# DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH

- **Citation:** [2016] 8 S.C.R. 36
- **Court:** Supreme Court of India
- **Decided:** 2016-09-23
- **Case number:** Criminal Appeal Nos. 162-163of2014
- **Bench:** RANJAN GOGOi, Prafulla C. Pant, Uday Umesh Lalit
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhal-singh-dewangan-v-state-of-chhattisgarh-31392
- **Pages:** 37

## Headnote

Penal Code, 1860: s . .J02 - Conviction and death sentence
by courts below for causing death of wife and 5 daughters -
Prosecution case that on the fateful night, complaint lodged that
sound of shouting heard ji-om the house of the appellant - When
police reached his house, PW-6, mother of the appellant informed
that she saw appellant attacking his wife and five daughters with a
sharp edged object - Bodies of the deceased found in a room and
appellallf lying in one corner of the same room in an unconscious
state with iron knife lying near his hand -Appellant sent to hospital
- Before the Magistrate, PW-6 did not directly attribute anything to
the appellant - However, in the opinion of trial court, her version
implicating the appellant as spoken to PWsl, 2, 3 and 5 was
admissible u/s.6 of Evidence Act - Placing reliance on those
witnesses as well as non-explanation on part of appellant as to
how incident occurred, trial court held appellant guilty - High Court
affirmed conviction - On appeal, held: Statement of PW-6 cannot
be said to have been made so shortly after the incident so as to
form part of transaction - Since spontaneity and continuity was
lost, statements attributed to PW-6 by other prosecution witnesses
do not satisfy the essential requirement of s.6 of Evidence Act -
Further, the doctor who had examined appellant was not called as
witness, nor any case papers of such examination were made
available - The explanation that he knew nothing as he was
unconscious, therefore, cannot be called, 'absence of explanation'
or 'false explanation' - The extracts of General Diary were
completely silent about any relevant features regarding the role of
the appellant - Also, there was discrepancy as to seizure of cloths
worn by him at the time of occurrence - The site map shows the
house to be a single storey structure with a verandah and courtyard
open to sky - Rooms were not locked and the possibility of anyone
36
DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH
37
other than the inmates of the house getting into the house cannot
A
be ruled out - Prosecution did not gather the fingerprints either in
the house or even on the iron knife which was allegedly used for
committing the offence in question - The circumstances did not form
a complete chain of circumstances as not to leave any reasonable
ground for the conclusion inconsistent with the innocence of the
8
appellant - Appellant entitled to acquittal - Evidence Act, 1872 -
s.6.
Evidence Act, 1872: s. 6 - Rationale behind - Held: It is the
spontaneity and immediacy of the statement in question which rules
out any time for concoction - For a statement to be admissible u/ c
s.6, it must be contemporaneous with the acts which constitute the
offence or at least immediately thereafter - Penal Code, 1860 -
s.302.
Allowing the appeals, the Court
PER UDAY UMESH LALIT, J. (FOR HIMSELF AND
D
RANJAN GOGOi, J.):
HELD: 1. According to PWs 1 and 2, after receipt of
information about the crime, they had reached Gandhi Chowk
where PW-6 was crying aloud that the appellant had killed his
wife and children. Thereafter PWs 1 and 2 along with 'CR' went
E
to the police station and at their instance information was recorded
in General Diary. The extract of General Diary Entry is completely
silent about any relevant features regarding the crime or the role
of the appellant and in fact shows lack of knowledge about the
crime. All that it says is that they had heard sounds of shouting
coming from the house of the appellant. If PWs 1 and 2 were
F
aware that the appellant bad killed his wife and daughters even
before they reached the police station, as they claimed in Court,
the nature of their reporting would have been completely different.
The fact that their reporting did not disclose any essential features
of the crime is accepted on record and their reporting was also
G
never treated as FIR in the matter. It is difficult to rely on the
testimony of PWs 1 and 2.
PWs 3 and 5 also claim that the
villagers

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[2016] 8 S.C.R. 36
DHAL SINGH DEWANGAN
v.
STATE OF CHHATTISGARH
(Criminal Appeal Nos. 162-163of2014)
SEPTEMBER 23, 2016
[RANJAN GOGOi, PRAFULLA C. PANT AND
UDAY UMESH LALIT, JJ.]
Penal Code, 1860: s . .J02 - Conviction and death sentence
by courts below for causing death of wife and 5 daughters -
Prosecution case that on the fateful night, complaint lodged that
sound of shouting heard ji-om the house of the appellant - When
police reached his house, PW-6, mother of the appellant informed
that she saw appellant attacking his wife and five daughters with a
sharp edged object - Bodies of the deceased found in a room and
appellallf lying in one corner of the same room in an unconscious
state with iron knife lying near his hand -Appellant sent to hospital
- Before the Magistrate, PW-6 did not directly attribute anything to
the appellant - However, in the opinion of trial court, her version
implicating the appellant as spoken to PWsl, 2, 3 and 5 was
admissible u/s.6 of Evidence Act - Placing reliance on those
witnesses as well as non-explanation on part of appellant as to
how incident occurred, trial court held appellant guilty - High Court
affirmed conviction - On appeal, held: Statement of PW-6 cannot
be said to have been made so shortly after the incident so as to
form part of transaction - Since spontaneity and continuity was
lost, statements attributed to PW-6 by other prosecution witnesses
do not satisfy the essential requirement of s.6 of Evidence Act -
Further, the doctor who had examined appellant was not called as
witness, nor any case papers of such examination were made
available - The explanation that he knew nothing as he was
unconscious, therefore, cannot be called, 'absence of explanation'
or 'false explanation' - The extracts of General Diary were
completely silent about any relevant features regarding the role of
the appellant - Also, there was discrepancy as to seizure of cloths
worn by him at the time of occurrence - The site map shows the
house to be a single storey structure with a verandah and courtyard
open to sky - Rooms were not locked and the possibility of anyone
36
DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH
37
other than the inmates of the house getting into the house cannot
A
be ruled out - Prosecution did not gather the fingerprints either in
the house or even on the iron knife which was allegedly used for
committing the offence in question - The circumstances did not form
a complete chain of circumstances as not to leave any reasonable
ground for the conclusion inconsistent with the innocence of the
8
appellant - Appellant entitled to acquittal - Evidence Act, 1872 -
s.6.
Evidence Act, 1872: s. 6 - Rationale behind - Held: It is the
spontaneity and immediacy of the statement in question which rules
out any time for concoction - For a statement to be admissible u/ c
s.6, it must be contemporaneous with the acts which constitute the
offence or at least immediately thereafter - Penal Code, 1860 -
s.302.
Allowing the appeals, the Court
PER UDAY UMESH LALIT, J. (FOR HIMSELF AND
D
RANJAN GOGOi, J.):
HELD: 1. According to PWs 1 and 2, after receipt of
information about the crime, they had reached Gandhi Chowk
where PW-6 was crying aloud that the appellant had killed his
wife and children. Thereafter PWs 1 and 2 along with 'CR' went
E
to the police station and at their instance information was recorded
in General Diary. The extract of General Diary Entry is completely
silent about any relevant features regarding the crime or the role
of the appellant and in fact shows lack of knowledge about the
crime. All that it says is that they had heard sounds of shouting
coming from the house of the appellant. If PWs 1 and 2 were
F
aware that the appellant bad killed his wife and daughters even
before they reached the police station, as they claimed in Court,
the nature of their reporting would have been completely different.
The fact that their reporting did not disclose any essential features
of the crime is accepted on record and their reporting was also
G
never treated as FIR in the matter. It is difficult to rely on the
testimony of PWs 1 and 2.
PWs 3 and 5 also claim that the
villagers had sent PWs 1 and 2 with 'CR' to make a report to the
police. But unlike PWs 1 and 2, these witnesses themselves bad
not gone to the police station and, therefore, their version needs
to be considered independently. [Paras 16, 17][54-F-H; 55-A-C]
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38
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c
SUPREME COURT REPORTS
[2016] 8 S.C.R.
2. The question that arises is whether such assertions on
part of PWs 3 and 5 come within Section 6 of the Evidence Act
and could be relied upon. The general rule of evidence is that
hearsay evidence is not admissible. However, Section 6 of the
Evidence Act embodies a principle, usually known as the rule of
res gestae in English Law, as an exception to hearsay rule. The
rationale behind this Section is the spontaneity and immediacy of
the statement in question which rules out any time for concoction.
For a statement to be admissible under Section 6, it must be
contemporaneous with the acts which constitute the offence or
at least immediately thereafter. The key expressions in the
Section are " ... so connected ... as to form part of the same
transaction". In the said perspective, the statements attributed
to PW-6 by PWs 3 and 5 do not satisfy the essential requirements.
The house of the appellant was at a distance of 100 yards from
Gandhi Chowk, where these witnesses were stated to have found
0
PW-6 crying aloud. Even assuming that she did make such
disclosure, the spontaneity and continuity was lost and the
statements cannot be said to have been made so shortly after the
incident as to form part of the transaction. In the circumstances,
the evidence sought to be placed in that behalf through PWs 3
E
and 5 is rejected. Even the version of PWs 1 and 2 suffer on this
count and will have to. be rejected. [Paras 17, 21 and 22)(55-D;
58-F-G; 59-C-D]
Gente/a Vijayvardhan Rao and another v. State of
Andhra Pradesh 1996 (5) Suppl. SCR 273 : (1996) 6
SCC 241; Krishan Kumar Malik l( State of Haryana
F
2011 (8) SCR 774 : (2011) 7 SCC 130 - relied on.
Sharad Birdichand Sarda v. State of Maharashtra 1985
(1) SCR 88:(1984) 4 SCC 116 - referred to.
3. The appellant was lying unconscious at the scene of
occurrence is accepted by all the prosecution witnesses including
G the Investigating Officer, who sent the appellant for medical
attention. Since he was sent by the Investigating Officer himself,
the prosecution ought to have placed on record the material
indicating what made him unconscious, what was the probable
period of such unconsciousness and whether the appellant was
H falsely projecting it. However, nothing was placed on record.
DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH
39
Neither any doctor who had examined him was called as witness,· A
nor any case papers of such examination were made available. In
the absence of such material, which the prosecution was obliged
but failed to place on record, his explanation cannot be termed
as false. The explanation that he knew nothing as he was
unconscious cannot be called, 'absence of explanation' or 'false
explanation'. [Para 26][62-E-G]
4. The clothes of the accused were not seized immediately
at the place of occurrence. He was first sent for medical attention
and later in the day was brought back to the police station, where
the seizure took place. The Arrest Memo mentions his clothes
to be "Full Pant and Shirt" and further mentions, "nothing found
B
c
on the person of the accused except clothes worn by him".
According to FSL report and serological report what was sent for
examination and analysis was a lungi which was found to be stained
with blood of human origin. It is not clear how lungi could be
seized if the appellant was in 'full pant and shirt" and there was
D
nothing else on his person. Apart from the fact that the clothes
were not seized immediately at the place of occurrence, if the
appellant was found lying in the room in an unconscious state
with five dead bodies around, the possibility that his clothes had
otherwise got stained with blood which was spotted everywhere
including the verandah cannot be ruled out. Therefore, this
circumstance is not conclusive in nature and tendency which could
E
be considered ag1dnst the appellant. [Para 27][62-H; 63-A-D]
5. The site map shows the house to be a single storey
structure with a verandah and court-yard open to sky. Though
the door of the house which opened in the gali was stated to have
been bolted from inside, the rooms were not locked and the
possibility of a person/persons other than the inmates of the
house getting into the house cannot be ruled out. Furthermore,
F
the fact that the appellant was lying unconscious and no material
having been placed on record clearly indicating that the appellant G
was falsely projecting to be unconscious, the hypothesis that the
appellant could be innocent is a possibility. The prosecution did
not gather the finger prints either in the house or even on the
iron knife which was allegedly used for committing the offence in
question. If the finger prints on the knife were to be that of the
H
40
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A appellant alone, such factor could certainly have weighed against
the appellant. However, the absence of such conclusive material
coupled with other circumstances on record do suggest
reasonable possibility of the hypothesis of innocence of the
accused. The law regarding appreciation of cases based on
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circumstantial evidence is clear that the chain of evidence must
be so complete as not to leave any reasonable ground for the
conclusion consistent with the innocence of the accused and must
exclude every possible hypothesis except the one to be proved
namely the guilt of the accused. The prosecution, on the basis of
admissible evidence on record, has not proved its case against
the appellant. The appellant, therefore, deserves to be acquitted.
[Paras 28, 29][63-E-H; 64-A, B-C]
PER PRAFULLA C. PANT, J. (DISSENTING):
HELD : 1. In the facts and circumstances of the case, nonexamination of some of the persons present at the spot after the
D incident is not sufficient for not relying on the statements of PW1, PW-2, PW-3 and PW-5 with the aid of Section 6 of the Indian
Evidence Act, 1872. The courts below have rightly appreciated
the entire chain of circumstances that has been narrated by these
witnesses, particularly when they have told what PW-6 herself
E told them at the square, when they reached there. The testimony
of PW-1, PW-2, PW-3 and PW-5 is admissible in evidence as being
part of the res gestae. Sections 6, 7, 8 and 9 of the Evidence Act,
1872 deal with the relevancy of facts not in issue but connected
with the facts in issue. The provisions contained therein provide
as to when the facts though not in issue are so related to each
F other as to form components of the principal fact. The facts which
are closely or inseparably connected with the facts in issue may
be s11id to be part of the same transaction. [Para 9)(67-G-H; 68A-B]
G
H
State of W.B. v. Mir Mohammad Omar and others (2000)
8 SCC 382 : 2000 (2) Suppl. SCR 712 - relied on.
2. PW-4, father-in-law of the appellant, has stated that
deceased was his daughter. He further told that he had also gone
to Nagpur to attend the marriage in which the appellant and his
daughter were present. The witness has further stated that his
DHAL SINGH DEWANGAN v. STATE OF CHHATTlSGARH
41
daughter complained there about the behavior of the appellant. A
He further told that the accused used to say that his family has
become large with daughters only. PW-4 further told that the
quarrel took place between the couple in Nagpur itself. The
above statement makes it clear that the appellant had the motive
for committing the murder of his wife and daughters. The only
other inmate in the house, i.e. PW-6 had no motive to commit the
crime, and had she attempted, she could have been easily overpowered by the appellant and the six deceased. [Para 10)(68-CE]
B
3. Normally, it is not the duty of the accused to explain how C
the crime has been committed. But in the matters of unnatural
death inside the house where the accused had his presence, nondisclosure on his part as to how the other members of his family
died, is an important reason to believe as to what has been shown
by the prosecution through the evidence on record is true. It is
nobody's case that any dacoity or robbery had taken place in the
D
fateful night of the incident. There are six members of the family
who have been killed brutally. Simple reply by the accused in his
statement under Section 313 CrPC that he did not know as to
how the incident happened, particularly when he was in the house,
does certainly make easier to believe the truthfulness of the
evidence that has been adduced by the prosecution in support of E
charge against him. As far as statement of PW-6 is concerned,
she has turned hostile. But the reason as to why she has turned
hostile is not difficult to be found out. She was going to lose the
only son left with her. [Para 12][69-C-E]
4. The General Diary entries are summary entries relating
to movement of police, or relating to the fact that some
information regarding an offence has been given at the police
station. The doubts created in the present case on the ground
that what more could have been mentioned in the General Diary,
F
or that there are minor variations in the statements of PW-1, G
PW-2, PW-3 and PW-5, cannot be said to be reasonable doubt. ·
Both the courts below, appear to have been influenced by the
brutality and the manner in which the crime is committed. But
there are no criminal antecedents of the appellant. Also, it cannot
be said that he is continuing threat to the society or that he cannot
H
42
SUPREME COURT REPORTS
[2016] 8 S.C.R.
A
be reformed or rehabilitated. The accused is from socially and
economically disadvantaged strata of the society. Therefore,
considering all the facts, circumstances and the established
principle of law sentence of imprisonment for life would meet the
ends of justice. [Paras 13, 19](69-F-G; 72-A-C]
B
c
D
Himachal Pradesh Administration v. Shri Om Prakash
(1972) 1 SCC 249:1972 (2) SCR 765; Bachan Singh
v. State of Punjab (1980) 2 SCC 684 - relied on.
Case Law Reference
In the Judgment of Udal'. Umesh Lalit2 J.
1996 (5) Suppl. SCR 273
relied on
Para 19
2011 (8 ) SCR 774
relied on
Para 20
1985 (1) SCR 88
referred to
Para 23
In the Judgment of Prafulla C. Pant, J.
2000 (2) Suppl. SCR 712
relied on
Para 11
1972 (2) SCR 765
relied on
Para 13
(1980) 2 sec 684
relied on
Para 18
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal·
Nos. 162-163 of2014.
E
From the Judgment and Order dated 08.08.2013 of the High Court
of Chhattisgarh at Bilaspur in Crl. Ref. No. 4 of 2013 and Criminal
Appeal No. 563 of2013.
Colin Gonsalves, Sr. Adv., Shreeji Bhavsar, Himanshu Agarwal,
Ms. Preeti Pratishruti Dash, Satya Mitra, Surya Kant (A.C.), Atul Jlia,
F
Sandeep Jha, Dharmendra Kumar Sinha, Ad vs. for the appearing parties.
The Judgments of the Court were delivered by
UDAY UMESH LALIT, J. I. These appeals by special leave
challenge the judgment and order dated 08.08.2013 passed by the High
Court ofChhattisgarh at Bilaspur in Criminal Reference No.4 of2013
G
and in Criminal Appeal No.563 of2013 affirming the conviction of the
appellant under Section 302 !PC and confirming the sentence of death
awarded by the Sessions Judge, Durgin Sessions Trial No.96 of2012.
The appellant was awarded death sentence on six counts for having
caused the deaths pf his wife and five daughters on 19.02.2012. While
H
granting special leave to appeal by order dated 17.01.2014 this Court
DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH
43
[UDAY UMESH LAUT, J.]
stayed the execution of death penalty till the disposal of the .present
A
appeal.
2. The appellant along with his wife Thaneswari aged about 32
years and five daughters, namely, Nisha, Lakshmi, Sati, Nandini and
Sandhya, aged 15, 14, 13, 8 and 5 years respectively and his mother
Kejabai (examined as PW-6 in the trial) was residing in Village
B
Mohandipat, P.S. Arjunda, Chhattisgarh. Their house, a single storey
structure with five rooms, a verandah and a courtyard, opened in a gal i.
Opposite to this house, were the houses of Aman Dewangan, Khemlal
Dewangan and Derha Dewangan. On either side of their house the
immediate neighbours were Bhan Singh Dewangan on one side and
Yogendra Sahoo on the other. The appellant with his wife and two
C
daughters had gone to attend a marriage at Nagpur on 11.02.2012 and
had returned to the village at about 4-5 p.m. on 19.02.2012. After having
dinner everyone had gone to sleep by about 8:00 p.m. Nisha, Lakshmi,
Sati and Nandini were with their grandmother Kejabai in one room while
the appellant, his wife and daughter Sandhya had slept in the adjoining
D
room.
3. According to the prosecution, at about I :30 a.m. on 20.02.2012
a report vide General Diary Entry No.671 was made by PW- I Ishwar
Pradhan and PW-2 Santosh Kumar, Village Kotwar. The entry Ext.P37 was certified in the General Diary by PW-13, Sub-Inspector Krishna
E
Murari Mishra and was to the following effect:
"The information is related to the Station Officer,
K.M. Mishra, Kotwar and lshwar Pradhan s/o Avadh
Pradhan, age 38 years, R/o Mohandipat, are present at the
police station Mohandipat and stated that sounds of shouting
F
are coming out from the house of the Dhal Singh Dewangan
of village Mohai1dipat so that it is expected that incident
like beating has taken place inside the house. In order to
verify the above said incident, I departed to the place of
occurrence along with my staff, 1373, 358, 252, 1316, R.
683, 1512, 664 mayak 320 and handed over the work of the
G
police station to the HCM -1118.
Sd/- lllegible
Station Officer Ai:junda,
Distt. Balod, Chhattisgarh"
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SUPREME COURT REPORTS
[2016] 8 S.C.R.
4. According to the prosecution, the police immediately reached
the village and thereafter recorded Dehati Nalisi Ext.P-18 at the instance
of PW-6 Kejabai who allegedly informed that at about I 0:00 p.m. on
19.02.2012 she woke up after hearing cries of her daughter-in-law
Thaneshwari and had thereafter seen the appellant attacking his wife
and five daughters with a sharp edged object. This Dehati Nalisi Ext.P18 was recorded at about 3 :00 a.m. on 20.02.2012, whereafter PW-13
Sub-Inspector Krishna Murari Mishra sent dead bodies ofThaneshwari,
Nisha, Lakshmi, Sati, Nandini and Sandhya to the mortuary at Gunderdehi.
According to PW-13, the bodies of Thaneshwari, Nisha, Lakshmi,
Sandhya and Sati were lying in a room marked as Room No.4 in the site
map Ext.P-25 and the appellant was found lying in one corner of the
same room in an unconscious position with an iron knife lying near his
left hand. The body ofNandini was lying in Room No. I, as mentioned in
the site map Ext.P-25. PW-13 also sent the appellant in an ambulance
to Primary Health Centre, Atjunda with a constable.
5. PW-7 Dr. Ajay Pal Chandrakar. Medical Officer, Primary
Health Centre, Gunderdehi, conducted post-mortem on the dead bodies
of Sati, Nisha and Sandhya on 20.02.2012. The post-mortem began at
10:40a.m.
a] In his post-mortem report Ext.P-27. he found following
injuries on the dead body ofSati:
"(i) One deep incised wound at the back side of joint of
skull and neck in the size of 6" x 3 ".
(ii) One incised wound over right hand at the base of middle
finger and index finger to wrist joint, of size 5" x 2.5"."
Both the injuries were caused by sharp edged weapon. In his
opinion, cause of death was cardio respiratory arrest due to excessive
bleeding on account of the said i11juries. All the injuries were ante 111orte111
and the death was homicidal in nature.
b] PW-7 also conducted post-mortem on the body ofNisha
and found the following injuries:
"(i) One deep incised wound at the joint of skull and neck
region of size 7" x 4".
(ii) One incised wound at the joint of right hand wrist of
DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH
45
[UDAY UMESH LAUT, J.]
size4" x3".
A
(iii) One incised wound below the right hand elbow joint of
size 3" x I";
(iv) One incised wound over right arm of size 2" x 2"."
All the injuries were ante mortem and caused by sharp edged
B
weapon. Cause of death was opined as cardio respiratory arrest due to
excessive bleeding on account of the said injuries and the death was
homicidal in nature.
c] PW-7 thereafter conducted post-mortem on the body of
Sandhya and found one incised wound on the back ofneck
C
of the deceased at the joint of skull in the size of 6" x 2",
·from the left to right side of neck region and all blood vessels
were cut. He opined that the cause of death was excessive
bleeding on account ofabove injury and shock due to cardio
respiratory arrest. All the injuries were ante 111orte111, caused
by sharp edged weapon and death was homicidal in nature.
D
6. On the same day, PW-14 Dr. Chandrabhan Prasad, Block
Medical Officer, Community Health Centre Gunderdehi performed postmortem on the bodies ofThaneshwari, Lakshmi and Nandini.
a] PW-14 vide post-mortem repo11 Ext.P-64 noticed the
following injuries on the dead body ofThaneshwari:
(i) Deep incised wound below left lower costal region of
size l" x W', intestines visible through wound;
(ii) Deep incised wound below right costal region of size 2"
E
x I" horizontal, intestines visible;
F
(iii) Deep incised wound over left lower costal region
horizontal, of size 2" x Yi''
(iv) Deep incised wound over left dorsal hand of size 3" x
2" horizontal
(v) Deep incised wound over left axillary fossa of size I" x
Y:i"
(vi) Deep incised wound over right dorsal hand of size 3" x
W' horizontal
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SUPREME COURT REPORTS
[2016] 8 S.C.R.
A
(vii) Deep incised wound over left temporal region of skull
8
c
of size 2" x W'
(viii) Deep incised wound over right dorsal and palm hand
of size 5" x 4", carpal bone cut;
(ix) Deep incised wound over left side of nose
(x) Deep incised wound over left eyebrow obliquely placed
upto nose of size 4" x 2"."
According to him, the cause of death was acute hemorrhagic
shock due to multiple injuries, all the injuries were ante mortem and the
death was homicidal in nature.
b] He also conducted autopsy over the dead body of Laxmi
and in post-mo1tem report Ext.P-65, he noticed the following
injuries:
(i) Deep incised wound over right dorsal hand of size 2" x
D
W' x Yi", whole face and hand blood stained
E
F
G
H
(ii) Deep incised wound over left buttock of size 2" x Y2"
(iii) Deep incised wound over left cheek of size 1" x Yi''
(iv) Deep incise wound over right nose upto ear
(v) Deep incised wound over right wrist of size I" x W'
(vi) Nape of neck 50% cut
(vii) Deep incised wound over right face of size 2" x Y,"
(viii) Deep incise wound over right shoulder of size l" x
YS"."
The cause of death was acute hemorrhagic shock due to multiple
injuries, all the injuries were ante mortem and the death was homicidal
in nature.
c] He also conducted postmortem over the dead body of
Nandini vide Ext.P-66, wherein he found that there was
one deep incised wound over occipital region of size 5" x
W' x \4''. The cause of death was acute hemorrhagic shock
due to head injury which was a/lfe mortem and the death
was homicidal in nature.
DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH
47
[UDAY UMESH LAUT, J.]
7. Dehati Nalisi Ext.P-18 recorded at 3:00 a.m. led to the
A
registration of FIR Ext.P-51 dated 20.02.2012 bearing No.18 of2012 at
about 4: 10 p.m .. On 20.02.2012 the appellant was brought back to the
police station at about 6:30 p.m. whereafter vide Ext.P-16 the clothes of
the accused which were stated to have blood-st:iins were taken in
custody. The accused was arrested vide arrest memo Ext.P-62 on the
same day.
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8. During investigation, statements of various witnesses were
recorded. On 06.03.2012 PW-6 Kejabai was produced before Judicial
Magistrate, First Class, Gunderdehi, at the request of the police to record
her statement under Section 164 of Code of Criminal Procedure ( 'The
Code' for short), which statement was recorded as under:
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"States on affirmation ... my name is Smt. Kejabai w/
o Dan Singh, Occupation-Agriculture/Labour, R/o
Mohandipat, Police Station-Arjunda, District-Balod
(Chhattisgarh).
On oath:
(I) Last month about on date 12-13, my son and my
son's wife went to Nagpur at marriage function. After 810 days, they came to Mohandipat being dispute. They went
to Pallekalan from there. Thereafter, they came to
Mohandipat at 4:45 p.m. in the evening. That day was
Sunday. After taking meal and all slept, at night about I 0
p.m. I heard a sound like a cat howling. I afraid and went
towards daughter-in-law's room. I saw there, dead body of
younger child. Thereafter, I ran away shouting. I returned
home yet. I came together some people and saw the son
was fainted and saw the dead body of children. I want to
say just this.
Typing has done as per my direction Narrator is
correct & accepted.
Sd/- Illegible
. 06.03.2012
Srikant Srivastava
J.M.F.C., Dondalohara
Dist. Chhattisgarh
Sd/- Illegible
06.03.2012
Srikant Srivastava
J.M.F.C., Dondalohara
Distt. Chhatisgarh
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I, Kejabai Dewangan have signed voluntarily, read out and
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understood."
Thus, as against the version in Dehati Nalisi Ext.P-18 implicating
the appellant, her statement before the Magistrate did not directly attribute
anything to the appellant.
9. On 19.03.2012 a sealed packet containing an iron knife along
with requisition Ext.P-61 was sent to PW-14 Dr. Chandrabhan Prasad
seeking his opinion whether the injuries suffered by deceased
Thaneshwari, Nisha, Lakshmi, Nandini, Sati and Sandhya could be caused
by that knife. It was of iron metal with total length of 40 cm and the
length of the blade was 5 cm. The knife was stained with blood. A
report in the affirmative was given by PW-14 on the back side of the
requisition Ext.P-61 under his signature.
I 0. After completing the investigation, charge-sheet Ext.P-74 was
filed on 27.04.2012 against the appellant for the offence punishable under
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Section 302 !PC on six counts. The prosecution examined 14 witnesses
in support of his case, the noteworthy being:-
1. PW-1 Ishwar Pradhan Sarpanch of the village stated that
around l 0:30 p.m. on 19.02.2012, PW-2 Santosh, Village Kotwar came
to his house and told him that the appellant had killed his wife and
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daughters. Thereafter, PW-I reached Gandhi Chowk (stated to be at a
distance of I 00 yards from the house of the appellant) where he found
PW-6 Kejabai sitting in the square with PW-2 Santosh Kumar, PW-3
Neel Kanth, PW-5 Dan Singh. According to the witness, PW-6 Kejabai
told them that the appellant had killed his wife and children whereafter
they went to the house of the appellant and saw that blood was lying
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near the door of the room of the appellant. They locked the door of the
house. Then along with PW-2 Santosh, Village Kotwar and one Chait
Ram Sahu, this witness went to the police station Arjunda and gave
information which was extracted in General Diary at Ext.P-37. The
witness further stated that after the police reached the village, they
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entered the house and took the appellant to the hospital in an ambulance
as he was in an unconscious condition.
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Thus, the primary source of information of the witness was PW2 Santosh, Village Kotwar and after reaching Gandhi Chowk he had
heard PW-6, Kejabai implicating the appellant. Though he went to the
police station thereafter, Ext.P-37 extract of the General Diary Entry
DHAL SINGH DEWANGAN v. STATE OF CHI-IATTISGARH
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[UDAY UMESH LALIT, J.]
does not disclose any awareness of the essential features or details of A
the crime or the fact that the murders had taken place.
II. PW-2 Santosh, village Kotwar, stated that Jeevan Dewangan,
neighbour of the appellant came to his house at about 11 :00 p.m. and told
him that the appellant had murdered his wife and daughters with an iron
knife, whereafter he along with PW-I lshwar Pradhan and PW-3 Neel
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Kanth had gone to the house of the appellant. They found the wife and
children of the appellant lying dead and the appellant in an unconscious
condition. Thereafter, he along with PW- I Ishwar Pradhan and one
Vijay went to the police station and gave relevant information. According
to the witness, by the time they came back, the pol ice had already reached c
the village and PW-6 Kejabai had disclosed to the police that it was the
appellant who had killed his wife and five children. The witness further
stated that the appellant was moved to the hospital in an ambulance as
he was unconscious.
The source of information for this witness was one Jeevan
Dewangan. Going by the version of this witness, he and PW- I were
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already aware that the wife and children were lying dead in the house of
the appellant before they reached the police station. However, extract
Ext.P-37 of the General Diary does not disclose any such knowledge or
awareness.
III. PW-3 Neel Kanth stated that at about 12.00 midnight
Ganga Ram Sahu and Chait Ram knocked the door of his house and
informed him that the appellant had killed his wife and five daughters.
The witness reached Gandhi Chowk where he found PW-6 Kejabai
crying loudly that the appellant had killed his wife and five children. All
the villagers thereafter went to the house of the appellant and found that
there were blood stains in the verandah. PW- I lshwar Pradhan was
then sent along with PW-2 Santosh and Chait Ram to make a report to
the police. According to the witness the police reached the village after
an hour and thereafter they went to the house of the appellant. The
wife and the children of the appellant were lying dead while the appellant
was lying in an unconscious condition.
According to the version of this witness, everyone was aware
of the fact that the murders had taken place. Yet, the reporting vide
Ext.P-3 7 is otherwise.
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IV PW-4 Anjor Singh Dewangan, father-in-law of the appellant
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stated that he had come to know from the villagers that the appellant
had killed his wife and five daughters. This witness did not say that he
had heard PW-6 Kejabai implicating the appellant.
V PW-5 Dan Singh Dewangan, step father of the appellant
stated that at about 12 midnight PW-2 Santosh, Chait Ram and Ganga
Ram came and called him. They also awoke PW-I Ishwar Pradhan.
According to the witness he went towards the house PW-6 Kejabai
along with PW-I lshwar Pradhan and found that PW-6 Kejabai was
crying aloud that the appellant had killed his wife and five daughters.
According to the witness after seeing the place of incident PW-I Ishwar
Pradhan, PW-2 Santosh, Village Kotwar and Chait Ram went to the
police station to lodge the report. This witness also stated that when the
police came they found the wife and five daughters of the appellant
lying dead and the appellant was lying unconscious.
VI PW-6 Kejabai in her examination stated as under:
"My son Dhal Singh's wife's name is Thaneshwari Bai.
My son the accused and Thaneshwari Bai had five
daughters whose names are Sandhya, Nisha, Laxmi, Sati,
Nandini. My son was involved in the work of cutting &
selling chicken. My daughter-in-law Thaneshwari and
above stated five girls are dead. They died during
Mahashivratri of this year.
Incident occurred about 8 months back. Before the incident,
my son Dhal Singh, daughter-in-law Thaneshwari and their
two daughters had gone to Nagpur to attend the marriage
of brother-in-law and sister-in-law of my son and they came
back on Sunday. They came back to home at around 5.00
O' clock in the day. Incident occurred on same day. We
went to sleep at 8.00 O'clock in the night after taking dinner
I and four girls were sleeping in my room. My son, the
accused daughter-in-law Thaneshwari and youngest
daughter Sandhya were sleeping in another room. I woke
up in the night and reached to verandah for drinking water.
I saw the girl Sandhya lying unconscious in the front of
room of my son Dhal Singh. Thereafter, opening the door
of the house I fled crying outside on the road. I don't know
what I was crying because I was not in conscious state of
DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH
[UDAY UMESH LAUT, J.]
mind. As I was crying outside like mad, the villagers came
there. I cannot tell the facts stated by me to the villagers.
I don't know if I had come back to the village because I
was not in conscious state of mind."
The aforesaid statement, though generally consistent with her
statement under Section 164 of the Code, was against the assertions
made in Dehati Nalisi Ext.P-18. She was declared hostile and was
permitted to be cross-examined by the public prosecutor. She denied
having stated about the incident to PW-I I sh war Pradhan, PW-2 Santosh,
Village Kotwar, PW-5 Dan Singh and to other villagers as well as to the
police, as alleged. She accepted her statement given under Section I 64
of the Code.
11. The medical evidence on record was unfolded through PW-7
Dr. Ajay Pal Chandrakar and PW-14 Dr. Chandrabhan Prasad, as stated
above. PW-13 Sub-Inspector Krishna Murari Mishra proved extract of
General Diary Entry at Ext.P-37 and site map Ext.P-25. He said that he
had found the appellant lying in an unconscious condition and had sent
him to the Primary Health Centre, Arjunda with a constable. In his
statement under Section 313 of the Code of Criminal Procedure, the
appellant claimed innocence and submitted that he knew nothing as he
was unconscious.
12. After considering the evidence on record, the Sessions Court,
District Durg by its judgment and order dated 23.04.2013 in Sessions
Case No.96 of 2012 found the appellant guilty of offence punishable
under Section 302 !PC on six counts. Though the statement of PW-6
Kejabai in court had not attributed any criminal act to the appellant, in
the opinion of the trial court, her version implicating the appellant, as
spoken to by PWs I, 2, 3 and 5 would be admissible under Section 6 of
the Evidence Act. Placing reliance on those statements of PW s I, 2, 3
and 5 as well as failure on part of the appellant in not offering any
explanation how the crime was committed, the trial court found that the
Prosecution was successful in bringing home the case against the
appellant. Having thus convicted the appellant on six counts under Section
302 IPC, by a separate order of even date, the trial court awarded death
sentence to the appellant, subject to confirmation by the High Court in
terms of Chapter 28 of the Code.
13. The Reference under Section 366 of the Code for confirmation
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of death sentence was registered as Criminal Reference No.4 of 2013
in the High Cou11 ofChhattisgarh at Bilaspur. The appellant also filed
an appeal against his conviction and sentence vide Criminal Appeal
No.563 of2013. The Reference as well as the appeal were dealt with
and disposed of by the High Court vide its judgment and order dated
08.08.2013. It was observed by the High Com1 as under:
'"23. Minute examination of the evidence, oral and
documentary available on record, makes it clear that on
19.2.2012 the accused/appellant had killed his wife and five
daughters by causing them nun1ber of injuries on their vital
pa11s by chopper/knife used for cutting hen.
24. As per deposition of Kejabai (PW-6), on the fateful
night, the accused/appellant was the only male member in
his house and he was sleeping along with his wife
Thaneshwari ·and youngest daughter Sandhya, whereas
Kejabai was sleeping with his four daughters in a separate
room and door of the house was bolted from inside. Thus
the possibility of entry by some stranger in the house of the
accused/appellant is not there. Since the accused/appellant
was the only inmate of the house, it is for him to explain as
to how six dead bodies have been found there. However,
no such explanation has been offered by him in his statement
under Section 313 of Cr.P.C. As per Section 106 of the
Evidence Act, it is the duty of the accused to explain the
incriminating circumstance proved against him while making
a statement under Section 313 of Cr.P.C. Keeping silent
and not furnishing any explanation is an additional link in
the chain of circumstances to sustain the charges against
him. Furthennore, as per FSL report Ex.P/69 blood was
found on the clothes of the accused/appellant and the
weapon of offence chopper/knife and as per serological
report Ex.P/72, the blood present on the clothes and the
knife was found to be human blood.
25. The evidence of Kejabai (PW-6) also makes it clear
that upon seeing the dead body ofSandhya, she came out
of the house screaming. This witness has expressed her
ignorance as to the things disclosed by her to the villagers.
However, from the statements of PW-I, PW-2, PW-3 and
DHAL SINGH DEWANGAN v. STATE OF CHHATTISGARH
[UDAY UMESH LAUT, J.]
PW-5, it is apparent that immediately after the incident,
Kejabai informed them that it is the accused/appellant who
killed his wife and five daughters. These witnesses have
categorically stated that immediately after the incident they
came to know about the commission of murder by the
accused/appellant and they also remained firm in their crossexamination."
The High Court further found the statements of PWs I, 2, 3 and
5 admissible under Section 6 of the Evidence Act and stated as under:
"27. After minute examination of the evidence of PW- I,
PW-2, PW-3 and PW-5, we are of the considered view
that the same is admissible under Section 6 of the Evidence
Act as res gestae. For these witnesses, there was no
occasion for concoction or improvement by any means at
that juncture. The fact that immediately after seeing the
dead body Kejabai came out of the house and narrated the
incident to the villagers has been duly proved by these
witnesses."
It was argued on behalf of the appellant that as stated by all the
prosecution witnesses including the Investigating Officer, the appellant
was found in an unconscious condition and was removed to the hospital
but no medical reports were placed on record by the prosecution. The
High Court dealt with the submission as under:
"30. We also find no force in the argument of counsel for
the appellant that the police has not produced medical report
of the appellant clarifying his position as to how he fell
unconscious when bodies of the deceased persons were
recovered from his house and what treatment was given to
him in hospital. It appears that during killing of six persons
and after seeing their blood, the accused/appellant might
have tired or lost his mental balance. In such a situation,
even ifthe appellant was lying unconscious near the dead
bodies, it hardly makes any difference for proving his
involvement in commission of the offence. It is not the
case of the defence that some third person had entered the
house, assaulted the appellant and then committed murder
of six persons."
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Having affirmed the conviction of the appellant as recorded by
the trial court, the High Court observed that the instant case did satisfy
the parameters laid down by this Comt and was "rarest of rare cases"
justifying capital punishment. The High Court thus confirmed the death
sentence awarded to the appellant.
14. In this appeal challenging the correctness of the orders of
conviction and sentence, we have gone through the entire record and
considered rival submissions. The matter principally raises two questions
(a) whether the statements of PWs I, 2, 3 and 5 are admissible under
Section 6 of the Evidence Act and coJld be relied upon and (b) whether
the circumstances on record satisfy the principles laid down by this Court
in its various judgments as regards appreciation of cases based on
circumstantial evidence.
15.