MATHUR, J. - (1.) THE appellant Bablu @ Mubarik Hussain was charged for offence under Section 302 IPC for murdering his wife Anisha aged 28 years, elder daughter Gulfsha aged 9 years, younger daughter Nisha aged 6 years, another daughter Anta @ Munni aged 4 years and youngest son Babu aged 2-1/2 years. The Additional Sessions Judge (Fast Track), Nagaur by `judgment dated 9. 4. 2006 having found the charge for offence under Section 302 IPC proved has made the instant reference for the confirmation of death sentence.
(2.) THE prosecution case is that on 10. 12. 2005 at about 6 A. M. PW. 11 Alladeen submitted a written report at Police Station, Nagaur stating inter alia that in the evening of 9. 12. 2005 the appellant Bablu gave beating to his wife and children. But they were rescued on his intervention. He described Bablu as a person of notorious character. It was further averred that in the morning at about 5 his brother appellant Bablu came out of the house shouting and making declaration that he has killed all the five bastards by strangulation one by one ....Vernacular Text Ommited.... He killed his wife Anisha, elder daughter Gulfsha, Younger daughter Nisha another younger daughter Anta @ Munni and the youngest son Babu. The dead bodies were found placed on the mattresses tying the thumbs of each leg of the dead bodies by thread. On this information police registered a case for offence under Section 302 IPC and proceeded with investigation. All the dead bodies were sent for postmortem. A Medical Board consisting of three doctors conducted the postmortem of all the five dead bodies. The appellant was arrested. After usual investigation police laid charge-sheet against the appellant for offence under Section 302 IPC. On being committed the appellant was tried of the charge of offence under Section 302 IPC by the court of Additional Sessions Judge (Fast Track), Nagaur. The trial Court on consideration of the evidence led by the prosecution found the appellant guilty of offence under Section 302 IPC. Considering the brutal nature of killings death sentence has been imposed and the instant reference has been made. The trial Court relied upon following piece of circumstances:- (1) Extra judicial confession made by the appellant before PW. 1 Murad Khan, PW. 2 Bablu @ Kalva, PW. 3 Mohd. Sharif and PW. 11 Alladeen. (2) The presence of the appellant in the house wherein the alleged incident took place. (3) Recovery of ear ring of the wife from the possession of the appellant. We have heard the learned Amicus Curiae Mr. G. R. Punia and the learned Public Prosecutor. We have also scrutinized and analysed the evidence on record. It is not in dispute that all the deceased persons died of homicidal death. The autopsy on the dead bodies of Anisha, Gulfsha, Nisha, Anta @ Munni and Babu was conducted by a medical board consisting of three doctors. Out of three doctors two namely PW. 9 Dr. Mahesh Panwar and PW. 10 Dr. (Mrs.) Jaya Mathur have appeared in the witness box and proved the postmortem reports. The details of postmortem report of each dead body is as follows. The medical board noticed the following injuries on the dead body of Anisha vide Ex. P. 21, (1) PM staining present on back. Rigor mortis present in upper & lower limbs. (2) Abrasion 1 x 0. 5 cm on left side in front of neck. (3) Bruise on right side of neck, 1. 5 x 1 cm in size. In the opinion of the medical board the cause of death of Anisha was asphyxia due to throttling. The medical board noticed the following injuries on the dead body of Gulfsha vide Ex. P. 22, (1) Rigor mortis present on upper and lower limbs. Post Mortem staining present on dependent parts. (2) Abrasion 1 x 0. 5 cm on left side of front of neck. (3) Bruise on right side of neck, 1. 5 x 1 cm in size. In the opinion of the medical board the cause of death of Gulfsha was asphyxia due to throttling. The medical board noticed the following injuries on the dead body of Anta @ Munni vide Ex. P. 24. (1) PM staining present on back part of body. RM present in both limbs. (2) An abrasion 1. 5 x 1 cm on left side of front of neck 1. 5 cm from midline. Blood stained froath present in both nostrils. In the opinion of the medical board the cause of death of Anta @ Munni was asphyxia due to throttling. The medical board noticed the following injuries on the dead body of Babu vide Ex. P. 25, (1) PM staining present on back part. Rigor mortis appearing in both limbs. (2) Abrasion present on left side of front of neck upper part 1. 5 x 1 cm in size and 3 cm from midline. (3) Cresent shaped Abrasions. 8 x. 1 cm size on right side 5 cm from midline. In the opinion of the medical board the cause of death of Babu was asphyxia due to throttling. It is well established that in cases where evidence is of circumstantial nature, the circumstances from which the conclusion of the guilt is to be drawn should be in the first place be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstantial evidence should be of a conclusive nature. They should exclude every possible hypothesis except the one proposed to be proved. In other words there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. Reference be made to S. B. Sarda vs. State of Maharashtra reported in AIR 1984 SC 1622. Taking the first circumstance, the prosecution produced PW. 1 Murad Khan, PW. 2 Bablu, PW. 3 Mohd. Sharif and PW. 11 Alladeen. Before we refer to the evidence of extra judicial confession, it would be convenient to refer the evidence of PW. 13 Rasitan the mother of the appellant. She deposed that out of the wedlock from the earlier husband namely Kallan she gave birth to appellant Bablu and three others namely Jumma, Alladeen and one more whose name she did not remember. After the death of Kallan she married to one Mehmood. The appellant lived in a house separately at a distance of 100 ft. from her residence. He was having three daughters and one son. All the children lived with his wife. This witness did not support the prosecution case as such she was declared hostile.
(3.) PW. 14 Jamil Ahmed is the father-in-law of the appellant. He stated that the appellant was married to his daughter deceased Anisha about 10-11 years back. Out of the said wedlock three daughters and one son was born. He also stated that his daughter used to report that her husband i. e. the appellant used to beat her and the children. She also used to report that the appellant was a drunkard and a gambler. He used to demand money to fulfill the said wills. He was informed by the police that his daughter and her children were murdered by the appellant. In his opinion the appellant Bablu was a notorious person having the bad habits of consuming liquor and gambling. PW. 15 Jaitun is the mother-in- law of the appellant. She had also given the statement almost in the line of PW. 14 Jamil Ahmed. Pw. 1 Murad Khan stated that on 10. 12. 2005 he heard the shouting from the house of appellant Bablu. He was shouting making a declaration that he had killed his wife Anisha, daughter Gulfsa, Babu and two other daughters. He uttered that he has done his job finishing all. He also shouted that he has killed his wife Anisha, daughter Gulfsha, Babu and two daughters. He was also shouting that he had killed them by strangulation. He ran away from the place of incident. In exact words, ....Vernacular Text Ommited.... He also stated that he rushed to his house, his elder brother Alladeen also arrived. Then all of three opened the gate of the house and entered therein. They found that five dead bodies were lying covered by quilt. The legs of the dead bodies were tied by a rope. He also stated that the appellant is not a person of good character. He used to create scene after consuming liquor. He further stated that information of the incident was given to the police by the brother namely Alladeen. There is lengthy cross examination but nothing substantial has been elicited to discredit the testimony of this witness. ;