I. S. Mathur, J. - (1.) THIS Capital Sentence Reference No. 1 of 1994 and Criminal Appeal No. 573 of 1994 arise from the judgment and order dated 17.12.1994, passed in Sessions Trial No. 191/90 whereby the appellant, Sunder Lal Pasi has been convicted for offence under Section 302,I.P.C. and Section 201, I.P.C. and sentenced to death on the first count and to five years rigorous imprisonment on the second count.
(2.) THE reference has been made by the learned Additional Sessions Judge for confirmation of death sentence as required by Section 366, Cr. P.C. THE appellant Sunder Lal has filed the aforesaid appeal praying for setting aside the judgment and order. The deceased Phoolmati was the wife of the accused. Sunder Lal and deceased Manju, aged six months, was their daughter. The complainant, Chandrapal, is the real brother-in-law of the accused. According to the prosecution, the appellant is a man of bad character and because of this reason, he left his village Baunamau, police station Makhi, District Unnao and came to live in the house of the complainant in village Singrausl. He was habituated to drinking and, quite often, he used to assault the deceased Phoolmati after drinking in the evening. On 4.11.1989 at 8 p.m., he came drunk and started assaulting the deceased. He also abused her and said that he is fed up with her and that he will kill her. The complainant and others of the family made peace between them and thereafter, the complainant and others went to sleep. At about 12.00 in the night, the complainant heard the shout of his sister that she was being killed. The complainant and his wife rushed to the room of the appellant and found him sitting on Phoolmati and pressing her neck. The complainant and his wife forcibly removed the accused and he started to quarrel with them. He turned out the complainant from the room. At about 2.00 p.m., Abdul Hassan and Ratan Lal of the village were coming back from their fields when they saw the accused with a dead-body on his shoulder. These witnesses flashed their torch light after which the appellant threw the dead-body and ran away. On hearing the shout, the complainant and his wife came out and they also saw the appellant running away. They tried to catch-hold of the appellant but he threatened that he will kill them and because of this fear, they could not apprehend him. A First Information Report was lodged by the complainant at police station Singrausi at 4.30 a.m. on 5.11.1989 in respect of the murder of Phoolmati and a case under Section 302, I.P.C. was registered. The dead body of Manju was recovered later and information thereto was also given by the complainant. After conducting inquest, the dead bodies were sent for post-mortem examination. On postmortem examination on the dead-body of Phoolmati, Dr. L. D. Shukla (P.W. 5) found the following anti -mortem injuries :- "Contusion with multiple abrasion in area of 14 cm x 9 cm. on front of neck at region of Thyroid cartilage. Few abrasions are semilinear in shape on cutting sub-cutaneous tissue is haemorrhagic." The Doctor has found the membranes and brain congested. He also found pleura, larynx and trachea congested. Semi-digested food and gases were found to be present in small intestine and faecal matter and gases were in large intestine. According to the Doctor, the cause of death was asphyxia as a result of strangulation. On post-mortem examination of Manju conducted on 7.11.1989 at 3.15 p.m., Dr. S. M. Krishna (P.W. 3) found the following anti mortem injuries : 1. Contusion on right side of lower chest 6 cm. x 2 cm. 2 Contusion on left side of chest in lower part 4 cm. x 3 cm. The body was in a decomposed state. Both eyes were absent and only ears were present. Brain was absent. Frontal bone and face bones including mandible were found to be absent. He also found 7th, 8th and 9th rib fractured on right side. 7th and 8th ribs on the left side was also found to be fractured. According to the Doctor, the cause of death was shock and haemorrhage as a result of anti- mortem injuries and time since death was two-and-a-half days.
(3.) AFTER completing investigation, a charge-sheet was submitted against the appellant for offences under Section 302, I.P.C. in respect of Phoolmatl and Manju and also for offence under Section 201, I.P.C. in respect of Manju. The learned Sessions Judge framed one composite charge under Section 302, I.P.C. and another charge under Section 201, I.P.C. We have heard learned counsel for the appellant and the learned State Counsel. The factum and the time of death are not disputed and are clearly established from the evidence on record. The statements of the witnesses, P.W. 1 Chandra Pal and P.W. 3 Ratanlal as also the post-mortem reports clearly establish that the deceased Phoolmati and Manju were killed on the night of 4/5.11.1989 at about 2.00 p.m.;