STATE OF UTTARANCHAL Vs. VIJAY KUMAR BATHAL

JUDGEMENT

(1.) This reference has been made under Section 366 of Code of Criminal Procedure, 1973, (herein after referred as Cr.P.C.) 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.P.C.). The convict has also preferred an appeal under Section 374 (2) of Cr.P.C. against the judgment dated 5/10/2005 and order of sentence dated 6/10/2005, passed in Sessions Trial No. 271 of 2004 by learned Sessions 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 appeal are being disposed of by this common judgment.

(2.) We heard learned counsel for convict/appellant and learned Public Prosecutor, and perused the entire record.

(3.) 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 extravagant and used to take alcohol. He used to demand money from his wife and her relatives. The couple had a daughter named Sakshi (another deceased). On 16/4/2004, 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/appellant Vijay Kumar Bathla asked for money from P.W. 1 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. 1 Shyam Chandra Arora slept in a room with P.W. 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 17/4/2004, at about 7:30 A.M., P.W. 1 Shyam Chandra Arora, heard shrieks of his sister (Rekha alias Sapna) from the adjoining 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. 17/4/2004, P.W. 1 Shyam Chandra Arora lodged First Information Report (Ext. A-1) 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. 70/04 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. 17/4/2004, 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 police 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. 17/4/2004, at about 3:00 P.M. Vijay Kumar Bathla, was arrested, and an axe (Ext. 1) was recovered at about 3:30 P.M., 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 confessional statement of accused is recorded 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. 17/4/2004, at 4:10 P.M. and 4:40 P.M., who prepared post-mortem examination reports- Ext. A-10 of dead body of Smt. Rekha alias Sapna and Ext. A-1 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 prepared. After the arrest of the accused, his bloodstained 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 investigation, 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, under-wear, under-shirt and blood-stained axe, were sent to Forensic Laboratory, 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 '13'.