. Kotwali, Orai, district Jalaun was the brother-in-law of the accused-appellant.
3. On 17.11.1994, the complainant-informant, Mahipal Singh came to the house of accused-appellant in routine manner to know welfare of his sister and other family members. Smt. Sarman told her brother that her husband, Babu Ram was still indulging in gambling and consuming liqour and was spoiling properties. She also told him that about 5-6 years back, her husband disposed of 15-20 Bighas agricultural land to meet out expenses of gambling and liquor consumption. The complainant-informant in the evening at the time of dinner, asked the accused-appellant about the complaint made by his sister, Smt. Sarman. At that time, Km. Kapoori was also present there. The accused-appellant felt it otherwise and became annoyed. Some altercation also took place between him and two ladies. At that time, Km. Kapoori was aged about 14 years. After taking dinner, the family members went for sleeping in the house. The complainant-informant and accused-appellant were sleeping on one cot in the pour of the house. Smt. Sarman alongwith her daughter, Km. Kapoori were sleeping inside the house on one cot. At about 4.00 A.M. in the intervening night of 17/18.11.1994, the accused-appellant woke up and wanted to go out side of the "pour". The complainant-informant asked him that it was still dark and where he was going. The accused-appellant told him that he was going to provide fodder to the Buffaloes and he went out, After few minutes, the complainant- informant heard noise and reached to the room, where his sister, Smt. Sarman and bhanji, Km. Kapoori were sleeping. He saw that the accused-appellant was beating them by 'Michwa' (wooden foot of cot). As soon as he reached there, the accused-appellant came out side the room and went away. He raised alarm and on hearing it, his neighbours, Prem Chandra and Khyali reached there. They wanted to catch hold of the accused, but he pushed the complainant-informant, who fell down and he ran away from the spot. The complainant-informant and the witnesses entered the room and saw that Smt. Sarman and Km. Kapoori were lying dead on the cot after sustaining the injuries.
4. The complainant-informant wrote a F.I.R. which is Ext. Ka-1 in the morning and went to Police Station Ata, where he handed over the same to the police who registered the case at Crime No. 391 of 1994, under Section 302 I.P.C as is evident from chik report which is Ext. Ka-4 and copy of G.D. is Ext. Ka-5, Sub-Inspector, Ramanand Yadav investigated the case. He arrested the accused-appellant and sent him to jail. He reached the spot and prepared site plan of the place of occurrence which is Ext. Ka-14. The dead bodies of two ladies were inspected by him and after appointing Ranches, he prepared Inquest Report which is Ext. Ka-7 and Ka-8. He also prepared photo and challan of dead bodies which are Ext. Ka-9 and Ka-10, Ext. Ka-12 and Ext. Ka-13.
5. The dead bodies were sealed and sent for post mortem examination through Constables Prem Narain and Ram Ashray. The post mortem examination was conducted by Dr. R.K. Sood. The post mortem reports are Ext. Ka-2 and Ka-3. The Investigating Officer took blood stained and simple mud from the place of occurrence and prepared memos which are Ext. Ka-15 and Ka-16. The blood stained portion of cushion, pillow cover, Razai, bangles and rope of cot were also taken by the Investigating Officer and prepared memo which is Ext. Ka-17. These articles were sent for chemical examination. The report of which is Ext. Ka-6. The Investigating Officer also recovered the foot of the cot and knife from the place of occurrence by which the injuries were inflicted by the accused to the deceased persons. He also interrogated the witnesses and after completing the investigation, he submitted charge sheet against the accused-appellant which is Ext. Ka-18.
6. The accused-appellant denied the allegations levelled against him and alleged his false implication due to enmity with the complainant-informant. He has stated in his statement, under Section 313 Cr.P.C. that the agricultural land belonging to him was in the name of his son and the complainant-informant wanted to grab it. However, he expressed his ignorance about the cause of death of his wife and daughter.
7. The accused-appellant was charged by the learned trial court for the offence, punishable under Section 302 I.P.C.
8. In support of its case, the prosecution examined PW-1 Mahipal Singh and PW-2 Prem Chandra as eye witnesses of the occurrence. PW-3, Dr. R.K. Sood had conducted the post mortem examination of dead bodies and proved post mortem reports. PW-4, Constable Ram Adhar Verma had prepared chik report on the basis of written report submitted by the complainant-informant and the entry was made by him for registration of the case in General Diary (G.D.). PW-5, Constable Ram Narain had conveyed dead bodies to the doctor conducting post mortem examination. PW-7 S.I. Ramanand Yadav had investigated the case and submitted charge sheet against the accused-appellant.
9. The accused-appellant examined Khyali Ram as DW-1 in his defence who was named in the F.I.R. itself as prosecution witness.
10. After considering the evidence on record, and hearing the parties, the learned Sessions Judge came to the conclusion that the prosecution had proved its case beyond all reasonable doubts against the accused-appellant and convicted him to life imprisonment for the offence of murder of his wife and daughter, punishable under Section 302 I.P.C. Aggrieved by the said judgment and order, this appeal has been preferred.
11. We have heard learned Counsels for parties and perused the evidence on records.
12. The only ground taken in the memo of appeal sent from jail is that the accused-appellant is innocent and he had not committed murder of his wife and daughter. There is no denial from the side of defence that both the said ladies had been murdered in the intervening night of 17/18.11.1994 at about 4.00 A.M. in the house of accused itself. In his statement, under Section 313 Cr.P.C., the accused-appellant has stated that he had no knowledge how his wife and daughter had died.
13. The prosecution case is very specific. According to it, the accused had caused injuries to the deceased ladies due to which they died. The post mortem report of Smt. Sarman is Ext. Ka-2 and that of Km. Kapoori is Ext. Ka-3. Dr. R.K. Sood, PW-3 had conducted the post mortem examination of both the dead bodies and according to him, following ante-mortem injuries were found on the dead bodies.
14. The ante-mortem injuries of Smt. Sarman.
1. Lacerated would on Rt. side of forehead 8 cm x 3 cm x Bone deep with fracture of under lying frontal bone.
2. L.W. on outer corner of Rt. eye. Vertical in direction 4 cm. X 2 cm x Bone deep with fracture of under lying bone.
3. L.W. on chin 2 1/2 cm x 2 cm x bone deep with fracture of under lying lower mandible.
4. Incised wound ten in number. On ant. aspect and sides of Neck. Horizontal in direction of size 1/2 cm x 1/4 cm skin deep to 2 cm x 1/2 cm x muscle deep.
5. Incised wound on Rt. side of chest 5 cm below medial end of Rt. clavicle 2 cm x 1/2cm x chest cavity deep.
6. L.W. on ant. aspect of Rt. shoulder 1 cm x 0.25 cm x muscle deep.
7. L.W. on ant. aspect of Rt. upper arm 1 1/2 cm x 1/2 cm x muscle deep. On proxi 1/3rd of Rt. upper arm.
8. I.W. 2 cm x 1/2 cm x chest cavity deep 6 cm. Rt. axilla.
9. I.W. 1 cm x 1/2 cm x muscle deep just ant to injury No. 5.
10. I.W. On (It) side of chest at lavel of lower rib. 1/2 cm x 1/4 cm x muscle deep.
11. L.W. on back of Neck 1/2 cm x 1/2 cm x muscle deep.
12. L.W. below Rt. ear 1 cm x 1/2 cm x muscle.
13. I.W. on Rt. T.M. Joint 1 cm x 1/2 cm x muscle deep.
14. Abraded cont. On ( Lt) side of chest x 1 cm.
15. L.W. on Rt. index finger 1 cm x 1/4 cm x muscle deep on proxi-phalynx.
16. Crush Inj. of tip of ( It) index finger with fracture of distal phalynx,
17. Upper Incisor premolar and molars with lenior incisor, premolar and molar fallen, on 6/5 teeth recovered.
15. The ante-mortem injuries of Km . Kapoori.
1. I.W. on (Lt.) side of forehead 2 1/2 cm x 2 cm with fracture of under lying bone.
2. I.W. with is 2 cm ant. to angle of Rt. side of mandible 2 cm x 1/2 cm x muscle deep.
3. I.W. on outer contusion of Rt. eye 1 1/2 cm x 1/2 cm x muscle deep.
4. I.W. Rt. side of Neck post to Rt. ear. 2 cm x 1/2 cm x bone deep.
5. Abraded cont. on ( It) side of chin. 3 cm x 2 cm.
6. Abraded cont. on middle of fore head 3 cm x 2 1/2 cm.
7. I.W. 2 cm x 1/2 cm x muscle deep just medial to Rt. Nipple.
8. I.W. 1 cm x 1/2 cm x muscle deep 2 cm above injury No. 7.
9. I.W. On metacarpal of Rt. little finger 1 cm x 1/4 cm x muscle deep.
10. L.W. at base of Rt. little finger 1 cm x 1/2 cm x muscle deep.
11. I.W. At dorsum of (Lt.) hand at base of Ring finger 2 cm x 1/2 cm x muscle deep.
12. I.W. at lower part of chest in middle 1/2 cm x 1/4 cm x muscle deep.
16. According to doctor, the incised injuries on the body of deceased persons could be caused by knife and other injuries could be caused by blunt object like weapons 'foot of cot (Michwa). The expected time of injuries was about 4.00 A.M. on 18.11.1004. as told by doctor.
17. The blood stained mud and simple mud and Razai cover, pillow cover and a number of articles about 27 in number recovered by the Investigating Officer from the spot and produced in the Court, were sent for chemical examination. The report of chemical examination is Ext. Ka-6. The chemical examiner found human blood on the articles 1 to 8, 12 to 15, 21 to 23 and 25 to 27 mentioned in the report. Thus, it is clear that the medical evidence corroborated the fact that death of deceased persons were caused due to ante-mortem injuries. The place of occurrence was also fortified by the chemical examination report because articles found by the Investigating Officer from the spot vide memo Ext. Ka-15 to Ka-17 were found blood stained. Dead bodies also recovered by the I.O. from the house of the accused itself as is evident from the inquest memo Ext. Ka-7 and Ka-8.
18. The motive of murder as alleged by the prosecution is quite natural and proved by PW-1, Mahipal Singh, who was admittedly brother-in-law of the appellant. It has been alleged by the prosecution that PW-1 Mahipal Singh, complainant-informant resident of village Dhamni had came to the house of appellant on 17.11.1994 to know welfare of his sister Smt. Sarman and other family members. PW-1 Mahipal Singh has Stated on oath that at about 5.00 P.M. he had reached the house of his sister. Further he has stated that the sister and her daughter Km. Kapoori made a complaint to him against his brother-in-law, Babu Ram(Appellant) that he was spoiling the properties in gambling and taking liqour. When at the time of dinner, he asked his brother-in-law about this fact, he became annoyed and abused Smt. Sarman. At that time, Km. Kapoori was also there who also corroborated this fact that her father was indulging in gambling and taking liqour. This was the cause of this brutal murder. This fact has been corroborated by DW-1 Khyali Ram also inguarded language at page 4 of his statement on oath in following words:
JAB SARMAN AUR BABU RAM ME JHAGRA HOTA THA TO MAHIPAL SAMJHANE KE LIYE AATE THE.
19. PW-2, Prem Chandra has also stated this fact that when on 18.11.1994 in the morning, he was going to morning walk, he heard alarm raised by Mahipal Singh and reached the house of Babu Ram(appellant) and he saw the incident in question, His statement was going to prove the fact that Mahipal Singh was present there in the night of occurrence. It has been suggested from the side of defence that he was not present at the house of accused-appellant in the relevant night and after incident in question, he was called from his native village but PW-1, has denied this fact. There is no evidence on record from the side of defence that Mahipal Singh was not present on the date and time of occurrence at the house of accused-appellant.
20. Mahipal Singh is brother-in-law of the accused-appellant and naturally he is the well wisher of that family. Not only this, the fact narrated by him clearly shows that he has always been looking after family of the accused-appellant since before incident in question. Ram Kumar is the son of accused-appellant. Mahipal Singh has stated that Ram Kumar resides with him in his village Dhamni and he looks after him. Mahipal Singh has further stated that the accused-appellant has three daughters and out of them one namely Smt. Meera was married by him and all expenses of her marriage were meeted out by him and his brother. The marriage was performed from his house and Babu Ram and Smt. Sarman had participated in it. Further he has stated that the second daughter of the accused-appellant was Km. Kapoori who was murdered and he had settled her marriage with Karan Singh, resident of village Kusmiliya, but it could not be performed due to her murder. Though some suggestion have been given from the side of defence to prosecution witnesses that the accused-appellant had sold his agricultural land to meet out expenses of marriage of his daughter but there is no evidence on record to prove it. This suggestion has been denied by the complainant-informant. Indirectly DW-1 Khyali Ram has also supported the prosecution version at page 3 in following words:
BABU RAM AUR USKI PATNI ME USKI LADKI KE SAMBANDH KARNE KE BARE ME JHANJHAT HOTI THI JAHAN MULZIM KI PATNI NE LADKI KA SAMBANDH KIYA THA WAHAN MULZIM NAHI CHAHTA THA KYUNKI LADKA AAWARA THA AUR UMR BHI JYADA THI ISI BAAT PAR JHAGRA HOTA THA AUR HO SAKTA HAI KI ISI BAAT PAR USE MAAR DIYA HO.
21. He has also admitted murder of ladies in the house of accused itself in the following words:
MAINE SMT. SARMAN WA KAPOORI KI UNKE GHAR ME HI KHOON KHACHCHAR DEKHA THA UNKI SWABHAWIK MRITYU NAHI HUI THI IS GHAR ME SARMAN, KAPOORI WA MULZIM RAHTE THE....MULZIM KE GHAR ME US RAAT KOI DACOITY NAHI PARI THI.
22. PW-2 Prem Chandra has also corroborated this fact that the accused-appellant Babu Ram was gambler and drunker and he had disposed of his agricultural land for that purpose. He has also stated that due to said short coming of the accused-appellant, quarrel took place between him and his wife, Smt. Sarman and daughter, Km. Kapoori. At page 17 of his statement on oath he has stated that the accused-appellant has sold his agricultural land to Sukhbasi son of Brij Lal and Mool Chand son of Chhabeela through separate sale deeds. However, he could not tell year and date of transfer of the land. He has also corroborated this fact that marriage of daughter of accused was performed by her maternal uncles at their own expenses. Further he has stated that he had seen the accused-appellant while gambling several times. Mahipal Singh PW-1 has clearly stated that since the accused-appellant was drunkard and gambler and was not looking after his house hold affairs properly, therefore, Smt. Sarman used to manage agricultural work by herself. She used to get farming done by giving it on 'Batai'. He also used to help her from time to time. Further he has stated that after this incident, when his brother-in-law was confined in jail, he has been managing his house hold affairs. Thus it is clear that Mahipal Singh is the well wisher of the family of accused-appellant and it cannot be said that he has falsely implicated his brother-in-law in this case.
23. PW-1. has stated that he was sleeping on the relevant night with the accused-appellant on single cot and the deceased ladies were sleeping inside the house on the single cot. The site plan Ext. Ka-14 prepared and proved by Investigating Officer has contained specific places of their sleeping, PW-1 has further stated that since the accused-appellant was annoyed with his wife and daughter due to complaint made by them regarding his conduct, he woke up at 4.00 A.M. The complainant-informant asked him, where he was going in the dark, the accused-appellant replied that he was going to give fodder to buffaloes and went out the house. The cattle shed of the accused-appellant was situated at some distance towards north after the 'Rasta' as has been stated by PW-1, The Investigating Officer has also shown the place of incident in the site plan Ext. Ka-14. P.W.-1 has further stated that he had no reason to disbelieve version given by the accused-appellant but after a few minutes, he heard sound "Bhat-Bhat". He reached towards place and saw that the accused-appellant was coming out of the room in which deceased ladies were sleeping. He wanted to catch hold of accused but he pushed him and fell down. He raised alarm and the neighbour Khyali Ram and Prem Chandra reached there, They also wanted to chase him but were unsuccessful. They entered the room and saw that Smt. Sarman and Km. Kapoori were lying dead on the cot and they sustained a number of injuries. There are some contradictions in the statement of PW-1. Once he has stated that he had seen the accused-appellant while causing injuries to the ladies and another place, he has stated that he had seen the accused-appellant while coming out of the room and when he entered the room, he saw ladies dead and a number of injuries were there on their persons. This a very natural statement of PW-1 because when the accused-appellant left the "Pour", where he was sleeping on the pretext to provide fodder to Buffaloes, the PW-1 had not know about his intention but as soon as he heard some noise from the room where his sister and bhanji were sleeping, he reached there. In the meantime, the accused might have caused injuries and while seeing him coming towards spot, he would have thought it proper to leave the place. The foot of the cot and knife were lying by the side of cot of the ladies and they were blood stained. Since there was no occasion for suspicion to the complainant-Informant being close relative and well wisher of accused family, it was sufficient to infer that the accused-appellant caused injuries to the ladies due to evening happening and was running out of the room when the complainant-informant reached there. This is also a circumstance which goes against the accused-appellant that had he been innocent, he would not have escaped from the place of incident by pushing down the complainant-informant. PW-2 Prem Chandra also belongs to the family of the accused as has been stated by PW-1 Mahipal Singh at page 11 of his statement on oath. He has stated that Babu Ram, the accused is nephew of Baij Nath, who was the son of Jiya lal, grand-father of Prem Chandra. This fact has been corroborated by PW-1 also. Prem Chandra has given a very natural statement and his presence on the spot could not be doubted. His house was situate near the house of the accused-appellant. He has stated that he was going for morning walk when he heard alarm raised by Mahipal Singh from the house of accused-appellant, he reached there and saw that the accused-appellant was running away from his house and Mahipal Singh wanted to catch him but he pushed him down. He also made some efforts to catch him but was unsuccessful. This statement of Prem Chandra is very genuine that Mahipal Singh allegedly told him that the accused was running away after committing murder of his wife and daughter. Prem Chandra has further stated that he entered the house of accused-appellant along with Mahipal Singh and Khyali Ram and saw that Smt. Sarman and Km, Kapoori were lying dead on the cot and there were a number of injuries on their persons. Had Prem Chand, any motive or design to tell lie, he would have admitted to say that he had seen the accused while causing injuries to ladies or while killing them. This contradiction of Prem Chandra favours the prosecution and shows that he has given the statement about those facts only which he had seen from his own eyes. This conduct of Prem Chandra was also quite natural that as soon as he reached there and saw the accused while running away from the spot, he told him that the accused-appellant was running after killing his wife and daughter. He clearly stated that elder daughter of accused-appellant was living at the house of her husband, second daughter was murdered and the youngest one was living with her elder sister. The son of the accused was living at the house of PW-1. The very old mother of the accused-appellant aged about more than 90 years was living in a separate Chhapper inside the house of the accused-appellant. Naturally her physical position was not such that she could reach the spot earlier. Some enmity was suggested by the defence from PW-2, Prem Chandra but he has denied it.
24. At page 10 of his statement on oath, he has clearly denied these suggestions of defence that he had filed any objection in mutation proceeding in the court of Tehsildar, Kalpi, district Jaluan against transfer of any land by father of the accused-appellant in favour of Ram Kumar, the son of accused-appellant, There is nothing on record from the side of defence to prove this fact. As such there appear no enmity of the accused with PW-2 and as such PW-2 is an independent witness and cannot be disbelieved.
25. The contradictions were pointed out by learned Counsel for the appellant in the statement of PW-1 that once he has stated that he had gone to police station for lodging the F.I.R. along with Prem Chandra and Khyali Ram and at another place, he stated that he did not remember whether said two witnesses had accompanied him or not?. PW-4 Ram Adhar Verma Constable Moharrir who had received written report Ext. Ka-1 from PW-1 has stated that the complainant-informant had come alone to police station for lodging the F.I.R. PW-2 has also stated that he had not accompanied the complainant-informant to the police station. Thus this is a minor contradiction which is not going to affect the merit of the case at all. Moreover, the statement of PW-1 was recorded after about four years to the incident and some contradictions were bound to occur in it. The written report Ext. Ka-1 was written by PW-1 himself. He has clearly stated that the facts in the report were mentioned by him on his own knowledge, though he has consulted Prem Chandra, Khyali Ram and others before lodging the F.I.R. This was the natural conduct of the complainant- informant being out sided village resident to take village people in confidence. The incident took place at adout 4.00 A.M. on 18.11.1994 and the F.I.R. was lodged on the same day at about 12.30 P.M. The distance of police station from the place of occurrence was about 20 Km as is evident from the chik report Ext. Ka-4. PW-1 has stated at page 27 of his statement on oath that he had left the place of occurrence at about 7 or 8 A.M. From the place of occurrence, he went to village Karmer on foot which was about 10 Km. and covered the distance of Karmer in about two hours. Further he waited conveyance in Karmer about 45 minutes and after that he went to Police Station Ata which took about 45 minutes. Thus it is clear that there was no inordinate delay in lodging the F.I.R. The F.I.R. contains all relevant facts of occurrence. There was no chance of manipulation. The accused and deceased were close relative to the complainant-informant. There was no enmity between them and there was no reason for false implication of the accused-appellant.
26. It was argued by learned Counsel for the accused-appellant that in the F.I.R. there was mention of only blunt object, whereas a number of injuries on both the deceased were caused by a sharp edged weapon. We see no force in this contention because the evidence on record is very clear. The complainant-informant has further stated that he had seen the accused-appellant while coming out from the room of deceased from Aangan. Prem Chandra has also stated that he had seen the accused while running away from spot. Both have stated that when they entered the room they saw that the deceased persons were lying dead and there were number of injuries on their persons and foot of cot and a knife were lying there which were blood stained. These statements of eye witnesses were very honest and natural and they did not try to manipulate it.
27. The Investigating Officer has clearly proved recovery memo Ext. K-17. Learned Counsel for the accused-appellant has argued that none of public witnesses of recovery memo of Ext. Ka-17 has been produced by the prosecution, therefore, recovery of weapons became doubtful but the facts and circumstances of the case shows that the statement of eye witnesses is worthy reliable.
28. Khyali Ram, one of the prosecution witnesses named in the F.I.R. has appeared from the side of accused as DW-1. He has stated at page 2 of his statement on oath that the Sub-Inspector had got his signature on the recovery memo by force and he did not ask him why and at what paper he was getting his signature?. This statement of D.W.-1 is quite unnatural and improper. There was no reason for signing paper by this witness, the contents of which were not known to him. Further he did not made complaint to any higher authorities about the said fact. As we have discussed above, DW-1 also expressed possibility of murder of ladies by the accused-appellant due to domestic dispute. He also certified this fact that both the ladies had not died of natural death. Further he certified that in the relevant night, no decoity had taken place in the house of accused-appellant. The dead bodies were found in the house of the accused. Therefore, it was the duty of accused-appellant to tell facts which were within his knowledge about cause and mode of death.
29. Learned Counsel for the accused-appellant has also argued that the complainant-informant has falsely implicated the accused-appellant to grab his agricultural property. This fact has been denied by P.W-1. This is admitted fact that some agricultural properties of the family of accused-appellant were in the name of his son, Ram Kumar who was alive and therefore, there was no occasion for PW-1 to get those properties in his own name. Moreover as we have discussed above, the complainant-informant has always been looking affairs of family of the accused-appellant since before and after the incident in question, therefore, it cannot be believed that he had any intention or design to grab his property.
30. In view of our above discussions, we come to the conclusion that the prosecution case is well proved against the accused-appellant and there appears no reason for his false implication. The learned trial court has rightly convicted the accused-appellant for the offence of murder of his wife and daughter, punishable under Section 302 I.P.C. Thus appeal is devoid of merit and is liable to be dismissed.
31. Accordingly, the appeal is dismissed and the judgment and order, passed by learned trial court is confirmed.
32. The accused-appellant is in jail and he shall remain in jail to serve out sentence awarded to him by the learned trial court and affirmed by us.