- (1.) PRAFULLA C. Pant, J. This reference has been made under Section 366 of Code of Criminal Procedure, 1973 (herein-after referred as Cr. RC.) by the learned Sessions Judge, Udham Singh Nagar, for confirmation of death sentence, awarded against the convict Vijay Kumar Bathla under Section 302 of Indian Penal Code, 1860, (herein after referred as I. PC. ). The convict has also preferred an appeal under Section 374 (2) of Cr. RC. against the judgment dated 05-10-2005 and order of sentence dated 06-10-2005, passed in Sessions Trial No. 271 of 2004 by learned Ses sions Judge, Udham Singh Nagar, whereby he has been convicted under Section 302 of I. P. C. and sentenced to death. Both, the reference and the ap peal are being disposed of by this com mon judgment.
(2.) WE heard learned counsel for convict/appellant and learned Public Prosecutor, and perused the entire record. Prosecution story in brief is that about seven years before the date of the incident, convict/appellant Vijay Kumar Bathla got married to Rekha alias Sapna (one of the deceased ). He was extrava gant and used to take alcohol. He used to demand money from his wife and her relatives. The couple had a daughter named Shakshi (another deceased ). On 16-04-2004, P. W. 1 Shyam Chandra Arora (informant), brother of Rekha alias Sapna came to her house in village Surajpur No. 2, Gadarpur, along with his brother-in-law (SAALA) P. W. 2 Breet Kumar. On that evening also convict/ap pellant Vijay Kumar Bathla asked for money from P. W. I Shyam Chandra Arora, who declined to give further money, stating that he has already given him time and again earlier, and it is not possible for him to give any more. Rekha alias Sapna, wife of convict/appellant, also supported her brother. After taking meals, P. W. I Shyam Chandra Arora slept in a room with PW. 2 Breet Kumar in the house of his sister in village Surajpur No. 2. The convict/appellant along with his wife Rekha alias Sapna and his daughter Sakshi slept in their room, which was adjoining to the room in which informant and his brother-in-law were sleeping. Next day on 1/-04-2004, at about 7:30 A. M. , PW. 1 Shyam Chandra Arora, heard shrieks of his sis ter (Rekha alias Sapna) from the adjoin ing room. He along with his brother-in-law (SAALA) P. W. 2 Breet Kumar rushed to the room of his sister and found that convict/appellant Vijay Kumar Bathla, armed with an axe was giving blows on the person of his wife Rekha alias Sapna. By then, Sakshi, a girl child of four years was already lying in a pool of blood. On the shouts of both P. W. 1 Shyam Chandra Arora and P. W. 2 Breet Kumar, the convict/appellant Vijay Kumar Bathla fled from the room with his axe. Rekha alias Sapna also died on the spot of the injuries received by her. At about 10:30 A. M. on the same day i. e. 1/-04-2004, P. W. 1 Shyam Chandra' Arora lodged First Information Report (Ext. A-l) with the Police Station Gadarpur, which was at a distance of 4 Kms. from the place of occurrence. On the basis of said report, P. W. 4 Head Constable Gopal Singh Bisht, prepared Check Report (Ext. A-6) and made an entry in General Diary (extract of which is Ext. A-7 ). A crime No. 70704 was registered under Section 302 of I. P. C. against accused Vijay Kumar Bathla. P. W. 10 Sub-Inspector Praveen Kumar Tyagi of police station Gadarpur, started investigation of the crime and recorded the statement of Shyam Chandra Arora and proceeded on the very day i. e. 1/-04-2004, for the place of incident. He took the dead bodies into his possession and prepared Inquest Reports (Ext. A-2 and Ext. A-3 ). He also got prepared po lice form No. 13 (Ext. A-15 and Ext. A-20), sketch of the dead bodies (Ext. A-13 and Ext. A-18), sample seal (Ext. A-17) and letters to Chief Medical Officer (Ext. A-16 and Ext. A-21), requesting for post mortem examination of the dead bodies. On the very day i. e. 1/-04-2004, at about 3:00 P. M. Vijay Kumar Bathla, was arrested, and an axe (Ext. 1) was recovered at about 3:30 RM. , on his pointing out. A recovery memo (Ext. A-5) was prepared, which was signed also by accused Vijay Kumar Bathla. (In said recovery memo, a con fessional statement of accused is re corded by police, which part, in the document, is not admissible in evidence as the same is said to have been given to the police ). Autopsy on the dead bodies was conducted by P. W. 7 Dr. Anil Chandra Sah on that very day i. e. 1/-04-2004, at 4:10 RM. and 4:40 RM. , who prepared post-mortem examination reports- Ext. A-10 of dead body of Smt. Rekha alias Sapna and Ext. A-11 of dead body of Sakshi, the female child. The Investigating Officer took the blood stained bed sheet and cushion, from the place of occurrence, into his possession and recovery memo Ext. A-4 was pre pared. After the arrest of the accused, his blood stained under-wear and under shirt, were also taken into possession and recovery memo (Ext. A-12) was got prepared by the Investigating Officer. A , site plan (Ext. A-22) was also prepared by him. After concluding the investiga tion, a charge sheet (Ext. A-24) was submitted against accused Vijay Kumar Bathla to the Chief Judicial Magistrate. The blood stained clothes namely, bed sheet, underwear, under-shirt and blood stained axe, were sent to Forensic Labo ratory, Agra, from where report (Ext. A-25) was received by the court in which it was reported that on examination of all the articles sent, these were found containing human blood of Group 'b'. Learned Chief Judicial Magis trate, on receiving the charge sheet, reg istered the same and after giving neces sary copies to the accused, as required under Section 207 of Cr. RC. , commit ted the case to the Court of Sessions for trial. After hearing the prosecution and the defence, a charge of offence, pun ishable under Section 302 I. P. C. was framed against the accused Vijay Kumar Bathla, who pleaded not guilty and claimed to be tried. On this, prosecution got examined PW. 1 Shyam Chandra Arora, informant and eye-witness, P. W. 2 Breet Kumar-eye-witness, P. W. 3 Mukhtyar Arora (another brother of deceased- Rekha alias Sapna), P. W. 4 Head Constable Gopal Bisht, who prepared the check report (Ext. A-6) on the basis I of the First Information Report (Ext. A-11) and also made entry in the General Diary (extract of which is Ext. A-7), I P. W. 5 Ramesh, scribe of the report (Ext. I A-1), P. W. 6 Satish Kumar, brother-in-law (SAARHOO) of the accused, P. W. 7 Dr. Anil Chandra Sah, who conducted autopsy on the dead bodies and prepared post mortem examination reports (Ext. A-10 and Ext. A-11), R W. 8 Raj Kumar,a witness before whom under-wear and under-shirt of the accused were taken into possession by the police and recovery memo (Ext. A-12) was prepared, P. W. 9 Madan Lal, another brother-in-law (SAARHOO) of the accused, who has stated that accused was extravagant and Bused to demand money, and P. W. 10 Sub-Inspector Praveen Kumar Tyagi, the Investigating Officer, who got prepared the inquest reports (Ext. A-2 and Ext. A-3) and sketches of the dead bodies (Ext. A-13 and Ext. A-18), police form No. 13 (Ext. A-15 and Ext. A-20), sample seal (Ext. A-17), Chalans (Ext. A-14 and Ext. A-21) requesting Chief Medical Of ficer for autopsy on the dead bodies, site plan (Ext. A-22), recovered the blood stained clothes and prepared memo (Ext. A-4), recovered the blood stained axe and prepared memo (Ext. A-5), gave information of the arrest of accused to his father (memo of which is Ext. A-23) and submitted the charge sheet against the accused (Ext. A-24 ). All the oral as well as documentary evi dence was put to the accused Vijay Kumar Bathla under Section 313 of Cr. RC. in reply to which he has stated that the witnesses have given evidence against him due to the enmity. No evi dence in defence was adduced by the accused even after being given the op portunity for the same. After hearing the prosecution and the defence, learned Sessions Judge, Udham Singh Nagar, found accused Vijay Kumar Bathla guilty of offence punishable under Section 302 of I. P. C. and convicted him on 05-10-2005, and heard on sentence on 06-10-2005 and sentenced him to death. Learned Sessions Judge, directed the record to be placed before this Court for confirmation of sentence, as required under Section 366 of Cr. RC. Convict Vijay Kumar Bathla also preferred ap peal against the said judgment, who was convicted and sentenced to death. Both, the reference and the appeal are con nected and taken together for hearing and disposal.
(3.) BEFORE further discussions, it is necessary to mention the ante mortem injuries found on the person of deceased Rekha alias Sapna, and Sakshi, a fe male child. Ext. A-10 prepared on 1/-04-2004 at 4:10 P. M. by P. W. 7 Anil Chandra Sah, who conducted autopsy on dead body of Rekha alias Sapna, shows following ante mortem injuries on her person : 1. Incised wound measuring 7cm x 3cm x bone deep present ob liquely over left side face, over left mandible. On further explo ration of the wound all the mus cles of face over mandibles cut, vessels and nerve cut, left side gum cut with avulsion of left lower incisor, canines, pre molar, molar teeth, left side mandible cut and soft tissue and vessels of oral cavity below cat side of the tongue cut, oral cavity filled with clot and blood. There was haem orrhage with clot around the cut muscles and vessels. 2. Incised wound measuring 10cm x 5cm x bone deep and tissue deep present obliquely over right side neck and left side margin of man dible reaching up to mid of chin in the center. Margin of wound is contused, on further exploration of this wound all the muscles of neck cut, all the major vessels, nerve of neck cut, right cut present on oral cavity of this wound, all the muscles, tissues and vessels cut. Right side mus cle over mandible cut, vessels cut, right gum cut with avulsion. Right canine, pre molar and molar teeth, right side mandible cut, tis sue of oral cavity below mandible cut. There were clots with haem orrhage. 3. Incised wound measuring 6cm x 2cm x cauity deep present trans-versely on the right side of inter costal space of chest, margin of wound is contused. On further exploration of this wound there is huge sub cutaneous haemorrhage, sub cutaneous tissue cut, inter costal muscular cut. Right lung upper lobe pleura cut and right upper lobe cut, thoracic cavity filled with 2 liter of blood. There was haemorrhage in lung tissue with clot also. 4. Incised wound measuring 6cm x 0. 9cm x soft tissue deep to 3cm x 0. 2cm x soft tissue deep present on the right side neck and right upper part of chest in an area of 10cm x 13cm. On further exploration of these wounds, there was huge sub cutaneous haemorrhage soft tissue cut, mus cles and vessels cut and inter mus cular haemorrhage present. On internal examination of the or gans of generation, a gravid about 10 weeks size was found. Cause of death of Smt. Rekha alias Sapna, according to the Medical Officer (P. W. 7 Dr. Anil Chandra Sah) was shock and haemor rhage due to ante mortem injuries. Ext. A-11 prepared on 1/-04-2004 at 4:40 RM. by the same Medical Officer (P. W. /- Dr. Anil Chandra Sah) after conducting autopsy on dead body of Sakshi, shows following ante mortem injuries on her person : 1. Incised wound measuring 6cm x 2cm bone deep, present obliquely over left side mandible (face) and left side neck, reaching up to mid of chin. On further exploration all the muscles of neck and over man dible cut, all the big vessels, nerve cut, all the muscles of neck cut, cat side of C3 vertebrae column cut, spinal cord cut, left side mandible cut and fractured, there was sub cutaneous haemorrhage and inter muscular haemorrhage. There was dot and haemorrhage present around cut mandible and cut 3rd cervical vertebrae. 2. Incised wound 3cm x 1cm x soft tissue deep over right mandible. On further exploration sub cut tissue, muscles of neck, vessels of neck cut. 3. Incised wound measuring 5cm x 2cm x soft tissue and muscles deep present. Left side neck placed obliquely 2cm below mid of left mandible. On further ex ploration, of this wound muscles of neck, vessels of neck cut. There was haemorrhage and haemotoma present and all around the neck vessels cut. 4. Incised wound 4cm x 2cm x tis sue muscle deep present ob liquely. Tailing present on the medial side of the neck. On fur ther exploration of this wound, all the vessels, nerve cut, there is sub cutaneous haemorrhage and inter muscular haemorrhage present with large clot present around cut vessels of left side of neck. 5. Multiple incised wounds measuring 3cm x 0. 2cm x soft tissue deep to 02 x. 1cm x soft tissue deep present on the left cat and post aspect of left side neck in an area of 6cm x 8cm adjacent to left mandible just above the injury No. 4. On further exploration of wound there is sub cut tissue cut, at places muscles cut, small ves sels cut with sub cutaneous inter muscular haemorrhage with haemotoma around cut vessels. Cause of death of Sakshi, accord ing to the Medical Officer (FW. 7 Dr. Anil Chandra Sah) was shock and haemor rhage due to ante mortem injuries.;