MATHUR, J. - (1.) THE learned Addl. Sessions Judge, Ratangarh, District Churu, by judgment and order dated 18. 12. 1998, in accordance with the provisions of Section 366 of the Code of Criminal Procedure, has submitted the proceedings of Sessions Case No. 11/94 for confirmation of death sentence awarded to the accused Sri Bhagwan on having found the charge proved that he in the intervening night of 14th and 15. 12. 1993 made entry in the house of PW 17 Shiv Pratap and committed the murder of his old father and mother namely Jora Ram aged 70 years and Smt. Ram Sukhi aged 60 years and three daughters Sangeeta aged 17 years, Saroj aged 15 years and Rena aged 11 years and looted their ornaments and other valuables. THE accused Sri Bhagwan has also challenged by way of appeal his conviction and sentence under Sections 302, 392 r/w 397 IPC. For offence u/s. 302 IPC, he has been sentenced to death and to pay a fine of Rs. 200/ -. For the offence u/secs. 392 and 397 IPC, he has been sentenced to seven years rigorous imprisonment and to pay a fine of Rs. 200/-and in default of payment to further undergo one month's simple imprisonment on each count. THE sentences u/secs. 392 and 397 IPC have been ordered to run concurrently.
(2.) THE case set out by the prosecution is as follows: PW 17 Shiv Pratap is a goldsmith by occupation in village Bidasar. His family consisted of his old mother and father, wife, one son and three daughters. THE son carries-on the occupation of goldsmith in Bikaner. Accused Sri Bhagwan was enga-ged as an apprentice by Shir Pratap about an year back from the date of incident. Once he was found committing theft of a piece of gold wire. He was reprimanded. However, he continued to indulge in such activities and, therefore, he was turned out. It is alleged that while leaving the shop, accused Sri Bhagwan threatened PW 17 Shiv Pratap that he will settle with him. THE marriage of eldest daughter Sangeeta was fixed on 20. 2. 94 and, as such, for purchasing marriage articles. PW 17 Shiv Pratap and his wife PW 1 Smt. Bhanwari left for Jaipur on 14th Dec. , 1993. THEy returned on 17th evening and on entry in the house, they found the dead bodies of father, mother and three daughters. Immediately, PW 17 Shiv Pratap at about 9. 45 PM submitted a written FIR addressed to SHO, PS Chhapar stating inter alia that he alongwith his wife Smt. Bhanwari had gone to Jaipur on tuesday for purchase of certain articles in connection with his daughter's marriage, scheduled on 20. 2. 1994. He returned by Bus to Bidasar at about 9 PM. When he reached to his house, he found that main gate open and the lights on. THE inner gate of the house was close. His wife knocked the door but there was no response. He, therefore, climbed the wall and jumped in the compound of the house and opened the door. THEre was a lock on their bed room. However, the back door was open. He opened the drawing room. THEre is a room inside the room. In the said room, he found the dead bodies of his mother and father, lying smeared with blood. He then broke open the lock of the room, where he found the dead bodies of all the three daugh-ters, smeared with blood. THE valuables were missing. He called Kishna Ram Jat and some other respectable persons and proceeded to the police Outpost. THE report was submitted to PW 23 Ganesh Nath. SHO. PS, Chhapar, who was incidentally at that time at Police Outpost Bidasar, Ganesh Nath sent Head Constable P. W. 6 Inder Singh to Police Station, Chhapar. THE said report Ex. P. 8 was subsequently registered as FIR Ex. P. 9 at Police Station, Chhapar, District Churu. A case was registered for the offences under Sections 460 and 380 IPC. He immediately proceeded to the place of incident. As it was night, the Panchnamas of the site could not be prepared but he recorded the statements of Shiv Pratap, Smt. Bhanwari and Murlidhar. In the morning, the inquest was prepared. THE Chief Medical & Health Officer constituted three medical boards for post mortem of the dead bodies. THE post mortem was performed by different medical boards. THE apparels of all the deceased persons were seized and sealed. Necessary memos were prepared. THE spot was sealed and security guards were posted. In the night of 18. 12. 93, accused Sri Bhagwan was arrested vide arrest memo Ex. P. 89. THE investigation was entrusted to Circle Officer, Sujan Garh. On 19. 12. 93, PW 24 Omprakash, Circle Officer Sujan Garh reached on the spot at 3 AM. THE S. H. O. , Chhapar, apprised him of the incident and investigation conducted by him. A special team consisting of the senior scientists of the Forensic Science Laboratory, Jaipur, also reached on the spot. During the site inspection, they found, near the dead bodies of Smt. Ram Sukhi and Jora Ram, two blood stained wooden pieces which were seized and sealed vide Ex. P. 66. THE police also seized human hair vide Ex. P. 67. THE blood stained bed sheets, pillow covers were seized and sealed vide Ex. P. 69. Inside the house, there is a water tank where a tumbler and rope were lying. THE rope was blood stained. which was seized and sealed vide Ex. P. 70. In another room in the same house, the dead bodies of Sangeeta, Saroj and Renu were lying. THE police found an iron `kunta' and broken lock, respectively. On the interior side of the frame of the wooden gate, there were blood stained threads and ribbons, which were seized and sealed vide Ex. P. 72. On the mattress, a golden earring was lying, which was seized vide Ex. P. 74, which belonged to one of three deceased girls. THE earring was blood stained. A blood stained wooden hammer was lying near the wall, which was seized and sealed vide Ex. P. 75. Near the mattress, blood stained scissors was lying, which was seized vide Ex. P. 76. THEre was blood scattered in the entire room. A sample of the clotted blood was taken vide memo Ex. P. 77. One bed sheet and two pillow covers stained with human blood were seized vide Ex. P. 78. Outside the room in the gallery, a mattress was lying with a pillow. THEre were hair on the pillow. THE human hair from the pillow were seized vide Ex. P. 79. All these articles were seized and deposited in the Malkhana of the Police Station. THE accused Sri Bhagwan while in police custody after making disclosure statement Ex. P. 90 dated 19. 12. 93, led the police and got the blood stained `kulhari' recovered from the water tank inside the house of the victim vide Ex. P. 80. THE handle of the `kulhari' was broken and it contained blood stains on the handle as well as on its edges. On 20. 12. 93, the accused while in police custody after making disclosure statement Ex. P. 92 led the police to the house of his brother-in-law Ramu Ram in Sardar Sha-har. He entered in the room of the house where a bag of wheat was lying. He took out a box from the bag and produced before the police. THE box contained certain blood stained ornaments, which were separately wrapped in a newspaper. THE ornaments included one golden ring on which the alphabet `s' in English language was engraved, a broken ring, a golden ear ring, golden `kanta' (nose-pins) five in number and golden `lung' (ear-pin ). All the ornaments were blood stained. In addition, there were large number of other articles like pieces of gold wire, gold rings, some pieces of gold broken rings etc. , which are ordinarily found with a person engaged in the occupation of a goldsmith. In the box, one wedding envelope containing gold power was lying. It was addressed in the name of PW 17 Shiv Pratap, sent by Shri M. C. Soni. On the newspaper, there were certain figures, written in the handwriting of Shiv Pratap. THE blood stained articles were separately sealed vide memo Ex. P. 83. On the same day i. e. 20. 12. 93, a blood stained shirt of the accused was recovered in pursuance to his information. On 28. 12. 93, the accused gave another information. In pursuance thereof, valuable articles of the house of Shiv Pratap were recovered from the house of Ramu Ram, which included tape recorder, cassettes, a `lungi', a bag, few pants and iron box used for keeping gold ornaments. He also got recovered his own pant, which was blood stained. He pro-duced a blood stained bag from the mattress vide recovery memo Ex. P. 94. It also contained currency notes of Rs. 525/ -. THE various memos were prepared as Ex. P. 94,84,85&85-A. Proceedings for identification of property was arranged in presence of PW 9 Shri Devendra Sharma, learned Judicial Magistrate, Ratangarh. THE articles were identified by PW 17 Shiv Pratap. THE ornaments sent to Chemical Analyst were reported to be stained with human blood by Serologist. THE police completed the investigation and laid the charge sheet against the accused appellant for the offences u/secs. 302, 397 and 201 IPC in the court of MJM, I Class, Sujan Garh. The accused denied the charge and claimed trial. The prosecution in support of his case examined as many as twenty four witnesses and produced number of documents. The accused in his statement under Sec. 313 Cr. P. C. stated that he has been falsely implicated. He stated that his sister Leela was married to a person, who was insane. The marriage was dissolved by divorce. One Malji took her sister to Sandwa with a view to sell her. Malji and Shiv Pratap were friends. He objected to the sale of his sister as he was interested for her re-marriage. Thus, Shiv Pratap at the instance of Malji has falsely implicated him in a false case. The learned trial Judge found the prosecution case proved and, as such, held the appellant guilty of the offences under Secs. 302, 392 and 397 IPC. In the opinion of the trial court, it was a cold blooded murder with robbery in a most cruel manner taking away the lives of five innocent persons falling in the category of rarest of rare cases. The learned Judge accordingly, awarded the death sentence and has made reference to this court for confirmation. We have heard Mr. I. S. Pareek, learned Additional Public Prosecutor, Mr. D. S. Shishodia Senior Advocate for the complainant and Mr. K. L. Thakur, learned counsel for the accused Sri Bhagwan. In order to re-appreciate the evidence, we have scanned thoroughly the entire material on record. Pw 1 Smt. Bhanwari is the wife of Pw 17 Shiv Pratap and mother of three deceased girls. She had gone with her husband on 14. 12. 1993 for purchase of certain articles in connection with the marriage of her daughter Sangeeta and on return, she found her father-in-law, mother-in-law and three daughters killed. She has given all details of the scene of occurrence. Nothing has been elicited in the cross examination to discredit the testimony of this witness. Pw 2 Murlidhar is the cousin brother of Pw 17 Shiv Pratap. Deceased Jora Ram was his uncle. He is also a goldsmith and runs a shop near the shop of Pw 17 Shiv Pratap. His house is also adjacent to the house of Shiv Pratap. He stated that on Tuesday (the day on which Shiv Pratap left for Jaipur i. e. 14. 12. 93), his uncle de-ceased Jora Ram was on the shop. In the evening, he was seen going alongwith Sri Bhagwan. Both of them entered in the house of Shiv Pratap. On the next day i. e. 15. 12. 93, the shop was not opened by his uncle Jora Ram. He thought that uncle Jora Ram might have gone to village Chhapar. He is an important witness of last seen. We shall deal with the criticism against this witness while dealing with the incriminating circumstance of "last seen".
(3.) PW 3 Vijay Singh and PW 4 Bhagirath Lal are the panch witness of the dead bodies. PW 6 Indra Singh is the Constable, who brought the written report Ex. P. 8 from Bidasar to Police Station, Chhapar. PW 7 Abdul Mazid is the Carrier of the sealed packets to F. S. L. , Jaipur. PW 13 Surendra Singh is the Head Mohrir of Police Station, Chhapar, who registered the F. I. R. Ex. P. 9. PW 20 Nath Mal is the photographer. He has proved photographs Ex. P. 88 to Ex. P. 93. PW 19 Moti Lal and PW 21 Jugal Kishore are the witnesses of recovery of articles. PW 11 Bhagwan Sahay, PW 12 R. K. Chaturvedi and PW 14 Dr. Girish Kumar Mathur are the members of the team from F. S. L. Jaipur. Dr. Girish Kumar has proved F. S. L. report Ex. P. 46. PW 12 R. K. Chaturvedi has proved Ex. P. 24. PW 16 Om Prakash is the witness of site plan Ex. P. 50. PW 18 Jafar Hussain is a tailor. He identified the blood stained shirt belonging to the accused. He proved entries in Register Ex. P. 48. PW 15 Panna Lal is the witness regarding the seizure of Register of tailor. PW 9 devendra Sharma is the Judicial Magistrate, who conducted the identification proceedings vide Ex. P. 17 and Ex. P. 18. PW 10 Manak Chand has proved the wedding invitation card of 10th Dec. , 1993. PW 5 Dr. Rajendra Kumar and PW 8 Dr. D. D. Chanana are the witnesses, who performed the post mortem of the five dead bodies. They have proved the post mortem reports as well as the injury report of the accused. PW 23 Ganesh Nath and PW 24 Om Prakash are the investigating officers. They have proved various memos prepared during investigation. Certain suggestions have been put to them regarding the lapses in the investigation which we shall deal with at the appropriate stage. Pw 17 Shiv Pratap is the unfortunate person, whose father, mother and three children died in the incident. He lodged the F. I. R. He is the witness of prepa-ration of site plan and recovery of various incriminating articles. Inspite of lengthy cross examination, nothing has been elicited on the basis of which the testimony of this witness can be discredited. The homicidal death of Jora Ram, Smt. Ram Sukhi, Sangeeta, Saroj and Renu has been proved by oral and medical evidence. All the post mortem reports have been admitted by the defence. P. W. 5 Dr. Rajendra Kumar stated that C. M. & H. O. , Ratangarh, constituted a medical board to perform the post mortem of the dead body of Smt. Ram Sukhi aged 60 years and Sangeeta aged 17 years. The Medical Board found the following injuries on the person of deceased Smt. Ram Sukhi vide Ex. P. 6 as follows: " 1. Incised wound on left side of face-5" x 6" x bone deep with complete removal of skin, facia, muscle, blood vessels, lt, eye, It, external ear & left part of upper lip & a part of It, part of frontal & It, maxillary bone with clean & sharply cut margins. 2. Incised wound 6" x 2" x bone deep on It, side of nape of neck, obliquely placed with tail of would on anterior side with sharp margin. 3 Incised wound 1 1/2" x 1/2" x bone deep, 1" above the medial side of Right eye brow with sharp margin. 4 Incised wound completely cutting the left little finger at proximal phalynx, which is hanging with skin tag. 5 Incised wound completely cutting It, Ring finger at proximal phalynx with sharp margin. 6 Incised wound 1" x 1/4" x bone deep with clean margin on Lt. middle finger at the middle phalynx. " In the opinion of the Board, the cause of death was shock and haemorrhage due to multiple injuries. All the injuries were ante mortem in nature. ;