STATE OF CHHATTISGARH Vs. KAMLA PRASAD PANDEY
LAWS(CHH)-2003-7-16
HIGH COURT OF CHHATTISGARH
Decided on July 07,2003

STATE OF CHHATTISGARH Appellant
VERSUS
Kamla Prasad Pandey Respondents

JUDGEMENT

L.C. Bhadoo, J. - (1.)1. Accused Komal Prasad Pandey was tried in three separate Sessions Trials namely S.T. Nos. 380 of 1999, 331 of 1999 and 326 of 1999 by the Second Additional Sessions Judge, Fast Track Court, Mungeli, district Bilaspur for the commission of the offences punishable under Section 302 of the Indian Penal Code and Section 25(1 -B)(b) read with Section 4 of the Arms Act (hereinafter to be referred to as "the Act") for committing the murders of Ashutosh Pandey, Raghuvar Pandey - father of Ashutosh Pandey and Shanti Bai - wife of Raghuvar Pandey and mother of Ashutosh Pandey. The learned Second Additional Sessions Judge by his judgment dated 17/04/ 2002 after holding the accused guilty of the offence under Section 302 of the Indian Penal Code and Section 25(1 -B)(b) read with Section 4 of the Act in each of the three cases convicted him accordingly and by his order dated 18/ 04/2002 sentenced him to death for the offence under Section 302 of the Indian Penal Code and to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/ -, in default of payment of fine to further undergo rigorous imprisonment for two months for the offence under Section 25(1 -B)(b) read with Section 4 of the Act in each of the three cases.
Criminal Appeal No. 605 of 2002 has been filed by accused/appellant Komal Prasad Pandey against the conviction and sentences passed against him by the Second Additional Sessions Judge, in Sessions Trial No. 330 of 1999 in respect of the commission of murder of Ashutosh Pandey. The learned Second Additional Sessions Judge has made Reference No. 03 of 2002 to this Court for confirmation of the death sentence imposed by him on the accused.
2. This judgment shall dispose of the aforesaid appeal filed by the accused and the reference made by the learned Second Additional Sessions J.
The prosecution case in brief is as follows : The houses of accused and family of the deceased Ashutosh Pandey are adjacent and even their courtyard is common i.e. without any partition wall. The father of the accused and the father of the deceased are cousin brothers.

On 13th June, 1999 at about 9.00 a.m. in village Badra (B), accused Komal Prasad Pandey assaulted Ashutosh Pandey with a sword and committed his murder in the courtyard of his own house. Thereafter at 9.05. a.m. he committed the murder of Raghuvar Pandey at the Ramsagar Pond with the same sword and at 9.10 a.m. he committed the murder of Shanti Bai near the house of one Vijay Sharma with the same sword. At 13.00 hours Smt. Ratna Pandey - wife of deceased Ashutosh Pandey lodged a report at Patharia Police Station against accused Komal Prasad Pandey stating that she was residing in village Badra (B) and she was a house wife. On that day in the morning she was cooking the food. Her husband Ashutosh Pandey and father -in -law Raghuvar Pandey had gone to take bath at Ramsagar pond. Her mother -in -law after asking her to cook the vegetable left the house to watch Krishna Serial on television in the house of one Vijay Sharma. At about 9.00 a.m. when her son Sunny was not found, in search of her son she went on the terrace of the house and saw that her son Sunny aged about 11/2 years was playing on the terrace. All of a sudden she heard the sound (Bhad) of falling of something. When she looked towards that side from where the sound was heard, she saw Komal Prasad Pandey assaulting her husband in his courtyard with a sword and her husband was lying on the ground. His neck was cut. When she saw her husband in a pool of blood and in an injured condition she became perturbed. She took her son with her and she stepped down from the terrace and entered inside the kitchen. Thereafter she became unconscious. After sometime she regained consciousness and started crying and called the villagers for help to call her father -in -law and mother -in -law as Komal Prasad Pandey has murdered her husband with the sword. Then Varun and Sukhram told her that her father -in -law Raghuvar has been murdered at the pond and her mother -in -law Shanti bai has been murdered in front of the house of Vijay Pandey by assaulting them with a sword. The families of the deceased and accused Komal Prasad Pandey were on inimical terms. Fifteen days prior to the date of incident Komal Prasad Pandey quarreled with her in -laws and two days prior to this incident Komal Prasad Pandey and his brother Ashok had given threat to kill her family members. Komal Prasad Pandey was suspecting that her family members were practicing witchcraft and on account of that he has committed the murder of her husband, father -in -law and mother -in -law with a sword wherever the deceased persons were found. R. Tigga, Station House Officer, Police Station, Patharia in turn recorded Merg intimation No. 16 of 1999 and registered the case in Crime No. 25 of 1999. Thereafter Investigating Officer R. Tigga reached the scene of occurrence and the dead body of the deceased was got photographed. The photographs are Exs.P/3A, 3B and 3C. The Investigating Officer after giving notice (Ex.P/8) to the witnesses prepared the inquest Panchanama (Ex.P/9) of the dead body of the deceased. The Panch witnesses were of the opinion that Ashutosh Pandey has been murdered by assaulting with a sharp edged weapon. During the investigation the blood stained soil and plain soil from the scene of occurrence, one blue colored underwear and one full shirt stained with blood were seized by the Investigating Officer. Thereafter the Investigating Officer prepared a requisition (Ex.P/18A) for conducting the post mortem examination on the dead body of the deceased and gave the same to Constable Dilip Kumar and sent the dead body of the deceased to the Primary Health Center, Patharia for post mortem examination. He prepared the site map, which is Ex.P/22. On 31/08/1999 he got prepared the map (Ex.P/6) by village Patwari Devendra Singh (PW -5). On 14/06/1999 Dr. Anil Gupta (PW -13) conducted the autopsy on the dead body of the deceased and prepared the report Ex.P/19A. Thereafter the dead body of the deceased was handed over to Raghuram the husband of the village Sarpanch Raghuram, Panchas Manharan and Milauram vide Ex.P/17. On 14/06/1999 at about 14.45 hours accused Komal Prasad Pandey gave a memorandum (Ex.P/18) in presence of the witnesses namely Kailash Sharma (PW -12) and Virendra Kumar Sharma. In pursuance of this memorandum of the accused the weapon of offence i.e. sword (Article -F) was recovered and seized under Ex.P/19 and in the presence of the above witnesses the clothes of accused Komal Prasad Pandey, a dark blue color T -shirt Swiss cotton, and a terricot full pant were seized under Ex.P/2. On 15/06/1999 at about 15.30 hour the accused was arrested vide arrest memo Ex.P/1. On 02.07/1999 the articles, which were recovered and seized; were placed before the Investigating Officer by Constable Dilip Kumar. On 12/07/1999 the Investigating Officer made an enquiry from the doctor as to whether the injuries found on the dead bodies of deceased persons namely Ashutosh Pandey, Raghuvar Pandey and Shanti Bai could be caused by the sword (Article -F), which was recovered and seized at the instance of the accused. On 19/07/1999 Dr. Anil Gupta gave his opinion vide Ex.P/7 -A that the injuries found on the dead bodies of the deceased persons could be caused by the sword (Article -F) and he advised for obtaining report of the Chemical Analyst. Thereafter the Investigating Officer sent the seized articles to the Forensic Science Laboratory, Sagar for chemical examination vide Ex.P/12. On 16/11/2000 the report (Ex.P/14) of the Forensic Science Laboratory was received. The report (Ex.P/15) of the Serologist was received on 10/07/2000.

After completion of the investigation charge sheet was filed against the accused in the Court of Judicial Magistrate First Class, Mungeli who in turn committed the case to the Court of Sessions Judge, Bilaspur from where the learned Additional Sessions Judge, Mungeli received the case on transfer.
3. The learned Additional Sessions Judge after perusal of the records reached the conclusion that there is sufficient material to frame charges under Section 302 of the Indian Penal Code and Section 25 of the Arms Act. Accordingly he framed the charges against the accused for the commission of the offences under Section 302 of Indian Penal Code and Section 25 of the Act. The accused denied the charges and claimed to be tried.
The prosecution in order to prove the charges leveled against the accused examined in all fourteen witnesses at the trial. The statement of the accused was recorded under Section 313 of the Code of Criminal Procedure in which he has denied the evidence of the prosecution witnesses and stated that he was not present in the village on the date of the incident. He has not murdered Ashutosh Pandey. He has stated that the memorandum (Ex.P/18) was not given by him. Neither the sword was recovered at his instance nor he appended his signature on any of the recovery memos. He further stated that he was not arrested on 15/06/1999. He was arrested on 13/06/1999 itself. He further stated that no articles were recovered from him. He further stated that the prosecution witnesses might be having animosity against him and he was not having any dispute with Ratna Pandey. Lastly, he stated that he is innocent. He has not committed the murder of Ashutosh Pandey. In his defense he produced one witness namely Shankar Prasad Sharma.

The learned Additional Sessions Judge after hearing the arguments of Shri Akhil Mishra Additional Public Prosecutor and Shri S.L. Patre counsel for the accused and after believing the evidence adduced by the prosecution, convicted and sentenced the accused for the commission of the offences under Section 302 of the Indian Penal Code and section 25(1 -B)(b) read with Section 4 of the Act as aforesaid.

We have heard Mr. K.A. Ansari, learned counsel for the accused and Shri Ashok Verma, learned Dy. Advocate General for the State.

As far as the nature of death of deceased Ashutosh Pandey being homicidal is concerned, it is not in dispute. Even otherwise Dr. Anil Gupta (PW -13) in his evidence has stated that on 14/06/1999 he was working as Block Medical Officer in the primary health Center, Patharia and on that day on a requisition of Patharia Police Station he conducted the autopsy on the dead body of the deceased. On examination of the dead body he found the following injuries:

(i) Incised injury over the left side and the back of neck size 25 cm x 4 cm at center x 5 cm; cutting skin, fascia, muscles of neck, vertebral column, spinal cord, carotid arteries and trachea. Situated from the midline at the level of chin and extends left side and back of neck. Head is attached to the trunk by skin and muscles of right side of the neck. Margins of the wound are clean cut and regular. Blood clot present over the wound.

(ii) Incised injury over face from medial angle of right eye and extends below to the prominence of left side of face size 14 cm x 2 1/2 cm x Penetrating oral cavity. Margins of the wound are clean cut and regular. Blood clot present over the wound.

(iii) Incised injury over left side of face size 12 cm x 2 cm x 1 cm situated from prominence of left cheek and extends backwards to the back of neck. Margins of the wound are clean cut and regular. Blood clot present over the wound.

(iv) Incised injury over back of left wrist joint size 9 cm x 2 cm x 2.5 cm. Cutting bones of left wrist joint. Margins of the wound are clean cut and regular. Blood clot present over the wound.

(v) Incised injury size 3 cm x 2 cm x skin depth over metacarpophalangeal joint of middle finger of left hand over back of left hand. Margins of the wound are clean cut and regular. Blood clot present over the wound.

In the opinion of the doctor the cause of death was cutting of the vital organ "spinal cord" by injury No. 1. Injury No. 1 was ante mortem in nature and homicidal. The other injuries were also ante mortem in nature and homicidal. The post mortem report is Ex.P/19. On 19/07/1999 he gave his opinion on Ex.P/7 that the injuries which were found on the dead body of the deceased could be caused by the sword which was recovered and seized at the instance of the accused.
4. In view of the above evidence of the doctor and also the evidence of Ratna Pandey (PW -1) - wife of deceased Ashutosh Pandey, who has stated that she saw, accused Komal Prasad Pandey assaulting her husband with the sword (Article -F), it stands proved that the nature of the death of deceased Ashutosh Pandey was homicidal.
As far as the motive behind the crime is concerned, according to the prosecution there was dispute between the family of the deceased and the accused/appellant on account of practicing the witchcraft by deceased Raghuvar Pandey.

The prosecution in order to prove the offences against the accused for committing the murder of Ashutosh Pandey has adduced the evidence on the following points:

(A) Ratna Pandey (PW -1), wife of the deceased, has stated that she saw the accused assaulting her husband with a sword. Hariram (PW -4) saw the accused coming out from his house carrying a sword in his hand.

(B) Accused Komal Prasad made extra judicial confession before Siddhanath Dubey (PW -7) that he has committed the murder of Ashutosh Pandey, Raghuvar Pandey and Shantibai.

(C) The weapon of offence - the sword was recovered on the basis of the memorandum (Ex.P/18) of accused Komal Prasad Pandey under Section 27 of the Indian Evidence Act. In pursuance of that memorandum the sword - weapon of offence was recovered from the house of the accused at his instance and seized vide Ex.P/19. The blood stained clothes of the accused were also seized.
5. As far as Point (A) is concerned, Ratna Pandey (PW -1), wife of deceased Ashutosh Pandey, is an eye witness to the incident and has stated in her evidence that on the fateful day at about quarter to nine she was cooking the food in the kitchen. Being Sunday her mother -in -law left the house for watching Krishna Serial on television in the house of one Vijay Dubey. Her father -in -law Raghuvar Pandey and husband Ashutosh Pandey had gone to take bath at Ramsagar Pond. When her son Sunny was not found near her she came out of the kitchen in search of her son and when she went on the terrace of her house she saw that her son was playing. At that point of time when she looked towards the house of accused Komal Prasad Pandey she saw that her husband was lying in the courtyard of the house of the accused and the accused was assaulting him with the sword. She come down along with her son from the terrace and went inside the kitchen. Thereafter she became unconscious. After sometime when she regained consciousness she came out of the house and saw that Varun and Sukhram were standing in the street. She informed them that Komal Prasad Pandey has murdered her husband. She asked them to call her father -in -law and mother -in -law. Then Varuan and Sukhram informed her that her father -in -law and mother -in -law have been given the same treatment which has been given to her husband. Thereafter she along with Sukhram and Varun had gone to see them and saw that her mother -in -law was lying dead. She went to the Ramsagar Pond and saw that her father -in -law was also lying dead. She saw the cut injuries on the bodies of her in -laws. Thereafter she along with Varun and Sukhram went to the house of village Sarpanch and narrated the incident. She has further stated that she went to Patharia Police Station and reported the matter. On the basis of her report, the Police recorded the First Information Report (Ex.P/2) and registered the case. Thereafter Mr. R. Tigga, the Investigating Officer reached the scene of occurrence and got the dead body of her husband photographed which are Exs.P/3A, P/3B and P/3C.
Hariram (PW -4) has stated in his evidence that on Sunday he was placing the paddy straw in the orchard (Badi) of Lallu Gontiya and at that time he saw that Komal Prasad Pandey was coming out of his house and he was going towards the pond carrying the sword in his hand. This witness further stated that his house is near the house of deceased Ashutosh Pandey. Three years prior to the date of the incident the mother of the accused said that Raghuvar Pandit was practicing witchcraft and they would beat him. But Raghuvar said that they were not practicing witchcraft.

Varunlal (P -11) has stated that accused Komal Prasad Pandey is the resident of his village. On the fateful day when he was standing near betel trolley of Chandram Verma son of one Mandakini came and informed that Komal Prasad Pandey has murdered Raghuvar Pandey. After this he went to his house and informed his brother and thereafter he took a Lathi in his hand and went towards the house of Ashutosh Pandey but on the way he saw that the mother of Ashutosh Pandey was lying dead and around 250 persons were gathered in the street. This witness has further stated that the persons standing in the street were saying that Komal Prasad Pandey has committed the murder of the mother of Ashutosh Pandey with sword. As all the persons were frightened, they were not prepared to go to the place where the dead body of deceased Ashutosh Pandey was lying. He along with Vishal and Salikram went towards the courtyard of the accused and saw that the neck of deceased Ashutosh Pandey was cut and blood was scattered on the ground. He deputed 2 -4 persons to keep watch on the dead bodies of Ashutosh Pandey and his mother Shanti bai. Thereafter he reached Ramsagar Pond and saw the dead body of Raghuvar Pandey. He saw the sword injuries on the right hand and the stomach. He further stated that nobody was ready to call the father -in -law of deceased Ashutosh Pandey. He went to the village of the father -in -law of deceased Ashutosh Pandey on his motor cycle and brought the father -in -law and sister -in -law of deceased Ashutosh Pandey. The villagers were so frightened that nobody was ready to keep Ratna Pande, wife of deceased Ashutosh Pandey and her son in their houses. He called the Kotwar for giving the information. This witness is a Police Head Constable. He has stated that during that period he was on leave for one month and was present in his house because he is the resident of village Badra (B).
6. Learned counsel appearing for the accused submitted that Ratna Pandey (PW -1) and Hariram (PW -4) are the created witnesses. They were not present at the place of incident. He further argued that the son of Ratna Pandey is said to be aged 1 -1/2 years. Therefore, it was not possible for him to climb the stairs and go to the terrace of the house. We do not find any force in this argument as the trial Court after giving valid reasons has already rejected this contention. Ratna Pandey (PW -1) has specifically stated that the height of her son was about two feet and he was able to climb. Counsel further submitted that when Ratna Pandey saw the accused causing the injuries with the sword on the body of her husband, the conduct of Ratna pandey was not natural as she came down from the terrace immediately and went inside the kitchen. If she was present then the natural consequence would have been that she would have remained on the terrace of the house till the accused left the house. We do not find any force in this argument also for the reason that Ratna Pandey has not been cross examined on the points as to when she came down from the terrace of the house and whether it was possible for her to come down from the terrace immediately when the accused was on the spot. Learned counsel for the accused further argued that as per the evidence of Ratna Pandey she cried and called the villagers saying that there husband has been murdered, whereas Hariram (PW -4) who is said to be the neighbor of the accused saw the accused coming out of his house carrying sword in his hand. He has stated that Ratna Pandey told him that her father -in -law has been murdered, but this witness has not stated that Ratna Pandey told him that her husband has been murdered. In our considered opinion, in the first instance this contradiction is not of much importance for the reasons that it is just possible that there might have been some mistake in hearing the words uttered by Ratna Pandey. The presence of Ratna Pandey and Hariram at the place of occurrence at the relevant time cannot be doubted. That was the place of the residence of Ratna Pandey and during morning hours it was but natural for her to remain present in the house to do household work. Hariram (PW -4) is also residing in the neighborhood of the house of deceased Ashutosh Pandey and being neighborer his presence also cannot be doubted. In view of this, the contradiction does not create any suspicion or it does not make the presence of these two witnesses doubtful on the scene of the incident. Moreover, Ratna Pandey has not been cross -examined on the point whether she was present in the house or she was somewhere else. Nothing has come out in the cross examination of PW -4 Hariram that he is not a neighbor of Ashutosh Pandey and that his presence in his own house at that point of time is doubtful. Learned counsel further argued that in the site map (Ex.P/6) prepared by Patwari Devendra (PW -5) as also in the site plan (Ex.P/22) prepared by the Investigating Officer R. Tigga (PW -14), it has not been shown where Ratna Pandey (PW -1) was standing at the time of the -incident. The stairs which the son of Ratna Pandey climbed to reach the terrace of the house have also not been shown in the site maps. It is true that these two things have not been shown in both the site maps. But in our considered opinion, on account of the absence of the above things in the site maps, the presence of Ratna Pandey in her house cannot be doubted. As mentioned above it was the morning hours and being a lady it was but natural for her to be in her house. In view of the other ample evidence on record the above circumstances pointed out by the learned counsel for the accused does not create any doubt in the prosecution case.
In view of the evidence of Ratna Pandey (PW -1) it stands proved that accused Komal Prasad Pandey has committed the murder of Ashutosh Pandey by causing the injuries to him with a sword. The evidence of Ratna Pandey is natural and inspires confidence in the mind of the Court. Learned counsel appearing for the accused is not able to point out any infirmity in the evidence of this witness which makes the evidence of this witness doubtful and even in the cross examination the defense has not been able to shatter the evidence of this witness. PW -4 Hariram has categorically stated that he himself saw the accused on the fateful day at the relevant time coming out of his house carrying the sword in his hand. Therefore, in view of the evidence of these two witnesses the prosecution has proved that accused Komal Prasad Pandey assaulted the deceased with the sword and committed his murder.
7. As far as the question of extra judicial confession made by accused Komal Prasad Pandey before PW -7 Siddhanath Dubey is concerned, PW -7 has stated in his evidence that he was working in the State of Orissa, but during those days he was present in his village on leave. In the morning, at about 9 a.m. he was going towards the house of one Mukesh and on the way he saw the accused coming from the opposite side carrying the sword in his hand. He has further stated that he had wished the accused, and the accused told him that he had committed three murders. He enquired from the accused as to who are those three persons whom he had murdered. The accused replied that he had murdered Ashutosh Pandey, Shanti Bai and Raghuvar Pandey. Thereafter, he proceeded further and saw the dead body of Shanti Bai in the street in front of the house of Lallu Dubey. He saw that the face of the deceased was cut and blood was coming out from her stomach. When the accused turned and started coming back one old person who was sitting there asked him to run away because Komal Prasad Pandey was coming back. He ran away. He reached the house of Mukesh Pandey and as he was frightened he was provided with water. Thereafter, he informed Mukesh Pandey about the three murders. He stayed there for half an hour and when he came out of the house, he saw that the children of the village were shouting. Thereafter, along with Sarpanch he went towards the pond and saw the dead body of Raghuvar Pandey. He found that the stomach of the deceased was cut. Thereafter, they went to the courtyard of accused Komal Prasad Pandey and saw the dead body of Ashutosh Pandey. Learned counsel for the accused argued that this witness is also tutored witness and the evidence of this witness does not inspire confidence in the mind of the Court. However, we are not convinced by the arguments of the learned counsel for the accused. This witness has been cross -examined by the counsel for the defense. In the cross examination nothing has elicited by the defense which makes the evidence of this witness doubtful or makes his presence on the scene of occurrence doubtful. He has specifically stated that he was the resident of that village and during the relevant period he came to the village for arranging Bhagawat Katha at his residence. He further stated that the maternal uncle of the accused namely, Sanat Kumar Tiwari delivered the sermons of Bhagwat Katha at his residence. Nothing has been elicited in his cross examination to show that this witness had any animosity with the accused or had any interest in the family of the complainant. His evidence appears to be natural. Therefore, we are convinced that the accused made extrajudicial confession before this witness that he committed the murder of Ashutosh Pandey and others. Moreover, this witness saw the accused carrying the sword in his hand immediately after the incident. Therefore, there is no reason for us to disbelieve the evidence of this witness. The trial Court has rightly placed reliance on the evidence of this witness. We are of the opinion that the prosecution has been able to prove that the accused made extra judicial confession before this witness that he committed the murder of Ashutosh Pandey.
As far the recovery of the sword (Article -F) - the weapon of offence and the clothes of the accused/appellant are concerned, PW/ -14 the Investigating Officer R. Tigga has stated that on 14 -6 -1999 accused/appellant Komal Prasad Pandey gave a memorandum (Ex. -P/14) in the presence of the witnesses namely, Kailash Sharma and Virendra Sharma. The accused/ appellant gave the information that he had kept the blood stained sword concealed in his house which he would get recovered. After recording the memorandum (Ex. -P/18), the Investigating Officer took the accused/appellant along with the witnesses to the house of the accused. The sword was recovered and seized under Ex. -P/19 which bears his signature, the signatures of the witnesses and the signature of the accused/appellant from B to B, A to A, C to C and D to D, respectively. On 14 -6 -1999, the accused/appellant produced his clothes namely, one T -shirt of dark blue color and one full pant of blackish blue color which was stained with blood. They were seized under Ex. -P/20 which bears the signature of the Investigating Officer from B to B and the signature of the accused/appellant from C to C, respectively. The T -shirt is Article E -1 and full pant is Article E -2. Kailash Sharma (PW -12) has stated in his evidence that accused/appellant Komal Prasad Pandey gave the memorandum (Ex.P/18) to the Investigating Officer in his presence and said that the sword which he had used was kept in his house. Then the police, the accused/appellant and he himself went to the house of the accused and the accused after the opening the lock of the room, took out the sword and handed over the same to the police. The sword was seized under Ex. -P/19 which bears the signature of Kailash Sharma from A to A. The police also seized the clothes of the accused/appellant under Ex. -P/20. The other seizure witness namely, Virendra Sharma has not been examined before the Court.
8. Learned counsel appearing for the accused/appellant submitted that in view of the evidence of Kailash Sharma (PW -12) the memorandum (Ex. -P/18) is not proved as in his evidence he has not stated verbatim the words which are written in the memorandum given by the accused at portion marked as K to K. We do not find any force in the argument of the learned counsel for the accused/appellant because the Investigating Officer R. Tigga has proved the memorandum Ex. -P/18 by giving the same words which were spoken by the accused/appellant which are written in the memorandum Ex. -P/18. Even otherwise, Kailash Sharma (PW -12) has stated that the accused/ appellant stated that the weapon was kept in his house and he would produce the same. Therefore, in view of the evidence of the Investigating Officer, and Kailash Sharma (PW -12) the memorandum Ex. -P/18 stands proved.
Learned counsel for the accused/appellant further argued that Kailash Sharma is not a witness of the same locality and he is the resident of village Nevra. Therefore, he is a created witness. Kailash Sharma (PW -12) has specifically stated in his evidence that being the friend of the father -in -law of the deceased namely, Rajendra Prasad Dixit, he came to know about the death of the deceased Ashutosh Pandey. He had come to village Badra (B) and he was present on the spot. Therefore, the presence of this witness at the time of recovery is not unnatural and his evidence cannot be disbelieved. Moreover, it has come in the evidence of Varun Lal (PW -11) that as the accused/appellant had committed three murders, the people of the village were so terrified that nobody was coming forward to render any help in the investigation. Even they were not ready to enter the house of the accused/appellant to see the dead body of Ashutosh Pandey. Therefore, in the given situation, we do not find any infirmity in the evidence of Kailash Sharma. Learned counsel for the accused/appellant further submitted that the recovery of the sword from the house of the accused/appellant is not genuine and the same is fake. As the accused/appellant was knowing that the sword, the weapon of offence, was stained with blood and the same was not a precious item, therefore, in the ordinary course of nature in all probabilities it cannot be believed that any accused would keep the weapon of offence under the lock in his house. We do not find any force in this argument of the counsel for the accused/appellant, as it has come in evidence that the mother and father of the accused/appellant had already gone to some other village since last fifteen days prior to the date of incident and the accused/appellant was alone in his house. Moreover, it is not possible to guess the conduct and behavior of the accused/appellant as to how he behaved and conducted himself. It depends upon the nature of each individual and the circumstances prevailing at the particular point of time how one person behaves and conducts himself in a particular situation. The accused/appellant may have brought that sword and kept in his house under the lock and key for the reason that the sword was belonging to him. Therefore, it cannot be said that this circumstance is so unnatural. Even otherwise, the accused/appellant has simply said that this part of the evidence is false and he has not produced the sword. He has not given any explanation as to from where the sword was brought and recovery was effected from his house. Moreover, the recovery memo (Ex. -P/19) bears his signature. Therefore, the recovery of the sword from the house of the accused/appellant cannot be considered as doubtful. The learned counsel for the accused/appellant then tried to impress upon the Court that there is variance about the size of the sword in the recovery memo and the doctor's report on Ex. -P/7. In the recovery memo (Ex. -P/19) it is nowhere mentioned that the sword was actually measured at the time of the recovery. It seems that the length of the sword was written as 2 1/2 feet and width of the sword was shown as 11/2 inch as per the approximate calculation only. In Ex. -P/7, Dr. Anil Gupta (PW -13) has mentioned that the total length of the sword was 92 cm. Which comes to about three feet. The width of the blade portion of the sword was shown as 4 centimeter which comes to 11/2 inch. Therefore, we do not find any substance in the argument of the learned counsel for the accused/appellant. Shri Ansari further submitted that the sword was lying open in the police station from the date of recovery till 12 -7 -1999 when it was sent to the doctor for his opinion and the doctor gave his opinion on 19 -7 -1999. In this connection the Investigating Officer R. Tigga (PW -14) in para -24 of his cross -examination has stated that the sword was recovered on 14 -6 -1999 and it was sent to the doctor for his opinion on 12 -7 -1999 and it is incorrect to say that the sword, which was shown to him, was not the same one which was recovered. Dr. Anil Gupta (PW -13) has stated in para -8 of his evidence that he examined the sword (Article -F) on 19 -7 -1999 and the bloodstains were present on it. After examination of the sword he affixed a label under his signature. The injuries 1, 2, 3, 4 and 5 which were found on the dead body of the deceased could be caused by this sword. He has stated that when the sword was brought to him for its examination it was not bent from the corner but it was straight. On the date of recording his evidence the sword which was kept in the jute bag was in U -shape and no bloodstain was present on the sword and the label which he affixed on the sword was also not present on it. It is true that the sword was straight but at the end it was slightly curved. Learned counsel for the accused/appellant submitted that in view of the evidence of the doctor, it appears that it was not the same sword which was examined by the doctor. We are not convinced with the argument of the learned counsel for the accused/appellant as the argument is misconceived for the reason that when the articles were brought to the Court the sword was kept in a bag, therefore, there was every chance that the label affixed by the doctor may have fallen down while handling the article and the sword is bent. In para -8 of the evidence, Dr. Sunil Gupta has specifically stated that the Article -F (sword) was the same which he examined and merely on the basis of delay in sending the sword to the doctor it cannot be said that it was not the same sword.
9. Now coming to the point that no human blood was found on the sword and on the clothes of the accused which were seized under Ex. -P/20, in the report (Ex. -P/14) of the Forensic Science Laboratory it has been mentioned that the blood was found on the sword (Article -F) and on the T -shirt and full pant of the accused/appellant (Articles E -1 and E -2). However, as per the report (Ex.P/15) of the Serologist the origin of the blood could not be ascertained as the same was disintegrated. But, merely on this ground it cannot be held that the weapon of offence and the clothes do not connect the accused/appellant with the murder of Ashutosh Pandey. The accused/appellant is not connected with the crime only on the basis of this circumstantial evidence namely, the recovery of the aforesaid articles. As discussed in the previous part of the judgment there is ample evidence of the eyewitnesses who saw the accused/ appellant assaulting the deceased with the sword. Further the accused/ appellant made extra judicial confession before the Siddhanath Dubey (PW -7). There is evidence of Kailash Sharma (PW -12) and R. Tigga (PW -14) that the sword and the clothes of the accused were recovered from the possession of the accused/appellant and as per the report Ex. -P/14 the clothes (Articles E -1 and E -2) of the accused/appellant and the sword (Article -F) were found stained with blood. This circumstantial evidence is corroborated by the other evidence on record.
Now coming to the question of motive, in the first information report (Ex.P/2) Ratna Pandey (PW -1) has stated that the accused and his family members were suspecting that her family members were practicing witchcraft and on account of that fifteen days prior to the date of incident some quarrel took place between them. Ratna Pandey in para 7 of her evidence has stated that for the last ten years the family members of the accused were having animosity against her in -laws on the ground that they were practicing witchcraft. Four days prior to the date of incident the accused and his brother Ashutosh Pandey had given the threat that they would kill the family members of Ratna Pandey as her family members were practicing witchcraft. In view of the above evidence it stands proved that the family of the accused was having animosity against the family of the deceased.

As far as the question of the Commission the offence punishable under Section 25(1 -B)(b) read with Section 4 of the Act is concerned the learned counsel for the accused/appellant has not argued anything. Even otherwise in view of the above conclusions it is proved that the accused used the sword as the weapon of offence and the same was recovered from his possession which is of a size not permissible under the Arms Act. As per the notification No. 6312/ 6552 -11 -20(1) dated 22nd November 1974 issued by the State of Madhya Pradesh, nobody can keep such an arm without valid license and the accused was not in possession of any license. Therefore the offence under Section 25(1 -B)(b) read with Section 4 of the Act stands proved against the accused/appellant and the conclusion of the trial Court in convicting the accused for the said offence does not call for interference by this Court and the same is based on legal evidence.
10. In view of the foregoing reasons, we are of the opinion that the prosecution has established the case beyond reasonable doubt that the accused assaulted deceased Ashutosh Pandey with the sword (Article -F) and committed his murder on the morning of 13/06/1999. The learned Additional Sessions Judge after placing reliance on the prosecution evidence and believing the prosecution witnesses held the accused/appellant guilty of committing the murder of Ashutosh Pandey and was keeping the sword in his possession without any valid license. We do not find any reason to interfere with the findings recorded by the learned trial Court.
Now coming to the question of sentence awarded to the accused/ appellant, learned counsel for the accused/appellant submitted that this is not a case which falls within the category of rarest or rare cases. The accused belongs to a very poor family and there are no antecedents of the accused to show that he is a man of criminal background. Moreover, he is a young man, and it appears that under the emotions the accused has committed this heinous crime because his family was suspecting that the family of the deceased persons were practicing witchcraft and their lives had become miserable. Counsel further submitted that in Chhattisgarh State in rural areas the illiterate and backward population is staying where the old superstitions are prevailing and certain persons were practicing witchcraft and they can harm others by practicing witchcraft. He submitted that one of the reasons for commission of crimes in the villages is such superstitions and the beliefs prevalent among the villager. He placed reliance on the judgment of the Supreme Court in Bachhitar Singh and another Vs. State of Punjab reported in 2002 AIR SCW 4061.

On the other hand, Shri Ashok Verma, learned Dy. Advocate General, submitted that three cold blooded, brutal and ghastly murders have been committed by the accused and on account of that the whole village was terrified. Therefore, it is necessary that the accused is awarded with capital punishment. Therefore, the sentence of death awarded by the learned trial Court is correct. He placed reliance on the judgment of the Supreme Court in Ravi alias Ram Chandra Vs. State of Raj as than reported in 1996 Cr. L.R. (SC.24).
11. In order to appreciate the arguments advanced by the learned counsel appearing for the parties, the relevant law on the point is Section 354(3) of the Criminal Procedure Code which lays down that "when the conviction is for an offence punishable with death or, in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence." This section has been interpreted by the Hon'ble Apex Court time and again in many cases and the general rule which has been laid down by the Hon'ble Apex Court is that life imprisonment is a rule and death penalty is an exception i.e. the death penalty can be awarded in the exceptional cases only. The landmark judgment on this point is Bachan Singh Vs. State of Punjab reported in (1980) 2 SCC 684 in which Hon'ble Apex Court after considering all the aspects and constitutional validity of this provision laid down that (i) the extreme penalty of death should not be inflicted except in the gravest cases of extreme culpability (ii) before opting for the death penalty the circumstances of the offender also required to be taken into consideration along with the circumstances of the crime. (iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether insufficient punishment having regard to the relevant circumstances of the crime (iv) a balance sheet of the 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. Hon'ble Apex Court also referred to the aggravating circumstances in para 202 of the judgment and mitigating circumstances in para 206 of the judgment. This judgment was again considered in the case of Machhi Singh and others Vs. State of Punjab, reported in (1983) 3 S. C.C. 470 in which the principle of rarest of rare case was again reiterated and it was held that the death sentence can only be inflicted in case where the murder was cold blooded, calculated and gruesome and in which the collective conscience of the community 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. Death sentence can be awarded 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; when the murder is committed for a motive which evinces total depravity and meanness e.g. murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis -a -vis whom the murder is in a dominating position or in a position of trust or murder is committed in the course of betrayal of a mother land, 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 or in cases of bride burning or dowry deaths or when the person whose murder is committed is an innocent child or, a helpless woman or old or infirm person.
Again in the case of Allauddin Mian and others Vs. State of Bihar, reported in (1989) 3 S.C.C, 5 Hon'ble Apex Court considered section 354(3) of Cr. P.C. and reiterated the principles laid down in earlier decisions and held that holding the reasons for award of the death sentence are mandatory. Sub section (3) of section 354 casts a heavy duty on the court to explain its choice why such sentence is being awarded. The special reasons clause in that sub section is a sufficient safeguard against arbitrary imposition of the extreme penalty and unless and until Court reaches the conclusion that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, it should not impose the capital punishment. Only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective conscience of the community, that it would be permissible to award the death sentence.

This aspect was again considered by the Hon'ble Apex Court in the case of State through Superintendent of Police CBI/SIT Vs. Nalini and others reported in 1999 (5) SCC 253 and in the case of Om Prakash Vs. State of Haryana reported in 1999 (3) SCC 19. In that case a member of a paramilitary force who has killed seven members of the family was not awarded extreme penalty for the reason that he had been laboring under the strain that he and the members of his family had been suffering due to injustice being meted out to them by the family of the deceased. It was considered to be mitigating circumstances in that case. In the case of State of Punjab Vs. Gurmej Singh (supra) Hon'ble Apex Court again held that before awarding the death penalty the Court has to consider the motive of the crime, manner of the assault, the impact of the crime on the society as a whole, the personality of the accused, the circumstances and the facts of the case as to whether the crime committed is were satisfying and kind of lust, greed or in pursuance of any organized anti social activity or by way of organized crime, drug trafficking or the like or the chances of inflicting the society with a similar criminal act that is to say vulnerability of the members of the society at the hands of the accused in future or commission of murder which may be shocking to the conscience.

The Hon'ble Apex Court in Bachhitar Singh (supra) has held that the accused murdered eight members of the family out of the land dispute. The Court reached the conclusion that apart from the incident in question there is no evidence on record to suggest about the past conduct of the accused. There was no evidence also to suggest that the appellant was a menace to society and there was no reason to believe that they cannot be reformed or rehabilitated. In the said case, though the crime was committed in heinous and brutal manner, sentence of death was commuted to RI for life to give appellants a chance to repent and be reformed or rehabilitated and become good law abiding citizens.

The sum and substance of the principles enumerated by the Hon'ble Apex Court extracted above, is that the death penalty can be awarded only in rarest of rare cases and in exceptional cases looking to the facts and circumstances of the particular case, examples of which have been cited in the above referred cases and where looking to the facts and circumstances the awarding of the life imprisonment is inadequate based on the above law by the Hon'ble Apex Court.

We have considered the submissions made by both the counsel. As per the prosecution case, it is evident that the accused and the deceased were closely related. Even their houses were adjacent. The courtyard was common and they were cousins. The offence appears to have been committed by the accused on account of suspicion that the family of the deceased was practicing witchcraft and some quarrel also took place between the two families fifteen days prior to the date of incident. Therefore, by any stretch of imagination, in our opinion this crime cannot be considered as crime committed by the accused for any gain or lust and there is no evidence on record, which shows that the accused is a menace to the society. Therefore, we are of the opinion that in view of the above principles laid down by the Hon'ble Apex Court, specifically in the cases of Om Prakash (supra) and Bachhitar Singh and another (supra), we are of the considered opinion that the present case cannot be considered as the rarest of the rare cases. As such, capital punishment awarded by the learned trial Court to accused Komal Prasad Pandey cannot be sustained.
12. In the result, the convictions of accused/appellant for the commission of the offences under Section 302 of the Indian Penal Code and Section 25(1 -B)(b) read with Section 4 of the Act are maintained. However, the sentence of death is set aside. In its place, we sentence the accused/appellant to undergo imprisonment for life and to pay a fine of Rs. 1,000/ - (Rupees One Thousand Only) in default of payment of fine to further undergo simple imprisonment for three months. We maintain the sentence imposed by the learned Additional Sessions Judge on the accused/appellant for the commission of the offence Section 25(1 -B)(b) read with Section 4 of the Act.
Thus the appeal of the accused/appellant is partly allowed to the extent indicated above and the reference for confirmation of the death sentence stands rejected.



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