N. C. SHARMA, J. - (1.) NANU Ram son of Ganeshji Salvi aged 35 years was a resident of village Amarpura, Tehsil Vallabhnagar falling within the jurisdiction of Police Station Kanod. During the night intervening February 15, and February 16,. 1985 NANUram, his wife Smt. Raji and his two sons Pappu and Gopal were murdered in his house in the said village and only his daughter named Bhaguri aged about one year was spared. In connection with the murder of NANUram, his wife and two sons, Girdharilal was charge sheeted, tried and found guilty by the Sessions Judge, Udaipur by his judgment dated June 2, 1987 for offences under sections 302, 380 and 460 I. P. C. The Sessions Judge, Udaipur has sentenced Girdharilal to death for offence under section 302 I. P. C. and has made D. B. Criminal Reference No. 3 of 1987 to this Court for confirmation of the death sentence. The Sessions Judge has also found Girdhari Lal guilty for offences under sections 380 and 460 I. P. C. and. has sentenced him for these offences to rigorous imprisonment for three years and five years respectively and also to a fine of Rs. 50/- each for the said two offences. Girdharilal has filed Jail Appeal No. 182 of 1987 against his conviction for all the three offences. This common judgment will decide both the Murder References as well as the Criminal Appeal filed by Girdharilal.
(2.) BEFORE we proceed further, it may be noted that deceased Nanuram was a co-brother of Girdharilal. Smt Champa P. W. 5 had three daughters. Her eldest daughter was Smt. Raji deceased. Her next daughter is Kastoori who was married to Girdharilal. Smt. Moti P. W. 2 and Smt. Naraini P. W. 7 were wives of Nanuranrs two brothers named Heeraji and Khemraj respectively. Smt. Champa P. W. 5 is mother of deceased Smt. Raji wife of Nanuram. Nanuram was son of the sister of Smt. Hiri's mother. Smt. Dhapi P. W. 6 was a neighbour of Nanuram. Smt. Mathri P. W. 21 was the wife of one Shanker and she was also resident of village Amarpura. Nanuram was maternal uncle's son of Rama P. W. 23 and Girdharilal was brother-in-law's son of Rama. Ratan Lal P. W. 11 and Chaina P. W. 24 were also related to Girdharilal. These were the relations of Nanuram and Smt. Raji deceased and that of Girdharilal accused who were examined as prosecution witnesses in this case. Hajari P. W. 1, who is also a resident of Amarpura arid whose house is at a distance of about a mile from the house of Nanuram, was going in the morning of February 15, 1985 to his field to fly away the parrots. . Pema Jat was also with him. In the way Mangu Salvi met them and told them that Nanuram has so far not got up from his sleep. Mangu Salvi apprehended the possibility of some thief having entered into the house of Nanuram for the reason that there was a wooden "theg" standing near Nanuram's house. Some more village people has assembled and they asked that three or four persons may enter into the house of Nanuram. Thereupon Hajari P. W. 1, Pema and Laxman entered into the house of Nanuram through the roof of the house and found four dead bodies of Nanuram, his wife Smt. Raji and his two sons having injuries on their necks. Only one young daughter of Nanuram was alive and was weeping. These persons came out of the house and told about this fact to village people who had assembled there. Hamera P. W. 9 went to Jawan Singh P. W. 12 resident of village Malnawas which is at a distance of one K. M. from village Amarpura. Jawansingh was Sarpanch of Gram Panchayat Amarpura. Hamera P. W. 9 got a first information report Ex. P. 3 written from Jawan Singh Sarpanch and lodged it at Police Station Kanod on the morning of February 16, 1985 at 8. 45 A. M. This F. I. R. was registered by Nahar Singh, Assistant Sub-Inspector of Police of Police Station Kanod and a case under section 302 I. P. C. was registered. Mahadeo Prasad Yadav Deputy Superintendent of Police was posted at Dhariyawad. He undertook the investigation and went to the house of Nanuram in village Amarpura. He prepared a site plan Ex. P. 5 and a site inspection note Ex,p. 6 and also the inquest report of the four deceased on February 16,1985. Mahadeo Prasad Deputy Superintendent of Police arrested appellant Girdharilal on February 27,1985 under arrest memo Ex. P. 17 and also seized a bell bottom and a coat which Girdharilal was wearing at that time. It was alleged that on February 27,1985 Girdharilal accused, while in custody gave information under section 27 of the Evidence Act regarding a "kulhari" weapon of offence (without handle) and of some other articles and the said "kulhari" was recovered from a "parat" land 1-1/2 K. Ms, away from village Amarpura from a pit 2-1/2 deep within the boundary of village Bohida. The wooden handle of the axe was also recovered on the same day from a bush of "ben" which was at a distance of 30 steps from the place from where the "kulhari" (without handle) was recovered. Another information is alleged to have been given by Girdharilal and on the basis of the information, a "potli" tied in a handkerchief which contained a pair of silver "karies" a silver "chataka" and a pair of silver "pholries" were recovered at the instance of Girdharilal. Later on Mahadeo Prasad Yadav Deputy Superintendent of Police handed over the investigation to Station House Officer Chhatar Singh Jhala P. W. 32 who recovered a silver "kandora" a golden piece, certain silver ornaments, a watch and certain documents pertaining thereto from various dealers at Mandsaur and Madbya Pradesh at the instance of Girdharilal appellant. The articles seized were sent for chemical exmination particularly the "kulhari" han-dle of "kulhari" and a "payjama" were found stained with B group blood. Autopsy on the dead body of the four deceased was conducted by Dr. Vijay Kumar Mehta P. W. 34. He found various incised wounds on the respective dead bodies and specially the cutting of neck of all the four deceased. After trial the Sessions Judge, Udaipur found Girdharilal guilty for the offences under sections 302, 380 and 460 I. P. C. and convicted and sentenced him as aforesaid. Since the Sessions Judge had imposed death sentence on Girdharilal for the offence under sec. 302 I. P. C. he has made Criminal Murder Reference No. 3 of 1987 to this Court for confirmation of the death sentence. Girdharilal has filed Jail Appeal against his conviction. It is clear that there is no direct evidence in the case to show that Girdharilal murdered Nanuram, his wife and two sons on the night intervening February. 15 and February 16, 1985. The entire case of the prosecution rests on circumstantial evidence. The Sessions Judge, Udaipur has relied upon 14 pieces of circumstantial evidence in order to connect Girdharilal with the crime. These circumstances may be extracted below:- (1) Girdharilal was more or less unemployed and he was not employed on any regular and stable work. Smt. Champa P. W. 5, mother of deceased Smt. Raji, therefore, wanted to give Smt. Kastoori wife of Girdharilal in Nata to some one else because Smt. Kastoori was not happy with Girdharilal. (2) Smt. Raji was afraid of Girdharilal because she had impression that Girdharilal was indulged in committing of robbery and he might take away her goods after murdering her. (3) Girdharilal had demanded some amount as loan from Nanu Ram to which the later had refused. On account of this fact the relations between the two were strained. (4) Girdharilal had come to the house of Nanuram in the evening just preceding the night of the incident and Mathri PW 21 had seen him going to the house of Nanuram when Nanuram was out to Kanod. (5) On February 16, 1985 at about 9 or 10 A. M. Girdhari Lal was seen taking a bath and was washing clothes at a well of Dr. Ramnarain which was at a distance of 10 or 12 KMS from village Amrpura. At that time Girdhari La; was wearing the "pent" Ex. 8 which belonged to Nanuram deceased. (6) When Girdharilal was arrested on February 27, 1985 by the Deputy Superintendent of Police, he was wearing the coat Ex. P. 6 and the pent Ex. 8 which belonged to Nanuram deceased. (7) When Girdharilal was arrested on the above date he had a bag in his hand which contained a "payjama" having blood stains and it had been washed. The "payjama" was sent for chemical examination and blood stains of B group were found on it. (8) Kulhari Ex. 13 and wooden handle of Kulhari Ex. 16 were recovered on the information and at the instance of Girdharilal from a place not much away from village Amarpura and both these articles contained human blood of B group. (9) The beddings and the samples of the beddings and "chatai" seized from the house of Nanuram were blood stained and their blood group was B group. (10) On the information and at the instance of Girdharilal some silver ornaments like "karlies" chatka" and "phulri" pair were recovered on the information and at the instance of Girdharilal from village Peepalwas from a "thor" tree and the same was identified as belonging to Smt. Raji deceased. (11) On the information and at the instance of Girdharilal, certain silver ornaments like pair of "anwala" and six "kangarias" were recovered from the shop of Chandmal P. W. 19 from his shop at Mandsaur and that Girdharilal had pledged these articles with Chand Mal on February 19, 1985 after borrowing a sum of Rs. 1000/- and that these articles belonged to Smt. Raji deceased. (12) Girdharilal accused had sold a silver Kandora and three golden Murkies which he had got manufactured after getting a golden "bor" broken to Rajkumar P. W. 18 at his shop at Mandsaur for Rs. 250/ -. (13) On the information and at the instance of Girdharilal a wrist watch Ex. 19 was recovered by the police from the shop of Mustafa Hussain P. W. 31 at Neemuch and he had purchased a new watch from Mustafa Hussain. The watch Ex. 19 was held to belong to Nanu Ram deceased. (14) On February 16, 1985 Girdharilal had purchased a transistor Ex. 18 from Satyanarain P. W. 13 from his shop at Mandsaur run under the name and "style of Chambal Radio and Electrical Works at Mandsaur. Girdharilal was not financially sound enough to purchase transistor on February 16, 1985 for Rs. 290/- and when he was in need of money and had asked for a loan from Nanuram deceased.
(3.) THESE were the 14 pieces of circumstantial evidence which were held by the Sessions Judge to complete the chain as against Girdharilal and they were consistent only with his guilt and not with his innocence. Particularly emphasis was made by the Sessions Judge to the recovery of blood stained axe and blood stained wooden handle of axe recovered on the information and at the instance of Girdhari Lal from a place which was not at very great distance from the house of Nanuram deceased and that the axe and handle were found to be blood stained by the chemical Examiner and the group of the blood also tallied with the group of the blood of the deceased persons. The various silver articles recovered were identified in identification proceedings conducted by Shri Arvind Kumar Sharma, Munsif cum Judicial Magistrate Dhariyawad P. W. 35. During the identification proceedings Smt. Moti P. W. 2, Smt. Naraini P. W. 7 and Smt. Pyari P. W. 8 identified the silver articles as belonging to Smt. Raji deceased. Jeevan Ram P. W. 3 was Head Master of the Government Secondary School and according to him the coat Ex. 6 was issued to Nanuram deceased as uniform because Nanuram was employed as a class IV servant in that school. Hari singh P. W. 4 was also employed as a class IV servant in Government Secondary School Kanod and according to him coat Ex. 6 and pent Ex. 8 used to be worn by Nanuram deceased. The coat was issued to him as a livery from the school. According to the prosecution, various documents like Ex P. 2?/, Ex. P. /28 and Ex. P. /29, whereby Girdharilal got the golden "bor" changed into golden "murkies" sold golden 'murkies' so changed and pledged the silver' articles at Mandsaur, bear the signatures of Girdharilal. It was contended by Mr. Suresh Kumbhat, learned Amicus Curiae appearing on behalf of Girdharilal that there is no evidence that at or about the time the occurrence took place, any person had seen Girdharilal entering into the house of Nanuram or coming out of it. The axe and the wooden handle were reco-vered from an open place which was accessible to all and sundry and were visible to naked eyes. He also argued that when according to the prosecution, Girdharilal had pledged certain silver ornaments at Mandsaur and had also got golden "bor" converted into "murkies" and sold the "murkies" at Mandsaur, it can hardly be believed that he would have hidden some silver ornaments in the bush of "thor" tree in an open place and would not have disposed them off. It was also contended that ornaments have been shown by the police to the identifying witnesses before they were identified before the Magistrate. The recoveries from Mandsaur and Neemuch were stated to be delayed recoveries. It was also urged that there was no motive whatsoever for Girdharilal to murder his co-brother Nanuram and his wife's sister Smt. Raji and their two children for petty gain. On the other hand, there is evidence of Smt. Mathri P. W. 21 wife of Shanker that her husband Shanker had developed illicit relations with Smt. Raji wife of Nanuram and due to this reason relations between Nanuram and Shanker were strained. The Police did not make any investigation as against Shanker in the back ground of the version given by Smt. Mathri. It was also pointed out that the recoveries of Kulhari and silver ornaments on the information and at the instance of Girdharilal from the open place should not be believed and is improbable. Lastly, it was contended that mere recovery of certain alleged stolen articles on the basis of information given by Girdhari Lal and at his instance is not a circumstance which may lead to the conclusion that theft and murder were part of the same transaction and do not connect Girdharilal with the offence of the murder. Dr. Vijay Kumar Mehta P. W. 34 had conducted autopsy on the dead bodies of Nanuram, Smt. Raji, Gopal and Pappu. All the dead bodies had incised wounds. The wounds were mostly inflicted on neck. Nanuram deceased had six incised wounds. So far as Smt. Raji was concerned, her both legs were also cut. The injuries sustained by all the four deceased were sufficient in the ordinary course of nature to cause death. According to Dr. Mehta, all the injuries on the four deceased could be inflicted by Kulhari article 13. Dr. Mehta had stated that edge of Kulhari article 13 was sharp and it was a sharp edged weapon. Neither these injuries could be self inflicted nor any suggestion to that effect was made on behalf of the accused to Dr. Mehta. It is thus clear that all the four deceased died a homicidal death and the injuries sustained by each of them were sufficient in the ordinary course of nature to cause death. ;