State Of Gujarat, Appellant V. Allarakha Khamisa Mansuri And Another, Respondents.
DATE : 18-08-1998
1999-(SUP)-CRLJ -4937 -GUJ

JUDGE(S) :

A N Divecha
J N Bhatt
GUJARAT HIGH COURT
JUDGMENT
BHATT, J. :- The sole but substantial question which has come up in focus in this appeal before us is, as to whether the acquittal of the respondent-original accused No. 1 ('A-1') from the main charge of Section 302, IPC is valid and justified ? Thus this is an acquittal appeal under Section 378 of the Code of Criminal Procedure, 1973 ('Code') at the instance of the State.
2. The skeleton projection of material and relevant facts leading to the rise of this appeal may be shortly articulated at this juncture with a view to appreciating the merits of this acquittal appeal and challenge against it by the defence.
3. According to the prosecution case, on 27-3-1989, at about 7.30 p.m., near Bhachau bus stand, in Bhachau Town of Kutch District, respondent No. 1 (A-1) and respondent No. 2 ('A-2') went to the tea stall of deceased Abdul Karim Ali Mohmed. At that time, A-1 was holding a Dharia and A-2 started giving abuses to the deceased to which the deceased told not to give abuses. At that time, A-1 inflicted four Dharia blows there and then on and around head portion of the deceased, as a result of which, the deceased Abdul Karim sustained serious injuries on head and parietal as well as face portion of his body which proved fatal. Injured, was shifted to the Government Hospital.
4. Bhachau Police Station received a message, at about 7.45 p.m., from the medical officer of Bhachau Govt. hospital wherein, it was stated that one Abdul Karim had sustained serious injuries who was brought to the hospital for treatment and since the injuries sustained by him were serious in nature, he was being shifted to Bhuj Civil Hospital. This intimation by the medical Officer of the person in charge of the police station, Bhachau came to be recorded as Crime Entry 20/89, in the police station diary. Firstly, P.W. No. 10, PSI Makwana Deputed police personnel for patrolling in the area around S.T. bus stand, the venue of offence, to see that nothing untoward recurs and for protection of law and order. PSI Makwana, thereafter started going towards to venue of offence. When he was about to come out of the police station, he had an occasion to meet the complainant Ali Mohmed. Therefore, he recorded his complaint in the police station as narrated by him and after taking his signature, offence came to be registered. The said complaint is produced, at Exh. 30. In the course of evidence of PSI Makwana, an objection was raised by the defence about the admissibility of the complaint of complainant Ali Mohmed, as the police had already recorded the intimation and information as per the information given by the medical officer of Bhachau hospital. However, in the course of his evidence, the trial Court, it appears, after hearing the parties when an objection was raised by the defence, thought it fit to exhibit it and it came to be exhibited and it was given Exh. No. 30.
5. In view of the serious injuries. The deceased was shifted to Bhuj Civil Hospital. The muddamal articles - clothes of the deceased etc. collected after the panchnama of the scene of offence were forwarded to the forensic science laboratory for opinion and report. The reports are produced at Exhs. 34 and 35.
6. On completion of the investigation, charge sheet followed and accused persons were charged in sessions case No. 57/89 in the sessions Court at Bhuj, under Section 302 of the IPC against A-1 and under Sections 504 and 302 read with Section 114, IPC against A-2. A-1 was also charged under Section 135 of the Bombay Police Act for committing violation of the notification of the District Magistrate. The charge came to be framed on 15-2-1990 which the accused denied and claimed to be tried. In order to substantiate the charges, the prosecution placed reliance on the evidence of the following prosecution witnesses

Exhibit No.
P.W. 1 Ramnikgiri Goswami, 12
P.W. 2 Dr. M. R. Jadeja, 14
P.W. 3 Dr. C. M. Acharya 16
P.W. 4 All Mamad Husein 17
P.W. 5 Rajesh Velji 18
P.W. 6 Shashikant 19
P.W. 7 Ramniklal B. Chavda 24
P.W. 8 Hakim Jusab 26
P.W. 9 Mamudo alias Abdulla 28 and
P.W. 10 Kanaiyalal S. Makwana 29

7. The prosecution also placed reliance on the following documentary evidence

Exhibit No.
Charge, 1
Map 11
Map of scene of offence, 13
P.M. Note, 15
Inquest report, 20
Panchanama of clothes of accused 21
Panchanama of clothes
Handing over to police 22
Panchanama of Scene of offence 25
Complaint, (Mark A) 30
Opinion regarding muddamal of FSL 34
Serologist's report, 35
Police Station diary, 36

8. The defence also placed reliance on the evidence of the following two defence witnesses :

D.W. 1 Haji Khamisha, Exh. 41
D.W. 2 Ayub Sumar, Exh. 42

9. Upon assessment and evaluation of the prosecution evidence, the learned trial Judge acquitted the accused of all the charges against them by the impugned judgment recorded on 11-9-1990. Therefore, the State has come up before us in this appeal challenging its legality and validity by filing this appeal under Section 378 of the Code against acquittal of the accused persons.
10. At the time of admission, against respondent No. 2, original - A-2, the appeal came to be dismissed. Therefore, in this acquittal appeal, we are called upon only to consider as to whether original A-1 is responsible for committing murder of the deceased Abdul Karim and liable to be convicted under Section 302, IPC or not.
11. The learned Addl. P.P. Mr. Desai forcefully, contended that the trial Court has committed serious error of law and fact in passing the acquittal order against A-1. It is also contended that the evidence of the eye witnesses is wrongly discarded and the benefit of doubt is wrongly given to the accused. It was, therefore, submitted that A-1 is proved to be guilty for the offence punishable under Section 302 for having committed murder of the deceased.
12. Learned advocate Mr. Anandjiwala for A-1 in defence, has fully supported the impugned judgment of acquittal. He also submitted that the view taken by the trial Court is quite just and reasonable and this Court should not interfere by exercising its power under Section 378 of the Code. He also lastly submitted that this Court cannot interfere with the impugned acquittal judgement merely because different perception of evidence can be taken by this Court.
13. The last submission raised on behalf of the accused in defence. We propose to take first. In this acquittal appeal under Section 378, on assessment of evidence, if the Court finds that the view taken by the trial Court is one of the possible views, then only on that ground, this Court will be loathe to reverse the acquittal into conviction. Thus, although in appeal from the order of acquittal, the powers of the High Court to assess the evidence and reach its own conclusion are as extensive as in appeal against the order of conviction, yet, as a rule of prudence, it should always give proper weight and consideration to the following aspects :
(i) the view of the trial Court as to credibility of witnesses;
(ii) presumption of innocence in favour of the accused and presumption certainly not weakened by the fact that he has been acquitted by the trial Court;
(iii) right of the accused to benefit of any doubt;
(iv) slowness of the appellate Court in disturbing the finding of fact arrived at by the learned judge who had the advantage of seeing the witnesses which finding would not certainly be disturbed if two reasonable views can be arrived at on the strength of same evidence on record;
14. Although, we are conscious of the fact that the jurisdictional sweep in acquittal appeal under Section 378 is circumscribed to the extent, in view of the settled proposition of law, the following aspects ought to be borne in mind while entertaining and determining merits of an appeal under Section 378 of the Code.
(i) when the findings recorded by the trial Court are patently wrong and perverse, the High Court is entitled to or obliged to reverse the acquittal and convict the accused;
(ii) even otherwise, the evidence of the hostile witness does not stand wholly discredited;
(iii) omission and contradictions which are insignificant or at very micro level cannot be said to be sufficient to discard the prosecution case.
(iv) minor contradictions between the evidence before the Court and statement recorded by the police under Section 161 are not sufficient to dislodge or discredit the evidence.
(v) conviction on the basis of sole testimony of a single witness can be founded upon if the evidence is found fully creditable or trustworthy.
15. After having considered in extenso the testimonial collections and documentary evidence on record and having heard the learned advocate for the accused in defence and the learned Addl. P.P., we have no hesitation in finding that the reasons and ultimate conclusion recorded by the learned trial Judge in acquitting A-1 are not only perverse but palpably and manifestly wrong.
16. The trial Court has mainly placed reliance on the following aspects in order to pass order of acquittal :
(i) That Exh. 36, entry No. 20/1989 in the police station diary which came to be recorded on the information given by the medical officer of Bhachau Hospital is the first information report under Section 154 of the Code and not the complaint-FIR lodged by the complainant Ali Mohmed at Exh. 30.
(ii) That the time of death of the deceased Abdul is not established. Hence, prosecution story is doubtful;
(iii) Identity of the muddemal articles is doubtful as the witnesses have not been shown such items and have not identified.
(iv) Identity of one more witness Mamudo is also doubtful and in his place somebody is placed as Mamudo in view of the evidence led by the accused persons.
(v) The investigation carried out by the investigation officer Mr. Makwana is not truthful but is shaky and, therefore, it creates cloud of doubt.
(vi) Statements of some of the witnesses by the police under Section 162 are recorded late, and therefore, there was chance for manipulation. (vii) Non-cognizable complaint lodged by A-1 and produced at Exh. 33 is not admissible in evidence as it was given to the police officer investigating officer during the course of investigation;
(viii) the contradictions in the evidence of witnesses are also creating doubt on the veracity of the prosecution case.
17. Initially, it may be stated that homicidal death of Abdul Karim on account of the incident which occurred on 27-3-1989 in the evening is, as such, not questioned. However, the prosecution has, successfully, established that the deceased died homicidal death at 7.30 p.m. on 27-3-1989 near his tea stall.
18. The main question which is required to be examined is as to who is the author of complicity in question. As per the prosecution case, A-1 and A-2 went to the tea-stall of the deceased in the evening at 7.30 p.m. on 27-3-1989. At that time, A-1 was armed with dharia and A-2 abused the deceased to which the deceased resisted and asked A-2 not to abuse. At that time, A-1 being indignated inflicted four dharia blows on and around the head portion of the body of the deceased which culminated into his death. The prosecution has also ascribed the motive for commission of the crime.
19. In order to substantiate its version, the prosecution has placed reliance on the evidence of three eye witnesses. P.W. 4-Ali Mohmed is examined at Exh. 17. The following aspects have remained unimpeachable from his testimony.
(i) He (Ali Mohmed) was a partner of deceased Abdul Karim insofar as business of tea selling at the tea stall was concerned,
(ii) He had witnessed the incident;
(iii) Both the accused came to the tea stall at about 7.30 p.m. on the day of the incident and A-2 started abusing the deceased. Thereafter, A-I inflicted dharia blows on or around the head portion of the deceased. He has also identified the accused persons who, immediately after the incident, fled away from the place of the incident he along with others had taken the deceased to the hospital and returned to his tea stall. At that time, a police van came there and took him to the police station where he lodged his complaint/FIR which reproduced at Exh. 30.
20. Evidence of Ali Mohmed is fully corroborated by the medical evidence of Dr. Jadeja who had performed the autopsy. Dr. Jadeja, P.W. 2 is examined at Exh. 14 and according to his evidence, the deceased had sustained serious injuries on and around the head. It is very clear from his evidence that the deceased had sustained the following injuries and it is also supported by the post mortem report, Exh. 50 :
(i) Incised wound on scalp 11 1/2cm x 2 cm x 2 cm transverse'
(ii) Incised wound on left temporal region 6 1/2 cm x 1 1/2 cm bone deep
(iii) Incised wound on right side face, 21 cm x 4 cm x 5 1/2 cm deep.
(iv) Incised wound on nose, wide deep 11 1/2 cm x 4 cm x 5 1/2 cm.
21. Dr. Jadeja has clearly testified that the aforesaid injuries were ante-mortem and were sufficient in the ordinary course of nature to cause death and were possible by a sharp cutting instrument like dharia, produced as Art. No. 9. According to his medical evidence, the cause of death was shock due to head injuries. Thus, the medical evidence fully corroborates the version of eye witness complainant-Ali Mohmed.
22. The evidence of the complainant and the eye witness is also supported by the evidence of another eye witness P.W. 6 Shashikant Pitambar who is examined at Exh. 19 who has also a tea cabin which is at a distance of 50 to 60 feet from the place of incident and who was present at the time of the incident. It becomes very clear from his evidence that A-1 inflicted dharia blows on the head of the deceased near his tea stall. The distance between the tea stall of the deceased and that of the eye witness Shashikant is about 60 to 70 feet.. The topographical and geographical situation of both the cabins and the distance between them has been clearly shown in the panchanama of the scene of offence and the map produced at Exh. 30. We have no hesitation in holding that he was in a position to witness the incident and he is a truthful witness who had no axe to grind against the accused persons. Thus the evidence of the complainant is also fully reinforced by the evidence of eye witness Shashikant.
23. P.W. 9 Mamudo is examined at Exh. 28 and his evidence has also corroborated the version of eye witnesses and the story of prosecution. An attempt was made by leading evidence of two defence witnesses that P.W. 9 Mamudo is not the real Mamudo and somebody else is examined by the prosecution who is as such the elder brother of Mamudo alias Abdulla.
24. After having considered the entire testimony of P.W. 9-Mamudo and the evidence of investigating officer PSI Makwana at Exh. 29, we have no hesitation in finding that the defence version that elder brother of Mamudo is examined in his place is an afterthought and is unsustainable. The trial Court has also committed a serious error in holding that there are some doubts as to whether P.W. 9 was real Mamudo. The approach of the trial Court is totally perverse and cannot be sustained.
25. The defence has led evidence of two defence witnesses., viz. Haji Khamisha, Exh. 41 and Ayub Sumar, Exh. 42.
26. After having dispassionately examined the evidence of these two witnesses, we find that their evidence does not take the defence version any farther nor does it in any way affect the prosecution case and the evidence of three eye witnesses supported by the medical evidence and other circumstances. Defence witness Haji Khamisha is the brother of A-1 and defence witness 2 Ayub Sumar has clearly admitted in his evidence at Exh. 42 that not only he had good relations with the accused persons but he had bad relations with the deceased. The evidence of these two witnesses is not only not reliable but is an after thought and is unsustainable. They are examined as an afterthought to explain away or to get rid of complicity of A-1. Obviously, such persons would try to oblige A-1 in his bid as it is obvious that a drowning person will try to catch a straw. We have no hesitation in finding that the evidence of both the defence witnesses is not creditworthy and dependable.
27. The trial Court has placed reliance on entry No. 20/89 at Exh. 36 recorded in Bhachau police station made on the strength of information given by the medical officer Dr. Acharya who had initially treated the deceased in Bhachau hospital treating it as first information report under Section 154 of the Code in preference to the complaint lodged by complainant Ali Mohmed before the PSI Mr. Makwana which is produced at Exh. 30. In our opinion, the trial Court has committed a serious error in treating Ex. 36 an entry in the police diary upon the basis of the information of the medical officer on phone as FIR. The trial Court preferred Exh. 36 as FIR under Section 154 of the Code on the following grounds :
(i) it was recorded first in point of time in Bhachau Police Station on telephonic information given by the medical officer of a cognizable offence;
(ii) upon basis of such entry, PSI had deputed some personnel for investigation who also visited the venue of offence.
28. In our opinion, the conclusion of the trial Court on this score is factually and legally clearly not only incorrect but illegal. Factually, we have found that no investigation as such had been carried out by any person pursuant to entry No. 20/89 which came to be given Exh. 36, except that, a constable had gone to the venue of offence for the purpose of maintaining law and order which is otherwise a duty of the police. This is amply clear from the testimony of PSI Makwana, P.W. 10, investigating officer, Exh. 29. Thus, nothing was proceeded with or performed on or done in consequence of recording of entry No. 20/89 Exh. 36. Merely because in view of peculiar situational reality, one person is deputed to go to the venue of offence for maintenance of law and order, it cannot be said that it would tantamount to commencement of the investigation. Nothing has been shown pursuant to Exh. 36. No investigative action or step is taken and again, the complaint lodged by complainant Ali Mohmed at Exh. 30 came to be recorded by PSI Makwana immediately in the police station after entry Exh. 36 came to be recorded.
29. It transpires from the testimony of the investigating officer PSI Makwana at Exh. 29 that the complainant on his return from hospital after leaving the injured Abdul Karim in the Bhachau hospital came back to the venue of offence to close the shutter of tea stall. At that time, PSI on asking, found that he was the eye witness and therefore, he took the complainant along with him to the police station and he recorded the complaint as narrated by him. It is a correct truthful version of the complainant as testified by him which is in all material particulars and details as to who were the assailants, what role was played and pursuant to the complaint at Exh. 30, investigation had commenced. We have, therefore, no hesitation in finding that the approach of the trial Court in rejecting Exh. 30 as FIR is based on erroneous factual consideration and by passing salient features of Section 154 of the Code which provides for FIR in cognizable cases. It is also a settled position of law that incidental fact on telephonic message howsoever it may be in first in point of time recorded in the police station or information given by a stranger under which no offence is registered and no investigation has commenced, cannot be characterised as FIR as required under Section 154 of the Code. Therefore, the view of the trial Court on this score also is factually and legally erroneous. In reality and in terms of the relevant proposition of law, Exh. 30 ought to have been treated and taken as FIR in place of Exh. 36 which was a mere cryptic entry upon telephonic communication.
30. Next, it brings into sharp focus, the appreciation of the complaint Exh. 33 lodged by A-1. The trial Court has reached the conclusion that it is not admissible in evidence, as it is hit by Section 162 of the Code. After having read the reasons assigned by the trial Court on this score, we have found that Exh. 33 is discarded and resultantly excluded from consideration merely on account of certain presumptions and unwarranted conjectures. The trial Court has also failed to appreciate the correct proposition of law in this regard. Factually, we have found that Exh. 33 given by A-1 for non-cognizable offence of having received injuries cannot be said to be a statement in course of investigation. Of course, it is by the accused person. It is equally true that it came to be lodged by A-1 even after commencement of investigation. Provisions of Section 162 will come into play and the complaint lodged by the accused, will be hit thereunder provided it is successfully shown to the satisfaction of the Court that it came to be lodged by the accused in course of the statement under Section 162 or in course of the investigation conducted by the investigating officer so as to proceed even in case of counter complaint.
31. Our attention was invited by the learned advocate Mr. Anandjiwala for the accused to the decision of this Court in Khima Ganda v. State, (1979) 20 Guj LR 847. After having dispassionately examined the proposition of law laid down therein, in light of the facts of the case, we are at great loss to understand as to how that case would come to the rescue of the accused of this case. The Division Bench consisting of D. P. Desai, J. (as he then was) and A. M. Ahmadi, J. (as he then was), had lucidly expounded the fine and thin distinction between the two contingencies as to when complaint lodged by the accused would be hit by provisions of Section 162 of the Code and the complaint lodged by the accused independently of investigative process. In para 11, the following positions are very well explained and elucidated :
(i) a counter complaint in all cases may not be given out of volition of the accused,
(ii) it may be that the version is the result of intensive interrogation and questioning by the police officer in charge of investigation.
(iii) it may happen that the accused person may break down and with a view to save his own skin may give out a gambled version containing some incriminating statement of fact and justifying the act done by him;
(iv) a clever investigating officer may as well get it recorded as a counter complaint and such a counter complaint cannot be said to have arisen out of the volition of the accused; and remains all the same a statement by the accused made to investigating officer during the course of investigation as regards the versions that he has been obliged to bring out though he was not willing to do so initially.
(v) On the other hand, if the accused gives out his version regarding the incident of his own volition without being questioned in that behalf by the investigating officer, such a counter complaint may become admissible in evidence. This appears quite clear in view of the distinction between the first information report and the statement under Section 161.
(vi) A first information report under Section 154 is different from a statement made to a police officer in the course of investigation; whereas, the former is a voluntary disclosure of facts constituting a cognizable offence by a party, the latter is communication of facts to an investigating officer on examination under Section 161, whether the accused is willing to give it out or not;
(vii) the accused, when examined by an investigating officer is bound to answer all questions relating to the case put to him by the investigating officer, other than questions the answer to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture (vide Section 161(2) of the Code).
32. It is, therefore, very clearly propounded in the said decision that when the accused gives involuntary version or which is not of his own volition or when the accused is obliged to give not out of his free will or wish but because of the mandate contained in Section 161(2), obviously would be a statement of course, containing the version of the accused made, however, in the course of investigation and such a statement cannot be admitted in evidence at the trial of the accused. One thing, therefore, appears fairly clear. The counter complaint by an accused person given voluntarily and not in the course of examination of the accused under Section 161(1), if given with a view to action being taken on it by police would amount to a first information report under Section 154 of a different cognizable offence, notwithstanding the fact that investigation against the accused has already started on a complaint made by the other side. Whereas, on the other hand, if he, in answer to questions put to him gives out his version containing a complaint against the other side, it would be a statement recorded under Section 161(1). In the further case, the counter complaint would not amount to a statement in the course of an investigation because the accused has not been examined by the investigating officer under Section 161(1); while in the later case, it would be a statement made in the course of examination under Section 161(1) and as such, one made in the course of an investigation and, therefore, it will be hit by provisions of Section 162 and it would become inadmissible in evidence against the accused person.
33. In the present case, we have noticed that A-1 lodged the complaint, of course, of non-cognizable offence under Section 323 and other offences not as a sequitur to recording of statement under Section 161 but even in the course of investigation, as a statement of incident of his having sustained injuries which would tantamount to complaint under Section 154 of the Code and it is not hit by Section 162.
Court time is over. Hence, tomorrow.
Resumed.
19-8-1998
So the/fine distinction which has been drawn between a statement in the nature of first information report or a complaint even in a cross case and the recording of a statement by the Investigating Officer under Section 161 of the Code is very important and this distinction must be borne in mind. We have noticed from the record of the present case that the complaint lodged by accused No. 1 Allarakha though pertaining to the offence arising out of the same incident, but not as a statement by the Investigating Officer under Section 161(1) of the Code. Reading Sections 161(1) and 162(1) of the Code conjointly, it is evident that the statement made in course of the investigation contemplated by Section 162(1) of the Code is a statement made by the offender or an accused when he is examined under Section 160(1). The expression in Section 161 "in course of an investigation" does not refer merely to the period of time between the beginning and the end of investigation. Therefore, the fact that the investigation has started on the information lodged by a person is not determinative or decisive of the question whether a counter complaint lodged by the accused is a statement made in the course of the investigation.
34. The words "in the course of" occurring in Section 162(1) of the Code import that the statement in question must be made as a step in the pending investigation to be utilized in that investigation. Obviously, therefore, they do not merely refer to the period of time which elapses between the beginning and the end of the investigation. The trial Court has failed to appreciate that Exh. 33 in its correct perception. A report or a complaint in a case for an offence arising out of the same incident, in-view of the evidence recorded quite independently of and in no relation to any pending investigation and obviously further not end it to prompt a pending investigation in any way, but to start one having no reference at all to the investigation which has in fact already commenced could not be said to have been made "in the course of" the investigation of the case.
35. After having carefully examined the fact and the contents of Exh. 33 in the factual background emerging from the record of the present case, we have no hesitation in finding that the said complaint by accused No. 1 Allarakha Khamisa Mansuri was filed which is volitional and voluntarily without his being questioned or examined in the course of the investigation would be dehors the inquiry, inasmuch as, the intention of the accused appear to be to initiate inquiry or investigation and to put the law in motion with regard to the offence committed against him by the complainant party. Unfortunately, this fine distinction has not been properly with due respect appreciated by the trial Court which has culminated into a serious legal deficiency and in result, the trial Court came to be trapped to treat Exh. 36 entry No. 20 of 1989 which came to be incorporated in the Police Station Diary upon the instruction and information of a Medical Officer which was only in the nature of cryptic message or a communication, under which even no investigative step had been taken, instead of the complaint lodged by the complainant Ali Mamad PW-4 at Exh. 17 produced at Exh. 33. Trial Court has also committed serious mistake in respect of complainant (conviction) of A-1 at Exh. 31. Therefore, in our opinion, the approach of the learned trial Court Judge is not only wrong, but is perverse and totally legally erroneous.
36. It would be also interesting to have a close look into a decision of the Hon'ble Apex Court rendered in case of Soma Bhai v. State of Gujarat, AIR 1975 SC 1453 : (1975 Cri LJ 1201) which again enlightens the Court about the distinction between a statement under Section 154 and a statement under Section 162 of the Code of Criminal Procedure. In that case, under Section 154 of the Code of Criminal Procedure, the first information was earliest report made to the police officer with a view to his taking action in the matter. In the case before the Apex Court, the complainant had made the report regarding the occurrence having taken place to the P.S.I., who, however before reducing it into writing by way of abundant caution tried to seek further instructions by a telephone message from the main Police Station at Bhachau. In the light of the facts, it was held that the facts narrated to the P.S.I. which were reduced into writing a few minutes later undoubtedly constituted the first information report in point of time made to the police in which necessary facts were given. Hence, the telephonic message to the Police Station at Bhachau which was too cryptic could not constitute the F.I.R. lodged in the present case as inadmissible in evidence. It becomes, therefore, crystal clear that a cryptic telephonic communication by a Medical Officer to a Police Officer compared to the complaint made by the complainant with regard to the offence in question with a view to take action and start investigation could be treated as first information report. So the view which we are inclined to take on the principle is very much reinforced by the decision of the Hon'ble Apex Court. This view has been taken in Soma Bhai's case (supra). In short, we have no hesitation in finding that the trial Court has committed serious error in discarding the complaint Exh. 31, lodged by the accused and recorded by the police independently unconcerned with the investigation into the offence in the light of the complaint-FIR lodged by the complainant Alimamad as at Exh. 33.
37. The prosecution has also successfully established the motive. Of course, when complicity or the guilt is successfully established by the very vetripotent (sic) and vital evidence without doubt, motive becomes insignificant. However, in the present case, motive is also proved. It is successfully established by the prosecution that an open plot was purchased by the father of the accused and one brother had raised a tea stall which is near to the tea stall of the deceased. In fact, it is also shown from the record that there was a dispute on account of it as it was likely to conflict with the economic interest of the deceased party and the complainant party. The deceased was going in a partnership work of tea selling in a tea stall, which ultimately became settled since long and the father of the accused after having purchased the plot, constructed a tea cabin which was a bone of contention. Therefore, it could safely be concluded that the A-1 (appellant) was prompted or allured or induced to commit the capital crime by giving successive dharia blows on the head of the deceased Abdul Karim and what for ? For pecuniary advantage and the gain so that a man who has settled and who was running a tea stall since long may not stand any longer for the competition, that was likely to be created, for the reason of accused party having constructed a tea stall near the tea stall of the deceased. So, we have no hesitation in finding that motive is established and motive was for economic gain which is really a heart stealing.
38. The trial Court has given weightage to the following aspects and factors which are strongly supported and reiterated by the learned advocate appearing for the accused which are required to be highlighted.
1. Difference in type and number of injuries sustained by the deceased. Complainant has said and Dr. Acharya has also said that the deceased had sustained 3 injuries, whereas the evidence of Dr. Jadeja, who conducted the autopsy clearly stated that the deceased has sustained 4 injuries.
2. It may be noted that apart from this discrepancy being immaterial and insignificant, it is as such not a discrepancy or a contradiction in real terms when one goes into the reality of the evidence dispassionately. Dr. Acharya has only clinically examined the injured who subsequently died and he advised for shifting, of injured to the Bhuj Civil Hospital in view of the seriousness of the injuries. The complaint and complainant also have not stated any material discrepancy. At this stage, it may be noted in the backdrop of the fact with regard to number of injuries sustained by the deceased on the head on account of the violent infliction of the dharia blows by A-1 (respondent before us), Dr. Jadeja, who had examined thoroughly for the purpose of giving his opinion, after holding postmortem examination, has stated that the deceased had sustained four injuries. In our opinion, as such there is no difference in number of injuries in the evidence of Dr. Acharya of Bhachau Hospital and Dr. Jadeja of Bhuj Hospital, in view of the nature of injuries on the head, on the parietal region, on the nose and on the left side of the face. From one angle it could be said to be four injuries, whereas, if injuries on head an on the left side portion of the jaw, running upto forehead, could be also stated to be one. It is, not a case that four injuries on four vital parts of the body and one of them is missing. Therefore, in our opinion, factually also there is no contradiction. Otherwise also, mere contradiction in number of injuries is not material as there is direct, trustworthy and succinct evidence of the three eye-witnesses.
39. Again the trial Court has in greater details observed and has attached much attention and regard to the failure on the part of the prosecution to indicate exact time of death of the deceased. Well, firstly even this appears to be prima facie factually incorrect. The Police Inspector who was in charge of the investigation had received a wireless message on 27-3-89 itself about the death of deceased Abdul Karim. So, at the best, the time of death would be the mid-night on 27-3-89, the day which proved unfortunate for the deceased. Apart from that, it could not be said that even if time is not strictly and punctually proved on record would give rise to eclipse the direct, trustworthy and succinct evidence of three eye-witnesses. Not only that the Medical Officer Dr. Jadeja has clearly testified in his evidence that the injuries sustained by the deceased-Ali Mamad were of 2 to 3 hours prior to the death. Therefore, it could safely be concluded that the deceased succumbed within at least maximum 3 hours after occurrence of the incident ? Where is the question of giving benefit of doubt to the accused person on this count ? On the very next day the post-mortem was carried out by Dr. Jadeja at 10.30 and who has clearly testified that injuries sustained by the, deceased were 2 to 3 hours prior to the death.
40. It would be also interesting to mention that the trial Court has taken serious note of the fact that there is non-mention of one injury in post-mortem report. This submission was vehemently raised by the learned counsel for the accused before the trial Court and was reiterated before us and was rejected for the simple reason that the nature of injuries was such that all were recovered simply because the Medical Officer Jadeja has not specifically stated in his evidence in the post-mortem report at Exh. 15 that maxillary bones were cut and got out, but it must be remembered that it is specifically mentioned in the postmortem report that the nozzle cartilage bone was cut and it was exposed, so it includes maxillary bone. Therefore, no capital can be made out of such insignificant aspects.
41. The trial Court has also observed that the PW-5 Rajesh Velji Prajapati, Exh. 18 has turned hostile and he has not supported the prosecution case, and therefore, the story of murder propounded by the prosecution has weakened. We may mention at this stage that the evidence of the hostile witness cannot be totally discarded and discredited. Such witness could be believed in part, if part of his testimony reinforces the version of the prosecution. There is no legal ban on placing reliance on the evidence of hostile witness totally. Not only that, even if such a part of evidence of such a hostile witness, and when it is corroborated by other evidence, hostile witness, if, is corroborated by other evidence Court can rely on it. It has been clearly established and held by the Hon'ble Apex Court in case of Pandappa Hanumappa Hanamar v. State of Karnataka, (1997) 10 SCC 197 : (1997 Cri LJ 2493). Following passage is quite relevant and expedient :
"It cannot be contended that no conviction can be recorded on the basis of the evidence of a solitary witness. One of the tests to judge the credibility of a witness is the intrinsic quality and worth of his evidence, independent of other evidence and if such evidence measures up to the Court's satisfaction it can itself form the basis of conviction. It is only when such evidence does not pass muster that the Court seeks corroboration to draw its conclusion therefrom."
42. Thus, it becomes very clear that the Court even in case of hostile witness can consider the part which is supporting the prosecution case, and therefore, it is not proposition of law that the entire evidence of a hostile witness becomes discarded and discredited. Bearing in mind this principle of law it could safely be said from the evidence of the hostile witness PW-5 Rajesh Velji Prajapathi that the presence of the accused persons is established without doubt. It is also clearly stated by him that the accused persons were holding dharia. Of course, he has not stated that there were blood-stains or not, but one thing is clear that he did see the accused No. 1 and he was holding dharia at the relevant point of time near the venue of offence. So, that part clearly reinforces the version of the prosecution. Instead, the trial Court has taken a different view which with due respect ought to deprecated.
43. We have no hesitation in finding that the contradictions and the deficiencies and discrepancies highlighted by the trial Court in rejecting the evidence of 3 eye-witnesses supported by medical evidence and also F.S.L. report are in our opinion quite at micro level and some of them are factually not correctly stated and even if they are factually correct, would not in reality influence or affect the evidence of 3 eye-witnesses and other circumstances corroborating the evidence of eye-witnesses. The trial Court has committed thus serious error of law in placing unnecessary reliance on such insignificant, unsubstantial and micro level discrepancies and contradictions which as such do not affect the main core of the prosecution story and has failed to rely on the evidence of 3 eye witnesses whose evidence has remained unimpeachable on the main story of the prosecution that it was none else but only A-1 Allarakha who did commit murder of deceased Abdul Karim by giving him successive blows with dharia in a public place near the tea stall of the deceased and that too for a motive for pecuniary gain.
44. The trial Court has committed also serious error in giving benefit of doubt to the appellant A-1 Allarakha. We may mention at this stage that benefit of doubt if any arising from the record of the case on the main story of the prosecution which is reasonable and just in the circumstances could be given to the accused which is one of the fundamental principles of Criminal Jurisprudence. However, it must be strictly noted that the benefit of doubt should be of a reasonable average person and not of a person who is afraid of legal consequences.
45. Before we conclude, we would also like to highlight one more important aspect which also significantly corroborates and supports the prosecution case and the evidence of 3 eye-witnesses and it is the recovery of muddamal article No. 9 dharia from A-1. We have found while examining the impugned judgment that the trial Court has made certain observations and has raised certain conjectures that the accused in such a situation would not always carry incriminating dharia all the time during the period of abscondance after the incident (it may be noted that the accused persons were found from village Madi and came to be arrested and at the time when the crime weapon article No. 9-dharia was recovered in presence of panchas and the muddamal dhariya-article No. 9 had human blood-stains on the blade portion of it). It is also supported by the report of the Serologist. It is clearly found by the expert in the serological examination that it did contain the blood-stains of human blood group "B" which was of the deceased-Abdul Karim as the clothes found from the dead body contained the same blood group. The panchnama prepared in this behalf is also supporting the case of the prosecution.
46. After having given our anxious thought to the entire evidence, testimonial as well as documentary and having given marathon hearing, the following aspects have emerged unimpeachable :
(i) A-1 (respondent before us) Allarakha Khamisa is the author of murder of Abdul Karim.
(ii) A-1 gave dharia blows, four in number successively on the vital organ of the anatomy of the deceased which cut short the life of Abdul Karim within 3 to 4 hours and even during that period he remained totally unconscious.
(iii) The muddamal article No. 9-dhariya recovered from the accused-Allarakhha contained blood group "B" which was the group of the deceased.
(iv) The evidence of 3 eye-witnesses namely PW-4, complainant Ali Mamad at Exh. 17, PW-6 Shashikant Pitambar, Exh. 19 and PW-9 Mamudo alias Abdulla Allarakhha, Exh. 28 undoubtedly corroborates the version of the prosecution and supports and is leading to the unerring conclusion that it was accused No. 1 Allarakhha and no one else committed the murder of deceased Abdul Karim by giving successive 4 dharia blows for which the motive is also proved.
(v) The evidence of the eye-witnesses is corroborated by medical evidence of PW-3 Dr. Acharya-Exh. 16 and PW-2 Dr. Jadeja at Exh. 14.
(vi) It is also fully reinforced by the complaint produced at Exh. 30, lodged by Ali Mamad Husen, who was the partner of the deceased in the said work of tea-stall.
(vii) The presence of all the 3 eye-witnesses namely : (i) complainant PW-4 Ali Mamad Husen who was the partner of the deceased in business of tea-stall, selling tea in the stall, (ii) PW-6 Shashikant Pitambar, who was the owner and holder of Navrang Tea Stall which is just near the venue of the offence where the tea-stall of the deceased was located, and (iii) PW-9 Mamudo alias Abdulla Allarakhha who was working with the deceased at the relevant time is quite natural. Therefore, there is very clear evidence that the presence of the eye-witnesses was quite natural at the venue of the offence at the relevant time on the day of the incident. They are reliable.
(viii) The muddamal article No. 9 contained the same blood group as that of the deceased on its blade portion, supported by F.S.L. and serological report.
The next stage would bring into consideration the nature of offence committed by respondent-original Accused No. 1. In this connection, the learned advocate in defence has raised the following contentions
(i) That there was no premeditation, (ii) it was all of a sudden the deceased was armed with dharia and accused in his right of self-defence inflicted dharia blows and in case if accused has exceeded the right of private defence, it would be an offence under Section 304, Part II of IPC.
47. Relying upon the aforesaid aspects and the averments made in the complaint Exh. 30, two submissions have been raised, one that the nature of offence is covered by Exceptions 2 and 4 of the Section 300 of IPC. It was, therefore, submitted that there is no case of an offence of murder under Section 300, IPC, but it is a culpable homicide not amounting to murder. In support of this contention, reliance is also placed on the decision of Apex Court in Surinder Kumar v. Union Territory, Chandigarh, AIR 1989 SC 1094 : (1989 Cri LJ 883).
48. In order to appreciate the real nature of offence, it would be expedient to consider the provisions of Sections 299 and 300 of IPC. Section 299 provides culpable homicide. Section 300 defines the murder. So culpable homicide is murder as provided in Section 300, but when it would be culpable homicide not amounting to murder, is provided in Exceptions 1 to 5 of Section 300, IPC. In the light of the facts and circumstances of the case, the Court is now concerned with the question whether the nature of offence is murder or culpable homicide not amounting to murder. The question has to be considered at the first stage whether the accused has done the act by doing which he caused death of another. This stage is proved. The prosecution has been successful in proving the complicity without doubt. The homicidal death of deceased Abdul Karim on account of infliction of dharia blows by respondent A-1 Allarakha is established. The prosecution has also established that it is a case of culpable homicide as defined under Section 299 of IPC. Whether this act or offence of culpable homicide is a murder or a culpable homicide not amounting to murder now needs consideration and determination.
It was contended on behalf of the respondent accused that it falls within the Exception 2 of Section 300, IPC. Exception 2 of Section 300 provides that culpable homicide is not murder if the offender, in the exercise in good faith of private defence, exceeds the power given to him by law and causes the death of the person against whom he is exercising such rights of defence without premeditation, and without any intention of doing more harm and necessary, for the purpose of such defence.
49. Reliance is also placed on Exception 4 of Section 300, IPC. Exception 4 of Section 300, IPC provides that culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner.
50. Insofar as the reliance on Exception 4 of Section 300, IPC is concerned, the decision of the Apex Court in Surinder Kumar (1989 Cri LJ 883) (supra) is also relied.
51. In order to successfully invoke Exception 4 of Section 300, IPC, four material conditions ought to be satisfied as stated hereunder that :
(i) there was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner.
It is true that the cause of fight or quarrel or who offered the provocation would not be relevant for the consideration of Exception 4 to Section 300, IPC. If it is successfully shown that all the aforesaid 4 requirements are satisfied, it would be a case of culpable homicide not amounting to murder.
52. Insofar as Exception 2 of Section 300 of IPC is concerned, it would be necessary to prove that the right of private defence was available to the accused from the proved facts on record. That even if such a right was available, it was exercised in good faith of exercising the right of private defence and it was exercised against the person whose death is committed and was exercised without premeditation. That it was exercised without any intention of doing more harm than is necessary for the purpose of such defence. It is, therefore, clear that right of private defence by its inherent connotation implies that to defend attack or the assault from the other side. No person can be allowed to take the defence of Exception 4 to Section 300 of IPC right of private defence who is the aggressor.
53. Even in order to claim the benefit of Exception 2 to Section 300, IPC, it must be shown that in exercise of right of private defence, the necessary harm injury was caused and if it exceeds, it becomes an offence punishable under Section 304, Part I of IPC. The parameters for the exercise of such right of self-defence are elaborately stated in Section 100 of the IPC. Section 100 provides that when the right of private defence of the body extends to causing death. It is a settled proposition of law that to avail the benefit of exceptions, it is for the defence to prove that the case falls within the parameters of right of private defence. No doubt, the standard of proof may not be of that high order as that of the prosecution in establishing the complicity.
54. Section 96 prescribes that nothing is an offence which is done in the exercise of the right of private defence, whereas Section 97 of IPC provides right of private defence of body and of property. Section 97 reads as under :
Every person has a right, subject to the restrictions contained in Section 99, to defend -
First - His own body, and the body of any other person, against any offence affecting the human body;
Secondly - The property, whether moveable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.
55. It could very well be seen from the aforesaid provisions that a right of private defence is a defensive right. It is neither a right of aggression nor a reprisal. As stated earlier, the onus is on the accused to establish the right of private defence of person or property on the basis of standard of proving on preponderance of probability. It is true, it is also not necessary to raise such a plea as even if Court finds from record that right of private defence exists, the benefit could be conferred. One thing safely can be concluded that the right of private defence can never be claimed by aggressor as is available in defence.
56. Section 100 provides that it must be shown that there was apprehension of death or grievous hurt if done or attempted to be done. There is no right of private defence if the act which does not reasonably cause any apprehension of death or even of grievous hurt. Therefore, in this section parameter are prescribed as to when the right of private defence of the body cart be extended to causing death.
57. The evidence on record, in our opinion, not only does not justify for Exception 2 to Section 300, but also Exception 4 to Section 300. We have elaborately upon the assessment and evaluation of the evidence of the prosecution witnesses and the defence witnesses found that the offence committed by accused No. 1 Allarakha in committing murder of deceased-Abdul Karim was intentional prompted by a strong pecuniary motive. It is evident from the record that A-1 inflicted first blow of dharia on the face of deceased, as a result of which deceased fell down and who was unarmed. It was accused No. 1 who was the aggressor. Not only that, after inflicting one severe dharia blow on the face resulting into cutting of a cartilage bone which was sufficient as a result of which deceased fell down on the ground, A-1 gave a very severe blow with the help of dharia, armed with him, on the vital part of the body i.e. on the head upon a person who was lying help-lessly and armlessly. Thereafter, also A-1 inflicted two more dharia blows. But for the intervention of the eye-witnesses and other persons probably there would have been some more blows. The deep seated motive is established by the prosecution by trustworthy and succinct evidence of 3 eye-witnesses. A-1, therefore, not only gave 4 severe blows of dharia which is a deadly weapon and on a vital organ of anatomy, but prompted by the motive of pecuniary gain. Deceased had not given abuses to the accused No. 1. Deceased was without arms. Therefore, there would not arise any question for giving blows to the A-1 with deadly weapon. In the light of the factual scenario emerging from the record of the present case, we have no hesitation in finding that A-1 was the aggressor. He inflicted 4 dharia blows on the vital portion of anatomy of the deceased, three out of them when even deceased was lying on the ground who had no arms. Therefore, apart from defence proving the case either under exception to 2 or 4 to Section 300 of IPC on the strength of the preponderance of probabilities, the prosecution has led very potent and strong evidence of 3 eye-witnesses supported and corroborated by F.I.R. Exh. 30, medical evidence of Dr. Acharya and Dr. Jadeja and motive of pecuniary gain, that Exceptions 2 and 4 to Section 300 are not at all attracted in the present case.
58. The act committed, the complicity established against the accused in causing death which was with an intention with the infliction of 4 dharia blows on the vital portion of the body without any provocation is nothing, but would amount to only and only murder as provided in Section 300 of IPC which is punishable under Section 302 of the IPC, and therefore there is no question of invoking by the accused the provisions of Section 304 Part I and II. We are fully satisfied from the evidence that A-1 did commit murder as defined under Section 300 of IPC with an intention by inflicting 4 dharia blows on the person of the deceased-Abdul Karim, and therefore, he is liable for conviction under Section 302 of IPC. Accordingly, the accused is held guilty for the offence punishable under Section 302 of IPC for committing murder of deceased-Abdul Karim, by quashing and setting aside the impugned acquittal judgment and order against respondent-original A-1.
59. Here, there shall be a statutory pause to afford an opportunity of hearing on the quantum of sentence under Section 235(2) of the Code of Criminal Procedure.
60. We have heard the learned Addl. Public Prosecutor Mr. A. J. Desai and the learned advocate Mr. Anandjiwala for the respondent-original accused No. 1 on the quantum of sentence. The accused is found guilty for the offence punishable under Section 302 of IPC which provides minimum imprisonment for life. Under Section 302 of IPC whoever commits murder, shall be punished for death or imprisonment for life and shall also be liable to fine. It is settled proposition of law that extreme penalty of death could also be awarded for the culpability of murder under Section 302 of IPC if the case falls within the celebrated category of 'rarest of rare'.
61. Learned advocate Mr. Anandjiwala for the accused has contended that this is not a case for extreme penalty of death as it does not fall within the rarest of rare category. Learned A.P.P. Mr. A. J. Desai has rightly not resisted this contention. In the facts and circumstances of the case, we are of the opinion that minimum sentence under Section 302, IPC will meet the ends of justice. Therefore, respondent-original accused No. 1 Allarakha Khamisa Mansuri is held guilty for the offence punishable under Section 302 of IPC and he is sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- (Rupees Five Thousand Only) and in default, to undergo further rigorous imprisonment for 3 years.
62. Learned advocate Mr. Anandjiwala has requested to grant time to the accused to surrender. He has submitted that 10 weeks' time will serve the purpose. After having considered the facts and circumstances of the case, six weeks' time is granted to surrender insofar as substantive sentence is concerned. The amount of Rupees 5,000/- (Rupees Five Thousand only) imposed by way of fine by us hereinbefore, if deposited in the Court, shall be paid to the close family members of Abdul Karim by the trial Court upon due verification and identification under the provisions of Section 357(1)(b) of IPC. The time to pay fine is granted upto 25th August, 1998.
63. In the result the impugned judgment and order is quashed and the appeal is allowed accordingly. The bail bond shall stand cancelled. However, six weeks' period is granted to surrender.
Appeal allowed.
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State Of Gujarat, Appellant V. Mahendra Mulji Kerai Patel, Respondent.

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DATE : 11-08-1998
1999-(105)-CRLJ -0768 -GUJ
Criminal Procedure Code, 1973 - Section 378 - Appeal in case of acquittal - Appellate Court should exercise its powers only if it finds that the impugned acquittal judgment is perverse or is based on misreading of facts or law or is tainted with non-application of mind
The Appellate Court while exercising powers under section 378 of the Code, cannot interfere with the impugned judgment and order of the Trial Court merely on the ground that a different view could have been reached or was possible. The principles are very well settled as to when the Appellate Court can interfere with acquittal in such appeal. Upon assessment of evidence and the evaluation of proved facts, if it finds that the impugned acquittal judgment is perverse or is based on misreading of facts or law or is tainted with non-application of mind, the Appellate Court has to put such impugned order in the correct perception and in right legal shape.
Appellate Court should exercise its powers only if it finds that the impugned acquittal judgment is perverse or is based on misreading of facts or law or is tainted with non-application of mind.
Penal Code, 1860 - Section 300 - Murder case - Accused having serious grudge against the deceased as well as injured complainant - Accused inflicted blows with the dharia on the deceased and caused her death - Evidence of eye witness, corroborated by medical evidence proving the guilt of the accused - Manner and mode in which the accused made criminal trespass with criminal intention to cause hurt and commit serious offence with dangerous dharia and giving three successive blows on the person of the deceased who was undefended, unarmed, helpless, aged lady also proving his guilt - Held, accused is guilty for committing the murder of deceased
JUDGE(S) :

A N Banerjee
J N Bhatt
GUJARAT HIGH COURT
JUDGMENT
By this acquittal appeal, the appellant State under section 378 of the Code of Criminal Procedure, 1973 ('the Code') has challenged the acquittal of the respondent-accused of charges under sections 302, 307 and 506(2) of the IPC recorded by the learned Additional Sessions Judge, Kutch, at Bhuj in sessions case No. 21 of 1989 passed on 20-11-1990.
2. What is the travesty of justice ? If one peeps into the facts of this case, he would certainly reach a clear conclusion that there can be hardly any better case of travesty of justice than the one on hand.
3. Upon passing the acquittal order, the accused came to be acquitted of serious charges under sections. 302, 307 and 506(2), IPC. The crime which took toll of old lady Kunverba Kanji occurred on 18-12-1989 at about 7 p.m. In the house of the deceased in village Madhapar in Bhuj taluka of Kutch district. The prosecution inter alia contended that the respondent who is the original accused and who is hereinafter referred to as the accused, for the sake of convenience and brevity, came with small dharia ('FAGA') and inflicted blows with the dharia on the deceased and caused her death and thereby committed offence of murder. The accused was further charged that he attacked and caused injuries to complainant Jasuben Premji and attempted to commit murder of the complainant, daughter of the deceased, under Section 307, IPC. He was also charged of offence under section 506(2) for threatening to kill P.W. Naran Achar.
4. The accused had entered the house of the deceased and the complainant with deadly weapons like small dharia with intention to cause injuries to the deceased and the complainant. Therefore, he was also charged for offence under section 452, IPC. Charge was framed by the trial Court on 7-2-1990 at Ex. 1 to which the accused denied and claimed to be tried.
5. To substantiate the charge against the accused, the prosecution placed reliance on the oral evidence of the following witnesses :

--------------------------------------------------------------- P.W. No. Exh. --------------------------------------------------------------- 1. Jasuben Premji, 10 2. Dr. Minal Pancholi, 15 3. Naran Vastabhai, 21 4. Ghanshyam B. Patel, 22 5. Shamji Arjan, 31 6. Govind Kunverji, 32 7. Ravji Vishram, 34 8. Devji Shamji, 35 9. Mavji Jetha, 37 10. Bhagusinh Ramsinh, 38 11. Gaurishankar P. Joshi 40 ---------------------------------------------------------------

6. The prosecution also placed reliance on the following documentary evidence to which reference will be made by us as and when required, at an appropriate stage hereinafter :

Post mortem note, Exh. 16
Medical Certificate, 17
Original case paper, 18
Panchnama of scene of offence, 23
Map of scene of offence, 30
Panchnama, 36
FIR, 41
Yadi of muddamal sent to forensic science laboratory, 42
Receipt of above muddamal, 43
Report of forensic science laboratory, 45
Report of serologist, 46
Report on muddamal sent to forensic science laboratory, 47
Junagadh, 48
Station diary, and
Certificate of injuries on the person of accused. -----------------------------------------------------------------

7. After considering the facts and circumstances and upon appreciation of the evidence, the trial Court found the accused guilty only for the offence under section 324, IPC and sentenced him to undergo R.I. for two years and fine of Rs. 2000/- in default, to undergo S.I. for six months. The trial Court also found the accused guilty for offence under Section 452 and sentenced him to suffer R.I. for one year and fine of Rs. 500/-, in default, to undergo further S.I. for two months. The substantive sentences were ordered to run concurrently. However, while passing the impugned order of acquittal, the trial Court held the accused not guilty for the offence under sections 302, 307 and 506(2), IPC. That is why, the appellant State has challenged before us, the acquittal recorded by the trial Court by filing this appeal under Section 378 of the code.
8. Before we examine the merits of the appeal and challenge against the order on facts, we would like to highlight the powers of this Court under section 378 of the Code. Undoubtedly, the appellant Court while exercising powers under section 378 of the Code, cannot interfere with the impugned judgment and order of the trial Court merely on the ground that a different view could have been reached or was possible. The principles are very well settled as to when the appellate Court can interfere with acquittal in such appeal.
9. Upon assessment of evidence and the evaluation of proved facts, if the appellate Court finds that the impugned acquittal judgment is perverse or is based on misreading of facts or law or is tainted with non-application of mind, the appellate Court has to put such impugned order in the correct perception and in right legal shape.
10. After having, dispassionately examined the entire testimonial collections and documentary evidence and dispassionately hearing both the sides, our conscience is not only shocked but very much startled by reading the impugned judgment and the manner and mode in which the facts are incorrectly marshalled and the wrong type and quality of appreciation of the facts in the light of relevant law.
11. No doubt, the prosecution ought to be able to prove its case beyond reasonable doubt as as to succeed in criminal trial and more so in capital charge of murder. The Court is required to Marshall the facts and reach a reasonable conclusion on appreciation of fact. It is true that it is the duty of the prosecution to prove the complicity of the accused beyond reasonable doubt. If a doubt is shown or seen in assessment or evaluation of the evidence, and if it is shown to affect the main substratum of the prosecution case, the benefit of doubt should go to the accused.
12. Though there is a forensic philosophy and juristic principle and policy behind the concept of doctrine of benefit of doubt, it must be noted that benefit of doubt cannot be taken as passport to heaven of acquittal or even charter to acquittal. Benefit of doubt should be of reasonable man and not of a timid, vacillating man afraid of legal consequences. Principle of benefit of doubt is required to be appreciated in light of the facts and its extent and degree. It is rightly said that doubt of doubting Thomas or of a weak man is not a road to reach logical rational and legal value.
13. It should be remembered that minor discrepancy or insignificant contradictions should not constitute a launching pad to veto the whole prosecution story. It is very well known that because of different perception and human behavioural science, there may be different versions amongst two persons even when they saw the same thing. What should be the anxiety of Court is to see that the main substratum of the prosecution case or the heart of the prosecution story is successfully established beyond reasonable doubt or not.
14. Some discrepancy here or some contradiction there cannot be said to be unusual. Court cannot, therefore, embark upon or to grant an acquittal on the basis of micro-level discrepancy and insignificant contradictions. Such aspects, as such, do not cast serious cloud or doubt on the main theme of prosecution case which cannot be characterised as efficient and sufficient to dislodge the whole story of prosecution. We are constrained to say that the trial Court has failed to appreciate this fundamental principle of criminal jurisprudence while dealing with serious and capital charges for passing the impugned acquittal order.
15. In our opinion, the prosecution has successfully established the offence of murder punishable under section 302, IPC for causing death of the deceased and for offence of attempt to commit murder punishable under section 307 beyond reasonable doubt. The grounds which weighed with the trial Court for recording acquittal and finding the accused guilty only for the offence punishable under Sections 452 and 324, IPC instead of Sections 302 and 307 are radiating an imprint of non-application of mind to the vital facts and total misreading of relevant proposition of law.
16. It would, therefore, be appropriate at this stage to highlight the relevant evidence of prosecution. P.W. 1 Jasuben, complainant is examined at Ex. 10, Her evidence fully inspires our confidence. Despite searching cross-examination, her testimony has remained unimpeachable. The following aspects have emerged unquestionable and without any doubt in the testimony of her evidence who is also an injured eye-witness :
(i) on the day of the incident, i.e. on 18-12-1989 at about 6.45 to 7.00 p.m. when she was returning home, her mother deceased Kunverba Kanji was cleansing utensils;
(ii) at that time, she saw that accused was inflicting dharia blows on her mother. The size of the dharia (FAGA) was small and she saw 2 to 3 dharia blows given by the accused on the person of the deceased;
(iii) she has also clearly identified the muddamal article No. 8 Dharia and has stated in her evidence that the accused did inflict same weapon on the person of her mother on the day of the incident. She has clearly identified the accused;
(iv) on seeing profuse bleeding and serious injuries resulting in fall of her mother, she raised shouts for help, as a result of which, the accused Mahendra rushed to attack on her. She, therefore, came out of her house in the street and started shouting loudly being frightened;
(v) it is, therefore, clearly testified by her that thereafter the accused inflicted one blow of dharia on her head and second blow on the right shoulder from behind which also resulted in profuse bleeding to her. Therefore, she had to cover her head with handkerchief;
(vi) she was clearly started that had she not run away for the help from the house in the street, she would have been finished by the accused. After having received blows wielded by the accused, she could flee away towards northern side of her house;
(vii) it is also very clear from her evidence that P.W. 3 Naran Vasta, the neighbour came running at the venue of the offence near her house who was also threatened by the accused that he should keep himself away, otherwise, he will also be killed;
(viii) the accused thereafter fled away towards the southern side of the house along with bloodstained dharia on his Moped;
(ix) insofar as the motive is concerned, it is clearly stated by her in her evidence, para 7, that the accused was harassing her daughter Jyoti who was studying in 12th Std. in Indrabai School at the relevant time.
(x) 12 days prior to the incident, the accused had come to the house of the complainant and asked for relationship of her daughter for marriage with him. The accused thus wanted to marry her daughter Jyoti. The accused, therefore, persistently requested mother, Jasuben and grandmother Kunverba to which they refused and asked the accused to stop harassing Jyoti. Thereafter, the accused stated to them that video cassette in respect of minor Jyoti can be given to them. In reply to that, Jasuben said that let the cassette be given to them but wanted the accused not to further disturb and harass her daughter. The motive part is thus clearly established in her evidence;
(xi) it may be mentioned at this stage that the motive is also corroborated by the factum of production of love letters exchanged between minor Jyoti and the accused;
(xii) the injuries sustained by witness Jasuben are also clearly established and supported by medical evidence.
17. After having examined the entire testimony of injured eye-witness Jasuben. We are satisfied that her testimony is quite reliable and trustworthy. In fact, no infirmity or material contradiction is spelt out from her testimony. The evidence of Jasuben as such as like knife going to butter. Presence of P.W. 1 Jasuben and her reliable testimony, who is an injured eye-witness is ipso facto sufficient to transfix the culpability of the accused for the offence punishable under Section 302 for causing murder of deceased Kunverba and for attempt to commit murder of the complainant herself. It cannot be gainsaid that conviction can be founded upon the sole testimony of a witness who is found reliable and trustworthy.
18. Not only that, presence of the complainant-injured eye-witness Jasuben is fully reinforced by the evidence of Dr. Minal Pancholi, Ex. 15 who was working as medical officer at Bhuj who conducted the autopsy and examined the injured complainant. P.M. report in respect of deceased Kunberba conducted by Dr. Pancholi is produced at Ex. 16. The medical case papers of injuries sustained by the complainant are produced at Ex. 18. The evidence of Dr. Pancholi fully supports the prosecution case and the testimony of injured eye-witness.
19. P.W. No. 2 Dr. Pancholi in her evidence at Ex. 15 has clearly stated that deceased Kunverba had sustained as many as four external injuries. In view of evidence of Dr. Pancholi and P.M. note Ex. 16, the deceased had also sustained internal injuries and the injuries sustained by the deceased on her head were sufficient in the ordinary course of nature to cause death as per opinion of Dr. Pancholi. The internal injuries Nos. 1, 2 and 3 were possible by a sharp cutting instrument like small dharia, Art. 8 and Internal injury No. 4 was possibly by hard blunt substance. The medical evidence unequivocally lends the material reinforcement to the testimony of eye-witness Jasuben.
20. It becomes also crystal clear form the medical evidence that complainant Jasuben had also sustained injuries as under :
1. incised wound 1 cm. x 2 cm. on posterior aspect of skull;
2. abrasion on right upper frontal portion 1 cm. x 2 cm.
21. Injury No. 1 as aforesaid was possible by a sharp cutting instrument like muddamal dharia at art. No. 8 as per the medical evidence of Dr. Pancholi. The medical certificate and medical case papers prepared at the relevant time are also produced at Ex. 18.
22. The evidence of injured eye-witness Jasuben is found quite reliable and trustworthy and her testimony is also fully supported by medical evidence of Dr. Pancholi at Ex. 15 and the medical case papers. The medical evidence clearly goes to show that the deceased had sustained three grievous injuries which were possible by muddamal dharia art. No. 8. The internal injuries also correspond to external injuries and they were sufficient in ordinary course of nature to cause death, as per the medical evidence.
23. Moreover, from evidence also we have found that those injuries sustained by the deceased were grievous and which were caused by the accused by wielding muddamal dharia, art. No. 8. The injuries were also sustained by eye-witness Jasuben who could escape the major mishap. But for timely running away from the venue of offence and the intervention of P.W. Naran Vasta, she would have also become the victim of the accused. The complainant though had received two blows was lucky to escape from the venue. The manner and mode in which the blows were given on her person leaves no manner of doubt that the accused made an attempt to commit her murder also but did not succeed in his murderous acts because of the fact that Jasuben could immediately run away and arrival and intervention of P.W. Naran Vasta who was threatened seriously by the accused. Simply because the mother and grand mother of minor Jyoti refused to oblige the accused to have minor Jyoti given to him in matrimony, the accused had threatened them earlier and the said incident had preceded only 12 days before the murderous attack by the accused.
24. It will also be interesting to note that evidence of injured eye-witness Jasuben is also corroborated by the complaint lodged by her and produced at Ex. 48. It was lodged without loss of time by her before the PSI of Bhuj taluka police station in the Civil Hospital at about 8.15 p.m. The venue of offence Madhapar is 4 Kms. away from the Civil Hospital and thus the FIR came to be lodged by the complainant within one and half hours time. Thus the FIR which was lodged at the earliest fully corroborates the version of the eye-witness and prosecution case.
25. P.W. 3 Naran Vasta, Ex. 21 who is the neighbour of the complainant has clearly testified that he had seen the accused with a dharia, muddamal art. No. 8 and giving one blow on the head on injured complainant Jasuben. He was also threatened to be killed by the accused when he tried to intervene. He found the accused running away along with muddamal Art. 8 and the complainant ran away on the other side. The evidence of this witness has remained unshaken. His presence at the venue of offence is quite natural and probable being a neighbour and he is a disinterested person who has supported the prosecution case and the evidence of injured eye-witness Jasuben.
26. The trial Court has found the accused guilty for the offences punishable under sections 324 and 452, IPC holding that the accused is the author of the crime, though the trial Court has clearly held that deceased Kunverba died a homicidal death and the prosecution has successfully established without any doubt, an offence. It is also clearly held by the trial Court that the accused had inflicted dharia blows and the injuries on the person of the deceased had resulted into her death. The finding of the trial Court is also very clear that P.W. No. 1 Jasuben had sustained injuries caused by the accused with muddamal art. No. 8. The trial Court has also clearly held that the accused had committed criminal trespass in the house of the complainant with intention to cause murderous injuries and commit offence. Therefore, the accused is also convicted and sentenced for the offence punishable under section 452, IPC.
27. However, the trial Court acquitted the accused of the charge of Sections 302 and 307, IPC. The grounds are stated in support of the conclusion that the accused is guilty of offences under section 324 for causing death of Kunverba and also causing injuries to Jasuben in para 38 of the impugned judgment. We have dispassionately and seriously considered the grounds and also the contentions raised on behalf of the respondent accused and we have found ourselves unable to accept those reasons. We are at great loss to understand as to how and on what basis the trial Court has held that the injuries sustained by the deceased were not grievous. In fact, the precise observation by the trial Court in para 38 of the judgment is that deceased Kunverba does not seem to have sustained any grievous injuries. However, the trial Court has held that those injuries were caused by a sharp cutting instrument, but the said injuries are not grievous injuries. In our opinion, these observations are devoid of settled legal proposition and testimonial version on record.
28. There is no iota of doubt in our mind that the trial Court has, with due respect, unfortunately misread the evidence and has failed to examine the relevant provisions of law.
29. Section 320, IPC prescribes what is grievous hurt which reads as under :

"The following kinds of hurt only are designated as grievous :
First Emasculation.
Secondly - Permanent, privation of the sight of either eye;
Thirdly - Permanent privation of the hearing of either ear;
Fourthly - Privation of any member or joint;
Fifthly - Destruction or permanent impairing of the powers of any member or joint;
Sixthly - Permanent disfiguration of the head or face;
Seventhly - Fracture or dislocation of bone or tooth;
Eightly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follows his ordinary pursuits."

30. It is very clear from clause Eight that any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits of life, is grievous hurt. Unlike Section 312, which also defines the expression 'hurt', Section 320 enumerates hurt described as grievous. Clause eight in Section 320 is enumerative and includes all injuries which endanger life or which cause the sufferer to be during the space of 20 days in severe bodily pain unable to follow his ordinary pursuits of life. On a conjoint reading of provisions of Section 320 and nature and number of injuries sustained by the deceased, there can hardly be any controversy about the nature of injuries.
31. In our opinion, all the three external injuries corresponding with internal injuries are covered by the definition of Section 320. Looking to the size, type length of the situs of the first three external injuries which correspond to internal injuries Nos. 1, 2 and 3, it is clear that they are serious and in reality, they are grievous. How could it be said even for a moment that such injuries on the vital part of the body with a dangerous weapon like dharia produced at muddamal art. No. 8 causing clotting of blood in the brain and resultant death were simple injuries ? We are sorry to say that the learned trial Judge has misdirected himself and has failed to appreciate the evidence in the real perception and provisions of Section 320, 299, 300, 302 and 307, IPC to which we shall shortly refer for determining the real character of culpability of the accused in causing injuries on the person of the deceased and also causing serious injuries on the person of Jasuben.
32. It may also be noted at this stage that any hurt which endangers life or which causes severe bodily pain to the sufferer to be during the space of 21 days or unable to follow his ordinary pursuits of life, as employed in clause Eighth in Section 320 undoubtedly would include injuries sustained by the deceased on her head which led to her death. In fact, these words cannot apply to cases in which life was not merely endangered but actually had taken away. In the present case, those injuries sustained by the deceased on her head which culminated into her final voyage to death show that not only injuries caused by the accused were dangerous but they were injuries which were caused by a dangerous weapon and which proved fatal.
33. The line between culpable homicide not amounting to murder and grievous hurt is subtle but must be seriously appreciated by the Court while dealing with such cases. Injuries caused on vital part of the body like head and that too bonedeep with a sharp cutting instrument like small dharia, art. No. 8 would not only endanger life but as such, in reality, have culminated into death of the deceased. Even the medical evidence of Dr. Pancholi at Ex. 15 is unequivocal on this point. It is clearly testified by him that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause death. The blows were so serious, so grievous on the vital portion of the body of the deceased that she succumbed to the same very soon after infliction of blows.
34. Despite clear prosecution evidence and unequivocal testimony of medical officer and the post mortem version, the trial Court has observed that the injuries sustained by the deceased were not sufficient in the ordinary course of nature to cause death. It is, therefore, held by the trial Court that benefit of doubt should be given to the accused because the injuries sustained by the deceased did not seem to be sufficient in ordinary course of nature to cause death. By giving benefit of doubt, the trial Court, therefore, held that offence of murder is not proved by the prosecution beyond doubt. It is, therefore, held that the deceased had sustained simple injuries with a sharp cutting instrument and the author of such injuries was the accused. Therefore, the trial Court reached the conclusion that the prosecution has established the case for conviction and sentence only under Section 324, IPC.
35. Section 324 reads as under :
"Whoever, except in the case provided for by Section 334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
36. In our opinion, the trial Court has committed a serious error of law in applying provisions of Section 324. By no stretch of imagination, it can be said from the proved facts that culpability spelt out from the record of the case and established by the prosecution would fall under sections 324 and not 320. This finding of fact is not only manifestly perverse but also demonstrably unsustainable. In our opinion, the entire approach of the trial Court in giving benefit of doubt and acquitting the accused of the charge of Sections 302 and 307 is palpably unjustified and unwarranted based upon misreading of evidence and misconception of law. It is therefore, incumbent upon us and permissible to interfere with that part of acquittal and findings, and convict the accused appropriately for criminality succinctly established by the prosecution without any doubt.
37. Section 299 defines as to what is culpable homicide, Section 300 defines culpable homicide amounting to murder. In our opinion, homicidal death, the author of which is held to be the accused by the prosecution is a case of culpable homicide amounting to murder. The injuries caused on the deceased by the accused and also on the person of the complainant were intentional. There are proved set of facts from which a safe inference can be drawn that such injuries were caused by the accused intentionally. He was the only author of the injuries to the deceased and injured complainant.
38. There was deep seated motive which is established. The accused had made not only unreasonable but illegal demand of the daughter of the complainant and grand daughter of the deceased in marriage as he appeared to be in deep love with her. Manifestly, there are love letters produced on record. The incident of 18-12-1989 caused murder of the deceased and resulted into serious injuries to Jasuben got preceded by not only unreasonable but illegal demand of minor daughter Jyoti of the complainant who was minor in marriage.
39. The mother who is the complainant and the deceased, both had scolded and rebuked the accused. He was also warned by them not to create any harassment to the minor who was studying in 12th Std. at the relevant time. So, the accused had entertained a serious grudge and grievance against the deceased as well as injured complainant Jasuben. The prosecution has succinctly established this motive. Apart from that, the manner and mode in which the accused made criminal trespass with criminal intention to cause hurt and commit serious offence with dangerous dharia produced at art. No. 8 and giving three successive blows on the person of the deceased Kuverba who was undefended, unarmed, helpless, aged, clearly demonstrates his intention.
40. Not only that, on seeing Jasuben coming back home, he rushed towards her for attacking Jasuben who could manage to run our of the house in street where she was inflicted serious dharia blow on her head which is supported by medical evidence and by the evidence of P.W. Naran Vasta, the neighbour and independent eye-witness. But for his timely intervention, P.W. Jasuben also would have been finished by the accused who had refused to have the hand of minor Jyoti as he desired. We have, therefore, no hesitation in finding that the assault and resultant injuries inflicted on the person of the deceased by the accused with the help of muddamal dharia were deliberate wanton and intentional. We have no hesitation in finding that the attack on the P.W. Jasuben was nothing but an attempt to commit murder. But for her active help to herself in managing to escape, she would have also been finished. The manner and method in which dharia was wielded on her head and the manner and mode in which intervening neighbour Naran Vasta was threatened to be killed leaves no room for doubt that the accused wanted to kill injured Jasuben but she could manage to escape from the venue and on account of raising of forceful shouts by the injured, timely intervention of Naran Vasta and thereafter other witnesses, the accused was left with no alternative but to run away and actually he ran away taking stained muddamal dharia on his moped.
41. Before concluding, learned advocate for the respondent has submitted that alternatively, in light of the injuries and attendant circumstances, there will not be, in any case, offence under section 302. He, therefore, submitted that at best, the offence will be under section 304-II. In support of this contention, he placed reliance on the observations made by the Honourable Supreme Court in State of A.P. v. R. Punnayya, AIR 1977 SC 45 : (1977 Cri LJ 1) and in Baijnath v. State of M.P., AIR 1966 SC 220 : (1966 Cri LJ 179). After having examined the aforesaid decisions of the Apex Court, we are not of the opinion that the said decisions are not attracted to the facts of the present case.
42. In light of the aforesaid facts and circumstances, we have no hesitation in finding that the accused is guilty of offences of culpable homicide amounting to murder as the injuries caused on the deceased were intentional and therefore he is liable to be punished and sentenced under section 302, IPC. Similarly in light of analysis of the evidence and true appraisal of prosecution version emerging on record, it becomes explicit and manifest that the accused had intention to commit murder of Jasuben and he also in fact gave dangerous grievous blow on her head with deadly weapon like dharia. But for the intervention of Narain Vasta and active action for escaping from the venue of offence by the injured, the accused could not accomplish his heinous crime to kill her.
43. Section 307 provides for punishment in case of attempted murder. In fact, in order to punish accused for the offence under section 307, it is not imperative that injury as such should be caused. Whereas, in the present case, the accused did cause serious injuries with deadly weapon. There are proved set of facts which lead us to unerring inference that it was nothing but attempt to murder injured complainant Jasuben. Therefore, we are satisfied that the accused is also guilty for offence punishable under section 307, I.P.C.
44. In light of the entire testimonial collection and documentary evidence referred to above, and catalogue of events and considering the relevant proposition of law, we are fully convinced that the impugned order of acquitted of the accused of the charge under section 302 for committing murder of deceased Kunverba and charge of causing serious injuries and making an attempt to commit murder of Jasuben is manifestly illegal, unjustified and totally perverse. Therefore, the acquittal is required to be reserved. Instead of conviction under Section 324 as held by the trial Court, the respondent in this appeal is held guilty for offence punishable under section 302 for causing and committing murder of deceased Kunverba.
45. The accused is also held guilty for offence punishable under Section 307 for making an attempt to commit murder and murderous assault on Jasuben. The conviction under section 452 shall stand confirmed.
46. However, there will be a statutory pause so as to afford an opportunity of hearing on the quantum of sentence for offences for which he is held guilty by us. The accused is on bail. However, instead of immediately passing any order for issuance of warrant for arrest, upon the request of learned advocate for the accused, the matter is adjourned to 14th July 1998, as he assured us to intimate the accused to remain present in the meantime. Hence, adjourned to 14-7-1998.

11/8/1998

47. FURTHER ORDER :
Reverting back to the sentencing of the accused for the offences he is found guilty, we have heard on the quantum of punishment for the offences under section 302, 307 and 452 IPC. The respondent accused was also heard by the trial court before passing the order of sentence. The trial Court found him guilty for offence under section 324, IPC and directed him to undergo R.I. for two years and to pay fine of Rs. 2,000/- and in default, to undergo S.I. for six months and also for the offence under section 452, the trial Court sentenced the accused to undergo R.I. for one year and fine of Rs. 500/- in default, to undergo R.I. for two months. Both the sentences were ordered to run concurrently. The trial Court imposed the aforesaid sentences after hearing the accused and learned advocate for the accused and the learned Public Prosecutor.
48. By way of additional fact, it has been submitted on behalf of the respondent-accused that the accused has a child and young wife and old mother. Thus, the accused is shouldering the responsibility for maintaining them.
49. Section 302, IPC prescribes punishment for murder. The accused is found to have committed the murder and he is held guilty for the offence punishable under section 302. Under that section, the accused can be punished for death or imprisonment for life and he is liable to fine. Thus, the minimum sentence provided for the offence under Section 302, is imprisonment for life. In light of the facts and circumstances of the present case and in the backdrop of settled proposition of law, we do not find special reasons for imposing death sentence. In our opinion, this is not a case falling within the category of rarest of rare cases as expounded in the catena of judicial pronouncements. Death sentence is to be imposed or awarded in respect of offence of murder when it is found to be rarest of rare case. The learned Additional Public Prosecutor has also, rightly not pressed for extreme penalty of death. We, therefore, deem it expedient to impose the minimum sentence of imprisonment for life under section 302, IPC.
50. The trial Court, while imposing sentence for the offences under Sections 324 and 452 noted the following aspects after hearing the accused and learned advocates :
(i) the accused is a young man of 21;
(ii) his antecedents;
(iii) he is not habitual offender;
Additionally, during the course of hearing on the question of sentencing, the learned advocate appearing for the accused has also placed the following aspects :
(i) the accused has also mother of 61;
(ii) he has young wife of 29;
(iii) a minor child;
(iv) he is coming from poor class of society as he is working as driver.
No doubt, learned Additional PP has pointed out from the record that the contention of the accused that he was working as a driver and he is coming from poor strata of the society is not correct and acceptable. According to him, as per the record, the accused was living in joint family and the joint family was doing quarry business.
51. After having taken into consideration all the relevant facts and circumstances and submissions referable to the question of sentence, since the accused has already been sentenced to undergo imprisonment for life under section 302, the quantum of sentence awarded by the trial Court for the offence under section 324 is modified and instead of Section 324, the accused is awarded the same sentence as that awarded by the trial Court, for the offence under section 307. We do not deem it expedient to modify the quantum of sentence awarded by the trial court insofar as offence under section 452, IPC is concerned. Therefore, the order of sentence passed by the trial court insofar as offence under section 452 is concerned, will remain unchanged and we confirm it.
52. In the net result, the appeal is partly allowed and the accused is held guilty for the offence under section 302 and is directed to undergo rigorous imprisonment for life for committing murder. For the offence under section 307, he is directed to undergo R.I. for two years and to pay fine of Rs. 2,000/- and in default, to undergo S.I. for six months. Conviction and sentence recorded by the trial Court for offence under section 452 is confirmed.
53. Since the accused was enjoying benefit of bail order granted by this Court, the non-bailable warrant came to be issued against him which has remained unexecuted for the reason that he is not traceable and/or absconding presumably to evade the sentence. Therefore, the warrant of arrest, already, issued shall continue to stand until it is executed and the accused is arrested so as to serve the remaining part of the sentence imposed by us as hereinabove.
Appeal partly allowed.
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HOME	State Of Maharashtra, Appellant V. Suresh, Respondent.

 

DATE : 08-05-1998
1999-(105)-CRLJ -0895 -BOM
PENAL LAW KIDNAPPING, RAPE AND MURDER CIRCUMSTANTIAL EVIDENCE
Penal Code, 1860 - Sections 363, 376 and 300 - Circumstantial evidence in the case of kidnapping, Rape and Murder - Allegation against the accused of kidnapping, raping and murdering of a minor girl - Stay of accused at complainants house for a night and his visit again next morning proved - Circumstance that the accused last seen with the victim, doubtful from the evidence on record - No enquiry with the accused as to whether the identifying witnesses had an opportunity to see him - Accused was brought to the place of identification parade with an uncovered face - Evidence regarding discovery of the dead body of victim at the instance of the accused is doubtful - Chemical Analyser unable to determine the blood-group of the blood stains and semen stains alleged to be found on the clothes of the accused - No satisfactory explanation for delay caused in getting the accused medically examined - Circumstances do not constitute and complete an unmistakable chain to connect the accused with the commission of the murder and rape of victim
Conclusion
Circumstances do not constitute and complete an unmistakable chain to connect the accused with the commission of the murder and rape of victim. This is because the prosecution has failed to prove beyond reasonable doubt the other incriminating circumstances, namely, that the deceased was last seen in his company and that he led discovery of the dead body of Sneha, which he had concealed. We have pointed out that the circumstances showing injuries on the private part of the accused as well as the finding of stains of blood and semen on his pant are of inconclusive nature. This being the position it cannot be conclusively said that it was the accused and none else who committed rape on deceased Sneha and also caused her death.
JUDGE(S) :

G D Patil
J A Patil
BOMBAY HIGH COURT (AT NAGPUR)
JUDGMENT
J. A. PATIL, J. :- This common judgment will dispose of both the Criminal Confirmation Case which is referred to under section 366 of the Code of Criminal Procedure by the learned Additional Sessions Judge, Wardha, for confirming the death sentence awarded to the accused in sessions Trial No. 53 of 1996 as also the Criminal Appeal filed under section 374(2) of the Criminal Procedure Code by the accused, challenging the order of his conviction and sentence in the same case. The learned Judge, by his judgment, dated 30-8-1997, convicted the accused of the offences punishable under sections 363, 376 and 302 of the Indian Penal Code and sentenced him on the first count, to suffer rigorous imprisonment for three years; on the second count, to rigorous imprisonment for seven years and on the third count, to death.
2. The prosecution case is that P.W.-1 Laxmibai Panchaghade is a resident of Arvi, District Wardha and that she resides along with her four sons, namely, Rameshwar (P.W. 5). Sanjay (P.W. 6). Raju (P.W. 16) and Ravi, in their ancestral house (Wada). It appears that Rameshwar resides separately with his wife and children in the same house. Deceased Sneha @ Gangu, aged about 4 years, was the daughter of Rameshwar and she is the victim of the offences of kidnapping, rape and murder allegedly committed by the accused.
3. Rameshwar's brother Sanjay (P.W. 6) was involved in a murder case and was detained in Wardha Jail. The accused is a resident of village Rohana, Taluka Arvi. He was also involved in a similar case on the charge of having kidnapped a minor girl of seven years, named Ujwala and committing rape on her and also her murder. He was arrested by the Pulgaon Police Station and he was undergoing detention in Wardha Jail in connection with that case. Thus, in the jail, the accused got acquainted with Sanjay. One Dashrath Kaikade of Arvi was also in Wardha Jail at that time. His house is just opposite to the house of Sanjay.
4. After his trial in the abovementioned case, the accused was acquitted some time in November 1995. It appears that Sanjay was also acquitted in the murder case in which he was involved. After his acquittal, the accused had come to Arvi and met Sanjay. According to the prosecution, on 21-12-1995 the accused once again came to Arvi and this time he stayed with Sanjay at his house. On the next morning, i.e., on 22-12-1995, the accused had tea with Rameshwar. At that time, Sneha was present. The accused is said to have enquired with Sneha, whether she would be able to consume a glass of milk. Sometime thereafter, Raju came there and he took Sneha to a barber's shop for getting her hair cut. At that time, the accused instructed Raju to get the hair cutting of Sneha done properly. After Raju left for barber's shop, the accused followed him there. In the afternoon, at about 3.00 p.m., P.W. 1 Laxmibai was alone present in her house. Sneha was playing outside the house. At that time, the accused came there and asked Laxmibai as to whether Sanjay was present. Laxmibai told him that Sanjay had gone to attend the Court. Thereafter the accused left the place. According to the prosecution, Sneha was found missing thereafter. On the same day at about 3.30 p.m., the accused is said to have visited the grocery shop of P.W. 8 Mahadeo and bought some peppermints to pacify Sneha who was then crying. Thereafter at about 4.00 p.m., the accused along with Sneha visited the Pan-shop of P.W. 14 Motiram. At 4.30 p.m., P.W. 3 Syed Niyamatamat Ali saw the accused going with Sneha towards the site of Bamalda Dargah.
5. After finding that Sneha was missing. Laxmibai started search for her in the neighbourhood. In the evening at about 6.00 p.m. her son Raju returned home. She disclosed to Raju that Sneha was missing. Thereafter Raju went to Arvi Police Station and lodged a missing report (Exhibit 52). At about 7.00 p.m., Sanjay and Rameshwar returned home from their land. They were also told that Sneha was missing. They, therefore, undertook an extensive search for Sneha. It was suspected that the accused might have taken Sneha with him. Sanjay, therefore, went to Rohana in search of the accused, but he was not found there. The search of Sneha was continued throughout the next day, but - she could not be traced. Therefore on 23-12-95 in the evening, Rameshwar went to Arvi Police Station and lodged his report (Exhibit 22) expressing his suspicion that the accused had kidnapped his daughter Sneha.
6. On the basis of the said report, the police registered the case as Crime No. 245/95 for the offence under section 163 of the Indian Penal Code. It appears that a police party was already sent in search of the accused and the said party brought the accused to the Police Station on the same night. On interrogation, the accused offered to lead discovery of the dead-body of Sneha concealed in a field near Arvi. Accordingly, Memorandum (Exhibit 79) of the statement made by the accused was recorded in the presence of two panchas and thereafter the police party, along with two panchas and the accused, left in a police jeep to the field shown by the accused. However, as it was night time, the accused could not locate the place of the dead-body on account of darkness. He, therefore, offered to lead the discovery on the next morning. Accordingly, on the next morning, the accused, in the presence of the two panchas repeated his earlier statement that he would produce the dead-body of the girl which was kept concealed in a field. Accordingly, on the same morning, i.e. on 24-12-1995, the accused led the police and panchas along the Arvi-Wathoda Road up to a distance of about 2 Kms. Thereafter, the accused got down from the jeep and led the police and panchas to a field at a distance of about 150 feet from the road. There, he pointed out the place where it was found that the dead-body of Sneha was lying covered with Tur-plants. There was standing Tur crop in the said land. The dead-body was identified by Raju, the uncle of Sneha. The same was seized under the Seizure Panchanama (Exhibit 81). It appears that at the same time Inquest Panchanama of the dead-body as well as the spot panchanama were made.
7. On the same day, the dead-body of Sneha was sent to the Rural Hospital, Arvi, for postmortem examination. P.W. 20 Dr. Avinash Lawhale carried the postmortem examination and found that there were 12 external injuries on the person of deceased Sneha and that they were antemortem injuries. He found clay present in her buccal cavity. Dr. Lawhale also found external injuries on the genitals of the girl which indicated that she was subjected to forcible sexual intercourse. He opined the cause of death as asphyxia due to smothering with associated evidence of rape.
8. On the next day, i.e., on 25-12-1995, the accused was referred to the Rural Hospital. Arvi, for medical examination. P.W. 22 Dr. Nandkumar Pathade examined the accused and found that there was swelling on his glan penis with punctate abrasions. He opined that the injuries on the penis of the accused suggested of his having forcible sexual intercourse. Dr. Pathade also collected the samples of the blood and semen of the accused. On the same day, in the afternoon, the police seized the pink shirt, white pant and nicker which the accused was wearing. It was noticed that there were stains of blood and semen on the nicker. Besides, there were blood-stains on the portion of the pant which corresponded to the private part. On the same day, the accused offered to lead discovery of his handkerchief which he had kept concealed in his house at Rohana. Accordingly, the police, along with two panchas, led by the accused, went to his house. There, the accused took out a soiled handkerchief which was found concealed under the tiles on the kitchen room of his house. Stains of blood were notice on the handkerchief and the same was seized.
9. On the next day, i.e. on 26-12-1995, identification parade of the accused was arranged and it was conducted by P.W. 2 - Anand Bodkhe, who is the Executive Magistrate. In that parade, the three witnesses, viz. P.W. 3 - Syed Niyamat Ali, P.W. 8 - Mahadeo and P.W. 14 - Motiram identified the accused as being the same person whom they claim to have seen with deceased Sneha in the afternoon of 22-12-1995.
10. The investigation of the case was carried by PI Manohar Sonone (P.W. 26) who, in the course of investigation, recorded statements of several witnesses and also arranged to send the seized article to the Chemical Analyser for examination. The Chemical Analyser's report (Ex. 33) disclosed that stains of blood and semen were found on the underpant of the accused. After completing the investigation, PI Sonone filed charge-sheet against the accused on 30-4-1996 in the Court of the Judicial Magistrate, First Class, Arvi, for the offences punishable under sections 363, 376 and 320 of the Indian Penal Code. The learned Magistrate, Arvi, committed the case to the Sessions Court, Wardha, for trial.
11. The learned Additional Sessions Judge framed charge against the accused for the offences under sections 363, 376 and 302 of the Indian Penal Code. The accused pleaded not guilty. His defence is one of total denial. He did not lead any evidence nor did he examine himself on oath. The prosecution examined in all 26 witnesses and also produced a number of documents. The learned Judge upon consideration of the same, accepted the prosecution case and held that it was the accused who had kidnapped Sneha from the lawful guardianship of her father. He further held that the medical evidence clearly proved that Sneha was subjected to forcible sexual intercourse and that she died homicidal death at the hands of the accused. The learned Judge accepted the prosecution evidence regarding identification of the accused as well as the discovery of the dead-body of Sneha by the accused. Considering the cumulative effect of the circumstances proved, the learned Judge came to the conclusion that the accused was proved to have committed all the offences with which he was charged. In this view of the matter, the learned Judge convicted him of the abovementioned offences. As regards the sentence, the learned Judge found that it was "rarest of the rare" case as the accused had committed rape on a minor girl of four years and thereafter committed her murder. Relying upon the decision in Kamta Tiwari v. State of Madhya Pradesh (1996) 3 Crimes 241 : (1996 Cri LJ 4158) (SC), the learned Judge proceeded to award the sentence of death to the accused for the offence under section 302 of the Indian Penal Code.
12. Shri M. R. Daga, the learned Advocate for the accused, contended before us that the learned Judge was in error in accepting the prosecution evidence which is of a doubtful nature. He pointed out that in the missing report (Ex. 52), which was lodged on the evening of 22-12-1995, no suspicion was expressed against the accused. This fact, according to Shri Daga, is a clear indication that P.W. 1 - Laxmibai must not have seen the accused visiting her house in the afternoon. Shri Daga further criticized the evidence of the three witnesses, viz., P.W. 3 - Syed Niyamat Ali, P.W. 8/Mahadeo and P.W. 9 - Motiram, who claim to have seen the accused with Sneha in the afternoon of 22-12-1995. Shri Daga pointed out that none of them has given the physical features of the person whom they saw, and they had really no reason to remember the said person. Shri Daga contended that the evidence of test identification parade of the accused cannot be relied upon. Hence, the evidence on record clearly shows that the identifying witnesses had a chance to see the accused after he was brought to the Police Station. As regards the evidence of discovery of the dead-body of Sneha, Shri Daga submitted that it is a piece of concocted evidence. He pointed out that the dead-body of Sneha is said to have been recovered on the early morning of 24-12-1995, but the evidence of P.W. 3 - Syed Niyamat Ali shows that on the previous evening itself, he had seen the dead-body of the girl at the house of her father. Shri Daga did not dispute the fact that Sneha died homicidal death. But, according to him, there could not have been accomplished sexual intercourse with her. He further pointed out that there was delay in carrying the medical examination of the accused. As regards the injuries on the penis of the accused as well as the stains of blood and semen on his underpant, Shri Daga submitted that both the circumstances are capable of being explained on other hypo thesis and that they do not necessarily indicate that the accused had committed forcible sexual intercourse with deceased Sneha. Shri Daga, therefore, submitted that the accused is entitled to be acquitted. In case, however, the conviction of the accused is maintained by this Court, Shri Daga submitted that the sentence of death would not be justified. According to him, at the most this case can be regarded as a rare case but not "rarest of the rare".
13. Shri S. G. Deshpande, the learned APP, supported the order of conviction and sentence passed by the trial Court. He submitted that the prosecution evidence clearly establishes a chain of incriminating circumstances against the accused. He further submitted that there is absolutely no reason to disbelieve the evidence of identification of the accused, as the identification parade was conducted without any delay and the witnesses, who identified the accused, had no reason to falsely identify the accused. Shri Deshpande further stated that the evidence regarding discovery of the dead-body of Sneha at the instance of the accused is clinching and the same cannot be discarded on any count. He further pointed out that the medical evidence clearly indicates that Sneha died homicidal death and that before that, she was subjected to forcible sexual intercourse. Shri Deshpande pointed out that there is no explanation by the accused as to how he has sustained the injuries. According to Shri Deshpande, the trial Court has properly and correctly appreciated the evidence and considered the cumulative effect of all the incriminating circumstances. He, therefore, submitted that there is no reason nor any warrant to disturb the order of conviction. As regards the sentence of death, Shri Deshpande submitted that having regard to the fact that the accused committed brutal rape on the minor girl of four years before causing her death, the sentence of death alone is deserving in the instant case.
14-15. With the help of both the learned Counsel, we have carefully gone through the entire evidence, both oral and documentary, adduced by the prosecution. Although the prosecution has examined as many as 26 witnesses none of them is an eye-witness. The whole case is, therefore, based on circumstantial evidence. The prosecution has relied upon the following circumstances :-
(1) That, the accused visited the house of Rameshwar/Laxmibai on 21-12-1995 and 22-12-1995 and had a brief talk with deceased Sneha.
(2) That on 22-12-1995, around 3.00 p.m., the accused visited the house of Laxmibai and at that time Sneha was playing outside the house.
(3) That on the same day, at about 3.30 p.m., P.W. 8 Mahadeo saw one person wearing white pant and pink shirt visiting his shop with a minor girl of four years.
(4) That, on the same day, at about 4.00 p.m., P.W. 14 Motiram saw the same person with a minor girl of four years visiting his Pan-shop.
(5) That, on the same day, at about 4.30 p.m., P.W. 3 Syed Niyamat Ali saw the same person with a minor girl of four years proceeding towards the side of Bamalda Dargah.
(6) That, Sneha did not return home on 22-12-1995 and was found missing.
(7) That, on 24-12-1995, the dead-body of Sneha was recovered at the instance of the accused in a concealed condition from a field situated about 2 or 3 Kms. from Arvi.
(8) Medical evidence showing that -
(a) the death of Sneha was homicidal and
(b) rape was committed on her.
(9) Medical evidence showing injuries including swelling and abrasions on the penis of the accused and also injuries on his elbows.
(10) Finding of stains of blood and semen on the underpant of the accused and blood-stains on his pant.
(11) Identification by P.W. 3 - Syed Niyamat Ali; P.W. 8 - Mahadeo and P.W. 14 - Motiram of the accused as being the same person whom they saw in the afternoon of 22-12-1995.
16. It is well-settled that when the prosecution is based on circumstantial evidence, the evidence must not only be consistent with the guilt of the accused, but it must also be inconsistent with his innocence. In Jaharlal Das v. State of Orissa, AIR 1991 SC 1388 : (1991 Cri LJ 1809), it was observed that circumstantial evidence in order to sustain the conviction, must satisfy three conditions, viz., (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established : (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; and (iii) the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused. In the same case, the Supreme Court has referred to its earlier decision in Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343 : (1953 Cri LJ 129) and pointed out that the gravity of the offence cannot by itself overweigh as far as legal proof is concerned. It was observed :
"It is at this juncture that the Court has to be watchful and avert the danger of allowing the suspicion to take the place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof. At times, it can be a case of 'may be true'. But there is a long mental distance between 'may be true' and 'must be true', and the same divides conjectures from sure conclusions".
In Ram Autar v. State (Delhi Administration), AIR 1985 SC 1692 : (1985 Cri LJ 1865), the Supreme Court, while dealing with the question of appreciation of circumstantial evidence observed (Paras 2 and 16) :
"However, the Court must guard against the danger of not considering circumstantial evidence in its proper perspective, e.g., where there is a chain of circumstances linked up with one another, it is not possible for the Court to truncate and break the chain of circumstances. In other words, where the series of circumstances are dependent on one another, they should be read as one integrated whole and not consider separately, otherwise, the very concept of proof of circumstantial evidence would be defeated. Thus, where circumstantial evidence consists of a chain of continuous circumstances linked up with one another, the Court has to take the cumulative effect of the entire evidence led by the prosecution before acquitting or convicting the accused."
Bearing these principles in mind regarding appreciation of the circumstantial evidence, we, now, turn to the evidence of incriminating circumstances pointed out against the accused.
17. It is not in dispute that the accused and P.W. 6 Sanjay struck acquaintance while they were undergoing detention in Wardha Jail. In his statement under section 313 of the Criminal Procedure Code, the accused has admitted his involvement in connection with a similar offence registered by the Pulgaon Police Station. The accused was, however, acquitted in that case sometime in November, 1995. According to the prosecution, on 21-12-1995, the accused had come to Arvi to see Sanjay who was also acquitted in a murder case in which he was involved. The evidence of P.W. 1 Laxmibai, P.W. 5 Rameshwar, P.W. 6 Sanjay and P.W. 16 Raju shows that on 21-12-1995, the accused stayed for a night at their house. The evidence of P.W. 5 - Rameshwar further shows that on the next morning the accused had tea with him and at that time, the accused asked Sneha whether she could consume a full-glass of milk. The evidence of P.W. 16 Raju shows that immediately thereafter, he wanted to take Sneha to a barber's shop for cutting her hair and at that time, the accused followed him to the shop and further instructed him to get a good hair-cutting done. Although the accused has denied to have visited the house of these witnesses, there is absolutely no reason to disbelieve their evidence. Since P.W. 6 Sanjay was already acquainted with the accused, there was nothing improbable that the accused came to his house on 21-12-1995. There is, therefore, no difficulty in accepting the first abovementioned circumstance.
18. As regards the second circumstance it is the prosecution case that on 22-12-1995, the male-folk of Panchaghade family, i.e., P.W. 5 Rameshwar, P.W. 6 Sanjay, P.W. 16 Raju, had gone out to their field and that in the afternoon at about 3.00 p.m., their mother P.W. 1 Laxmibai alone was present in the house. Sneha was then playing outside the house and at that time, the accused happened to come there. P.W. 1 Laxmibai has stated that the accused enquired with her as to whether Sanjay was present. She replied in the negative and told him that he might have gone to the Court. The evidence of P.W. 1 Laxmibai further shows that Sneha was playing near the door of the house and that thereafter she was not seen again. She further stated that she searched for Sneha and in the evening when her sons returned home, she disclosed to them that Sneha was missing. Her evidence, coupled with the evidence of P.W. 16 - Raju, shows that at her instance the latter went to Arvi Police Station and lodged his missing report (Ex. 52). The Sana Entry (Ex. 56) shows that the missing report was lodged at 7.00 p.m. Shri Daga pointed out that in the said missing report, no suspicion was expressed against the accused as having kidnapped Sneha. He, therefore, contended that if P.W. 1 Laxmibai had really seen the accused visiting her house at 3.00 p.m., and thereafter found Sneha missing, then she would have certainly told Raju about it. Shri Daga, therefore, submitted that the very fact that the missing report (Ex. 52) does not point out any suspicion towards the accused, is a clear indication that the accused had either not visited the house of P.W. 1 Laxmibai or that she must not have seen him visiting her house in that afternoon.
19. We have given an anxious thought, to the submissions made by Shri Daga, but we do not find much substance in it. As pointed out above, the accused had stayed on the previous night with Sanjay and had also taken tea with Rameshwar on the next morning. There was, therefore, nothing improbable that if in the same afternoon, the accused had again come to the house of P.W. 1 Laxmibai to enquire about Sanjay. It is true that the missing report (Ex. 52) does not point out any suspicion against the accused. It is quite probable that by that time, nobody had suspected that the accused would kidnap Sneha. As a matter of fact, the accused was acquainted with Sanjay and had stayed with him for a night as his guest. He had also taken tea with Rameshwar and had a brief talk with Sneha. The manner in which the accused conducted himself at that time may not have prompted P.W. 1 Laxmibai to suspect that he would kidnap her grand-daughter Sneha. The suspicion, however, seems to have materialised after Rameshwar and Sanjay returned home and the search of Sneha was found to be futile. The missing report (Ex. 52) appears to have been filed before Rameshwar and Sanjay returned home. It is common experience that everybody is slow and cautious before expressing any positive suspicion against a person who stays with him as a guest. It is perhaps for this reason that no suspicion was expressed against the accused in the missing report (Ex. 52). It is found that positive suspicion, however, came to be expressed against the accused when P.W. 5 Rameshwar lodged his report (Ex. 22) on the next evening, i.e., on 23-12-1995. In view of this position, we are unable to accept the submission of Shri Daga and we found that the accused did visit the house of P.W. 1 Laxmibai in the afternoon of 22-12-1995 and that at that time Sneha was playing outside the house.
20. This takes us to the next circumstance, which is in the nature that Sneha was last seen in the company of the accused in the afternoon of 22-12-1995. This incriminating circumstance is pointed out at serial nos. (3), (4) and (5) above. The evidence relevant in this respect is that of P.W. 8 Mahadeo P.W. 14 Maroti and P.W. 3 Syed Niyamat Ali. All of them are residents of Arvi and it is not the case of the prosecution that they were knowing the accused since before. There evidence also does not show that they were knowing Sneha since before. The substance of the evidence of these three witnesses is to the effect that at the relevant time each of them separately saw one person wearing a white pant and pink shirt with a minor girl of 4 years, who was crying. P.W. 8 Mahadeo, who runs a grocery shop at Arvi claims to have seen the said person visiting his shop between 3.30 p.m. and 4.00 p.m. of 22-12-1995. According him, the said man purchased some peppermints and left the shop. P.W. 14 Motiram runs a Pan-shop at Arvi and he claims to have seen, at about 4.00 or 4.30 p.m., one person wearing pink shirt and white pant along with a girl of 4 years wearing a pink frock with checks and having bob-cut hair. According him, the said person bought 'Kharra' from his shop and thereafter left the shop. P.W. 3 Syed Niyamat Ali is a tailor and, according to him, on 22-12-1995, he had his Namaz (prayer) in the Masjid at 2.00 p.m. In his evidence, he has further stated that after the Namaz was over, he went to Telang Shah Dargha and from there, he went to Syed Kasim Dargah. Thereafter, he claims to have visited Bamalda Dargah. According to him, at about 4.30 p.m., when he was returning from Bamalda Dargah, he saw one black person wearing white pant and pink shirt going with a female child of 4 or 5 years. He further stated that the girl was wearing a frock and had her hair bob-cut and that she was crying. All of them have further stated that at the identification parade, they identified the accused as being the same person whom they had seen with a minor girl of 4 years. The prosecution, thus, relies upon these three witnesses as disclosing an important incriminating circumstance against the accused, namely, that the deceased Sneha was last seen in the company of the accused. The learned trial Judge has accepted the evidence of these three witnesses, as according to him, there is no reason for them to falsely implicate the accused and that there is no possibility of any mistaken identity.
21. We have carefully gone through the evidence of these three witnesses. In the first instance, it is material to note that they had not previously seen the accused. Moreover, none of them had any special reason to remember the accused. They appear to have a very brief meeting with the accused and none of them had the opportunity to note the physical features of the accused. All that they saw at the relevant time was a man wearing a pink shirt and white pant with a minor girl of 4 years. There is no particular reason as to why each of them meticulously remembered that the person whom they saw with a girl was wearing a pink shirt and white pant. So far as P.W. 8 Mahadeo and P.W. 14 Motiram are concerned, they are the shop-keepers who meet a number of people in their shops every day. Therefore, unless there is a special reason, it is difficult to remember any particular customer having visited their shops.
So far as P.W. 3 Syed Niyamat Ali is concerned, his evidence does not appear to be natural. He is a tailor by profession, Being a Mohammedan and 22-12-1995 being a Friday, it was natural for him to visit the Masjid for Namaz (prayer). However, what is improbable and unnatural with his evidence is that after the Namaz (prayer) was over at 2.00 p.m., he went on visiting three Dargahs one after the other, without any particular reason. His visit to Bamalda Dargah and his alleged coming across the accused while returning from there, appears to be far-fetched. As a matter of fact, so many people come across while passing by the road and nobody has normally any occasion to specially remember any particular stranger, unless there is something special about him. It, therefore, appears quite unnatural when he describes the man whom he crossed while returning from Bamalda Dargah as being a person wearing pink shirt and white pant and the girl wearing a frock and having her hair bob-cut. He did not have talk with the said person. It is, therefore, not known as to how and why he could identify that man as being the accused. Syed Niyamat Ali has stated that on the next day, he heard about the rumour that a girl was murdered. According to him, he then visited the house of that girl and saw her dead-body. It is, however, surprising to note that he did not tell anyone in the family of that girl that on the previous day, he had seen a man wearing pink shirt and white pant taking the girl with him. The explanation given by him for his non-disclosure is that all the members of the family of the said girl were in shock. It cannot be said that this explanation is in any way reasonable and satisfactory. P.W. 8 Mahadeo has also stated that on the next day, there was a talk in the village about kidnapping of a minor girl. According to him, on 24-12-1995, he visited the house of the girl and saw her dead-body and identified her as being the same girl. There is, however, nothing in his evidence to indicate that he informed any of the relatives of Sneha that in the afternoon of 22-12-1995, he had seen her with a person wearing pink shirt and white pant.
22. It was contended on behalf of the prosecution that all these three witnesses, after coming to know of that the said girl was Sneha, voluntarily approached the Police Station and informed the police. The learned trial Court has also pointed out this fact. Both Mahadeo and Motiram stated that they visited the police station on 24-12-1995 and that the police recorded their statements. As a matter of fact, the evidence of PI Sonone (P.W. 26), who investigated the case, shows that he recorded the statements of these three witnesses on 25-12-1995. There is, however, no explanation as to why he did not record their statements on 24-12-1995. In this connection, it is material to note that the accused was arrested on the night of 23-12-1995, itself.
23. There is an inherent incredibility in the evidence in this respect. A person with sinister design of kidnapping a minor girl would normally take precaution that he is not noticed by others while doing so. But in the instant case, the evidence is that the accused, along with Sneha, moved from place to place in the town. He first went to the shop of Mahadeo at about 3.30 p.m. and thereafter he visited the shop of Motiram at about 4.00 p.m. Sneha was residing in Awaghad Ward. The evidence of P.W. 8 Mahadeo shows that his shop is in Maroti Ward which is at a distance of about 2000 feet from Awagadh Ward. The Pan-shop of P.W. 14 Motiram is situate near the Panchayat Samiti Office. It will, thus, be seen that as per the prosecution case, after removing Sneha at about 3.00 p.m. from near her house, the accused was moving in the village till 4.30 p.m., i.e., for about one-and-a-half hour. This does not appear to be probable one, keeping in view the nature of the allegation.
24. At this stage, it would be proper and convenient to deal with circumstance No. 11, which is to the effect that the abovementioned three witnesses, viz., P.W. 3 Syed Niyamatali. P.W. 8 Mahadeo and P.W. 14 Motiram identified the accused as being the same person whom they had seen with Sneha in the afternoon of 22-12-1995. Besides the evidence of these three witnesses, the other evidence, which is relevant for discussion is that of P.W. 2 Anand Bodkhe, the Executive Magistrate who conducted the identification parade and panch witnesses (P.W. 7 Damodhar Laicha and P.W. 24 Gajav Lambade.
25. The evidence of P.W. 2 Anand Bodkhe shows that on the requisition made by the Police Inspector, Arvi, he arranged to hold an identification parade of the accused on 26-12-1995 at 4.00 p.m. in the Tahsil Office. He stated that he called two panchas, namely, Laicha and Lambade, for the said identification parade, which was conducted in the Main Hall. According to him, the identifying witnesses were in the other room and they were not visible from the hall. Bodkhe has further stated that he sent the two panchas to bring the accused from the Police Station, and after the accused was brought in the Main Hall, he asked the accused to take any position in the line of seven persons who were selected, considering the age of the accused. He further stated that the accused was given a choice to change his clothes, if he wanted to do so. According to him, the accused changed his shirt. Bodkhe has further stated that one-by-one three identifying witnesses were separately called in the main-hall and each of them identified the accused. Bodkhe has further stated that after the identification by one witness was over, the accused was asked whether he wanted to change his position in the line and clothes. After the identification parade was over, Bodkhe prepared memo (Ex. 17), which is duly proved by both the panch witness, viz., Laicha and Lambade.
The evidence of P.W. 7 Laicha is cryptic and he does not say as to how many identifying witnesses were called and whether they identified the accused or not. However, P.W. 24 - Lambade has given a clear account of the identification parade which, coupled with the evidence of P.W. 2 Bodkhe, leaves no doubt that the three identifying witnesses identified the accused in that parade. Moreover, the identifying witnesses, namely, P.W. 3 Syed Niyamatali, P.W. 8 Mahadeo and P.W. 14 Motiram, have also stated that they identified the accused.
26. Shri Daga, the learned Advocate for the accused, however, contended before us that no reliance can be placed on the evidence of identification parade, since it is clear from the record that the identifying witnesses had a chance to see the accused, before the identification parade was held. We have carefully considered this submission made by Shri Daga and we find considerable force in it. It may be recalled that the accused was arrested on the night of 23-12-1995. The identification parade was held on 26-12-1995 and during that period, the accused was in the custody of police. It appears from the evidence of P.W. 2 Bodkhe that the Tahsil Office is at a distance of about 100 metres from the Police Station. Although P.W. 26, PI Sonone has stated that he sent the accused in a police jeep to the Tahsil Office, the evidence of P.W. 2 Bodkhe and P.W. 24 Panch Lambade shows that the accused was brought on foot. Panch Lambade has further admitted that there was a crowd of people on the way. He, however, tried to say that he did not see the identifying witnesses in that crowd. P.W. 3 Syed Niyamatali, who is one of the identifying witnesses, has stated in the cross-examination that the villagers rushed to the Police Station after the news of the arrest of the accused came. It is pertinent to recall here that all the three identifying witnesses have stated that on 24-12-1995, they had voluntarily gone to the Police Station. Taking these facts into consideration, the possibility that the identifying witnesses having already seen the accused, cannot be ruled out.
27. When the accused is previously not known to the witnesses, their evidence about the identification of the accused assumes great importance. The object of and identification parade is to make sure that the ability of the witness to recognise the suspect has been fairly and adequately tested. For that purpose, identification parade has to be fair and every precaution is required to be taken to exclude any suspicion of unfairness or risk of erroneous identification. It was observed in Ramanathan v. State of Tamilnadu, 1978 Cri LJ 1137 : (AIR 1978 SC 1204, para 18) :-
".......... The holding of a test identification in such cases is as much in the interest of the investigating agency or the prosecution as in the interest of the suspect or the accused. For while it enables the investigating officer to ascertain the correctness or otherwise of the claim of those witnesses who claim to have seen the perpetrator of the crime and their capacity to identify him and thereby fill the gap in the investigation, regarding the identify of the culprit, it saves the suspect or the accused from the sudden risk of being identified in the dock by the self same witnesses during the course of the trial ......................"
It, therefore, becomes absolutely necessary for the officer conducting the identification parade to follow due procedure and take all the necessary precautions so that the identification by the witnesses could be real and genuine.
28. Shri Daga pointed out that in the instant case, P.W. 2 - Bodkhe failed to follow due procedure and take necessary precaution. He pointed out that Bodkhe did not make any enquiry with the accused as to whether the identifying witnesses had an opportunity to see him in the jail or police station. Bodkhe has admitted in his cross-examination that he did not make any such enquiry with the accused. His evidence does not also show that he made any enquiry with the identifying witnesses, whether they had opportunity to see the accused before. In this respect, reference may be made to clause (xi) in the Circular No. PRO-2460/16653-IX, dated 16th August, 1963, which is incorporated in paragraph 16 of Chapter-1 of the Criminal Manual, which lays down the procedure for holding identification parade. The relevant portion of clause (xi) reads as under :-
"Then one of the respectable persons should be asked to fetch the first identifying witness from the room in which he may be sitting. When the witness arrives, the Executive Magistrate/ Honorary Magistrate should question him and ascertain from him whether he had an opportunity to see the culprit at any time subsequent to the offence or after the arrest ............."
It must be said that in the instant case, this procedural safeguard was not followed by P.W. 2 Bodkhe. Shri Deshpande, learned APP, relied upon the decision in Somappa v. State of Mysore, AIR 1979 SC 1831 : (1979 Cri LJ 1358), wherein it was held that amongst some defects in proceedings referred to identification parade, the evidence of eye-witnesses regarding participation of the accused could not be rejected. However, perusal of para-13 of the said judgment makes it clear that the High Court had rejected the evidence regarding identification of the third accused on the ground that the panchanama prepared by the Taluka Magistrate did not show that either he questioned the accused, if he was shown to the witnesses or he himself questioned the witnesses, if they had seen the accused. The Supreme Court considered all the circumstances and observed that much reliance could not be placed on the identification parade regarding establishment of the identity of the third accused.
29. Shri Daga then pointed out that the accused was brought to the place of identification parade in an uncovered manner, with the result that he was exposed, to the gaze of many people. Shri Deshpande, learned APP, however, pointed out from the evidence of P.W. 2 Bodkhe that the accused had concealed his face with handkerchief. Bodkhe has, however, admitted that he did not mention this fact in the memorandum panchanama (Ex. 17). Moreover, none of the two panch witnesses, who are said to have brought the accused to the Tahsil Office from the Police Station, stated that the accused had covered his face, in any manner. Shri Deshpande relied upon Ramnathan's case (1978 Cri LJ 137) (supra), in which the Supreme Court referred to the Full Bench decision of the Rajasthan High Court in the case of AIR 1962 Rajasthan 78 and held that absence of any evidence to prove that the accused was kept "ba parda", the test identification parade was of no consequence. The Full Bench of Rajasthan High Court had held that it was not necessary that entry should be made in various police record of the precautions which were taken for keeping the accused "ba parda" while under police custody and that it was also not necessary to specify in the Warrant of Commitment of the accused when he is sent to Judicial Custody that he is to be kept "ba parda" till the identification parade takes place. It was further held that it was also not necessary that entries should be made in the Jail records for keeping the accused "ba parda" while he is in Judicial lockup. The Supreme Court in that case accepted the evidence regarding identification of the accused and the reason for the same is found in para-19 of the judgment, which reads :
"The fact that such a parade was held within two days of the arrest of the appellant and was held by a Judicial Magistrate with all the necessary precautions and arrangements, leaves no room for doubt that the evidence of the test identification was of considerable importance ...................."
In the instant case, this is, however, not the position. As pointed out above, the accused was openly paraded from the Police Station to the Tahsil Office before the identification parade and the Executive Magistrate, P.W. 2 Bodkhe failed to ask the identifying witnesses whether they had seen the accused before the identification parade. Taking all these facts into consideration, we are not inclined to place reliance upon the evidence regarding identification of the accused.
30. This takes us to the 7th incriminating circumstance pointed out above, and it is that on 24-12-1995, the dead body of Sneha was recovered at the instance of the accused in concealed condition from a field situated about 2 or 3 Kms from Arvi. The relevant evidence in this respect is that of P.W. 15 Vijay Ajmire, P.W. 23 Proshottam Nagpure, who acted as panch witnesses, and P.W. 26, P.I. Sonone, who investigated the case. P.I. Sonone has stated that he arrested the accused at 9.15 p.m., on 23-12-1995 and thereafter the accused made a statement that he would produce the dead body of the girl. The evidence of the abovementioned two panch witnesses also shows that the accused made such a statement in their presence and the same was reduced to writing, which is at Exhibit-45. It is further seen from their evidence that on the same night, both the panch witnesses, along with the police party led by the accused, went to a field in Khubgaon Shiwar. The police party had taken with them patromax and torch. A search for the dead body was made; but the accused told that because of the night time, he was not in a position to locate the spot. Therefore, on that night, there could not be any discovery. P.I. Sonone has stated that the accused told that he would show the place on the next morning. Hence, on the next morning, i.e., on 24-12-1995, both the panchas were again called in the Police Station and in their presence, the accused repeated his earlier statement which was again recorded in the Memorandum Panchanama (Ex. 45). It reads as follows :
"On 22-12-95, I, Suresh Motiram Masram, aged 30 years, resident of Rohana, Police Station Pulgaon, kidnapped Ku. Sneha alias Gangu Panchgude, from her house and raped and murdered her, in the forest. Her dead body is kept concealed in the field. I will take out and produce the same. Come with me."
The evidence of abovementioned three witnesses further shows that at 6.00 a.m., all of them along with the accused went in a jeep, which was taken as per the say of the accused by Smashan Ghat road up to Dargah. There, the accused got down from the jeep and took all the members on foot up to a distance of about half a kilometer on the left side of the road. There was standing Tur crop in the said land. The accused then located the spot and pointed out the dead body of a small girl which was found concealed under the Tur plants. It appears that Ravindra, the uncle of the girl had accompanied the party, and he identified the girl as being Sneha. Accordingly, an inquest panchanama of the dead body was made on the spot and it was taken in custody under the Seizure Panchanama (Ex. 46).
31. Shri Daga contended before us that the evidence regarding discovery of the dead body of Sneha at the instance of the accused is not at all free from doubt. According to him, the dead body was already recovered by the police, and after the arrest of the accused, it was planted in the field in order to make a show that it was recovered at the instance of the accused. Shri Deshpande, learned APP, on the other hand, submitted that the possibility of planting of the dead body is ruled out, in view of the fact that it was found concealed in standing crop and the exact spot could be located only after the accused led the police and panchas there. The learned trial Judge has accepted the evidence regarding the discovery and pointed out that if the police had intended to do so, then they could have created record of recovery of the dead body at the instance of the accused on the night of 23-12-1995 itself, without recording the ineffective panchanama (Ex. 80).
32. In view of the rival contentions, it becomes necessary for us to examine the evidence regarding discovery of the dead body carefully. The prosecution has examined both the panch witnesses of the two panchanamas, Exhibits 80 and 81 respectively. P.W. 15, Vijay Ajmire does not speak of the earlier panchanama (Ex. 80), while panch Proshottam Nagpure (P.W. 23) mainly speaks of the earlier panchanama (Ex. 80) indicating the attempt made by the accused on the previous night to locate the spot where the dead body was kept. He has made a cryptic statement regarding the discovery of the dead body made on the next morning. P.W. 26-PI Sonone has, however, stated about both the Memoranda and the Panchanamas. P.W. 15-Vijay Ajmire has stated that on the morning of 24-12-1995, when he went to the Police Station, the police told him that the accused was ready to make a statement regarding recovery. He further stated that the accused made a statement before him that he would show the dead body of the girl. P.W. 26, P.I. Sonone does not reproduce the exact statement which the accused is said to have made in the presence of panchas on the morning of 24-12-1995. All that he has stated is to the effect that the accused again gave a statement and it was recorded in the presence of panchas. Before that, he has stated about the statement made by the accused on the previous night after his arrest. It is to this effect :-
"The accused gave a statement that he would produce the dead body of the girl."
33. The abovementioned evidence does not show that the accused made a statement to the effect that the dead body was concealed by him. In other words, the evidence of Panch Vijay Ajmire and P.I. Sonone does not at all indicate that the accused admitted the authorship of the concealment of the dead body. There is a vast difference between the words, "Her dead body is kept concealed in the field. I will take out and produce the same", as mentioned in the Memorandum (Ex. 45), and the words, "Her dead body is kept concealed by me in the field. I will take out and produce the same."
In Bhagirath v. State of Madhya Pradesh, AIR 1959 Madh Pra 17 : (1959 Cri LJ 48), certain relevant observations from Monir's "Principles and Digest of the Law of Evidence" were quoted with approval and they are to the following effect :-
"Where the gist of the offence is possession, words such as 'I hid', 'I pledged', 'I sold', 'I gave' or 'I have kept' are admissible on the ground that words are distinctly related to the fact discovered, though in the circumstances of the case they may amount to a confession."
It appears that seven accused were convicted for the offence under Section 395 of the Indian Penal Code. One of the items of evidence relied upon by the prosecution was discovery of the stolen ornaments at the instance of one of the accused. It further appears that the evidence adduced before the Court regarding the statement made by the accused was only to the effect that the ornaments were kept inside the bush, though the Memorandum Panchanama recited the words, "I have kept the ornaments inside the bush". The High Court pointed out the distinction between the two sets of the words by observing that the first set of words would only imply that the accused person somehow acquired the knowledge about the whereabouts of the ornaments, while the second set of sentence connote that the accused had exclusive possession of the ornaments at least for sometime after the theft, so that he was in a position to keep those ornaments inside the bush.
33A. Shri Deshpande, learned APP, submitted before us that the statement recited in the Memorandum (Ex. 45) must be read as a whole. The same is already reproduced above. There is no doubt that so far as the first sentence therein is concerned, it is inadmissible in evidence. The only part of the statement, which is admissible is, "Her dead body is kept concealed in the field. I will take out and produce the same. Come with me," Shri Deshpande wanted us to read the words "by me" in the sentence "Her dead body is kept concealed (by me) in the field." It is, however, not possible to do so, unless there is clear substantive evidence indicating that the accused admitted the authorship of concealment of the dead body. In this connection, the following observations made in the Bhagirath's case (1959 Cri LJ 48) (supra) are relevant (Para 13) :-
"There seems to be a general impression among the subordinate Court and the Public Prosecutors that the lists of discoveries or Memoranda or Panchanamas exhibited in criminal cases are themselves evidence. This is an erroneous view of the law ....... atever statement is attributed to an accused person in police custody giving information leading to discovery must be provided by witnesses like any other fact."
In this respect, reference may be made to the decision in R. Vijayakumar v. State, (1994) 2 Crimes 323, wherein it was observed that unless facts incorporated in Mahazar are spoken to by a particular witness in order to making of a Mahazar, it does not amount to substantive evidence.
34. Shri Deshpande submitted before us that the dead body was found in concealed condition in the standing Tur crop in a field away from the road, and as such it could not have been within the knowledge of anybody else. According to him, the discovery of the dead body by the accused clearly indicates his exclusive knowledge about the same, and as such the discovery becomes an important incriminating piece of evidence against the accused. We are not impressed by this submission. As observed in Kottaya v. Emperor, AIR 1947 Privy Council 67 : (1947 (48) Cri LJ 533) :-
"Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of knife ...... It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovery is very relevant . . . . . . ."
35. Shri Deshpande relied upon the decisions in Narpal Singh v. State of Haryana, 1977 Cri LJ 642 : (AIR 1977 SC 1066) and Darshan Singh v. State of Haryana, (1996) 10 SCC 283 : (1996 Cri LJ 4438). However, we find that they are on different points. The point involved in this case, viz., absence of any statement by the accused regarding authorship of concealment was not involved in these cases and the discovery of weapons in both the cases was held proved on the merit of the evidence.
36. Shri Daga referred to the evidence of P.W. 3 Syed Niyamatali and pointed out that the dead body of Sneha could not have been recovered on the morning of 24-12-1995, since the said witness has admitted to have seen the same on the previous day. It may be noted that Syed Niyamatali has earlier stated that on 22-12-1995, he saw a black person wearing white pant and pink shirt going with a female child of four years. He has further stated :
"On the next day, at about 5.00 p.m. I heard rumour that a girl was murdered. So I went to the house of that girl. I saw the dead body of that child. I remembered then that I had seen the said girl with one person the earlier day."
It may be noted that this witness was not treated as a hostile witness nor any clarification was tried to be sought from him by the prosecution. Therefore, whatever he stated in this respect stands good. Therefore, if on 23-12-1995 Syed Niyamat Ali had seen the dead body of Sneha, then the prosecution evidence that the dead body was recovered at the instance of the accused on the next morning from a field is rendered doubtful
37. The net result of the foregoing discussion on the point of discovery of the dead body of Sneha is that the evidence in this respect is far from satisfaction and not free from doubt. Even if the same is accepted, it does not go to prove anything beyond mere recovery of the dead body, without any incriminating element attributed to the accused. The learned Judge has not carefully scrutinised the evidence in this respect and proceeded to jump at the conclusion that the other two possibilities, namely, (i) that the accused saw someone else placing it on the spot and (ii) that somebody told the accused that it was lying there, stand ruled out. It will, thus be seen that the prosecution has failed to prove that the dead body of Sneha was discovered at the instance of the accused.
38. The next piece of circumstantial evidence is the medical evidence showing that the death of Sneha was homicidal and that rape was committed on her. So far as the evidence of homicidal death is concerned, Shri Daga fairly conceded that he did not want to dispute the position. The evidence on record shows that the dead body of Sneha was referred to the Rural Hospital, Arvi, for postmortem examination, which was carried by P.W. 20 Dr. Avinash Lawhale on 24-12-1995. Dr. Lawhale found 12 external injuries on the dead body, one of which, i.e., irregular erosion of lips with no signs of inflammation was found in the postmortem, and rest of the 11, which were abrasions and contusions, were found to be antemortem. Dr. Lawhale also found that clay was present in the buckle cavity. On internal examination, he found that pleura was congested and blood froth was present in larynx, trachea and bronchi. He stated that external injuries on the face with finding of clay in the buckle cavity, nostrils and between lids as well as corresponding internal finding suggested smothering. In his opinion, the cause of death was asphyxia due to smothering with associated evidence of rape. This evidence has practically gone unchallenged and since Shri Daga does not dispute the same, the finding of the trial Judge that the death of Sneha was homicidal needs no disturbance.
39. Dr. Lawhale has stated that on examination of the genitals of the girl, he found the following external injuries :-
(i) Vagina was torn Lower down up to 1" in the perennial region with irregular lacerations with fleshy part portruding out from vagina.
(ii) Marks of contusion with abrasion on labia Majora of both sides with greenish discolouration with labia solon. Swollen."
He stated that insertion of penis is not possible in case of a child because vaginal orifice is so small that it will hardly allow the adult penis to pass through vagina. However, having regard to the injuries noted on the genitals of deceased Sneha, Dr. Lawhale stated that the person committing forcible coitus or assault by penetrating his male organ will have injuries to his organ. He, however, stated that the injuries found on the back side of the body are possible if forcible sexual assault is committed on the said girl by laying her down on her back on rough surface or earth. Dr. Lawhale further stated that he collected blood samples and vaginal swab so also the viscera and handed over the same to the police for delivering the same to the Chemical Analyser. The evidence on record shows that the said samples were sent to the Chemical Analyser. However, the report of the Chemical Analyser (Ex. 32) is negative. It states that neither the semen nor spermatozoa was detected on the slides. It may, however, be noted that to constitute the offence of rape, it is not necessary that there should be ejaculation of semen in the female organ. It is also not necessary that there should be a complete penetration of the male organ. Even a slight penetration is sufficient to constitute the act of sexual intercourse contemplated by Section 376 of the Indian Penal Code. Having regard to the nature of the injuries noticed on the genitals of deceased Sneha, we are of the opinion that there is no difficulty in reaching the conclusion that she was subjected to a forcible sexual intercourse. We, therefore, agree with the conclusion drawn by the learned trial Judge in this respect.
40. The next material circumstance relied upon by the prosecution is the medical evidence showing certain injuries on the penis and elbows of the accused. It may be recalled that the accused was arrested on the night of 23-12-1995. P.I. Sonone has stated that he referred the accused to the Rural Hospital, Arvi, for his medical examination on 25-12-1995. The evidence of P.W. 22-Dr. Nandkumar Pathade, coupled with the medical certification (Ex. 77), shows that on 25-12-1995 at about 3.00 p.m., he examined the accused and found that his glan penis was swollen and edematous. He noticed multiple tiny punctate abrasions thereon. Dr. Pathade also found abrasions on posterior aspect of both the elbow-joints of the accused and they were of the size of 1/2" x 1/4". According to him the are of the abovementioned injuries was more than 48 hours. He further stated that the injuries on the penis of the accused suggested of his having forcible sexual intercourse with a female child of 4 to 6 years. According to him, the abrasions on elbow-joint might be possible due to rubbing on the hard ground Dr. Pathade found that there was no smegma around the glan penis which fact, according to him, indicated recent coitus. The prosecution has heavily relied upon this piece of evidence, particularly in the light of the fact that injuries indicating forcible sexual intercourse were found on the private part of deceased Sneha. The abovementioned injuries found on the person of the accused are, however, by themselves, not conclusive indication of his act of forcible sexual intercourse with deceased Sneha. This is because the said injuries are capable of being explained on other hypothesis. Dr. Pathade has admitted in the cross-examination that there may be abrasions on glan penis due to masturbation with object but, according to him, they will not be coupled with swelling and edema. As regards the abrasions on the elbow joints, Dr. Pathade stated that they were possible due to falling on elbows and the same being pushed forward on a rough surface.
41. Shri Daga relied upon the decision in Shankarlal v. State of Maharashtra, AIR 1981 SC 765 : (1981 Cri LJ 325), wherein the accused was convicted of the offences under sections 302 and 376 of the Indian Penal Code. The medical examination of the accused indicated absence of smegma around his glan penis. A small abrasion over the base of glan penis with bluish discolouration was noticed. There were bruises on the thigh of the accused. The Supreme Court observed in para 29 of the judgment as under :-
"It is then said that there was no smegma around the appellant's corona glandis. That cannot by itself prove that he had sexual intercourse. The presence of smegma may perhaps exclude the possibility of recent sexual intercourse but its absence will not necessarily establish that the person has had a recent intercourse. A small abasion over the base of the glans-peris and its blush discolouration are also in conclusive circumstances. Nor indeed can the bruises on the appellant's thigh establish his involvement in the crime. If the girl was raped, she was raped without resistance. She was five years of age."
42. The next and last circumstance relied upon by the prosecution is finding of stains of blood and semen on the underpant of the accused. Similarly small stains of blood were also noticed on the portion of his pant, which correspond to the private part. The Chemical Analyser's report (Ex. 33) states that a few stains ranging from about 0.1 cm to 1 cm in diameter, and semen stains ranging from 1 cm to 3 cm in diameter were noticed on the underpant of the accused. It further shows that a few blood stains of the size of 0.1 cm to 1 cm in diameter were noticed on the front portion of the pant of the accused. The Chemical Analyser was, however, unable to determine the blood-group of the said blood stains and semen stains. In our opinion, the finding of stains of semen and blood on the clothes of the accused is not, by itself, a conclusive fact and the same is capable of being explained on other grounds. It may be noted that the accused was arrested on the night of 23-12-1995. However, his medical examination was carried at 3.00 p.m. on 25-12-1995, i.e., after about 42 hours from his arrest. There is no satisfactory explanation for delay caused in getting the accused medically examined. The evidence of Dr. Pathade shows that at the time of the examination of the accused he also collected samples of his blood and semen. It is obvious that sample of semen must have been collected after making the accused to masturbate himself. What is important to note is that the clothes of the accused were not seized immediately after his arrest on 23-12-1995 but, as seen from the evidence of P.W. 12 panch Dhanraj, coupled with the seizure panchnama (Ex. 32), on 25-12-1995 at 3.00 p.m., i.e., after the accused returned from his medical examination. This, by itself, would explain the presence of semen stains on his underpant.
Shri Daga relied upon Shankarlal's case (1981 Cri LJ 325) (supra), wherein it was held that discovery of the blood stains of B-group, measuring 0.5 cm., in diameter, on the appellant's pant and of a dried stain of semen on his underpant, were held to be the circumstances of far too feeble to establish that the appellant committed rape or murder. It was also pointed out that the appellant was a grown-up man of 30 years and, therefore, no compelling inference could arise that the stain was caused during the course of sexual assault committed by him.
43. To sum up the foregoing discussion, we may say that we have carefully dealt with each of the incriminating circumstances with reference to the scrutiny of the relevant evidence. The net result of our scrutiny is that what the prosecution has succeeded in establishing is nothing more than that the accused had visited the house of Laxmibai (P.W. 1) on 21-12-1995 and 22-12-1995, and that after 3.00 p.m., on 22-12-1995, deceased Sneha was found missing; that her dead body was seized from a field at some distance from Arvi and that the medical evidence suggests that her death was homicidal and that she was subjected to a forcible sexual intercourse. The prosecution has also succeeded in showing that there were injuries on the glans penis of the accused and that stains of blood and semen were found on his underpant. However, these circumstances, when put together, do not constitute and complete an unmistakable chain to connect the accused with the commission of the murder and rape of Sneha. This is because the prosecution has failed to prove beyond reasonable doubt the other incriminating circumstances, namely, that the deceased was last seen in his company and that he led discovery of the dead body of Sneha, which he had concealed. We have pointed out that the circumstances showing injuries on the private part of the accused as well as the finding of stains of blood and semen on his pant are of inconclusive nature. This being the position, it cannot be conclusively said that it was the accused and none else who committed rape on deceased Sneha and also caused her death. We are conscious of the gravity of the alleged offences attributed to the accused and, therefore, thought it proper and necessary to scrutinise the entire evidence carefully. The result is, however, that the charges framed against that accused are not proved beyond reasonable doubt. The incriminating circumstances proved by the prosecution may, at the most, raise a suspicion against the accused, but they fall short to prove the charges framed against him. Consequently, we give benefit of doubt to the accused and allow this appeal by setting aside the order of conviction and sentence passed by the learned trial Judge.
44. In the course of their arguments, both the learned Advocates had made certain submissions on the question of death penalty imposed by the learned trial Judge on the accused. Some decisions were also cited by them in support of their respective submissions. It is, however, not necessary to refer to the said submissions as well as the decisions, since we are acquitting the accused.
45. In the result, the Reference made by the Additional Sessions Judge, Wardha, for confirmation of the death sentence imposed on the accused is hereby rejected. The appeal filed by the accused is, however, allowed. The order of conviction and sentence, dated 30-8-1997, passed against the accused is hereby set aside and he is acquitted of the offences under section 363, 376 and 302 of the Indian Penal Code. The accused be released from Jail forthwith, if he is not required for the purpose of any other case.
Appeal allowed. -*-*-*-*

HOME	Mohd. Chaman, Petitioner V. The State, Respondent.

 

DATE : 28-04-1998
1998-(104)-CRLJ -3739 -DEL
PENAL LAW RAPE AND MURDER CIRCUMSTANTIAL EVIDENCE
Penal Code, 1860 - Sections 300 and 376 - Case of rape and murder - Circumstantial evidence - Allegation that accused have committed rape on the minor girl, aged one and half years and also - Committed murder - Accused was also residing in the same house in a different room but adjacent to the room deceased - Recovery of the deceased by her mother from the room of the accused is proved beyond doubt and also proved that the accused was in his room when R was recovered from there - There had been no delay either in lodging the FIR or in sending the special report - There is nothing on record to disbelieve the statement of Investigating Officer he seized that blood stains clothes from the room of the accused - Rape committed was proved by the medical evidence - Merely no semen was found either on the clothes of the deceased or on the chadar and piece of cloth recovered from the room of the accused not fatal - All the circumstances given and proved by the prosecution, on being cumulatively taken together, lead to the only irresistible conclusion that the accused alone was the perpetrator of the crime - Accused rightly convicted.
Penal Code, 1860 - Section 302 and 376 - Punishment for murder - Death sentence - Case of rape and murder - Allegation that accused have committed rape on the minor girl, aged one and a half years and also committed murder - A baby girl aged about one and half years, like a growing bud of a flower, had been a prey to the lust of a thirty years old man and had been killed in a most revolting manner arousing intense and extreme indignation of the community - It is an act of extreme depravity and arouses a sense of revulsion in the mind of the common man - Is a rarest of the rare cases where the sentence of death is eminently desirable - Death sentence justified.
Conclusion
Death sentence is justified in case when the murder is committed in an extremely brutal grotesque, diabolical, revulsion or dastardly manner, so as to arouse intense and extreme indignation of the community would fall within the category of rarest of rare cases.
JUDGE(S) :

A Misra
Y K Sabharwal
DELHI HIGH COURT
JUDGMENT
A. K. SRIVASTAVA, J. :- In Sessions case No. 134/96, State v. Mohd. Chaman, the Additional Sessions Judge, Shahdara, Delhi. Shri S. L. Bhavana, has convicted Mohd. Chaman (hereinafter called 'the accused'), under Sections 376 and 302 of the Indian Penal Code. The sentence awarded are death penalty and fine of rupees five hundred under Section 302 and life imprisonment and fine of rupees one hundred under Section 376.
2. Since death penalty was awarded, a reference has been made by the concerned Sessions Judge for confirmation thereof. It has been registered as Murder Ref. No. 5/97. On the other hand, the accused has filed Criminal Appeal No. 305/97 against the aforesaid conviction and sentence. The murder reference and the criminal appeal are being decided by this common judgment and order.
3. The charge against the accused was that on 10-4-1995 around 7.45 p.m. at House No. 5416/6 Gali No. 4, Shakti Gali, Amar Mohalla, Raghupura, Gandhi Nagar within the jurisdiction of police station Gandhi Nagar, he committed rape on the person Kumari Ritu, aged one and half years and also committed her murder.
4. The accused pleaded not guilty to the charges levelled, against him and his defence was that he had been falsely implicated. He did not give any evidence in defence.
5. According to the prosecution version Bindu Shah, P.W. 4 along with his wife Smt. Lalita, P.W. 2 and two daughters Soni and Ritu used to reside in house No. 5416/6, Gali No. 4, Shakti Gali, Amar Mohalla, Raghupura, Gandhi Nagar, Bindu Shah was running his tailoring factory near his house. Kumari Ritu was younger and her age at the time of her death was one and half years. The accused was also residing in the same house in a different room but adjacent to the room of Bindu Shah. On the date of occurrence at about 7.30 p.m. Smt. Lalita (mother of the deceased) left her house for making some purchases after leaving her daughters Soni and Ritu with her neighbour as her husband was in his factory. When Smt. Lalita returned to her house from the market she did not find Ritu there and accordingly she started making search for her and sent her elder daughter Soni to fetch Vidya Nand Sagar (brother of Smt. Lalita), P.W. 7, who on such call along with one Shankar, P.W. 15 came there. Thereafter Smt. Lalita and Vidya Nand Sagar made search of Ritu but could not find her whereabouts for about twenty minutes. However, Smt. Lalita found the room of the accused half opened and on peeping therein she saw Ritu lying on the floor and the accused present in the room. On seeing Smt. Lalita, the accused picked up Ritu from the floor as she was unconscious and handed over her to Smt. Lalita. At that time Ritu was without a Kachha and was only wearing a frock. Smt. Lalita observed several bleeding teeth bite marks on the cheek and other parts of the body of Ritu. When she made queries about the condition of Ritu, the accused told her to go away silently otherwise she would also meet the same fate as the Police could do nothing against him. Thereupon she took Ritu to the factory of her husband, who in turn took Ritu to a neighbouring Doctor. The Doctor advised Bindu Shah to take Ritu to some hospital and thus Ritu was taken to Surya Hospital where she was declared brought dead by the attending Doctor and thereafter Bindu Shah and Smt. Lalita along with dead body of Ritu came back to the place of occurrence.
6. It is the case of the prosecution that the accused was kept in custody by the crowd collected at the place of occurrence till the police arrived and was handed over to it.
7. According to the Police records two informations were recorded by the PCR at the police station on the basis of messages received. One was recorded at 9.22 p.m. wherein it was reported that one drunkard had beaten a girl in house No. 5411 Raghupura No. 2 near Gurdwara Nanak Basti Chowk and the said drunkard was present at the spot. The other information was recorded at 9.25 p.m., according to which some unknown person informed through telephone that a man had murdered a three years old girl after committing rape on her at Nanak Basti, Old Seelampur, Gali No. 4, Raghupura No. 2. On receipt of such information the case was entrusted to SI Magan Singh, who was present at the Police Station. He left for the spot along with one Constable. The concerned SHO was also intimated about the incident.
8. S. Magan Singh, P.W. 16 reached the place of occurrence where he found the accused in custody of the public outside the house in the Gali. According to him, public persons were shouting that the accused had raped Ritu inside his room and had killed her and that the public was very much enraged and had beaten the accused. SI Magan Singh controlled the public and took the accused in the custody. He also found the dead body of Ritu there. In the meanwhile, SHO N. S. Khan, P.W. 20 arrived at the scene of occurrence after having received the secret information. He found a large crowd at the place of occurrence shouting that the accused had raped and killed Ritu. For security reasons the accused was sent to the police station with police escort for safe custody.
9. SHO, Inspector N. S. Khan then started the investigation. He took in custody the dead body which was found to have human teeth bite marks on the breast, neck, abdomen and thighs. He observed that the private parts of the dead body were swollen. He requisitioned the photographer of crime team and dog squad. He took in possession the blood stained frock which the deceased was wearing at the time of occurrence, the bed sheet and one cloth piece of red colour lying in the room of the accused on which semen was suspected. He sealed all these three articles and thereafter prepared the site plan (Ex. P.W. 16/C) and inquest report (Ex. P.W. 16/D). He recorded statement of Smt. Lalita Devi, mother of the deceased. That statements rukka of this case. It is Ex. P.W. 2/A. It contains the prosecution story. He sent the rukka to the police station for registration of a case. He then prepared brief facts Ex. P.W. 16/H and the written request (Ex. P.W. 16/E) to the Doctor for post-mortem examination. The dead body was sent for post mortem examination.
10. The post mortem report Ex. P.W. 3/A, prepared by Doctor K. Goel, P.W. 3 is reproduced as below :-
"External :
1. Teeth bite marks in the form of two linear, semilinear marks with intermittently placed abrasions. These marks are 3.5 cm. long, placed 2.5 cm. apart with their concavity facing each other over Rt. Cheek near Rt. angle of mouth.
2. Abrasion 1.7 x 0.6 cms. over chin.
3. One oval bruise having width of about 6 mm with central pale area with dimensions 4.5 x 4 cm. & an another same bruise of same width overlapping lower point of previous one having dimensions about 5 x 4 cm. Both are present over Rt. side of abdomen at upper part.
4. Oval bruise about 6.5 mm. diameter central pale area dimensions 5.5 cm. x 4.5 cm. c two small abrasion marks at periphery each about 3 mm. size at 4 & 5 O'clock position.
5. Small abrasions with bruising in the vaginal wall at 4, 5 and 6 O'clock positions. Hymen is partially torn admitting two finger tips. Small tear present over posterior fornix. Small blood clots present over injured parts in the vagina.
Internal :
Head. - Scalp tissues, bones intact, meninges and brain matter-intact and NAD and pale.
Neck. - All structures are intact. No extravasation of blood.
Chest. - Rib cage-intact. Heart and Lungs - intact and NAD.
Abdomen-Rt. lobe of liver is badly lacerated with vertical deep laceration. Large amount of blood and clots present in peritonial cavity and around liver.
Spleen and kidneys-intact and pale.
Stomach contains small amount of semi-digested food having no abnormal smell and NAD.
Bowels-intact. Bladder and Rectum empty.
Pelvis-intact. Uterus-empty and NAD.
Blood sample, vaginal swab, rectal swab, swab from surrounding area of genitalia and swab from injury sides are preserved sealed and handed over to the police.
OPINION :-
All injuries were antemortem in nature. Injury No. 1 is love bite marks. Injury No. 3 and 4 (pattern bruises) are probably as a result of impact of some object of the shape described in the injuries. Injuries to genitalia are caused during sexual assault. Injury to the liver is caused by application of blunt force and is sufficient to cause death in ordinary course of nature.
Cause of death is haemorrhagic shock consequent to liver injury.
Time since death is about 19 hours.
11. Out of the twenty witnesses examined by the prosecution, the material witnesses are P.W. 2, Smt. Lalita, mother of the deceased, P.W. 4 Bindu Shah, father of the deceased, P.W. 7 Vidya Nand Sagar, brother of Smt. Lalita, P.W. 10, Mahesh and P.W. 15 Shankar Tewari. The material police personnel witnesses who connect the chain are P.W. 16 SI Magan Singh and P.W. 20 N. S. Khan. The material witnesses for medical evidence are P.W. 3 Dr. K. Goel, who performed the post-mortem examination and P.W. 19 Dr. A. K. Saxena, who proved the Surya Hospital report about baby Ritu having been brought dead by her father at 8.15 on 10-4-1995.
12. It is a case of circumstantial evidence as no one saw the accused raping or killing Ritu. The circumstances and the chain of evidence given by the prosecution to establish the charges levelled against the deceased as per the statements on oath of P.W. 2, P.W. 3, P.W. 4, P.W. 7, P.W. 10, P.W. 15, P.W. 19 and P.W. 20 are as follows :
1. On 10-4-1995 at 7.30 p.m. Smt. Lalita, P.W. 2 left her two daughters, namely, Soni and Ritu in the care of a neighbour and went for marketing.
2. P.W. 10 and P.W. 15 saw the accused taking Ritu to his room.
3. When at 7.45 p.m. on that very date Smt. Lalita returned, she found her daughter Ritu missing.
4. Smt. Lalita sent her elder daughter Soni to fetch her brother Vidya Nand Sagar, P.W. 7.
5. A search of Ritu was made by Smt. Lalita and Vidya Nand Sagar in the vicinity.
6. Smt. Lalita peeped in the room of the accused and found Ritu lying on the floor and the accused present there.
7. On query made by Smt. Lalita, the accused handed over the body of Ritu to her and when she made inquiry about the condition of the girl, the accused told her to go away otherwise she would also meet the same fate and that Police could not do anything against him.
8. Smt. Lalita took Ritu to her husband Bindu Shah, who was working in his tailoring factory.
9. Vidya Nand Sagar, P.W. 7 remained standing near the door of the room of the accused, who remained in his room.
10. Several persons from the public collected at the place of occurrence and held the accused.
11. Bindu Shah, took Ritu to a neighbouring Doctor, who told him to take her to a hospital.
12. Bindu Shah took Ritu to Surya Hospital where she was declared brought dead at 2.15 p.m.
13. Bindu Shah along with his wife returned to the place of occurrence with the dead body of Ritu.
14. P.W. 16 S.I. Magan Singh arrived at the place of occurrence and found the accused in the custody of the public outside the room in the Gali and that the public persons were shouting that the accused had raped Ritu inside his own room and had killed her. He controlled the scene and took the accused in his custody.
15. P.W. 20, N. S. Khan, SHO of the concerned police station and the IO of this case, on receiving information about this case, reached the place of occurrence at 9.35 p.m. on that very day and found a large crowd having gathered there and shouting that the accused present there had committed rape and murder of Ritu. He took the accused in custody and sent him to the police station with police escort for safety.
16. P.W. 13, Dr. K. Goel, who performed the post-mortem examination opined that the incident took place on 10-4-1995 around 7.45 p.m.
13. The learned Additional Sessions Judge has detailed and discussed at length the evidence of all the witnesses, who were examined by the prosecution to prove the circumstances against the accused and on the basis of the evidence on record held that through there was no eye witness of rape and murder but the chain of circumstances given by the prosecution led to the irresistible conclusion that the deceased had committed the rape and murder.
14. Ms. Kamna Vohra, Advocate, who was appointed amicus curiae by this Court argued at length to defend the accused. In nutsell, the arguments advanced by her can be summarised as follows :
1. The impugned judgment is bad in law and on facts being based on conjectures and surmises and overwhelming contradictions.
2. There have been undue delay in recording of FIR and sending of the special report.
3. Conduct of P.W. 2 Lalita and P.W. 7 Vidya Nand Sagar, the mother and maternal uncle of the deceased respectively was unnatural.
4. The prosecution did not examine any neighbour of the accused and the complainant to testify that the accused had been taken in custody by the crowd collected soon after Ritu was allegedly collected by her mother from the room of the accused.
5. P.W. 2 Smt. Lalita did not give the name of the neighbour under whose care Ritu was entrusted by her while going to market to make purchases soon before the occurrence of this case.
6. CFSL report does not say that any semen was found on the clothes of the accused and the bed sheet and piece of cloth taken from the room of the accused. The argument advanced was that in the absence of semen being found, it cannot be said that rape was committed.
7. P.W. 10 and 15 are concocted witnesses for the prosecution to falsely say that they saw the accused taking Ritu in her lap to his room prior to the alleged rape and murder.
8. Though the accused is said to have been beaten by the crowd but the medical evidence does not suggest any injury on his person. The argument was that the accused was neither taken in custody by the crowd nor was beaten and that the accused had been apprehended purely on suspicion.
15. On the other hand learned counsel for the State urged before us that the evidence of the prosecution fully established the guilt of the accused and that the accused deserved death sentence as the case is one of the "rarest of rare" cases where sentence of death is eminently desirable.
16. Admittedly, the case against the accused is based on circumstantial evidence. The standard of proof required to connect a person on circumstantial evidence has been laid down by the Supreme Court in its various decisions, some of which are reported in AIR 1984 SC 1622 : (1984 Cri LJ 1738) Sharad Budhi Chand Sarda v. State of Maharashtra, (1994) 1 JT (SC) 33, Dhananjoy Chatterjee v. State of West Bengal and (1994) 3 SCC 381, Laxman Naik v. State of Orissa. According to that standard the circumstances given by the prosecution to establish the charge must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused. Further, the circumstances from which the conclusion of the guilt is to be drawn has not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused.
17. We have carefully scrutinized the evidence of the prosecution. We are of the view that it fully satisfies the aforesaid standard of proof. All the circumstances given and proved by the prosecution, on being cumulatively taken together, lead to the only irresistible conclusion that the accused alone was the perpetrator of the crime. The chain of evidence furnished by the circumstances given by the prosecution is complete and does not leave any ground to believe that the accused is innocent. No part of chain is missing.
18. We find that the following facts have not been challenged and are fully established :-
1. deceased Ritu was daughter of Smt. Lalita and Bindu Shah;
2. Bindu Shah and the accused were living in the same house in different room adjacent to each other;
3. the accused at the time of occurrence was residing in his room all alone;
4. deceased Ritu received the following ante-mortem injuries;
"(1) Teeth bite marks in the form of two linear, semilinear marks with intermittently placed abrasions. These marks are 3.5 cm. long placed 2.5 cm. apart with their concavity facing each other over right cheek near right angle of mouth.
(2) Abrasion 1.7 x 0.6 cms. over chin.
(3) One oval bruise having width of about 6 mm with central pale area with dimensions 4.5 x 4 cm. and an another same bruise of same width overlapping lower point of previous one having dimensions about 5 x 4 cm. Both are present over right side of abdomen at upper part.
(4) Oval bruise about 6.5 mm. diameter central pale area dimensions 5.5 c.m. x 4.5 cm. with two small abrasion marks at periphery each about 3 mm. size at 4 & 5 O'clock position.
(5) Small abrasions with bruising in the vaginal wall at 4, 5 and 6 O'clock positions. Hymen is partially torn admitting two finger tips. Small tear present over posterior fornux. Small blood clots present over injured parts in the vagina;
(6) right lobe of liver badly lacerated with vertical deep laceration. Large amount of blood and clots present in peritonial cavity and around liver.
5. the injury caused to liver was by application of blunt force and was sufficient to cause death in ordinary course of nature;
6. the cause of death was haemorrhagic shock consequent to liver injury;
7. the time of death was around 7.45 p.m. on 10-4-1995.
Regarding the alleged place of occurrence i.e. the room of the accused, there is corroboration from the CFSL reports Ex. PA and Ex. PB Blood group of the deceased was group B. The blood stains on the frock of the deceased were of group B and the blood stains on the chadar seized from the place of occurrence were found to be of group B. There is nothing on record to disbelieve the statement of Investigating Officer, P.W. 20 N. S. Khan that he seized that chadar from the room of the accused.
19. To us the statement of P.W. 2 Lalita appears to be true, natural and believable. There is nothing in her cross-examination to discredit her testimony. There does not appear any ground to believe that she falsely implicated the accused or she took his name merely on suspicion. We believe that she stated what she saw and heard. Her statement about the time of the occurrence is fully corroborated by the post-mortem report. She has given the complete chain of evidence to prove the guilt of the accused. Similarly the statements of P.W. 4 Bindu Shah (father of the deceased) and P.W. 7 Vidya Nand Sagar (maternal uncle of the deceased) and P.W. 10 Mahesh Chand are worthy of credence. There are no material contradictions in their statements. They are the witnesses to complete the chain of evidence against the accused. Recovery of the deceased Ritu by her mother Smt. Lalita, P.W. 2 from the room of the accused is proved beyond doubt. It is also proved that the accused was in his room when Ritu was recovered from there.
20. There is no ground to disbelieve the statements of SI Magan Singh, P.W. 16 and Investigating Officer N. S. Khan, P.W. 20 that when they reached the place of occurrence they found that the men collected there had held the accused and were shouting that the accused had raped and murdered Ritu. They are police personnel and there is nothing on record to suggest that they had any motive to falsely implicate the accused.
21. We are also of the view that there had been no delay either in lodging the FIR or in sending the special report. The evidence led by the prosecution proves beyond doubt that the incident took place around 7.45 p.m.; that it was detected soon thereafter; that the deceased was taken to a neighbouring doctor and then to Surya Hospital where she was declared brought dead at 8.15 p.m.; that by P.C.R. two reports of the incident were given to the concerned police station at 9.22 p.m. and 9.25 p.m.; that SI Magan Singh, P.W. 16 reached the place of occurrence soon thereafter and SHO N. S. Khan, P.W. 20 reached that place at about 9.35 p.m.; that preliminary investigation of the case was conducted such as taking in custody of the deceased, seizing of articles, sending the accused to police station etc. and thereafter the statement of Lalita, P.W. 2 was recorded on the spot at 11 p.m. and Rukka of the case was sent to the Police Station for registration of case and the FIR was registered at 12.05 in the night of 10/11-4-95. It is also proved on record that the Special Report was sent on 11-4-95 at 1 a.m. and the messenger reported back at 3.35 a.m. about the delivery thereof. Ex. P.W. 1/D is the true copy of the relevant DD showing that the messenger had so reported back. No doubt the Area Magistrate made endorsement on the Special Report on 11-4-95 at 11 a.m. but there is no suggestion from the side of the accused in the cross-examination of prosecution witnesses that the Special Report was not delivered prior to 3.35 a.m. on 11-4-95. In fact P.W. 1 who proved Ex. P.W. 1/D was not cross-examined. Therefore, possibility cannot be ruled out that the staff of the Area Magistrate placed the special report before him at 11 a.m. only and hence the endorsement was made by him at that time.
22. Learned amicus curiae, Ms. Kamna Vohra, strongly urged before us that the accused could not be held guilty for rape as no semen was found either on the clothes of the deceased or on the chadar and piece of cloth recovered from the room of the accused. We, in the face of the already discussed other otherwhelming evidence on record, do not agree with the contention. For the offence of rape complete sexual intercourse is not necessary. Mere penetration is sufficient. However, here the vagina of the deceased received injuries and the hymen was partially torn and blood clots were found present over injured parts in the vagina. Teeth bite marks were also found on the mouth of the deceased. The opinion of Dr. K. Goel, P.W. 3, who performed post-mortem examination, is that injuries to genitalia were caused during sexual assault and that injury to liver was caused by application of blunt force. Thus it is proved beyond doubt that rape was committed and in order to commit rape blunt force was applied causing injury to liver which became fatal.
23. Though we find that none of the public persons who collected at the place of occurrence soon after the occurrence was examined by the prosecution but in our view this circumstance would not demolish the prosecution case and the statements on oath of P.W. 2, Smt. Lalita, P.W. 7, Vidya Nand Sagar, P.W. 16, Sub-Inspector Magan Singh and P.W. 20, N. S. Khan, SHO. Their statements have completed the chain of evidence against the accused. We have already held that their testimony is true and is to be believed.
24. Regarding the contention of Ms. Kamna Vohra that the accused did not receive any injury though in the evidence it has come that the persons collected at the place of incident had beaten him, learned counsel for State Shri S. S. Gandhi contended that it was not necessary that the accused must have received injuries in such beating. His contention was that the persons collected might have only slapped the accused and it was not impossible that slaps did not cause such injuries which could be reported in the MLC. We are inclined to accept this explanation.
25. Smt. Lalita, P.W. 2, in her statement before the trial Court could not name the neighbour in whose care she had left her daughters when she went for making purchases, as in her cross-examination she stated that she did not remember his name. Ms. Kamna Vohra vehemently argued that such a lacuna in the statement of Smt. Lalita, P.W. 2, adversely affected the prosecution story. The explanation offered by the State counsel to meet the argument was that it was not unlikely that by passage of time the witness forgot the person in whose care she had so left her children and that merely because the witness could not remember the name of that person would not be fatal to the prosecution case. He contended that in the facts and circumstances of the case it was not very material to know the name of the person under whose care the two daughters were, for a very short time, left. According to him what was material in the case was the chain of circumstances from the stage of Ritu being taken by the accused to his room till her body was recovered from there. We agree with the contention of the learned counsel for the State.
26. In view of the above discussion, we are of the view that the learned trial Court has rightly convicted the accused for having raped and murdered Kumari Ritu. Thus the contention of Ms. Kamna Vohra that the impugned judgment is bad in law and on facts being based on conjectures and surmises is not accepted. The judgment does not suffer from any infirmity. We agree with the reasonings and the findings given by the trial Court.
27. Now comes the point of sentence. Should death penalty be confirmed ?
28. The learned trial Court, in view of the guidelines laid down by Supreme Court in the case of Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636) came to a conclusion that this case fell in the category of rarest cases and extreme culpability being a rarest of rare cases where the sentence of death should be awarded. He found support from the observations made by the Supreme Court in the case of Kamta Tewari v. State of M.P. reported in (1996) 3 Cur Cri (SC) 141 : (1996 Cri LJ 4158) and in the case of Laxaman Naik v. State of Orissa, (1994) 3 SCC 381. In these two cases the Supreme Court confirmed death penalty where seven years old girl was raped and murdered.
29. We have given our careful consideration to this issue. The Supreme Court in a number of decisions has laid down the guidelines when extreme penalty of death sentence is to be awarded. (Reference may be made to Bachan Singh v. State of Punjab, (1980 Cri LJ 636) and Machhi Singh v. State of Punjab, (1983) 3 SCC 470 (476) : (1983 Cri LJ 1457). In these cases it was pointed out that death penalty could be awarded in a rarest of the rare cases and the circumstances, when the murder is committed in an extremely brutal grotesque, diabolical, revulsion or dastardly manner, so as to arouse intense and extreme indignation of the community would fall within the category of rarest of rare cases.
30. In the case before us a baby girl aged about one and half years, like a growing bud of a flower, had been a prey to the lust of a thirty years old man and had been killed in a most revolting manner arousing intense and extreme indignation of the community. It is an act of extreme depravity and arouses a sense of revulsion in the mind of the common man. Such a person is menace to the society. The facts of the case persuade us to hold that this is a rarest of the rare cases where the sentence of death is eminently desirable. Besides giving emphatic expression of society's abhorrence of such crimes we wish to give a clear signal that one who commits such crimes would meet the same fate as the accused is to face.
31. Resultantly, we uphold the conviction and sentence. Death penalty is confirmed. Criminal Appeal No. 305/97 is dismissed and the murder reference No. 5/97 is disposed of accordingly.
32. The appellant, if on bail, shall surrender forthwith.
Appeal dismissed.
*-*-*-*-*

State Of Madhya Pradesh, Applicant V. Tantoo Alias Halkeveer, Opposite Party.

HOME

DATE : 01-04-1998
1999-(105)-CRLJ -2913 -MP
PENAL LAW MURDER CHILD WITNESS
Penal Code, 1860 - Sections 300 and 302 - Murder case - Deceased a boys went with accused along with two other boys to collect leaves from jungle - Accused was aroused by simple fact that the deceased boys were thirsty and wanted to return home against the dictate of the accused - Accused hit deceased on his abdomen with Hasia and when other deceased tried to stop the accused from attacking accused assaulted him also with Kulhadi on his head and face - They died on the spot itself - FIR corroborating the statement of eye-witnesses - Medical evidence supporting the facts that Hasia and Axe were used to attack the two innocent boys of tender age - Recovery of blood stained weapons as also blood stained clothes at the instance of the accused - Mere fact that the eye-witnesses are boys of 11 and 14 years respectively, does not in any manner discredit them - Their version is natural - They are of sufficient understanding and memory - They have no enmity with accused - Accused has rightly been convicted for the offence of murder of two innocent boys - However, it is not a case of pre-planning or wreaking vengeance on anybody but of impulsive murder without any thought or motive murder of this type even though there are more than one murder does not fall in the category of 'rarest of rare' case - Sentence of death converted into imprisonment for life
JUDGE(S) :

R P Gupta
Rajeev Gupta
MADHYA PRADESH HIGH COURT
JUDGMENT
R. P. GUPTA, J. :- The respondent in reference who is also the appellant in appeal has been convicted for the offence of murder punishable under Section 302, I.P.C. by Sessions Judge, Raisen, vide Judgment dated 19-12-1997. He has been sentenced to death by hanging. This was in Sessions Trial No. 186/95.
2. The trial Court has found that on 25-6-1995 at about 6 p.m. in village Mehka, in jungle area, this accused Tantoo alias Halkeveer, aged about 19 years committed murders of Vindraj Singh, aged about 13 years and Ramendra Singh, aged about 15 years while they all, along with Ramkesh aged about 11 years (PW 3) and Kamlesh, aged about 15 years (PW 5), had gone to the forest to collect leaves. At that time, the deceased Ramendra Singh, expressed his desire to go home as he was thirsty, but the accused had insisted upon him to first complete the picking up of leaves. Since, Ramendra Singh, refused to do so, the accused hit him on his abdomen with Hasia and when the deceased Vindraj Singh tried to stop the accused from attacking Ramendra Singh, the accused assaulted Vindraj Singh also with Kulhadi on his head and face. They died on the spot itself. So the accused was convicted of these murders.
3. The prosecution case further was that Ramkesh (PW 3) and Kamlesh (PW 5) informed Lakhan Singh (PW 2) who was related to the deceased in the village. Lakhan Singh came to the scene of crime and found the dead bodies. He gave First Information Report Ex. P. 3. on 26-6-1995 at about 6.30 p.m. to C. L. Verma, A.S.I. (PW 7) at P.S. Devri. Thereon, P.W. 7 rushed to scene of crime and prepared a site plan vide Ex. P. 4. He also prepared inquest reports. Ex. P. 6 and P. 7 on the two dead bodies in the presence of witnesses and seized from that spot, blood stained earth, control earth, stalk of leaves, vide seizure memos Ex. P. 9, P. 10 and P. 11.
4. The Autopsy Surgeon conducted the post mortem examination on 27-6-1995 by Dr. Sanjay Purohit, Assistant Surgeon (PW 8). 10 incised wounds were found on various parts of body of Ramendra Singh including chest, abdomen, face, and head, Similarly, incised wounds were found on the neck, jaw, shoulder and back of Vindraj Singh. These were ante-mortem and sufficient to cause death. The deaths resulted from these injuries. The autopsy on the bodies was conducted on 27-6-1995. The appellant was arrested on 27-6-1995 vide memo Ex. P. 12. He made a disclosure statement recorded in memo vide Ex. P. 13 disclosing where he has concealed the Axe and Hasia on a tree in the jungle. He led to the recovery of these weapons which were found blood stained. They were seized vide memo Ex. P. 14 by Police. The clothes which the accused was wearing such as Banian, Gamcha, were found blood stained. They were seized from his body vide memo Ex. P. 15. On chemical examination at F.S.L., Sagar, it was found that the Kulhadi and Hasia, which were thus recovered at the instance of the accused and his banian and towel (Tolia) were stained with blood. The origin of blood, whether it was human, could not be determined, because of disintegration of blood.
5. The witnesses Ramkesh (PW 3) and Kamlesh (PW 5) corroborated the prosecution version that this accused attacked the two deceased with Hasia and Axe and committed their murder in jungle, because they had refused to pick leaves and wanted to go home to quench their thirst. Lakhen Singh (PW 2) who gave FIR appeared in Court as PW 2. He supported the prosecution version that the accused, the two deceased and the above witnesses had gone to collect leaves in jungle and the two witnesses Kamlesh and Ramkesh informed him that this accused assaulted the two deceased with Kulhadi and Hasia. So he went to the spot and found dead bodies of Vindraj Singh and Ramendra Singh. Vindraj is his nephew and Ramendra Singh is his cousin. So he (Lakhan Singh) lodged FIR Ex. P. 3 where he named this accused as assailant, on the basis of information received from the witnesses Ramkesh and Kamlesh. All these circumstances of their going to jungle and the background of attack were narrated in the same manner by the two boys in Court. Ramkesh is 11 years old and Kamlesh is 14 years old. They were found to be having good understanding, by the Trial Court. P.W. 6 is the Investing Officer, who interrogated the accused and recorded his disclosure statement Ex. P. 13 about the Kulhadi and Hasia and seized the same at his instance on 27-6-1995. He also seized his clothes. PW 7 is the Investigating Officer, who prepared the site plan of scene of crime and sent the bodies for postmortem examination, after preparing their inquest reports. The autopsy surgeon is PW 8 Dr. Sanjay Purohit.
6. The accused appellant, totally denied having gone to the jungle to collect leaves or having attacked or caused death of two boys.
7. The trial Court relied upon the evidence of kamlesh and Ramkesh and the circumstantial evidence that the clothes of the accused were found blood stained and he had concealed the Hasia and Kulhadi (Axe) which were also blood Stained, and convicted the accused.
8. The only argument of the learned counsel for appellant is that the two eye-witnesses ate child witnesses and conviction should not have been based only on their testimony.
9. We have perused the testimony of Kamlesh and Ramkesh and the surrounding circumstances. Kamlesh is aged about 14 years at the time of incident. He is of sufficient mature understanding. Similar is the case of Ramkesh who is aged about 11 years, at the time of occurrence. We find no infirmity in their testimony. Nothing has been brought out in cross examination. Their testimony is in fact supported by the fact that the 4 boys had gone with this accused to collect leaves. The accused was aged about 22 years and so he was their leader in collecting the leaves. P.W. 2 Lakhan Singh has stated that they had gone to collect leaves. They had collected leaves and prepared bundles. The bundles of leaves were found lying at the scene of crime. That supports the fact that they had gone to collect leaves. The bodies were found at the spot where the bundle of leaves were lying. The witnesses have no reason to speak false against this accused appellant. The medical evidence supports the facts that Hasia and Axe were used to attack the two innocent boys of tender ate. The statement of two witnesses Kamlesh and Ramkesh appears totally truthful and natural. The FIR was made on their statement by P.W. 2 Lakhan Singh and it corroborates them. It was made next day after the incident at 6.30 p.m. that is after about 24 hours. The police stations was 30 kms. away. It is a jungle area where the incident occurred. P.W. 2 had first gone to the jungle to see the bodies. It was already night time. The next day he went to the Police Station Devri. We do not find any false involvement or attempt for the same. The recovery of blood stained weapons as also blood stained clothes at the instance of the accused is an important circumstantial evidence, in this case. Even, apart from that the statements of Ramkesh and Kamlesh are believable. The delay in lodging the FIR in this case does not have any negative effect on the reliability of the prosecution witnesses as in those jungle areas, such delays cannot be helped by those who report it. The mere fact that the witnesses are boys of 11 and 14 years respectively, does not in any manner discredit them. Their version is natural. They are of sufficient understanding and memory. They have no enmity with this accused. They are supported by the fact that these boys had gone with the accused to pick leaves in jungle. So we find that the appellant has rightly been convicted for the offence of murder of two innocent boys at their tender age that is 13 and 15 years respectively, without rhyme and reason. He was aroused by simple fact that the boys were thirsty and wanted to return home against the dictate of the accused.
10. The only question is whether the death penalty is warranted against this appellant ? The trial Court found it to be a cruel murder of innocent boys. It cannot be doubted that this is a cruel and mindless murder by the accused. But it also appears to be an impulsive act without caring for innocence and immature age of the victims. But it is not a case of per-planning or wreaking vengeance on anybody. It appears to be a simple case where the boys would not agree to the dictate of the accused and his anger was evoked. He behaved most cruelly on defenceless boys. Still we are of the opinion that this case does not fall in the category of the rarest of rare-case which is the test laid down by the Apex Court in the case of Bachan Singh v. State of Punjab, cited at AIR 1980 SC 898 : (1980 Cri LJ 636). The trial Court was wayed by certain judgment of Apex Court cited in AIR 1987 SC 1721 : (1987 Cri LJ 1885) titled Asharfilal v. State of U.P. where death penalty was held justified in case of brutal murder of two innocent girls. The trial Court was of the opinion that the accused was of such a mental make up who commits murder without any rhyme and reason and so the lives of the citizens are not safe so long as he is alive, hence the sentence.
11. We are of the view that although there is brutality involved in these murders of two innocent boys, yet it is a case of impulsive murder without any thought or motive. A murder of this type even thought there are more than one murder does not fall in the category of 'rarest of rare', at least when the scope of 'rarest of rare', the benefit should go to the convict. So we are of the view that severe penalty of death sentence should not be resorted to in this case. So, we convert the sentence into life imprisonment in place of death sentence.
12. As a result of the above finding and discussion, the reference is dismissed. The appeal is accepted partly regarding sentence. The conviction of the appellant for the charge of murders of two boys punishable under Section 302, I.P.C. is confirmed. However, his sentence is altered from death sentence to life imprisonment no both counts of murder. The appellant shall undergo the sentence of imprisonment for both the charges of murders respectively. However, the sentences shall run concurrently.
Reference dismissed.

HOME	State Of M.P., Appellant V. Molai, Respondent.

 

DATE : 09-02-1998
1999-(105)-CRLJ -2698 -MP
PENAL LAW RAPE AND MURDER DEATH SENTENCE
JUDGE(S) :

D P S Chauhan
R P Gupta
MADHYA PRADESH HIGH COURT
JUDGMENT
R. P. GUPTA, J. :- This judgment shall also dispose of Cr. Ref. No. 4/97 and Cr. Appeal No. 525/97.
2. The references have been made in judgment dated 18-2-1997 passed by IV Addl. Sessions Judge, Rewa in S.T. No. 130/96. The two accused Santosh and Molai have been found guilty of committing offences of gang rape punishable under section376(2)(g), I.P.C. and for committing murder of the victim Ku. Naveen daughter of R. S. Somvanshi an Asstt. Jailor, in Qr. No. in the colony of Central Jail, Rewa on 20-2-1996. Both have been sentenced to death for the offence of murder u/S. 302, I.P.C. and have been sentenced to life imprisonment and fine of Rs. 500/- each for the offence u/S. 376(2)(g), I.P.C. In default of payment of fine they are to further undergo R.I. for 2 months each. They have been further found guilty of offence u/S. 201, I.P.C. and sentenced to R. I. for 3 years each and fine of Rs. 200/- each and in default of fine further R.I. for 2 months each. Cr.A. 525/97 has been filed by one of the accused-Molai. The other accused has not filed any appeal against the judgment and sentence.
3. The prosecution case, in brief, is that accused-Molai was employed as a guard in Central Jail, Rewa at the time of this incident while accused-Santosh was a convict in S.T. No. 97/87 for offences u/S. 376, 366 and 363, I.P.C. and was undergoing the sentences in Central Jail, Rewa for those offences for 7 years, 4 years and 3 years R.I. respectively. R. S. Somvanshi (P.W. 6), father of Ku. Naveen, was residing with his family in Qr. No. 2 of the Central Jail colony. A few days before the incident, his wife, with some children, had gone out of station. Shri Somvanshi, along with his daughters Ku. Naveen, aged 16 years and Ku. Pratibha (P.W. 3) aged 12 years, was residing in the quarter. In the adjoining Qr. No. 3 another Asstt. Jailor R. K. Mishra along with his wife and daughter Ku. Ruchi Mishra (P.W. 1) aged 14 years were residing. On the opposite adjoining Qr. No. 1 some guards were residing. Ku. Naveen was student of X class. The two accused used to come to the house of Shri Somvanshi for doing domestic work. Pratibha had gone to her school at 7 a.m. on the date of incident. The two accused came to the house as usual for domestic work after Pratibha had gone to school. Somvanshi was in the house and about 9 a.m. he went to his duty leaving behind Ku. Naveen in the house and both the accused were working in the house. In the neighbourhood R. K. Mishra had also gone to duty and in his house his wife Shobha and daughter Ruchi were present. P.W. 4 Shailendra s/o another Asst. Jailor Shyamsingh and Krishnakumar son of Pathak, another Asstt. Jailor, were playing cricket in front of their quarters. At about 10 a.m. Smt. Shobha and Ku. Ruchi heard some shrieks from the quarter of Somvanshi. They also heard dogs bark. Even Shailendra and Krishnakumar heard the shrieks. The boys went to the quarter of Somvanshi but could not notice anything special. At about 11 a.m. Ruchi Mishra went to return a cassette to Ku. Naveen. She called Ku. Naveen but got no reply. She noticed that both the accused were standing outside the quarter of Somvanshi. They told Ruchi that Naveen was not in the quarter, she had gone with some girl friend. At that time the ball of Shailendra got rolled towards quarter of Somvanshi. Both the boys went towards that quarter to look for their ball. They noticed both the accused standing in front of the quarter. A short time thereafter Ku. Ruchi again came and noticed accused Santosh taking cycle of Ku. Naveen towards the back of the quarter. At about 12 noon, Ku. Pratibha, sister of Naveen, came to her house and found both the accused in the house but she could not find Naveen in the house. She asked both the accused about Naveen. They told her that Naveen had gone on her cycle to the house of some girl friend. Pratibha noticed that the room in which she had kept her clothes had been locked. She wanted to take bath but could not. Thereafter Santosh went to the jail. At about 12-30 Molai told Pratibha that two Samosas had been kept for her and that Naveen had called for Samosas. Pratibha took one Samosa and cooked the meals. At about 1 p.m. Molai also left the house. At 1-30 p.m. Somvanshi returned home. Pratibha told him that the accused persons had told her that Naveen had gone to her girl friend on her cycle. Shri Somvanshi went away to his duty at 3 p.m. and returned home at 6 p.m. Still Naveen had not returned home. By that time both the accused had come back for domestic work. They told Somvanshi that Naveen had gone to her girl friend. Somvanshi got worried and he and his neighbours searched for Naveen but could not find her. Even Molai joined them in the search. Santosh went to his barrack. The next morning Somvanshi went to the back of the quarter to milk the cow. He noticed that the cover of the septic tank had become slightly displaced. He became suspicious and got the cover removed and peeped in. He noticed the blue colour frock of Naveen floating in the septic tank. Somvanshi went to the police station and lodged report Ex. P-1. The police came to the spot and got out the body of Ku. Naveen from the septic tank. A cloth was tied up around her neck. There was a cut wound on her abdomen and her intestines had come out. It appears that she had been murdered and the body had been thrown in the septic tank. Blood stained earth was noticed near the tank. The autopsy on the body disclosed that the girl had been raped before death and then she had been strangulated and stabbed in the stomach and thus murdered. The doctor prepared slides from the vaginal discharge for chemical examination. Her clothes were sealed and seized.
4. Since the circumstances and the clues of investigation pointed the needle of suspicion towards these accused they were interrogated. Santosh made a disclosure statement and led to recovery of one handkerchief and one Chaddi and a piece of Khadi having semen and blood stains, concealed in the Parchhi where the cow fodder were used to be kept. On his further disclosure, a lady cycle was recovered from below the water in the septic tank. Accused Molai also made a disclosure statement and on his disclosure a piece of Pajji, one bedsheet, one Pajji with semen and blood stains were recovered concealed in the fodder room. On his disclosure a knife stained with blood was recovered from the heap of cow dung cakes. On medical examination of Santosh, nail scrap injuries were noticed below his left eye, neck and below his right ear and also on the right wrist. The piece of cloth which had been found tied to the neck of the deceased was in fact a piece of Chaddi, while the piece of cloth which was recovered at the instance of Molai was also a piece of Chaddi and the report of F.S.L. Sagar is that piece Ex. D-4 recovered from the neck of the deceased and the piece-F recovered at the instance of Molai are part of one Chaddi. The report is Ex. P-29. The expert at F.S.L. Sagar noticed that the knife A, piece of Pajji, F, Chadar-G, recovered at the instance of Molai, cloth piece-E recovered at the instance of Santosh, clothes K-1, K-2 and K-3 of the deceased and slides M-1, M-2 and M-3 of the deceased had blood on them. Further handkerchief-C, Chaddi-D recovered at the instance of Santosh, Pajji piece-F, Chaddi-H recovered at the instance of Molai, frock K-1 recovered from the body of the deceased, slides M-1, M-2 and M-3 had human semen and spermatozoa on them. It was also opined that the blood on F and the semen stains on C, D, F, H and K-1 were not sufficient for analysis.
5. The conviction of the accused has been based on circumstantial evidence disclosed from evidence of R. S. Somvanshi (PW. 6), Pratibha (PW. 3), Ruchi (PW. 1), Shobha Mishra (PW. 2), Shailendra (PW. 4), R. P. Shrivastava (PW. 8). PW. 7 Shyamji Singh, Asstt. Jailor and the neighbour of the deceased, was witness to the recovery of the dead body, the inquest proceedings, disclosure statement (Ex. P. 6) of Santosh on interrogation by police and disclosure statement Ex. P-7 by Molai. Recovery of various pieces of clothes were made. At the instance of the two accused vide seizure memos P-8, P-9 and P-10. A knife was recovered at the instance of Molai. PW. 19 Abhiman Singh S. I. had recorded the FIR Ex. P-2 on the written report Ex. P-1 given by Somvanshi. He recovered the dead body of the girl from the septic tank, the body was floating in the tank. A piece of Pajji was found tied around her heck. He prepared the plan of the site. PW. 16 M. L. Pavaiya also reached there and took over the further investigation. He had prepared the site plan and recorded the statements of the witnesses. He interrogated the two accused and made recoveries at their instance in the presence of the witnesses. This happened on 21-2-1996. He got the two accused medically examined. Abrasions were noticed on the body of accused Santosh by Shri Pavaiya as well as by PW. 8 Dr. Shrivastava who gave the report Ex. P-15. Abrasion was result of clawing with the nails. He sent the recovered articles and sealed parcels to F.S.L. Sagar. PW. 11 Nagendra Patwari had prepared the site plan of the septic tank on 17-4-96. PW. 13 Babulal, head constable, recorded the formal FIR.
6. PW. 10 Dr. Sharma had conducted autopsy along with Dr. Kapoor and Dr. Mishra on the body of the deceased on 21-2-96 at 12-30 p.m. and found the following injuries :-
(i) A bruise with abrasion on the right maxillary and cheek area crescent shape looking to be from deep kissing with intermittent marks of teeth size (2 cm x 2 cm.)
(ii) abrasion of right mandibulor region 4 cm. right to the medial line size (1/2 cm x 1/2 cm.)
(iii) abrasion with bruise present just below the left lower eye lid in lateral aspect (1 cm x 1/2 cm.)
(iv) stab wound present 10 cm. below the xiphoid process, on the upper portion on stomach upto the depth of stomach a cut wound 18 cm. in length on the wall of stomach. The intestines had been cut. Peritonium had been cut. The intestines were coming out of the wound.
(v) marks of strangulation were present at the neck above and over thyroid cartilage horizontally, length 33 cm. with breadth (2 cm. x 2.5 cm.) varying with groved marks, reddish in colour, margins inflammed. The neck tissue below it showed echymosis. Strangulation was ante mortem.
(vi) There were bruise marks on libia majora and libia minora. The hymen was found torn and there was bleeding from the vagina with some blood mixed matter on the vagina of which slides were prepared.
All the injuries were found ante mortem. The stab wound had been caused by some sharp pointed object. The death occurred within 18-36 hours of the post mortem examination. The piece of cloth which was a piece of Chaddi was found tied around the neck one part of this cloth was elastic and the main cloth was synthetic. The cause of death was found to be strangulation and stab injuries. These were sufficient in ordinary course of nature to cause death.
7. The prosecution had also examined two more witnesses i.e. PW. 5 Shatrughan and PW. 9 Pretiraja. These were convicts in jail before whom Santosh confessed having committed a blunder on the night of 20-2-96 while Santosh was lying in the same barrack. However, no reliance has been placed on this part of the testimony as it is too vague.
8. Thus the following circumstances were found established by the trial Court :-
(i) that these two accused were in the house with Ku. Naveen after 9 a.m. after Somvanshi went to his duty,
(ii) about 10 a.m. shrieks had been heard from the side of the house,
(iii) about 11 a.m. these accused falsely told Ku. Ruchi and also to Shailendra that Naveen had gone to some friend,
(iv) at about 12 noon these accused told Pratibha, the sister of Naveen, that she had gone on cycle to her girl friend,
(v) accused Santosh was seen by Ku. Mishra around 11-30 a.m. taking cycle of Naveen towards back of her house. Thus the accused had made false statement about the whereabouts of Naveen and her cycle to witnesses,
(vi) accused Santosh had nail injuries on his neck and other parts of body showing struggle against him by somebody with the fingers,
(vii) Naveen was strangulated with a piece of Chaddi with elastic attached to it. The other part of this Chaddi was disclosed by Molai as having been concealed in the cattle Parchhi and he led to its recovery. This piece has been found to be part of the Chaddi found on the neck of the deceased,
(viii) the various pieces of clothes and Chaddi got recovered by these accused on their disclosure had blood stains on them,
(ix) accused Molai led to recovery of knife, Article A having blood stains on it. He knew it concealed in the cow-dung cakes and produced it. So he was the author of the concealment of the knife. The stab on the dead body could be caused by it.
(x) Molai led to recovery of Chadar, Article-G which he concealed. This had blood and semen stains.
(xi) The handkerchief which was produced by Santosh from fodder house had semen stains on it,
(xii) the girl had been raped before being strangulated and stabbed. This is clear from her medical examination and the teeth mark on her cheek.
(xiii) The vaginal slides showed blood as well as spermatozoa.
(xiv) Accused Santosh led to recovery of lady cycle from under the septic tank where the dead body had been found. He disclosed about it and on his pointing out it was recovered on 21-2-1996. It was not visible when the body which was floating had been taken out. The depth of the septic tank was about 10 feet and its length was about 8 feet as stated by Somvanshi.
9. The trial Court found these circumstances established beyond doubt and the only inference possible was that these accused were the joint perpetrators of the crime. Both of them raped her and murdered her.
10. The defence set up by the accused is that they never worked at the house of Somvanshi on any duties nor on the date of this incident. Santosh said that he was a convict in the jail on a charge of rape undergoing sentence. However, he was working in the garden along with 4 other convicts under surveillance of a guard and did not work in the house of Somvanshi. He had some scratch injuries but they were caused by the police official who arrested him on 21st. He urged that he had been acquitted by the High Court in appeal in the case for which he was undergoing the sentence on the date of this incident.
11. Molai also denied his presence as domestic help at the house of Somvanshi. He urged that he was on duty of cloth godown of the jail from 3 a.m. to 11 a.m. and after closing the godown he went to the Court on duty as he was to appear in the Court of Magistrate, Shri Shrivastava and after attending there at 12-30 p.m. he went to his village Medgaon.
12. The accused examined two witnesses, DW. 1 Rakraj Sondhiya Chief guard at Central Jail, Rewa. Molai was also a guard under him. He asserted that on 20-2-96 Molai was on duty at cloth godown. He admitted in cross-examination by the State counsel that the convicts who go to work in gardens outside the jail or in the gardens of the officers, they work there on the instructions of the officers. There are gardens outside the houses of 5-6 Asstt. Jailors. During the time of this incident Somvanshi was incharge of the cloth godown and whenever he sent Molai to work at his house, Molai worked at his house. Statement of DW. 2 is not relevant. He had made some allegations against integrity of Somvanshi.
13. Apparently defence evidence is inconsequential and rather indicates that accused persons used to work at the house of Somvanshi. Santosh used to work at the garden of Somvanshi while Molai used to work in the house.
14. The contention of the learned counsel for both the prisoners is that all the circumstances relied upon by the trial Court have not been established by irrefutable evidence and there is doubt on various aspects of the circumstances. This it is urged that in the FIR Ex. P. 1 lodged by Somvanshi which is a written complaint sent by him to the S.H.O. Police station Civil Lines, Rewa, there is no mention of any suspicion against any of these accused. The argument is that this is incongruous if his daughter Pratibha (PW. 3) had told him that the accused had informed her that Naveen had gone to her friend on cycle. The argument is that if Pratibha had so informed Raghuvanshi he would have at once suspected the accused persons on seeing the dead body of Naveen.
15. Secondly, it is argued that in the disclosure statement of Molai, in Exs. P-6 and P-7 the place of interrogation is mentioned as Central Jail Rewa colony, whereas according to the investigating officer Shri Pavaiya (PW. 16) he had interrogated both these accused inside the jail in the presence of the witnesses. Even PW. 7 Shyamji Singh who is Asstt. Jailor and neighbour of the deceased and a witness to the disclosure statement asserted that both the accused were interrogated by the investigating officer in the jail office in his presence and they made their disclosure there. So the argument is that the place of interrogation recorded in Exs. P-6 and P-7, is contrary to the testimony of these witnesses. So it should be taken as doubtful as to where the interrogation was made and that the evidence is suspicious that this accused made any disclosure statement leading to the discovery of incriminating material. In the same context it is further argued that if Ruchi Mishra had seen Santosh taking the cycle of the deceased towards the back of the house, she would have disclosed that fact to the police or to the father of the deceased after coming to know the murder of Naveen and if she had told so the police must have searched for the cycle in the gutter and they must have recovered the cycle from the there along with the dead body. Thus the alleged disclosure about cycle Molai is doubtful piece of evidence.
16. It is further argued that both the accused were in the house when Somvanshi returned home from his duty at 6 p.m. If they were guilty, they would not have come to the house and would have run would not have come to the house and would have run away. Molai even helped Somvanshi in searching for the girl. So their conduct was innocent.
17. It is further argued that the circumstances which have come on record, even if they be taken on their face value, do not lead to only one inference of guilt of the accused, somebody else could have come to the house and committed this act, even if these accused are presumed to have been working somewhere outside the house as the witness claimed to have seen them only in the compound of the house.
18. Lastly, the argument is that at least it is uncertain as to who raped the girl, who strangulated her and who stabbed her. Even if Santosh be considered the person who raped because of nail injuries on his face and arm, the participation of Molai in the rape and murder is not established and he should be given benefit of doubt or in any case S. 34, IPC is not attracted against him. It is also argued for the same reason, that the accused do not deserve death sentence in the background of such evidence.
19. The learned counsel for the parties have taken us through the entire evidence of witnesses as also the documents on record. We have heard their comments at length on the reliability and weight of the evidence of various witnesses and the documents. It is important to note that both the accused totally denied their presence in the house that day or that they were working in the house of Somvanshi that day while the girl Naveen was in the house. This was a total false stand taken by them. On perusal of the evidence of PW 6 Somvanshi, PW 3 Pratibha, PW 1 Ruchi PW 2 Shobhna, PW 4 Shailendra and even DW 1 Sondhiya, chief guard of Central Jail, Rewa, the trial Court found it established that these 2 accused had been working in the house of Somvanshi as domestic help. Santosh had been working in the garden of that house. Molai had been working in the house. He was a guard in the workshop which was under charge of Somvanshi and on his asking he had been working in the house. It is not unusual feature. We have perused the evidence and find it established that these 2 accused had been working in the house of Somvanshi when this incident had occurred and even on the date of this incident they were working in the house. Somvanshi had left them in the house with Naveen alone in the house at 9 a.m. Pratibha had gone to her school that morning at 7-30 a.m. and returned by 12 noon. The accused have falsely denied their presence in the house that day.
20. There is no reason to doubt the testimony of Ruchi Mishra that these accused told her that Naveen had gone to her friend's house. In the cross-examination of this witness no infirmity had been brought out. Ruchi had inquired about Naveen from these accused at about 11 a.m. and a short time thereafter she had seen Santosh taking the cycle of Naveen towards the back of the house. Ruchi was not told by these accused that Naveen had gone on her cycle. It was only told to Pratibha that Naveen had gone on her cycle. Pratibha had informed her father about it. There is no reason to doubt her. These accused, thus gave false explanations to both these girls about the whereabout's of Naveen. They did so deliberately.
21. The contention of the counsel for these accused that in the FIR there is no mention of any suspicion about these accused or what they told to Pratibha, does not create any dent in this part of the case of the prosecution. It is to be kept in mind that Pratibha had told her father at 3 p.m. that the accused had told her that Naveen had gone to her friend's house. So, the father had no reason to become suspicious about her life. Even on return from duty at 6 p.m. the position remained the same and Naveen had not returned home. Next morning the body of Naveen with frock was noticed in the septic tank. Accused Molai was with Somvanshi at that time and had helped in removal of the cover of the gutter. The body had not been taken out and at that sudden and shocking discovery, the father could hardly connect the accused with the crime. Considering no suspicion against the accused, Pratibha had only told him that the accused had informed her that Naveen had gone to her friend's house. The father could not suddenly reach a conclusion as to how the body of his daughter was in the septic tank. The septic tank, as has come in evidence, was about 8 feet across and 10 feet deep. When the accused had helped him in search of the girl, the reaction of his mind, in taking no suspicion against the accused, was justified and the omission of the fact as to what Pratibha had told him about the information given by these accused, not been recorded in the written report made by him to police, was but natural. At least this omission cannot raise any doubt about the testimony of Pratibha. This testimony of Pratibha as to what the accused had informed her about Naveen is to be further looked into in the light of testimony of Ku. Ruchi to whom also the accused gave the same information. Somvanshi had no talks with Ruchi before informing the police.
22. Thus we are of the view that the trial Court was justified in concluding that these accused gave false explanation to Pratibha and Ruchi about Naveen having gone to her friend's house while she had been raped and done to death.
23. It is of importance that Ruchi as well as her mother had heard the shriek 'Eeeh' from the side of the house of Somvanshi at 10 a.m. The dog of the Somvanshi had also barked. They had come out but found nothing unusual. So they went back to their home. Even Shailendra (PW 4) heard such a shriek and came to see but noticed nothing. The accused were in the house just outside. This was noticed by Shailendra at about 11 a.m. when his ball rolled towards the garden of Somvanshi. He and his friends picked up the ball and went away. Counsel for the accused suggested to Ruchi that she had not mentioned about hearing the shriek from the house of Somvanshi in her police statement u/S. 161, Cr.P.C. where it is omitted. She only asserted that she does not know why it is omitted from the statement but she had narrated it. No such omission has been brought out in the testimony of Shobha (PW 2) or Shailendra (PW 4) who had asserted about hearing of such shrieks. The factum of such a shriek having been heard is thus established though it does not show whose shriek it was.
24. The accused persons were at the house when Somvanshi had left the house at 9 a.m. with the girl inside. They were noticed outside the house at 10-30 a.m. as well as at 11 a.m. The false explanations given by these accused to Pratibha and Ruchi about Naveen indicates their guilty mind. It is of importance to note that they concocted story that Naveen had gone on her cycle although they had taken the cycle towards back of the house, and threw it in the septic tank.
25. Let us consider whether the disclosure statements were made by these 2 accused. They were interrogated one by one in the office of the Central Jail Rewa. This is narrated by Pavaiya and also by Shyamji Singh. These witnesses have no reason to depose falsely. If they were creating false evidence about disclosure by accused and recovery of material evidence at their instance, they could have spoken in line with the back-ground of disclosure P-6 and P-7 that the interrogation was made in the colony. They have stated that disclosure was made in the office of the jail. Shri Pavaiya who prepared these 2 documents has stated that word colony' after the words 'Central Jail Rewa' appears to have been recorded by some mistake in these documents. In view of this explanation we have no reason to discard his testimony or that of PW 7 Shyamji Singh. PW 7 has explained that entire jail complex is called jail colony.
26. From evidence of these witnesses we are satisfied that there is no infirmity in prosecution evidence that these accused were interrogated by the investigating officer and they made disclosure statement which are Exs. P-6 and P-7 respectively. They made disclosures about various incriminating articles. Santosh made disclosure about handkerchief, Chaddi, a piece of khadi cloth and ladies cycle having been kept by him in different places. Molai made disclosure about piece of Pajji i.e. Chaddi, bed-sheet, knife and a Chaddi. These had been concealed in the fodder house and the knife in the cow-dung cake heep. Both these accused respectively led the police party to the spots of concealment of these articles and they got these articles recovered. The cycle was recovered after putting a Kanta in the septic tank.
27. We find that the objection of the counsel for the accused that the cycle should have been found by the police ordinarily when the body was recovered from the septic tank, does not have merit in it. Septic tank was 10 feet deep with 8 feet width. The body was floating above the water. The police had taken out the body. There is nothing on record to suggest that any body had gone into the septic tank. That is not natural also as nobody would lower himself inside the dirty sullage of septic tank and the body would have been taken out with the help of some ropes 'Kantas' and other means. So by that time it could not have come to the notice of police that cycle was lying at the bottom of the septic tank. The size of the cycle is such that in such a big septic tank it could settle in the bottom. Santosh disclosed about it and got the cycle recovered. The fact that Ruchi had seen Santosh taking the cycle to the back of the house could at best lead the investigating agency to question him regarding the cycle. They did question him and recovered the cycle from the tank. This was recovered on 21-2-96 vide memo Ex. P-9. So we find no infirmity in this evidence of the prosecution.
28. We find that the trial Court has properly appreciated the evidence regarding disclosure statement made by Santosh and Molai respectively. Proper assessment has been made regarding recovery of hanker-chief, chaddi and piece of Khadi cloth and ladies cycle at the instance of Santosh. The articles other than ladies cycle were recovered from the fodder house of Somvanshi. Santosh had concealed them there. Molai led to recovery of piece of Pajji and Chaddi and a complete chaddi and bed-sheet from the fodder house. These were having blood and seminal stains. He also led to the recovery of knife from the cow-dung. It had blood stains. The piece of Pajji recovered was found to be piece of the same pajji with which the girl had been strangulated. The opinion of the expert of F.S.L. Sagar on that aspect are clear and have been rightly accepted and acted upon. We find no infirmity in that evidence. This leads to inference of active involvement of Molai also in this rape and murder.
29. The medical evidence of the autopsy surgeon and result of medical examination of Santosh have important bearing on the result of the case. The result of autopsy clearly suggested that the victim had been raped. Teeth marks on her cheek suggest that biting kiss was made on her face. She was strangulated and also stabbed with a knife to put her life to an end, after the rape. The fact that there are nail scrap marks on the neck, face, below the ear and right wrist of Santosh suggests that the girl had resisted but the accused with their brutal force had over powered her and after misusing her, sniffed out life from her.
30. From the close scrutiny of the entire evidence, we find that all the circumstances enumerate by the trial Court which we have noticed in the earlier part of the judgment have been established beyond any reasonable doubt. The participation of the 2 accused is inferable not only from the fact that they were with this girl in the house but also they gave false explanation to Pratibha and Ruchi and also further by the fact that the piece of Pajji which was used to strangulate her was part of same Pajji the other part of which had been concealed by Molai in the fodder house and which too had blood stains and semen stains on it. So his involvement in the crime is also apparent and so active.
31. The involvement of Santosh being also 'very active' in this entire transaction is established by the further facts that he had thrown down the cycle of the girl in the septic tank, he raped her as is clear from the nail marks on his neck, face and wrist for which he has no explanation to give. Both these accused are coming out with false explanations and false denials.
32. The assertion of appellant's counsel that their conduct in helping Molai joining in the search for the victim, shows their innocence, is misplaced. None but them was in house from 9 a.m. to 12 noon when Pratibha came. It has been mischievously suggested in cross examination of Shailendra that he and his friend are the culprit. This suggestion is to be seen in the light of total false denial by these accused about their having come to the house or working there. After the crime of rape and murder the only option left with them was to feign total ignorance after concealing evidence. So Molai's joining in search of girl does not reflect his innocence but his utter cunningness.
33. The entire transaction of rape and murder was a single one committed by both these accused. They both participated actively. It appears that while one strangulated her the other knifed her. They both raped her. At any rate they helped each other in the entire process of rape and murder. It is a case of gang rape and murder thereafter. We do not know which one of them had strangulated her and which one had stabbed. But they both participated fully. Both of them thus committed offence punishable u/S. 376(2)(g) and Section 302, IPC, in the alternative Section 302/34, IPC. We find that the trial Court has rightly convicted them for the offence.
34. The evidence on record fully established that these accused concealed and took steps to destroy vital pieces of evidence of rape and murder. They threw body as well as cycle in the septic tank. They removed the blood stains and concealed clothings having blood marks and semen marks in the fodder room and also the knife in the cow dung heep. So they caused the evidence of commission of offence to disappear with intention to screen themselves from punishment. Thus they have been rightly convicted for the offence punishable u/S. 201, IPC. They knew that this offence which they committed was punishable with death. So they could be punished u/S. 201, Part II, IPC with imprisonment up to 7 years. They have been sentenced to R.I. for 7 years each under this provision.
35. The only other question is whether they deserve the sentences of death or not. We have noticed from evidence, all the circumstances of rape and murder. The accused persons at the relevant time were expected to look after the girl. Her father had left her under their care. They were expected to look after her, as their father. Instead, they raped and killed her and threw her body in the septic tank. She tried to protect herself but as a weak female how much could she resist. Molai was a guard at the workshop where Somvanshi was incharge. He had the faith of Somvanshi. This is how he took advantage of that faith. Santosh was undergoing imprisonment on charge of earlier rape. He says that he had been acquitted by the High Court of that charge. It is immaterial. But that shows what type of character he is. Somvanshi put faith in him but he raped and murdered his daughter. This rape and murder is extremely abhoring and shocking to the conscience and to society. It has been committed in cold blood. There was no cause for provocation against the family or against the girl. Their action was abhoring demonic, brutal, cruel and depicts abysmal depravity and murder in cold blood.
36. Both of them were aged about 35 years at the time of the offence. We find no condoning or mitigating factors in favour of these accused. Their personal character is revealed by the style of this offence.
37. The Supreme Court interpreted the sentencing policy regarding death sentence as revealed from the provisions of S. 302 IPC, 354(3) Cr.P.C. and Articles 14, 19 and 21 of the Constitution of India, in the famous case of Bachan Singh v. State Punjab cited 1980(2) SCC 684 : (1980 Cri LJ 636). The judgment still holds the field and has been followed in large number of cases, of course, with slightly varying hues, depending on the facts and circumstances, of each case. The Court said that life imprisonment is the general rule in all murder cases, the death penalty is an exception. The death penalty should be awarded in rarest of the rare cases. Which case would be the rarest of the rare, would depend upon the facts and circumstances of the case. Their Lordships said that, in awarding such punishment, the Courts have not to be harsh on the accused and may give benefit of circumstances even in sentencing procedure (apart from finding of guilt.) The Courts must pay regard to both the crime and criminal and these two aspects are inter-twined and cannot be given separate treatments as 'the style is the man'. The Court has to give weight both to the mitigating as well as aggravating circumstances in the light of entire circumstances of offence. Their Lordships said that in many cases the extremely cruel or beastly manner of the commission of murder is itself demonstrated index of the depressed character of the perpetrator. That is why it is not desirable to consider the circumstances of the crime and circumstances of the criminal in two separate water tight compartments. The Court enumerated certain examples of aggravating circumstances such as previous planning and extreme brutality in commission of murder or exceptional depravity in the commission of crime. Several other aggravating circumstances were also noticed regarding the victims while discharging their public duties, such as public servants or members of police force or highly placed constitutional authorities being murdered deliberately. Some mitigating factors were also noticed by the Court as under :-
(i) That the offence was committed under the influence of extreme mental or emotional disturbance.
(ii) If the accused is young or old, he shall not be sentenced to death.
(iii) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to the society.
(iv) The provability that the accused can be reformed and rehabilitated.
(v) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(vi) That the accused acted under duress or domination of another person.
(vii) That the conditions of the accused shows that he was mentally defective and the said defect impared his capacity to appreciate the criminal act or his conduct.
All these instances of aggravating and mitigating factors were stated to be only broad indicators or guide to the judicial discretion. Their Lordships stated that it is not preferable to fetter judicial discretion by attempting to make excessive enumeration one way or the other.
Their Lordships said that post murder penitence was also a relevant factor in some cases. They also said that judges should never be blood thirstly and that the scope of concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accordance with the sentencing policy writ large in Section 354(3) Cr.P.C.
38. In most of the later cases, decided by the Supreme Court, which may be considered as instances where death penalty was not awarded and lesser penalty was confirmed, the Supreme Court has applied these guidelines, of course, depending upon and varying with facts and circumstances of each case. It would be instructive to note how in some cases which came before the Apex Court, the judicial discretion was exercised for a severer or lesser penalty on murder charges in the light of guidelines in the case of Bachansingh (1980 Cri LJ 636) (supra).
Recently a number of cases have arisen before the Supreme Court necessitating exercise of judicial discretion about capital punishment, on murder charges. These may be noted as under :-
(a) 1996 (2) SCC 175 : (AIR 1996 SC 787) titled Ravji v. State of Rajasthan : In this case the appellant had axed to death his wife and 3 minor sons while they were asleep. The wife was in advanced stage of pregnancy. The accused attempted to murder his own mother and also wife of neighbour. No motive of the murder was brought out, but the offence had been committed in a conscious state of mind and in a calculated manner without any provocation. There was no remorse shown by the appellant even after the incident. His plea of temporary psychic disorder was found unacceptable. The Apex Court applied retributive and deterrent theories of punishment and observed that it is the nature and gravity of the crime and not the criminal that were relevant for appropriate punishment. The court held that in the circumstances of the case, the death sentence was justified. It was observed that the brutality and cruelty with which the crime had been perpetrated, cannot but shock the conscience of the society. It was observed : "the punishment to be awarded for a crime must not be irrelevant, but it should confirm to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorance and it should "respond to the society's cry for justice against the criminal". If for such heinous crimes, the deterrent punishment for wanton and brutal murders is not given, the case of deterrent punishment will lose its relevance. So there was no justification to commute the death penalty to imprisonment for life.
(b) In this case the Court put reliance on its own observations in an earlier case : "Jashubha Bharat Singh Gohil v. State of Gujarat, cited at (1994) 4 SCC 353 : (1994 AIR SCW 2360) where it was observed that the protection of society and deterring the criminals is avowed object of law and that is required to be achieved by imposing appropriate sentence. The change in legislative intendment relating to award of capital punishment, notwithstanding the opposition by the protagonist of abolition of capital punishment, shows that it is expected of the Courts to so operate the sentencing system as to impose such sentence which reflects the social conscience of the society. The sentencing process has to be stern where it should be.
(c) In the case of "Dhananjoy Chatterjee v. State of W.B., (1994) 2 SCC 220" the Supreme Court had held that the sentencing should be such that it does not weaken the judicial system's credibility.
(d) In the case of Major R. S. Budhwar v. Union of India decided along with 2 other connected appeals, cited at (1996) 9 SCC 502 : (1996 Cri LJ 2862) the Apex Court considered the justifiability of death sentence in a case where two appellants had committed the murders of 4 army officers, under threat, command and influence of their superior who instigated and influenced them to commit the murders by exploiting their religious feelings. The abettor was awarded only life imprisonment. There was evidence of post murder repentence of the appellants. It was held that in these facts and circumstances, although two of the murders were diabolically planned and committed in cold blood, the appellants did not deserve extreme penalty of death.
(e) AIR 1983 SC 594 : (1983 Cri LJ 960) Javed Ahmad Abdul Ahmad Pawala v. State of Maharashtra. It was a case of cruel feindish murder of sister-in-law and 3 little children and robbery of ornaments by accused who was 22 years of age. The case rested on circumstantial evidence. It was held to be rarest of rare case and the accused was sentenced to death.
(f) AIR 1987 SC 1721 : (1987 Cri LJ 1885) titled Asrafilal & Sons v. State of U.P. It was a case of reprehensible and gruesome murder of 2 innocent girls to wreak personal vengeance over property dispute with their mother. The Supreme Court upheld the sentence of death imposed on the accused.
(g) Kamta Tiwari v. State of M.P., cited 1996 (6) SCC 250 : (1996 Cri LJ 4158). It was a case of rape and murder of 7 years old girl. The appellant had kidnapped the deceased, committed rape on her and strangulated her to death and threw the body in a well. It was held that in the circumstances of the case, the accused deserves death sentence. Again deterrent and retributive aspects of punishment were applied. It was held that this case was a rarest of rare cases where sentence of death was eminently desirable, not only to deter others from committing such atrocious crimes, but also to give emphatical expression to society's abhorance of such crimes.
39. We need not go into all the cases which have come up before the Supreme Court for considerations of propriety of death sentence when the murder charges are proved. The above cases are indicators for concluding what murders can be called cruel, diabolical, cold blooded, abhoring and revolting to conscience and showing depravity of mind of the accused. The Supreme Court has looked into the circumstances and methodology of crime adopted by the accused to find out what sort of criminal he is. No independent evidence need be gone into for that purpose, unless there are some indications showing that he was not as ruthless as the crime shows. In all these cases the guidelines laid down in the case of Bachansingh were followed and death sentences were approved.
40. The case before us is para materia to case of Kamta Tiwari v. State of M.P., (1996 Cri LJ 4158). We are also reminded of abduction, rape and murder of Chopra children in Delhi by 2 accused persons i.e. Billa and Ranga after kidnapping them while they were on way to participating in some radio programme and made the mistake of seeking lift from the two accused who were going in a car. In spite of resistence, both were over powered and girl was raped and both the children were done to death in a cruel manner in a sprawling garden of Delhi. The Supreme Court confirmed the death sentence in that case on both the accused. That case is cited as Kuljeet Singh v. Union of India, AIR 1981 SC 1572 : (1981 Cri LJ 1045). The present is no less henious cruel. The accused have not been able to show any mitigating circumstance whatsoever.
41. The facts established in this case clearly show that :-
(i) These accused were present in the house as domestic help,
(ii) Ku. Naveen was minor aged less than 16 years,
(iii) The accused were expected to take care of Ku. Naveen,
(iv) Somvanshi the father of the girl had put faith on these accused as they had been working in the house for last one year,
(v) There was no cause for these accused to rape the girl except a depraved lust,
(vi) The accused persons not only committed gang-rape on her but also murdered her by strangulating and by stabbing her,
(vii) They put the dead body in the septic tank and concealed the clothes which had tell-tale marks of blood and semen,
(viii) They spoke lie to conceal their crime,
(ix) The entire offence was extremely brutal in character and carried out in a demonic manner suggesting extreme depravity of character on their part.
The present is a case which falls in the category of rarest of rare cases.
42. We are of the clear view that they deserve nothing less than the extreme penalty of death. There will be not only injustice to the society but sentencing will lose its relevance, if lesser penalty is given. The society may, in case of lesser option, lose faith in the efficacy of justice system. The ends of justice in this case cry for extreme penalty of death to both the accused and nothing short.
43. We confirm the conviction on all the counts i.e. u/S. 376(2)(g) as well as u/S. 302, IPC, as well as u/S. 302/34, IPC and also u/S. 201, IPC. We confirm the death sentence of both the accused for the offence u/S. 302 as well as u/S. 302/34, IPC. Both the references Nos. 3 and 4 are accepted accordingly. We also confirm the sentences passed against them for offences u/S. 376 and 201, IPC. The appeal No. 525/97 is dismissed. Certified copy of this judgment shall be supplied to the convicts free of charge, immediately.
Appeal dismissed.
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HOME	Krishan, Appellant V. State Of Haryana, Respondent.

 

DATE : 01-05-1997
1997-(103)-CRLJ -3180 -SC
JUDGE(S) :

K Venkataswami
Manoj Kumar Mukherjee
SUPREME COURT
(FROM PUNJAB AND HARYANA)
JUDGMENT
Consequent upon dismissal of his appeal by the High Court Krishan, the appelant herein, stands convicted under S. 302, IPC and sentenced to death for committing the murder of Ranbir, his brother-in-law, on October 23, 1994 inside District Jail, Sonepat, where the former was undergoing a sentence of imprisonment for life and the latter was an undertrial prisoner.
2. According to the prosecution case on the fateful day at or about 10.45 a.m. when the deceased was getting himself shaved by Ram Phal (P.W. 3.) who is a barber by profession and at the material time was serving a sentence, in Barrack No. 3 of the Jail, the appellant came there with kassi (spade) in his hand and inflicted two successive blows on the head of Ranbir, with whom he had a property dispute as a result of which he fell down and started bleeding profusely. Ram Phal raised an alarm which attracted the attention of Head Constable Som Nath, who was on duty nearby. Ram Phal and Som Nath chased the appellant who had fled away in the meantime with the kassi, and nabbed him with great diffculty. They snatched the kassi from him and put him inside Barrack No. 4. They then went to Shri Ashok Kumar (P.W. 4). Assistant Superintendent of the Jail and narrated the incident and also handed over the kassi to him. Shri Kumar then arranged a vehicle to shift Ranbir to the General Hospital, Sonepat. There Ranbir was examined by Dr. R. R. Mittal (P.W. 1) and he found the following :-
"1. Incised wound in front of the left pinna extending upto mid-line of vault of skull which was 12 x 1 cms. x bone deep. Fresh bleeding was present and brain matter was coming out of the injury, and
2. Incised wound on the skull from its middle to parieto-temporal region measuring 10 x 1 cms. x bone deep with fresh bleeding. Brain matter was coming out of the injury. X-ray was advised in respect of skull and surgical opinion was sought."
3. According to the doctor, both the aforesaid injuries could be caused by a sharp-edged weapon like kassi. The doctor sent a ruqa (Ext. PB) to In-charge, Police Post General Hospital, Sonepat, at 12 noon.
4. On receipt of a telephonic message from the city police station. S.I. Ami Singh (P.W. 8), who was then posted as In-charge Police Post, Gohama Road, Sonepat, first went to General Hospital, Sonepat, where he came to learn that Ranbir Singh had since been referred to Medical Collage & Hospital, Rohtak. Thereafter, he came to District Jail, Sonepat, where Chander Singh (P.W. 7) made a statement (Ext. PG) regarding the incident. He forwarded the said statment for registration of a case and took up investigation. Thereafter, S.I Ami Singh recorded the statements of Ram Phal, Som Nath and Ashok Kumar under S. 161, Cr. P.C. He took possession of the kassi (Ext. P1) from Ashok Kumar and seized some blood stained earth from the place of incident. He also prepared a rough site plan (Ext. P1).
5. In the night intervening 26/27th of October, 1994 the Investigating Officer received a message from Medical College & Hospital, Rohtak that Ranbir Sing had since died. On receipt of this message, S.I. Ami Singh reached there along with H. C. Dhara Singh and Constable Suresh Kumar and conducted inquest proceedings (Ext. PX). He then sent the dead body for post-mortem examination. Post-mortem examination was conducted by Dr. A. R. Sharma (P.W. 10) in Civil Hospital, Rohtak and he noted two stitched wounds on his person corresponding to the medico-legal report. According to the doctor, the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.
6. The appellant who was already lodged in District Jail, Sonepat as a convict in some other murder case was put under arrest by S.I. Ami Singh. On 23-10-1994. S.I. Ami Singh had deposited the Kassi Ext.P.1 duly sealed in a packet and another packet containing blood stained earth with the Moharrir Malkhana Randhir Singh and on 16-11-1994 the said Head Constable Randhir singh handed over the same duly intact to the said Constable Vinod Kumar for being delivered at the Forensic Science Laboratory (F.S.L.) and the said constable delivered the same there duly intact on the same day. Subsequently, report from the F.S.L., Madhuban vide Ext.PP was received to the effect that there was human blood on the kassi (Ext.P.1) and the blood stained earth lifted from the spot. On completion of investigation the police submitted charge-sheet against the appellant and in due course the case was committed to the Court of Session.
7. The appellant pleaded not guilty to the charge levelled against him and stated that he had been falsely implicated. He took the stand that on the date of the incident he was on duty at the Sabzi Panja in Jail and came to the Barrack on hearing the alarm of whistles issued by the Lambardar on duty and they came to know that Ranbir was lying injured. He further stated that on seeing him injured, he started dressing him and while he was still dressing him, he himself became unconscious and thereafter regained consciousness in the hospital.
8. To sustain the charge levelled against the appellant the prosecution principally relied upon the ocular version of Ram Phal (P.W. 3) and Chander Singh (P.W. 7), the warden of the jail. Both the learned Courts below found that the above two witnesses were natural, probable and independent witnesses and there was no reason to disbelieve them. As their evidence stood amply corroborated by the medical evidence and the First Information Report, which was promptly lodged, the Courts below recorded their respective findings against the appellant.
9. We have for ourselves perused the entire evidence on record and see no reason to interfere with the concurrent findings recorded by the learned Courts below as they have been arrived at on a detailed and proper appraisal of the evidence and are based on cogent and convincing reasons. The conviction of the appellant under S. 302, IPC must, therefore, be upheld.
10. Coming bow to the sentence we find that the principal reason which weighted with the Courts below to hold that the extreme penalty of death was called for was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on parole. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. Taking an overall view of the attending facts and circumstances of the instant case we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death. We, therefore, commute the sentence of death imposed upon the appellant for his conviction under S. 302, IPC to imprisonment for life, but maintain the sentence of fine of Rs. 5,000/- and the sentence to be undergone in default of payment thereof. The appeal is thus disposed of.
Order accordingly.
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Duraisamy Gounder, Appellant V. State, Respondent.

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DATE : 25-11-1997
1998-(104)-CRLJ -1470 -MAD
PENAL LAW MURDER ATTACKING WIFE AND DAUGHTER WITHOUT PREMEDITATION
Penal Code, 1860 - Sections 300 & 304 Part II - Whether murder or culpable homicide - Accused was addicted to liquor - His demand for money for buying liquor was refused by the wife - Refusal provoked him suddenly and he attacked the wife and consequently on the daughter who came to rescue the mother - Accused did not attack the deceased deliberately or after pre-meditation, but, when he had lost his control becoming emotional - Act done by accused with knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death - Hence, falling within the meaning of Part II of section 304, Penal Code.
Conclusion
Offence committed by accused falling within the meaning of Part II of section 304, Penal Code.
Penal Code, 1860 - Section 302 - Death penalty - Accused on a spur of a moment attacked his wife and daughter with sickle without pre- meditation - Accused is aged about 65 years and father of eight children amongst whom four were minor - Subsequent conduct of the accused cutting himself with the same weapon immediately indicative of his repentance - Circumstances are not one of "rarest of rare cases" - Imposing maximum punishment will deprive the accused of an opportunity for reformation, and taking care of his minor children - Consequently, rigorous imprisonment for four years imposed will meet the ends of justice.
JUDGE(S) :

C Shivappa
S Thangaraj
MADRAS HIGH COURT
JUDGMENT
C. SHIVAPPA, J. :- The appellant stood charged for having committed the offence under Section 302, IPC and was tried by the learned Sessions Judge, Velore in S.C. No 84 of 1996 who convicted him under Section 302, IPC, imposing Rigourous Imprisonment for life for causing the murder of his wife Danabakiyam Ammal and imposing sentence of death for committing the murder of his daughter Nagammal.
2. Against the said conviction and sentence, the appellant herein has preferred the Crl. A. No. 461 of 1997 and a reference has been made by the Court of Sessions under Section 366 of the Code of Criminal Procedure for confirmation and it is numbered as R.T. 3 of 1997. Thus, both the reference and the criminal appeal are before us for hearing.
3. The prosecution case is that the appellant Duraisamy, with his wife and children, was living in a shed situated in the midst of a garden, belonging to the family, at Devarisikuppam village. He was addicted to liquor and used to demand money from his wife for the purpose of consuming liquor, when resisted he used to quarrel with his wife on several occasions. On 18-10-1994, at about 2.00 p.m. PW 1 Chellappan, one of the sons of the appellant, who went Gudiyatham market along with his brother for sale of agricultural products, while returning to his shed, heard the noise of the appellant herein quarrelling with his mother. At that time, PW 3 Ganapathy and PW 3 Vinayagam, who were returning from the nearby village also came there. Then, the appellant, with a sickle, assaulted on the head of Danabakiyam Ammal indiscriminately. On seeing this, the daughter Nagammal intervened. In that process, she was also assaulted with the same weapon on the head and face. Nagammal fell at the entrance of the shed. Dhanabakiyam Ammal fell outside the shed. When PWs. 1 to 3 went near the accused to catch him, he cut his own throat with sickle. PWs. 1 to 3 found Nagammal and Danabakyam Ammal dead. Immediately, PW 1 went to the police station at K. V. Kuppam. The appellant also went to K. V. Kuppam Police Station on the same day at 4.30 p.m. with bleading injuries on his neck and he was not in a position to speak. He wrote his father's name, as per the evidence of PW 11, the Head Constable of the Police Station. PW 11 took him to the hospital for treatment under requisition 41 of 1994, PW 10 Dr. Vennila, Civil Assistant surgeon, attached to Government Hospital, Gudiyatham, saw the accused at 5.55 p.m. and at that time, the accused was not in a position to speak. From the signs showed by the accused PW 10 understood that he was cut by another person by means of a knife and she found the following injuries on the person of the accused :
1. An horizontal incised wound on the front of the neck 5 cm. x 3 cm. x trachea depth. Wound gaping in the middle with tailing at either end.
2. Underlying trachea exposed with an horizontal incised wound in the front wall of the trachea. Fresh bleeding present.
The wound certificate is Ex. P-10. At 5.00 p.m. on the same day, PW 1 Chellappan appeared in the Police Station and gave an oral statement which was reduced to writing by PW 15. As per Ex.P1, a case was registered in Cr. No. 390 of 1994 under Section 302, IPC. F.I.R. was sent to Court with copies to the officers concerned, and the said F.I.R. is Ex. P-19.
4. PW 16, the Inspector of Police, Gudiyatham, received information at about 5.30 p.m. and reached the place of occurrence at 7.00 p.m. Since it was dark, with the help of Petromax light, he prepared observation mahazar, Ex. P-2 in the presence of PW 5 Natarajan, the Village Administrative Officer and one Perumal. The blood stained earth found near the body of Dhanabakiyam (M.O. 2) and sample earth (M.O. 3) and the blood stained earth found near the body of Nagammal (M.O. 4) and sample earth (M.O. 5) were seized under the cover of mahazar Ex. P-3. He prepared a rough sketch as per Ex. P-20 and photos were taken by PW 7. The photographs were marked as M.O. 7 series and the negatives were marked as M.O. 8 series. After inquest as per Ex. P-21, he prepared the report in the presence of witnesses. The body was handed over to PW 13 with a requisition, Ex. P-8, for post-mortem examination.
5. PW 8, Dr. Amuthamani, Civil Assistant Surgeon, attached to the Government Hospital, Gudiyatham received the body on 19-10-1994 at 1.30 p.m. As per Ex. P-6, she commenced the post-mortem examination at 3.25 p.m. on the same day and found the following injuries :
External Examination :
1. Lacerated wound about 6 cm. x 2 cm. on the left side of the occipital region.
2. A lacerated injury about 4 cm. x 2 cm. over the right eye-brow.
3. A lacerated injury about 3 cm. x 1 cm. over the right ear lobe.
4. A contusion about 5 cm. x 3 cm. over the right temporal region.
Internal Examination :
Thorax, Heart-250 gms. Lungs-right 400 gms; left 350 gms. Both lungs pale. Abdomen : stomach empty. Liver-1100 gms. Spleen-75 gms. Kidneys-each 100 gms. Bladeer-empty. Uterus-normal in size. C/S empty. Hyoid bone-fracture of hyoid bone on left side. Skull-farcture of occipital bone extending from left to right side involving the right temporal bone. Fracture of sphenoid bone present. Brain-1100 gms. Contusion over the temporal lobe seen.
PW 8 was of the opinion that the deceased died of shock and haemorrhage due to the injuries on the vital organs of skull and brain and fracture of hyoid bone, 22-27 hours prior to post-mortem examination Ex. P-7 is the postmortem certificate issued by him.
6. Dr. Prakasam, PW 9, Civil Assistant Surgeon, attached to Government Hospital, Gudiyatham on receiving the body on 19-10-1994 at 2.00 p.m. commenced the postmortem examination on the body of Nagammal and found the following injuries :
External injuries :
1. An incised wound about 2 cm. x 1 cm. over the right side of the chin.
2. An incised wound over the right maxilla about 4 cm. x 1cm.
3. An incised wound about 3 cm. x 1 cm. over the right eye-brow.
4. Contusion over the face on right side extending to the back of the right ear.
5. Fracture of the mandible on both sides with chin protruding out.
Internal Examination :
Heart-250 gms. Lungs-right 350 gms., left 300 gms. congested. Stomach-empty. Liver-1100 gms. Spleen-75 gms. Kidneys-100 gms. each bladder empty. Uterus-normal C/S cavity empty. Hyoid bone-right side carotid vessles incised and fracture of hyoid bone on right side in same line. Skull-normal. Brain-1100 gms.
PW 9 was of the opinion that death was due to shock and haemorrhage due to injury to vital organ. Right carotid vessles and facture of hyoid bone right side, 22-26 hours prior to post mortem. Ex. P-9 is the postmortem certificate issued by him.
7. Later PW 16 examined witnesses and recorded their statements. He went to Vellore Hospital and found that the accused was in a seiosu condition and was undergoing treatment for the injuries sustained by him. The accused was discharged from the hospital on 7-11-1994 and thereafter, Pw 16 submitted a petition to hand over the accused to police custody for the purpose of investigation and on the order of the learned Magistrate, took him to the custody and later, after voluntary confession of the accused, the admissible portion of which is Ex. P-4, he was remanded to the custody as per the orders of the learned Magistrate. M.O. 1 sickle and M.O. 6 blood-stained dhoti were seized under the cover of mahazar as per the confession, from near the lake known as "Kanaru" from a bush on the southern side of the road leading to Kalyana Periyan Kuppam from Devarisikuppam. All the material objects seized were subjected to chemical examination with a covering letter, Ex. P-16 and the chemical examiner's report was marked as Ex. P-17 and the Seroligist's report was marked as Ex. P-18.
8. After completion of the investigation, chalan was submitted and on being committed, the prosecution examined as many as 16 witnesses and exhibited number of documents and material objects. The defence did not examine any witness but the accused pleaded not guilty and denied the prosecution case on the grounds of improbability, interestedness and fabrication in the evidence of the prosecution.
9. The learned Sessions Judge has placed reliance on the testimony of PWs. 1, 2 and 3, the medical evidence of PWs 8 and 9 and the recovery. In addition to these circumstances, the past conduct of the accused and the motive suggested by the prosecution have also weighed to some extent.
10. Vital aspects to be considered in this case are whether the appellant herein intentionally committed the murder of his wife and his daughter and the materials available in this case warrant a penalty of death sentence.
11. PWs. 1, 2 and 3 are the eye-witnesses. They have deposed that they witnessed the incident. The topography indicates that PWs 2 and 3 were passing the way and on hearing the noise came to the scene. All the three eye-witnesses have deposed that they had seen the appellant when he inflicted the injury on the deceased persons with the sickle. It is in evidence that the deceased also cut himself in the presence of the eye-witnesses and he also went to the police station immediately. These factors probablise his presence at the scene and his participation and there is no material contradiction in the substratum of the prosecution case on this aspect.
12. Culpability in criminal jurisprudence is fixed taking into consideration the degree with which the intention cherished or the gravity with which the incident had taken place or executed by the accused. The manner how the incident took place and the position of the victims at the time of the incident are not stated by PWs. 1, 2 and 3, except stating that he weilded the sickle indiscriminately on the head of both the deceased. His intention to kill or the strained relationship or that he designed to kill the daughter or he ever cherished to do away with them have not been spoken to. The other aspect that he might have developed such intention during the incident has also to be ruled out, because it is not the prosecution case that when the wife fell down he pursued his assault nor is it the prosecution case that when the daughter fell down, he attempted to inflict injuries on her. Instead, the moment he saw the daughter sustaining injuries he had cut himself. This conduct during the incident and subsequent to the incident takes away the fact that he developed intention at the spot.
13. It is in the evidence of the doctor that the death was due to shock and haemorrhage and as a result of profuse bleeding. It is also in evidence that M.O. 1 sickle is the weapon of offence. No doubt, it is a curved, sharp edged weapon with a blunt edge on the one side. The injuries found on the wife are all lacerations, contusions and abrasions. If he had really intended to kill his wife, he would have used the sharp edge of the weapon, which would have naturally resulted in incised injuries. The daughter sustained injury when she came to rescue the mother just accidentally, no doubt, on the vital part of the body. That was a deed not by a design nor by pre-meditation. But, happened just in the thick of events. If he had really cherished the intention to do away with the deceased, there was no reason why he made himself available to the police.
14. Generally, a person is not made liable for serious crimes unless he intends to cause or foresees that he will probably cause or at the lowest, that he may cause, the elements which constitute the offence in question. The elements of a crime are brought about intentionally, where a person brings them about with a desire to do so. Where he has this aim or purpose he acts intentionally, though to his knowledge, his act is likely to result in the death of the person or persons. Only then such person can be said to intend the doing of an act knowing the consequences of his own conduct. Intention is not the same thing as motive. The mental element of a crime ordinarily involves no reference to motive. A bad motive is no more reason for convicting a person of crime than a good motive is an excuse for acquitting him. It is not enough that a person intended to do an act the natural and probable consequences of which would be to bring about those elements. Strictly, the mental element must be proved. Whenever an offence is defined so as to require proof that a person intended or foresaw a particular result, the Court is bound in law to infer that such person intended or foresaw that result by reason only of its being a natural and probable result of his actions, but must decide whether he did intend or foresee that result by reference to all the evidence drawing such inferences from the evidence as may be proper in the circumstances. At best, it may be a case of recklessness without intending or foreseeing the consequences of his act.
15. From what had been proved, it is clear that the accused was addicted to liquor, when his demand for money was refused by the wife that refusal provoked him suddenly and he attacked the wife and consequently on the daughter who came to rescue the mother. The manner how the incident has happened, it can be said that the accused did not attack the deceased deliberately or after pre-meditation, but, when he had lost his control becoming emotional and therefore, the offence if any committed by him is not murder. His habit overtook his sense of discrimination and reason.
16. Intention is a state of mind cherished either prior to the occurrence or at the spot, to achieve an object intended, causing injury, having knowledge that such injury is likely to cause the death of the victim. Intention should not be misconceived for a motive. Motive is not a condition precedent for any criminal act but to attract Section 300, IPC intention is a condition precedent. It serves as the basis to assess the culpability of the accused with reference to several factors, such as the weapon of offence used, citus of the injury, the manner how the injuries were inflicted, the position of the accused and the victim, at the time of the occurrence, and the conduct of the accused prior, during and subsequent to the incident.
17. The intention of the accused as distinguished from knowledge about the consequence of his act is the determining factor to attract Part I of Section 304, IPC. Where the accused had knowledge but no intention that the blows with the sickle were likely to result in death, it has to be held that the offence committed is culpable homicide not amounting to murder, punishable under Section 304, Part II, IPC. If we examine from this angle, on the facts and circumstances of the case, it does not appear possible to infer that the accused intended to kill the deceased. So far as the wife is concerned, he was annoyed by her refusal to pay the money and so far as the daughter is concerned he was annoyed by the intervention. Where the act appears to have been done with knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death will fall within the meaning of Part II of Section 304, IPC.
18. In Ramesh Vithalrao Thakre v. State of Maharashtra, AIR 1995 SC 1453 : (1995 Cri LJ 2907), the Apex Court has held thus :
"From the evidence on the record and the established circumstances, it is not possible to say with certainty that the appellant intended to cause the death of Rekha. Even though the principle contained in Section 301, IPC would be applicable to the case, it appears to us that the appellant can only be clothed with the knowledge that the injury which he was causing was likely to cause the death of Rekha but without any intention to cause her death or to cause such bodily injury as is likely to cause death. The offence, under the circumstances, would be one which would fall under Section 304, Part II, IPC."
19. Even in the instant case, the accused on a spur of a moment gave blow with sickle. It is a case of no intention to commit murder by weilding a weapon like sickle, it could be attributed with knowledge that he was likely to cause an injury which was likely to cause death.
20. Now, we have to see whether the past conduct, as motive, has any relevance. It is in the evidence of PW 1 that the accused used to quarrel with his wife and on one such occasion, he was punished by the Court. In order to make a past conduct as a circumstance, it has to be established by cogent materials with particulars. The particulars regarding the date of occurrence, punished by which Court and how are not available. Of course, a previous conviction is admissible in evidence in a case in which the accused is liable for enhanced punishment on account of having been previously convicted. But, evidence of bad character is not admissible even to corroborate the prosecution story, on the principle that "protection of the law is due alike to the righteous and unrighteous. The sun of justice shines alike for evil and the good, the just and unjust. Crime must be proved, not presumed." Evidence of bad character may create prejudice and not lead to a step towards substantiation of guilt. Where both prosecution and accused have let in evidence of character and antecedent of the accused, no question of prejudice arises and the inhibition contained in Section 54 of the Evidence Act is not attracted. Therefore, a past conduct, which is not immediate in point of time will never serve as a circumstance to weigh the evidence in any given case. An earlier unproved conduct cannot be the basis to infer intention on the part of the accused to kill his wife and daughter.
21. The prosecution has suggested that the motive for the offence is the refusal to pay the money by the wife when he demanded to satisfy his addiction to liquor. Any fact is relevant which shows or constitutes a motive or preparation or any act in issue. Such conduct is influenced by any fact previously if it is significant and put forward as a motive or a circumstance it has to establish that motive or circumstance like any other incriminating circumstance. If not established, it detracts the prosecution case on that ground, but if it is suggested, then such motive, the prosecution is not bound to prove. But, if proved, it has to be taken into consideration whether it is adequate. In the instant case, it is in evidence that he was addicted to liquor and demanding money from his wife and the refusal by the wife made him emotional to react violently.
22. The next aspect of the case is quantum of sentence. Sentencing policy in criminal jurisprudence is a delicate aspect. Regarding quantum of sentence, after giving our anexious consideration to the facts and circumstances of the case, it appears to us that for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced in a dispassionate manner. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Lounde Megautha v. State of Calfornia, (402) US 183 L Ed II, 711 that "no formula of a full proof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime of murder. In the absence of any full proof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime of murder, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
23. In Shanker v. State of Tamil Nadu, 1994 (4) SCC 478 : (1994 Cri LJ 3071), this Court has indicated that the choice as to which one of the two punishments provided for murder is a proper one in a given case will depend upon the particular circumstances of that case and the Court has to exercise its discretion judicially and on well recognised principles after balancing all the mitigating or aggravating circumstances of the case.
24. In Jashubha Bharat Singh v. State of Gujarat, 1994 (4) SCC 353 : (1994 AIR SCW 2360), it has been held by the Apex Court that in the matter of death sentence, the Courts are required to answer new challenges and would operate the sentencing system to meet these challenges. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.
25. In Dhananjay Chatterjee v. State of West Bengal, 1994 (2) SCC 220 : (1995 AIR SCW 510), the Supreme Court has observed "that shockingly large number of criminals go unpunished thereby increasing encouraging the criminals and in the ultimate making, justice suffers by weakening the system's credibility. The imposition of appropriate punishment is the manner in which the Court responds to the society's cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the right of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment.
26. Similar view has also been expressed in Ravi alias Ram Chandra v. State of Rajasthan, 1995 (8) JT SC 520 : (AIR 1996 SC 787) it has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal. If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.
27. While imposing the sentence of death, the learned Sessions Judge has taken into consideration the number of deaths and also opined that in order to send a right signal, an extreme penalty of death is called for. This reason is incorrect, because it is the felonious propensity of an offender which requires consideration while dealing with the question of imposition of sentence of death, but that alone cannot be the sole basis and all other factors relating to the commission of the crime, including the motive, manner, magnitude, age, composition of the family, circumstances under which the offence was prompted, keeping in view the entire evidence let in the case have also to be taken into consideration. In the instant case, the appellant is aged about 65 years (now 68 years) and father of eight children amongst whom two sons and two daughters are already married and has four minor children and the last son is studying in the III standard. They are without mother and PW 1 even according to his own evidence, is living with another man's wife, another son living separately with his wife. PW 1 has engaged all the three younger brothers in agricultural work and they have to be at the mercy of PW 1 to settle in their future life. The absence of the father in their midst may make life miserable and there will be no person to give the parental care. It is the environment that shapes the character and way of life of any person. There may be various reasons to make a person habituated to any particular way of life. It is a different aspect. But, when ego kindled in his mind he though that his word should go unresisted, when unheeded, he joined issue with his wife and in a frayed temper lost his reasonableness and reacted recklessly. In such a situation, when a man was swayed by emotion, it has to be judged from the objective standard of reasonableness from the accused point of view how an ordinary man would react in such circumstances, and that will provide the test, and if these circumstances are regarded as probable, then it is not one of "rarest of rare cases" where the appellant should be sentenced to death. The conduct of the accused cutting himself with the same weapon immediately after the daughter sustained the injury is indicative of his repentance and there is every possibility of his reformation. Keeping in view the life of four minor children, imposing maximum punishment will deprive the accused of an opportunity for reformation, consequently taking care of his minor children. In addition to these factors, in view of our reasoning that the offence is one without intention, awarding maximum punishment is not just and appropriate. Keeping in view the circumstances which prompted to become violent, the manner how the offence was committed, the age of the accused and composition of the family, we are of the opinion that in the circumstances of this case imposing rigorous imprisonment for four years will meet the ends of justice.
28. In the result, (a) the conviction and sentence passed by the learned Sessions Judge in S.C. No. 84 of 1996 against the accused/appellant is modified and instead, the accused is found guilty under Section 304 (Part II) IPC, on two counts, and is convicted and sentenced to undergo Rigorous Imprisonment for four years and the sentences to run concurrently. The period of sentence already undergone shall be set off against the term of imprisonment imposed on the accused, under Sec. 428 of the Cr.P.C. 1973 (b) In the view we have taken that it is not one of the rarest of rare cases, the reference made by the Court of Session for confirmation is liable to be rejected. Accordingly, R.T. 3 of 1997 stands rejected.
Order accordingly.
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Dharampal Singh And Another, Appellants V. State Of Rajasthan, Respondent.

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DATE : 29-09-1997
1998-(104)-CRLJ -3372 -RAJ
Criminal Procedure Code, 1973 - Section 218 - Separate charges for distinct offences - It is firmly established that the murders were committed in the evening in quick succession - Alleged act of appellant for committing murder of one near Dharamashala and then committing murder of other in the chowk of house, which are situated nearby, were so connected together in time and place and motive that they clearly formed the same transaction - Appellants have been charged separately for the murders - the appellants also knew the charges levelled against them and faced trial knowing fully about the indictment levelled against them - No prejudice was either contended or proved to have been caused to the appellants during trial - Provisions of section 218, Cr. P.C. have been not violated
Penal Code, 1860 - Sections 34 and 300 - Case of murder - Common intention to commit murder - Appellant two had fired from his rifle and committed murder - Therefore, the mere fact that person came along with accused to chowk, and left the place of incident with him, is, itself not sufficient to conclusively prove that he had a common intention with appellant accused for committing murder of two person especially when he had a right of way or to stay in the chowk, which was jointly used by the appellants and the complainant party
Appellant two had fired from his rifle and committed murder. Therefore, the mere fact that person came along with accused to chowk, and left the place of incident with him, is, itself not sufficient to conclusively prove that he had a common intention with appellant accused for committing murder of two person especially when he had a right of way or to stay in the chowk, which was jointly used by the appellants and the complainant party.
Evidence Act, 1872 - Section 3 - Interested witnesses - Eye witnesses close relatives - But, this fact by itself, is not sufficient to discard their evidence straightway unless it is proved that it suffers from serious infirmities, which raises considerable doubt the mind of the Court
Conclusion
Eye witnesses close relatives. But, this fact by itself, is not sufficient to discard their evidence straightway unless it is proved that it suffers from serious infirmities, which raises considerable doubt the mind of the Court.
Penal Code, 1860 - Section 302 - Punishment for murder - Prosecution has successfully proved beyond reasonable doubt that appellant had intentionally and deliberately committed the murder of Narsingh by firing from the refle causing fatal injuries on his vital part i.e. chest - Civil, criminal and revenue cases were pending between the complainant party and accused party prior to the incident - This is not such a rarest of the rare cases, wherein death penalty should be awarded to appellant
JUDGE(S) :

Gyan Sudha Misra
Rajendra Saxena
RAJASTHAN HIGH COURT
JUDGMENT
RAJENDRA SAXENA, J. :- Appellants Dharampal Singh and Jai Vir Singh faced trial before the Additional Sessions Judge, Khetri, who by his judgment dated 27-8-1994 convicted Dharampal Singh for offences u/Ss. 302, 459, IPC and 27 of the Arms Act, and Jai Vir Singh u/Ss. 302/34 and 459/34, IPC, and sentenced each one of them to imprisonment for life with a fine of Rs. 2,000/-, in default thereof, to further undergo R.I. for one year u/S. 302/34 r.w. S. 34, IPC and to nine years' R.I. with a fine of Rs. 1,000/- in default thereof to undergo RI for six months on the second count. For the offence u/S. 27 of the Arms Act, the learned trial Judge sentenced Dharampal Singh to undergo eight years' RI with a fine of Rs. 500/- in default thereof, to further undergo R.I. for five months. The learned trial Judge further directed that appellants' substantive sentences shall run concurrently.
2. It appears that on 4-12-1989 at 1-45 a.m., PW. 3 Jai Singh submitted written report Ex. P. 1 to PW 7 Sultan Singh SHO PS Khetri to the effect that on 3-12-1989 at about 7-7.15 p.m. his younger brother Hari Singh (deceased) after having his dinner had gone to the well situated in their agricultural field and that he (Jai Singh), his mother (PW 10 Chandra Bai), father (PW 1 Maman Singh), sister (PW 6 Kumari Saroj), Narsingh and his wife (PW. 2 Smt. Vidya) were taking their meals in their house situated in village Kishanpura; that all of a sudden, somebody pushed the doors of his drawing room (Baithak), and they heard appellant Dharampal Singh shouting and calling them to come out. When they did not open the doors of the 'Baithak', Dharampal Singh, who was armed with a gun, came inside their house from the main gate and fired towards Narsingh (deceased), who at that moment of time, was coming after drinking water from their "Parinda" (place for keeping earthen pots of water). Appellant Dharampal Singh also threatened to kill all of them. At that time, appellant Jai Vir Singh was also with Dharampal. Dharampal Singh continued giving threats to kill them. Jai Singh further informed that while he was taking away injured Narsingh in a camel cart to Basai Hospital, PW 13 Munshi Singh and PW 14 Sanwat Singh came there and informed him that appellant Dharampal Singh had also committed the murder of Hari Singh (another brother of informant Jai Singh) by firing a gun shot near the Dharamshala. Jai Singh further mentioned in his written report Ex. P. 1 that when he reached near Dharamshala, he found Hari Singh lying dead. Narsingh succumbed to his injuries near Basai bus stand. Thereupon his dead body was brought back. Jai Singh also mentioned in report Ex. P. 1 that Dharampal Singh was serving in C.R.P.F. and posted at Bhatinda (Punjab), from where the latter had brought the Government rifle by which he had committed murders of Hari Singh and Narsingh.
3. On this report, formal FIR Ex. P. 2 was drawn. PW 17 Sultan Singh SHO inspected the place of occurrence near Dharamshala in village Kishanpura and prepared site plan Ex. P. 3. There he found the dead body of Hari Singh lying in the Verandah. He also picked a bullet, which was found embedded in the wall of Dharamshala. He prepared memo of dead body of Hari Singh Ex. P. 6 and lifted blood-stained soil and the sample of control soil vide seizure memo Exs. P. 22 and P. 21, respectively as also seizure memo Ex. P. 23 of blood-stained bullet. He prepared inquest report Ex. P. 18 of deceased Hari Singh.
4. Sultan Singh further inspected the place of occurrence in the house of the informant situated in village Kishanpura. He noticed that pieces of lead of the bullet were embedded in a wall at a height of about 3 ft. and that near the "Parinda" the blood was splashed on its wall as also on the Kutcha floor (Aangan). He prepared site plan Ex. P. 4, memo of dead body of Narsingh Ex. P. 5, which was at that time placed in the "Baithak". He also lifted the blood-stained soil from the wall and the 'Kachcha' floor and the sample of control soil vide seizure memos Ex. P. 25 and P. 26. PW. 17 Sultan Singh seized an empty cartridge, which was found lying in the 'Angan' and the pieces of lead of the bullet embedded in the wall vide seizure memo Ex. P. 27 and sealed all the packets separately. He also prepared inquest report Ex. P. 19 of deceased Narsingh.
5. On the same day, PW. 5, Dr. Narendra Singh, Medical Officer In-charge, Ajit Hospital, Khetri conducted medico-legal autopsies of deceased Hari Singh and Narsingh. The doctor as per post-mortem report Ex. P. 7 found the following external injuries on the dead body of Narsingh :
(1) Fire arm wound - Wound of entrance 1 cm x 1 cm with circular abrasion collar edges of the wound inserted on right side of chest 4 cm above to right nipple - direction of wound slightly upwards.
(2) Wound of exit 3 & 1/2 cm x 2 & 1/2 cm, edges were everted on right side of back of chest just above to inferior angle of scapula.
On dissection, he noticed fracture of right 5th rib posterior side, fracture of right scapula bone at inferior angle in the form of a hole. Right lung below the site was injured. All those injuries were ante mortem in nature. The doctor also noticed holes on the front of the chest as also on the right side of Jersy, shirt and baniyan of Narsingh and on the backside of those garments corresponding to sites of aforementioned injuries. Those garments were soaked with blood. Dr. Narendra Singh opined that the cause of death of Narsingh was haemorrhage and shock due to injury on right lung caused by gun shot (fire-arm wound).
6. PW. 5 Dr. N. S. Gill vide post-mortem report Ex. P. 8 found the following external injuries on the dead body of Hari Singh :
(1) Fire-arm wound - wound of entrance 1 cm x 1 cm with eccentric abrasions, collar edges inverted on mid of chest at sternum left side border, with direction oblique downwards.
(2) Wound of exit 2 & 1/2 cm x 2 cm, edges were everted, muscle fibre with bone pieces were coming out from wound at right side mid of back just right side to back-bone.
On dissection, he noticed wound on chest at sternum left side. Pleurae were injured on both sides, and blood was present. There were multiple lacerations on both lungs. There was a hole present in the pericardium on the anterior and posterior sides. There were lacerated wounds on the right atrium, and ventricle. Both the chambers of the heart were empty. Peritoneum was injured and its cavity was filled with blood. Posterior wall of small intestines was damaged and there was lacerated wound on the spleen. There was a fracture of the sternum in the form of a hole on the left side as also fracture of 10th vertebra of the vertebral column. All those injuries were ante mortem in nature. The doctor opined that the cause of death of Hari Singh was haemorrhage and shock due to injuries on the heart, both lungs and spleen, which were caused by fire-arm. He also noticed holes corresponding to the injuries on the Jersy, shirt and baniyan of deceased-Hari Singh at the chest and mid of the back side.
7. PW. 17 Sultan Singh seized and sealed blood-stained garments of Hari Singh and Narsingh vide seizure memos Exs. P. 23 and P. 24 and sealed them in separate packets. Appellant Dharampal Singh, who was serving in the C.R.P.F. 91, Battalion, Bhatinda was arrested in his Unit as late as on 1-6-1990 vide arrest memo Ex. P. 11 as he was absconding. Surjeet Singh Inspector C.R.P.F. of the same Unit produced one 7.62 bore rifle and two bandoleers having 66 live cartridges and 34 empty cartridges, which were alleged to have been entrusted to appellant Dharampal Singh during his training. Those articles were seized and sealed by Mool Singh ASI PS Khetri vide seizure memos Exs. P. 9 and P. 10.
8. The Assistant Director (Serology), Forensic Science Laboratory, Jaipur, to whom the sealed packets of the garments of the deceased and blood-stained soil and controlled soil were sent, after examination, opined vide his report Ex. P. 29, that the Pant, Kuchchha, Jersy, Baniyan, Bushirt Muffler, pair of shoes, note book of deceased-Hari Singh and the pant, under-wear, sweater, Baniyan, Bushirt, Dhoti of deceased-Narsingh and samples of blood-stained soil were stained with human blood and that the origin of the stains on the empty 'kartoos' seized from the house could not be detected due to disintegration. The blood groups on the aforementioned garments could not be determined due to disintegration.
9. The seized 7.6 mm rifle marked W/1, 7.62 mm rimless cartridge case marked C/1 and copper and lead pieces of bullet were also sent to the Ballistic Expert to the State Forensic Science Laboratory, who vide his report Ex. P. 31 opined that the said rifle was serviceable fire-arm and that its barrel residue indicated that the submitted 7.62 mm rifle (W/1) had been fired. However, definite time of its last fire could not be ascertained. On stereo comparison and microscopic examination he opined that the said 7.62 mm cartridge case (C/1) had been fired from submitted 7.62 mm rifle (W/1)
10. During investigation, it transpired that the appellants bore enmity with PW 1 Maman Singh and his sons because the complainant party had installed an engine for lifting water in their common well, wherein both appellants' party and the complainant party had joint 1/4th share. Moreover litigation between them was also pending.
11. Since appellant Jai Vir Singh could not be apprehended, initially a challan was filed against appellant Dharampal Singh for offences under Ss. 459, 302, IPC and 27 of the Arms Act and the investigation was kept pending u/S. 173(8), Cr.P.C. against appellant Jai Vir Singh, who was arrested on 30-3-1991. Thereafter a supplementary charge-sheet was filed against him in the Court of the learned Munsif and Judicial Magistrate Khetri, who in turn, committed the case to the learned Sessions Judge.
12. Appellant Dharampal Singh was charged for offences under Ss. 459, 302, IPC and 27 of the Arms Act, whereas appellant Jai Vir Singh was charged for offences u/Ss. 459/34 and 302/34, IPC. The appellants denied the indictment and claimed trial. To prove its case, the prosecution examined as many as 19 witnesses. The appellants in their statements under S. 313, Cr.P.C. denied all the circumstances appearing against them in the prosecution evidence, asserted that the prosecution witnesses had deposed against them due to enmity and litigation pending between them and that a false case has been foisted against them. Appellant Jai Vir Singh took the plea of alibi and claimed that on 3-12-1989, he was on duty from 9 a.m. to 5 p.m. as Store Keeper in M/s. Padma Automobiles, G/50, Loni Road, Gokpulpura New Delhi and that thereafter on that day he remained in his quarter. He examined DW 1 Ashok Kumar in his defence. After trial, the learned Sessions Judge found the appellants guilty for aforementioned offences and sentenced them in the manner indicated above. Hence Appeal No. 463/94.
13. The State has also filed D.B. Criminal Appeal No. 155/95 against the appellants for enhancement of appellants' sentences.
14. Both these appeals are being disposed of by a common Judgment.
15. We have heard Shri S. R. Bajwa, the learned counsel for the appellants and Shri M. L. Goyal, the learned Public Prosecutor, and Shri M. R. Mitruka, the learned counsel for the complainant at length and perused the record of the trial Court in extenso.
16. Shri Bajwa assailed the impugned judgment on multiple grounds. He vigorously canvassed that as per the prosecution case the murder of Hari Singh was committed near Dharamshala, whereas the murder of Narsingh was alleged to have been committed in the house of PW 1 Maman Singh situated in the village. Thus, those murders were admittedly committed at different places and at different times. In such circumstances, the joint trial for both murders is against the provisions of S. 218, Cr.P.C. Since the alleged murders were committed in two separate transactions as such, the joint trial has caused substantial prejudice to the appellants and on this ground alone their trial stands vitiated.
17. His next thrust of argument is that there is voluminous evidence on record to firmly establish that the house of Shri Bux Singh, who is father of the appellants, is also situated near the house of Maman Singh in the same chowk and that the appellants have a right of way therefrom to their house. Thus even if the appellants had gone inside the chowk of Maman Singh's house, still then no lurking house trespass or house breaking was committed by them and, therefore, offence under S. 459, IPC is not at all made out. Hence the learned trial Judge has committed grave illegality in convicting and sentencing them u/S. 459, IPC.
18. Shri Bajwa's another contention is that the alleged eye-witnesses have vigorously and at random indulged in making improvements and embellishments in their statements during investigation and then before the trial Court, that, no specific role was attributed to appellant Jai Vir Singh either in written report Ex. P1 or in their police statements except that he had accompanied appellant Dharampal Singh to the house of Maman Singh. But during trial, these prosecution witnesses have invented a new story and deposed that appellant Jai Vir Singh had exhorted appellant Dharampal to commit the murder of Narsingh. The learned trial Judge ignored this material and substantial improvement. Shri Bajwa urged that admittedly appellant Jai Vir Singh was neither armed with any weapon nor any overt act was attributed to him in the FIR and the police statements. Moreover, no charge was framed against him that he had abetted or exhorted appellant Dharampal Singh to commit murder of Narsingh or Hari Singh. In such circumstances, the conviction and sentence of appellant Jai Vir Singh for offence u/S. 302 read with S. 34, IPC deserves to be set aside.
19. His another plank of argument is that all the eye-witnesses are close relatives and partisan witnesses. Names of PW 4 Ganga Singh, PW 7 Smt. Vimlesh, PW 8 Smt. Krishna, who have claimed that they were also present in the chowk at the time of the alleged murder of Narsingh do not find mention in Ex. P. 1. Similarly the name of PW. 9 Harnath Singh does not find mention in the FIR, who asserted that he was present near Dharamshala and had witnessed the murder of Hari Singh. Thus, their presence at the time of the alleged incidents becomes highly doubtful and the prosecution case gets shadowed under the penumbra of suspicion.
20. As regards murder of Hari Singh, alleged eye-witnesses PW 13 Mahshi Singh and PW 14 Sanwat Singh, whose names find mention in the FIR have not supported the prosecution case. They have also not corroborated the statements of PW 9 Harnath Singh. The prosecution has deliberately not examined the independent witnesses of the locality. In such circumstances, no reliance can be placed on the testimony of the alleged eyewitnesses, who are close relatives. Shri Bajwa also submitted that inordinate delay in recording statements of various prosecution witnesses by the investigating officer has also not been satisfactorily explained, which makes their testimony doubtful.
21. Shri Bajwa's next thrust of argument is that there is direct conflict between the medical and ocular evidence because as per testimony of PW 5 Dr. Narendra Singh, the direction of wound of entrance on the right side of the chest of Narsingh was upward, which could only be possible had the assailant fired the gun in a sitting position. On the other hand, as per the testimony of the eye-witnesses, appellant Dharampal Singh had fired the gun in a standing position. This conflict makes the prosecution story doubtful. Shri Bajwa submitted that admittedly, appellant Dharampal Singh did not volunteer any information u/S. 27 of the Evidence Act for the recovery of the rifle and 66 live and 34 empty cartridges, which were seized by Mool Singh ASI on 1-6-90 vide seizure memo Ex. P. 10. On the other hand those articles were produced by Saravjit Singh of CRPF, Bhatinda. Hence, the said rifle and cartridges were not recovered from the possession of appellant Dharampal Singh. The prosecution also did not examine Saravjit Singh and Mool Singh ASI. Besides this, the contents of the Ballistic Expert Ex. P 31 were not specifically put to the appellant while recording their statements u/S. 313, Cr.P.C. In such circumstances, the alleged recovery of the rifle and cartridges after about six months of the alleged occurrence is meaningless and the same does not connect appellant Dharampal Singh with the crime. Similarly, the recovery of empty cartridge vide seizure memo Ex. P27 from the chowk of Maman Singh's house does not incriminate appellant Dharampal Singh because neither there is any mention in the FIR about the said empty cartridge nor there is any explanation for the inordinate delay in sending the said empty cartridge to FSL as late as on 27-6-90. Mool Chand ASI, who is alleged to have taken sealed packets to the State FSL, has also not been examined by the prosecution. Thus the material link to prove that the seals of the various packets containing empty cartridges, blood-stained garments of the deceased were not tampered and those remained intact till they reached the office of the State FSL, is missing. Therefore, the alleged recovery of the empty cartridge vide seizure Memo Ex. P. 37 is also worthless and the same does not connect the appellant with the crime.
22. Shri Bajwa lastly contended that the learned trial Judge has not made correct appraisal of the evidence on record and has disbelieved the evidence regarding the alibi of appellant Jai Vir Singh without any valid reason. He has, therefore, prayed that the appellants deserve to be acquitted.
23. On the other hand, Shri M. L. Goyal, the learned Public Prosecutor and Shri M. R. Mitruka, the learned counsel for the complainant vigorously contended that the appellants had enmity and previous litigation with the family of PW 1 Maman Singh, that few days back to the incident, appellant Dharampal Singh, who was recruited as a sepoy in the CRPF, had come to the house of Maman Singh and told PW 10 Smt. Chandra Devi, mother of the deceased Narsingh and Hari Singh that he would kill them but at that time she any how pacified him. Thereafter on the ill-fated day, appellant Dharampal Singh armed with a rifle, which was entrusted to him from the CRPF, Bhatinda, and his brother Jai Vir Singh, who accompanied the former, formed common intention to commit murders of Maman Singh's sons and in furtherance thereof when they saw Hari Singh going to his field near the Dharamshala, appellant Dharampal Singh fired from his gun causing injuries on the vital part of Hari Singh, which resulted into his instantaneous death. Thereafter, both the appellants immediately went together to the house of Maman Singh and knocked the doors of his 'Baithak', which was closed, that Dharampal Singh and Jai Vir Singh shouted and asked the inhabitants of the house to come out and that thereafter both of them entered again fired from his rifle and caused injuries on the right side of the chest of Narsingh, which proved fatal. Thus, both the murders were committed in quick succession and furtherance of the same common intention near Dharamshala and thereafter in the house of Maman Singh, which are situated nearby just about 100 paces. Thus the alleged incident took place in one series of act, which was connected together as to form the same transaction. Hence neither provisions of S. 218, Cr.P.C. have been violated nor it is a case of misjoinder of trial. Moreover, the appellants have been separately charged for the offence u/S. 459, IPC as also for the murders of Hari Singh and Narsingh, and that Jaivir Singh was specifically charged for forming common intention for committing the murders of Narsingh and Hari Singh, and for his active participation therein. Thus, no prejudice has been caused to the appellants and their conviction and sentence cannot be quashed on this ground.
24. The learned Public Prosecutor asserted that the appellants had no right of way through the chowk of Maman Singh and hence they had committed lurking house trespass having made preparation for committing murder of Narsingh and his brothers and therefore, the offence committed by the appellants actually falls u/S. 460, IPC and since the punishment prescribed for offences u/Ss. 459 and 460, IPC are identical, they should be convicted for offence u/S. 460, IPC. According to him, the charge for offence u/S. 459, IPC is not defective and no failure of justice has been occasioned. The learned Public (sic) disclosed and all the material facts constituting substratum of the prosecution case were mentioned. Since two of his brothers were brutally murdered, informant PW. 3 Jai Singh was in a perplexed state of mind. The written report Ex. P1 was scribed by PW 4 Ganga Singh, who is another brother of deceased. In the FIR, it has been mentioned by informant Jai Singh that he along with his mother, father, sister (meaning thereby PW. 6 Saroj), brother Nar Singh (deceased) and his wife PW 2 Vidya Devi were taking their meals in their house. There is no dispute that PW 1 Maman Singh and all of his sons namely Jai Singh PW 3, PW. 4 Ganga Singh, deceased Narsingh and Hari Singh and daughter Kumari Saroj PW 6 were living together. In such circumstances, the presence of PW 4 Ganga Singh and his wife PW 8 Krishna in the house was natural. Therefore, non-mention of their names in the FIR does not make their presence doubtful at the time of the incident unreliable and the same is not fatal to the prosecution.
25. The learned Public Prosecutor contended that since the murder of Narsingh was committed inside the house, there was no question of presence of outsiders or the persons of the locality at that time. The eye-witnesses are of course relative witnesses but this is all the more a strong reason that they would implicate only the real culprit and not others. Similarly, PW 9 Harnath Singh is the uncle of the deceased, who at the time of the murder of Hari Singh was coming from his agricultural field and when he came near the Dharamshala, had seen the said incident. PW 9 Harnath Singh in not a chance witness. On the other hand, he is a reliable witness.
26. As regards the delay in recording the police statements, the learned Public Prosecutor has submitted that since murders of two young persons had been committed in the family, the members of family were grief stricken and they were not in a position to give their statements. The investigating officer has given satisfactory explanation for such delay. Moreover, for the laxity or remissness on the part of the investigating officer, the statements of the alleged eye-witnesses cannot be rejected and, their testimony should be evaluated on merits.
27. The learned Public Prosecutor has vehemently asserted that from the evidence recorded in this case it stands firmly established that appellant Dharampal Singh was armed with rifle and appellant Jaivir Singh had come with him together and that near Dharamshala appellant Dharampal Singh had gunned down Hari Singh and committed his murder and that if appellant Jaivir Singh did not have a common intention with appellant Dharampal Singh then at that point of time, he ought to have withdrawn from his company after the murder of Hari Singh. But, he accompanied Dharampal Singh and went to the house of Maman Singh. He also entered into the chowk of Maman Singh and exhorted Dharampal Singh to kill Narsingh and his brothers and that after Narsingh was murdered, both the appellants went together from the place of occurrence. In such circumstances, it stands well established that he had common intention with appellant Dharampal Singh for committing the murders of Narsingh and Hari Singh. The learned Public Prosecutor has reiterated the reasonings given by the learned trial Judge and supported the impugned judgment.
28. The learned Public Prosecutor and Shri M. R. Mitruka, the learned counsel for the complainant have fervently contended that appellant Dharampal, who was a sepoy in the C.R.P.F. unauthorisedly brought the Government rifle and the ammunition, which were entrusted to him to his village Kishanpura and deliberately committed murders of Hari Singh and Narsingh, who were unarmed in a most dastardly and brutal manner and that his act was pre-meditated. In such circumstances, it is one of the rarest of rare cases, wherein he should be awarded capital punishment.
29. On the other hand, Shri Bajwa has reiterated that the appellants have been falsely implicated and the possibility that some others might have committed the murders, cannot be ruled out and that it is not at all a fit case for awarding the extreme penalty.
30. We have bestowed our most anxious and careful consideration to the rival submissions. Before we proceed to arrive at our findings on the arguments advanced at the bar, we feel that it will be conducive to briefly but carefully and closely scrutinise and evaluate the evidence adduced in this case.
In re Murder of Hari Singh
31. PW. 3 Jai Singh has mentioned in his written report Ex. P. 1 that while he along with others were carrying injured Narsingh in a camel cart to Basai Hospital, Sanwat Singh and Munshi Singh came there and informed them that appellant Dharampal Singh by firing a gun shot had committed murder of Hari Singh. However, PW. 13 Munshi Singh and PW. 14 Sanwat Singh have not supported the prosecution case and they have been declared hostile. They have stated that they are residents of village Dancholi and that they did not see the alleged incident. However, they admitted that their agricultural lands are situated near village Kishanpura. Both of them deposed that on the ill-fated day they had not gone to village Kishanpura. They have also denied various portions of their police statements Ex. P. 13 and P. 14, with which they were confronted. In such circumstances, both these witnesses do not render any assistance to the prosecution.
32. PW 9 Harnath Singh is the uncle of the deceased Narsingh and Hari Singh. His name does not find mention in written report Ex. P. 1. He was examined by the investigating officer as late as on 7-12-89, i.e. after four days of the incident. He is aged about 70 years. He deposed that on the ill fated day at about 6-7 p.m., he along with Sanwat Singh and Munshi Singh was returning from his well and when he reached Dharmshala, he saw Hari Singh coming from his house and going towards his well and at that time, appellant Dharampal Singh having a gun in his hand and appellant Jaivir Singh, who was empty handed, were coming from the side of village Dancholi. Hari Singh after seeing the appellants ran and entered into the verandah of the Dharmshala and folded his hands. Appellant Jaivir Singh asked Dharampal Singh to fire. Thereupon the latter fired his gun causing injuries to Hari Singh. Thereafter the appellants went away towards the house of Maman Singh. Harnath Singh further deposed that he along with Munshi Singh and Sanwat Singh went near Hari Singh and found that he had died. This witness stated that thereafter he followed the appellants at a distance of about 100 paces, who knocked the doors of the "Baithak" of Maman Singh's house, which were closed. Then the appellants opened the door of the main gate and entered in the chowk where Narsingh was standing near "Parinda". The ladies of the house were also standing in the chowk. Those ladies stopped appellant Dharampal. But Dharampal pushed Narsingh's mother (PW 10 Chandra) and fell her down. Harnath Singh further stated that appellant Jaivir Singh told, "Saale Ko Goli Maar". Thereupon, Dharampal Singh fired a gun shot causing injuries on the chest of Narsingh, who fell down. The inhabitants of the house started crying. Appellant Jaivir Singh told Dharampal Singh that two more brothers were still alive. Thereafter both the appellants hurling abuses went away. Harnath Singh deposed that after the appellants had left, he went inside the house of Maman Singh and tied his Dhoti on the chest of Narsingh, that thereafter arranging a camel cart, he along with Matu Singh, Sanwat Singh, Munshi Singh and others took injured Narsingh to Basai, but he died in the way. Harnath Singh further deposed that after reaching the house of Maman Singh, he had informed the inhabitants of the house that appellants Dharampal Singh and Jaivir Singh had murdered Hari Singh, who was lying dead near Dharamshala. Thus, this witness has tried to pose himself as an eyewitness of both the murders. But, Munshi Singh and Sanwat Singh have not supported his testimony at all. PW 9 Harnath Singh in his cross-examination admitted that he was also a co-sharer in the common well, wherein he along with Maman Singh had 1/4th co-share and that they had installed an engine in the common well and that they have litigation with the appellant's father Shri Bux in respect of the agricultural land and the said common well.
33. He admitted that his house was situated at a distance of 100 paces from the house of Maman Singh but he told that he used to go to his Nohra for sleeping there while his wife used to stay in the house. He stated that his Nohra was situated just appurtenant to the house of Maman Singh. He clearly admitted that he had not seen appellant Dharampal Singh firing the gun shot towards Narsingh but had simply heard a bang of the fire. He also admitted that Dharampal Singh had fired towards Hari Singh at a distance of about ten cubits near the Dharamshala, and that he had seen Dharampal Singh from his backside. He told that he did not ask Dharampal Singh not to fire the gun shot because he apprehended that the latter may also shoot him. He told that the police reached in the village on the next day and prepared the site plan in his presence and that the police used to come to his village for 3-4 days and that during that period, he remained there. He told that the appellants had knocked the doors of the "Baithak" of Maman Singh's house, he was at a distance of about 100 paces from there. But, in his police statement Ex. D. 8, he did not state that Hari Singh after seeing the appellants had ran away and entered into the verandah of Dharamshala and had folded his hands and that appellant Jaivir Singh had exhorted Dharampal Singh to shoot him. Similarly, in his police statement he also did not state that he had followed the appellants at a distance of 100 paces, that Narsingh was standing near the verandah and that the ladies had asked Dharampal Singh not to fire and that thereupon Dharampal Singh had pushed the mother of Narsingh and that appellant Jaivir Singh had again exhorted Dharampal to shoot Narsingh and that thereafter the appellants had left Maman Singh's house hurling abuses. When he was confronted with these material omissions in his police statement, this witness failed to give any satisfactory explanation. Harnath Singh's statement also does not find due corroboration from the testimony of any other witness. His name does not find mention in the FIR. His police statement was recorded as late as on 7-12-89, for which he has miserably failed to give any satisfactory explanation. In our considered view, he was tried to materially improve his version during trial. His statement has not been consistent. In such circumstances, his presence at the time of the alleged murder of Hari Singh near Dharamshala and thereafter near the house of Maman Singh appears to be doubtful. Had he seen the incident of murder of Hari Singh and in fact informed Maman Singh and others about that incident, we do not find any valid and proper reason as to why informant Jai Singh did not mention this material fact in written report Ex. P. 1, especially when he had mentioned in Ex. P. 1 that Munshi Singh and Sanwant Singh had informed him and others that appellant Dharampal Singh shot dead Hari Singh near Dharamshala. In such circumstances, the presence of PW 9 Harnath Singh at the time of the alleged incident wherein Hari Singh was murdered and thereafter at the time of murder of Narsingh appears to us highly suspicious. The learned trial Judge therefore, committed grave error in placing reliance on the testimony of this witness. In our considered opinion, the prosecution evidence regarding the murder of Hari Singh is quite vague, feeble, self contradictory and unreliable and on the basis of such lame and lifeless evidence the appellants are entitled to get benefit of reasonable doubt.
In re. Murder of Narsingh
34. The prosecution has examined eye-witnesses, P.W. 1 Maman Singh (father of the deceased), P.W. 2 Smt. Vidhya Devi (widow of deceased Narsingh), P.W. 3 Jai Singh and P.W. 4 Ganga Singh both brothers of deceased. P.W. 6 Ms. Saroj (sister), P.W. 10 Chandra Bai (mother of the deceased). P.W. 7 Smt. Vimlesh w/o. Jaisingh and P.W. 8 Smt. Krishna w/o. Ganga Singh.
35. P.W. 1 Maman Singh aged 72 years deposed that on the ill fated day at about 6-7 PM he was lying in his "Baithak" as he had sustained injuries by falling from the back of his camel, that the doors of "Baithak" were closed; that appellants Dharampal and Jaivir Singh came together and entered into his house from the main gate and that Dharampal Singh was armed with a rifle, Jaivir Singh asked Dharampal Singh to shoot Narsingh, Chandra Bai asked them not to kill her son but Dharampal Singh pumped a bullet from his rifle and caused injuries on the chest of Narsingh, who fell down. He stated that at that time his other sons Ganga Singh and Jai Singh and his daughter-in-laws Vimlesh and Vidhya and his daughter Saroj were also present in his house. He deposed that seeing the appellants, Ganga Singh and Jai Singh went inside the room and hided themselves and that thereafter the appellants ran away. He told that Ganga Singh and Jai Singh lifted injured Narsingh and after arranging for the camel cart took him to Basai. Maman Singh also deposed that prior to the incident on 24-11-89 at about 12 o'clock in the night Dharampal Singh armed with loaded rifle had come to his house and asked Chandra Bai, who is also sister of appellants' mother, to call her sons and threatened to kill them. Smt. Chandra Bai had requested Dharampal to go to his house and thereupon the latter had gone away. This witness stated that regarding that incident, Jai Singh had lodged a report at the police station on 25-11-89. P.W. 17 Sultan Singh SHO has corroborated this fact and stated that a report was lodged by Jai Singh regarding that incident and after inquiry a criminal complaint was lodged in the Court against Dharampal Singh under Section 107 read with Section 116, Cr.P.C.
36. P.W. 1 Maman Singh admitted that in the chowk of his house, the house of Shribux Singh (father of the appellants) is also situated and that from the chowk a way leads to the house of the appellant. Maman Singh stated that at the time of the incident it had grown dark but the electric lights were burning in his house. He told that when Dharampal Singh had come inside the house, he was lying in his "Baithak" from where the chowk and verandah of his house were visible. He admitted that after bearing the bang of the gun shot, he came to know that his son, Narsingh has been injured. He specifically admitted that he did not state in his police statement that appellant Jaivir Singh had asked Dharampal Singh to shoot Narsingh because the investigating officer did not ask any question to him about this fact. He was confronted with his police statement Ex. D. 1 wherein the fact regarding exhortation of appellant Jaivir Singh does not find mention at all. In our view, his explanation for this material omission in Ex. D. 1 is far from satisfactory. It is, therefore, abundantly apparent that Maman Singh has unsuccessfully tried to materially improve his version given in his police statement Ex. D. 1 and invented the story of the alleged exhortation made by appellant Jaivir Singh. He has also admitted that litigation is pending between him and Shribux Singh in the Court. He pleaded his ignorance that the Munsif Court through an ad interim injunction had restrained him from installing the motor in the common well. He denied the suggestion that he had prevented Shribux Singh and his sons from going to their house situated in the said chowk. He told that when he got up in the "Baithak" and went towards the chowk by that time, the appellants had gone away.
37. P.W. 2 Smt. Vidhya Devi aged 21 years wife of deceased Narsingh, deposed that on the day of the incident at about 7-7.30 p.m. she along with her sister-in-laws (Jethanis), Krishna and Vimlesh, and her mother in-law Smt. Chandra Bai and her "Nanad" Saroj were cooking meals inside their house and that her father-in-law Maman Singh, who had sustained injuries having fallen from camel's back was lying in the "Baithak" and at that time, somebody knocked the doors of their "Baithak". She further deposed that she heard the voice of appellant Dharampal Singh, who was shouting that he would kill all of them. Since the doors of the "Baithak" were bolted from inside, appellant Dharampal Singh having a rifle in his hand and appellant Jaivir Singh came inside their house from the main gate. At that time, her "Jeth" Jai Singh and Ganga Singh were taking their meals. Seeing the appellants, Chandra Bai with folded hands asked the appellants to kill her instead of killing others. By that time, Ganga Singh and Jai Singh went inside their room. Her husband Narsingh was drinking water near the "Parinda". Appellant Jaivir Singh asked Dharampal Singh to kill Narsingh, whereupon Dharampal Singh fired a gun shot, hitting on the chest of her husband, who fell down. She thereafter raised hue and cry and started weeping and the appellants fled away. She stated that Hari Singh after taking his meal had already proceeded to their well. She deposed that after the appellants fled away from her house, Harnath Singh and two persons, who were residents of village Dancholi, came there and intimated that appellants had shot dead Hari Singh near the Dharamshala. She asserted that she had seen appellant Dharampal Singh firing a gun shot towards her husband Narsingh. She also stated that about 7-8 days prior to the incident, appellant Dharampal had come to their house and threatened to kill them. In her cross examination she stated that at the time of the incident, all the four ladies were not inside the kitchen but were in the chowk, where they have installed their "chulah" (place for cooking by burning the wood), that they were preparing the breads and that from the place of "chulah", main gate of their house was visible. She admitted that from the verandah of their room, the main gate of the house is not visible. She told that at the time of the incident, appellant Dharampal Singh had fired the gun towards Narsingh from a distance of about 6-7 ft. She answered in the affirmative to the suggestion put up on behalf of the accused appellants that after Dharampal Singh had shot at Narsingh, appellant Jaivir Singh had told the former that two brothers were still alive and that they should also be shot dead. She admitted that in her police statement Ex. D. 2 dated 9-12-89, the fact that appellant Jaivir Singh had exhorted and asked Dharampal Singh to shoot at Narsingh does not find mention. She stated that after Narsingh sustained injuries, she started weeping and had become unconscious. The testimony of this witness regarding murder of Narsingh at the hands of appellant Dharam Pal Singh has remained consistent, but she has unsuccessfully tried to improve upon her police statement, regarding the alleged exhortation made by appellant Jaivir Singh to kill Narsingh.
38. P.W. 10 Chandra Bai aged 60 years, has corroborated the testimony of P.W. 1 Maman Singh and P.W. 2 Vidhya Devi. She told that her daughter in law Vimlesh was cooking food while she along with other ladies was sitting in the chowk. Her husband was inside the "Bhaithak". Her son Hari Singh after taking meals had already gone away to the field, that her three other sons, namely Jai Singh, Ganga Singh and Narsingh were taking their meals. At that time, somebody knocked the door of their "Baithak" and she heard the shouts of appellant Dharampal Singh, asking them to come out. He was threatening that he would kill all of them. When the doors of "Bhaithak" were not opened, appellant Dharampal Singh armed with a rifle and Jaivir Singh, who followed him, came inside the house through the main gate, Seeing the appellants' Jaisingh and Gangasingh went inside the room and closed the doors. At that time, her another son Narsingh was drinking water near the "Parinda". She deposed that at that point of time, appellant Dharampal Singh fired a gun shot on the chest of Narsingh, who cried and fell down in the chowk. Thereupon she along with her daughter-in-laws and daughter raised alarm, whereupon appellant Jaivir Singh told "Chillati Kya Ho, Mera Bhai Dharampal Sabhi Ko Marega". She fell down on the feet of appellant Dharampal, whereupon he pushed her and at that time Jaivir Singh asked Dharampal to take out all the four persons and finish them.
39. It may be mentioned that Ms. Chandra Bai in her police statement Ex. D. 4, dated 9-12-89 did not state about the alleged exhortations made by Jaivir Singh for killing Narsingh and others. She was confronted with this material omission in Ex. D. 4 but she did not give any plausible explanation. Apparently Chandra Bai has improved her statement during trial in this regard. Therefore, the story of alleged exhortations made by Jaivir Singh does not inspire credence. P.W. 10 Chandra Bai stated that appellant Dharampal also pushed the door of the room, wherein Jai Singh and Ganga Singh had taken shelter and that when the door of room could not be opened, they went away. Thereafter P.W. 5 Munshi, Sanwat Singh and Harnath Singh came to their house and informed them that appellant Dharampal had also shot dead Hari Singh near Dharamshala. She admitted that the appellants had land dispute with them that her husband had installed an engine in their common well, which infuriated another co-sharer Chajju Singh and that at his behest, appellant Dharampal Singh had committed murders of her two sons. She stated that about 8 days prior to this incident, appellant Dharampal Singh armed with a rifle had also come to their house at about 12 o'clock in the night but at that time, she any how managed to pacify him, whereupon he went away. For that incident, they had lodged a report against him in the police station. In her cross-examination she told that since her two sons had been murdered, she was grief stricken and she remained unconcious, for 3-4 days as such she did not remember whether the police had come to their house for 3-4 days or not. She told that Shribux Singh had a separate house but admitted that the chowk was being shared by them jointly. Except for the improvement in her statement regarding the alleged exhortations made by appellant Jaivir Singh to Dharampal, she has stuck to her police statement. She has been cross-examined at length but her testimony has remained unshaken and unshattered in respect of the overt act of Dharampal Singh. In our considered opinion, her presence at the time of the alleged incident was most natural and she is a reliable witness, so far as the overt act attributed to appellant Dharampal is concerned. However, for the alleged exhortation made by appellant Jaivir Singh, we do not place any reliance on her statement. The learned trial Judge has conveniently ignored the material improvement made by her during trial alleging exhortations made by Jaivir Singh.
40. P.W. 3 Jai Singh is the brother of deceased Narsingh and Hari Singh and the informant. He deposed that at the time of the incident, at about 7-7.30 p.m. his brother Ganga Singh, sister Saroj, Vidhya Devi and mother Chandra Bai were taking meals in the chowk of their house. Suddenly somebody knocked the doors of Baithak. They heard the voice of Dharampal Singh, who was shouting, "Baahar Nikalo, Mein Maroonga". Since the door of "Baithak" were bolted from inside, appellant Dharampal Singh entered into the chowk from the main gate and he was armed with rifle. His brother Narsingh after taking dinner was drinking water on the side of 'Parinda' and at that time, appellant Jaivir Singh exhorted Dharampal Singh to shoot Narsingh. Thereupon, appellant Dharampal Singh fired from the rifle and caused injuries to Narsingh on his chest, who cried and fell down. Jaivir Singh then told Dharampal Singh that two more brothers have remained alive and that they should also be finished. Jai Singh stated that Dharampal Singh inserted the barrel of the rifle into the "Jangla" (window having iron bars) of their room but they hided themselves inside their room. Thereafter the appellants went away hurling abuses. He stated that sometime thereafter Munshi Singh, Sanwant Singh and Harnath Singh came there and they informed that the appellants had shot dead Hari Singh near Dharamshala. He told that Narsingh, who was alive at that time, was bleeding profusely, that he asked his neighbour Ashok and uncle Harnath Singh to bring a Maruti Car but the owner thereof refused to oblige them and thereupon they carried Narsingh in a camel cart for Bassai but the latter breathed his last on the way. He further told that he along with Ganga Singh had also gone to Dharamshala and saw that Hari Singh was also lying there dead. He stated that after Narsingh had succumbed to his injuries, he brought back his dead body to his house, where he got written report Ex. P. 1 scribed by his brother Ganga Singh and lodged the same at police station Khetari, which is situated at a distance of about 20 kms. He has proved written report Ex. P. 1, F.I.R. Ex. P. 2 and site plans Ex. P. 3 and P. 4. He admitted that at the time of scribing the report Ex. P. 1. Harnath Singh was not present there. He deposed that at the time of incident Ganga Singh, Vimlesh and Jaivir Singh were present in the house and he had asked Ganga Singh to mention their names. He, however, admitted that their names were not mentioned in the written report Ex. P. 1. He stated that appellant Dharampal Singh had fired towards Narsingh from a distance of about 6-7 ft., that the police had reached their village in the night around 3 a.m. and at that time, PWs. Harnath Singh, Munshi Singh and Sanwat Singh were not present there. The police had stayed in the village for about 1 or 2 hours and than again had come around 6 a.m. next day and remained in the village up to 3 p.m. He told that the police inspected the places of occurrence, prepared inquest reports, got post mortems of the dead bodies conducted by the doctor and also interrogated their family members. He admitted that in the written report Ex. P. 1, it has not been mentioned that appellant Jaivir Singh had asked abetted or exhorted appellant Dharampal Singh to gun down Narsingh. He has, failed to give any satisfactory explanation for this material omission. Similarly, he has failed to give any plausible explanation as to why this fact was also not mentioned in written report Ex. P. 1 that Jaivir had also told Dharampal Singh that two of their brothers have remained alive and that they should also be finished. This witness in his police statement Ex. D. 3 dated 7-12-89, also did not state that Jaivir Singh had exhorted Dharampal Singh to shoot Narsingh, and his two other brothers, and for this material omission, he has also miserably failed to give any satisfactory explanation. Thus, it is abundantly apparent that this witness has tried to materially improve his statement during trial regarding alleged exhortation made by appellant Jaivir Singh.
41. P.W. 3 Jai Singh admitted that two rooms of Shribux Singh are also situated nearby his house, wherein the appellants have a right of way through the chowk. He further admitted that the doors of rooms of Shribux Singh open in this chowk. He deposed that the ladies of his family were cooking food on the 'chulaha' situated in the chowk. He specifically and firmly stated that he had seen appellant Dharampal Singh firing a gun shot from the rifle and causing injuries to Narsingh from his room, which opens in the chowk. He stated that the wall of "Parinda" was stained with blood and the blood of Narsingh was also splashed on the floor (Aangan). Despite searching cross-examination his testimony has remained consistent and unshattered, so far as the overt act of appellant Dharampal Singh is concerned, but his statement regarding the alleged exhortation made by appellant Jaivir Singh to Dharampal does not appear to be reliable, because such an important fact neither finds mention in his report Ex. P. 1 nor in his police statement.
42. P.W. 4 Ganga Singh aged 24 years is another brother of the deceased. He has fully corroborated testimony of P.W. 1 Maman Singh, Vidhya Devi P.W. 2, Jai Singh P.W. 3, Chandra Bai P.W. 10 and other eye-witnesses. He stated that appellant Dharampal had fired his gun and caused injuries on the chest of Narsingh, who was standing near the "Parinda" in their chowk. The presence of this witneess at the time of the incident was quite natural, which stands well established by the testimony of all eye-witnesses. Since his two young brothers had been murdered, apparently he was grief stricken, while scribing written report Ex. P. 1. We even forgot to mention his name as also names of his wife P.W. 8 Krishna and Jai Singh's wife Vimlesh in Ex. P. 1. This manifestly reflects his perplexed state of mind. Therefore, non-mention of their names in report Ex. P. 1 is not fatal to the prosecution. He admitted that civil, criminal and revenue cases were pending between his father and Shri Bux and the appellants even prior to this incident.
43. P.W. 6 Kumari Saroj aged 16 years. P.W. 7 Smt. Vimlesh w/o. Jai Singh and P.W. 8 Smt. Krishna have also deposed likewise and fully corroborated the sworn testimony of P.W. 1, P.W. 4, P.W. 3 and P.W. 10. They have specifically stated that appellant Dharampal Singh had fired a gun shot and caused injuries on the chest of Narsingh, who died while being taken to the hospital in the way. These witnesses have also stated that appellant Jaivir Singh had exhorted Dharampal Singh but they have failed to give any satisfactory explanation as to why in their respective police statements, they did not mention this material fact. They have further stated that the appellants bore animosity with them, due to installation of an engine by Maman Singh in their common well. These witnesses in most unambiguous and clear terms have also deposed that due to murders of Narsingh and Harsingh, they were grief stricken. The presence of these eye-witnesses, who admittedly are the family members of Maman Singh and his deceased sons at the place of incident in the chowk of their house, is quite natural. No suggestion was put to these witnesses during their statements that they were not present at the time and place of incident. They have also fared the test of cross-examination valiantly so far as the overt act of appellant Dharampal Singh is concerned.
44. As regards the alleged exhortation made by appellant Jaivir Singh, we feel that they have made material improvement in their statements during trial since no such act of exhortation was attributed to appellant Jaivir Singh even in the F.I.R. and their police statements. In our considered opinion, the prosecution case that appellant Jaivir Singh had exhorted/abetted Dharampal Singh to shoot Narsingh or his brothers, cannot be taken to be true, firstly because Jaivir Singh was admittedly unarmed, secondly, no overt act was attributed to him in the FIR and during investigation either for the murder of Hari Singh near Dharamshala or the murder of Narsingh in the chowk; thirdly the appellants had a right of way from the chowk for going to their rooms situated in the same chowk.
45. P.W. 5 Dr. N. S. Gill, who conducted medico-legal autopsies of deceased Narsingh and Hari Singh has proved post mortem reports Ex. P. 7 and P. 8 respectively and stated that the deceased had sustained fire arm injuries, which were sufficient in the ordinary course of nature to cause their deaths.
46. P.W. 11 Ashok Singh, whose house is situated near the house of Maman Singh, deposed that at the time of the alleged incident, he was seeing T.V. programme along with other neighbours; that he heard the noise and came out and that there was a hue and cry emanating from the house of Maman Singh. Thereupon, he went there and saw that Narsingh was lying injured and his family members were standing there. Thus he reached inside the chowk of Maman Singh just after the incident. He told that he went to arrange for a Maruti car but could not get the same. He was also declared hostile by the prosecution.
47. P.W. 12 Dharampal Singh, motbir of the site plans Ex. P. 3 and P. 4, has also been declared hostile as he stated that those site plans were not prepared in his presence. However, he admitted that he had willingly put his signatures thereon. This witness, therefore, does not render substantial assistance to the prosecution.
48. P.W. 15 Chandra Singh constable is the carrier, who on 8-1-90 had taken seven sealed packets to the State Forensic Science Laboratory from the SHO, PS Khetri and deposited those packets in the F.S.L. vide FSL receipt Ex. P. 15. P.W. 16 Phool Chand Pareek, Head Mohrir, Incharge, Malkhana, PS Khetri has proved malkhana register's entries Ex. P. 16. He stated that the SHO handed over him eight sealed packets marked A to H, which he had deposited in the Malkhana. He has also stated that on 8-1-90 he had handed over seven sealed packets to Chandra Singh constable for depositing those in the F.S.L. Again on 2-6-90, P.W. 17 Sultan Singh handed over him a sealed packet containing rifle 7.62 mm marked Cl and another sealed packet containing two bandoleers having 66 live and 34 empty cartridges marked A1, which he had deposited in Malkhana vide Malkhana entry Ex. P. 18. He told that he had handed over those, two sealed packets to P.W. 19 Vikram Lal Constable, who in turn deposited those in the F.S.L.
49. P.W. 17 Sultan Singh SHO, PS Khetri, who conducted initial investigation in this case from 4-12-89 till morning 7-12-89, deposed that on the report Ex. P. 1, submitted by P.W. 3 Jai Singh he drew F.I.R. Ex. P. 2 and registered the crime. He rushed to the spot and prepared site plans Ex. P. 3 and P. 4. He also prepared memos of dead bodies of Narsingh and Hari Singh Ex. P. 5 and P. 6 respectively and their inquest reports Ex. P. 19 and P. 18 respectively; that the dead body of Hari Singh was lying in the verandah of Dharamshala, from where he had seized and sealed the blood-stained soil and control sample vide seizure memos Ex. P. 22 and P. 21 respectively.
He also seized a bullet from the wall of the verandah of Dharamshala vide seizure memo Ex. P. 23 and the blood-stained garments of Hari Singh vide seizure memo Ex. P. 20. He deposed that he found an empty cartridge and pieces of lead bullet lying in the chowk and seized those vide seizure memo Ex. P. 27. He also lifted sample of blood-stained and control sample of soil and prepared seizure memo Ex. P. 25 and 26 and bloodstained garments of Narsingh vide seizure memo Ex. P. 24. He told that he had sealed the packets of aforesaid articles and deposited them in Malkhana of the police station, which were later on sent to the FSL. He admitted that prior to the incident, the complainant party and accused party had civil, criminal and revenue litigation, which were pending. He also admitted that the chowk, where Narsingh was murdered was joint and that the houses of accused party and complainant party were situated there. He deposed that the garments of Narsingh and Hari Singh had corresponding holes at the site of injuries sustained by them. He also noticed the bullet marks on the wall of "Parinda", which he had mentioned in the site plan. He deposed that he could not record the statements of Jai Singh, Ganga Singh, Saroj, Vimlesh, Krishna, Maman Singh and Chandra Bai as all of them were grief stricken due to murders of two young members of their family. He refuted the suggestion that he did not record their statements though they were willing and ready to give their statements. He stated that on the third day i.e. 7-12-88 the investigation of this case was taken up by P.W. 18 Gajanand, Dy SP. He also admitted that about 8 days prior to the incident on the complaint filed by complainant party, he after inquiry had filed a criminal complaint u/S. 107/116, Cr.P.C. against accused party in the Court of SDM.
50. P.W. 18 Gajanand Dy. SP deposed that he took the investigation of this case and on 7th and 9th December, 1989 recorded the statements of witnesses marked Ex. D. 1 to D. 9. He has proved FSL reports Ex. P. 29 and P. 30 and given details of investigation.
51. P.W. 19 Vikram Lal constable stated that on 23-6-90 he carried two sealed packets to the State FSL Jaipur and deposited those packets vide receipt Ex. P. 32.
52. It may be mentioned here that appellant Dharampal Singh was arrested on 1-6-90 vide memo Ex. P. 11 by Mool Chand ASI PS Khetri from CRPF, 91 Battalion Bhatinda, where the latter had surrendered on the same day. Sarvjeet Singh, Inspector CRPF had produced one rifle 7.62 mm along with two bandoleers, which contained 66 live and 34 empty cartridges before Moolchand ASI, which the latter seized vide seizure memos Ex. P. 9 and P. 10 and sealed those in two packets. The genuineness of the contents of the documents Ex. P. 9. P. 10 and P. 11 was admitted by the learned Counsel for the appellants before the trial Court. In such circumstances, the prosecution did not examine Mool Chand ASI and Sarvjeet Singh and non-examination of these witnesses is not at all fatal to the prosecution.
53. DW 1 Ashok Kumar Jain deposed that on 1-12-89 appellant Jaivir Singh was appointed as Store Keeper in the firm M/s. Padma Automobile Private Ltd. New Delhi that on 3-12-89 right from 9 a.m. to 5.30 p.m. appellant Jaivir Singh was on duty in the firm. He proved attendance register Ex. D. 10 but in cross-examination his testimony was completely shattered. The learned trial Judge has rightly disbelieved this witness and held that plea of alibi taken by appellant Jaivir Singh is false and concocted.
54. Now we proceed to decide various contentions submitted by Shri Bajwa. From the evidence recorded in this case, it is firmly established that the murders of Harisingh and Narsingh were committed in the evening of 3-12-89 in quick succession. The first place of incident namely, Dharamshala is situated just at a distance of about 100 paces from the house of P.W. 1 Maman Singh, where the second incident of pumping a bullet on the chest of Narsingh causing fatal injuries had taken place. From the testimony of eye-witnesses PWs. 1 to 4, 6 to 8 and 10 and the statements of investigating officers P.W. 17 Sultan Singh SHO and P.W. 18 Gajanand Sharma Dy SP as also suggestions put to these prosecution witnesses on behalf of the appellants, it stands well proved that prior to the incident, appellant Dharampal Singh and his family members had disputed pertaining to agricultural land and installation of an engine for lifting water from their common well by Maman Singh and that civil, revenue, and criminal cases were pending between them. From the statements of P.W. 10 Chandra Bai, P.W. 1 Maman Singh and other eye-witnesses, it has also been amply proved that about 7-8 days prior to this incident, appellant Dharampal Singh, who was armed with a rifle, had come to the house of the complainant party and threatened to kill Jai Singh and his brothers, for which Jai Singh had lodged a report at police station Khetri and after inquiry, as per statement of P.W. 17 Sultan Singh, a criminal complaint under Section 107 read with S. 116, Cr.P.C. was filed by the police against Dharampal Singh and others. Even appellant Dharampal in his statement u/S. 313, Cr.P.C. has admitted that the prosecution witnesses deposed against him due to litigations pending between them. Thus, appellant Dharampal Singh, who was recruited as a sepoy in the C.R.P.F. had litigation and he bore animosity with Maman Singh and his sons and that he wanted to liquidate them. On the ill fated evening, Hari Singh and Narsingh were shot dead near Dharmashala and in the Chowk of Maman Singh's house respectively.
55. Section 218, Cr.P.C. deals with joinder of charges and mandates that for every distinct offence, of which any person is accused, there shall be a separate charge, and for every such charge, there shall be a separate trial. However, Section 220, Cr.P.C. proclaims that if in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence. In the instant case, as per the prosecution case, the alleged act of Dharampal Singh appellant for committing murder of Hari Singh near Dharamshala and then committing murder of Narsingh in the chowk of Maman Singh's house, which are situated nearby, were so connected together in time and place and motive that they clearly formed the same transaction. The appellants have been charged separately for the murders of Hari Singh and Narsingh. The appellants also knew the charges levelled against them and faced trial knowing fully about the indictment levelled against them. No prejudice was either contended or proved to have been caused to the appellants during trial. In such circumstances, we do not find any force in the argument advanced by Shri Bajwa that the provisions of Section 218, Cr.P.C. have been violated or it is a case of misjoinder of trial of that any prejudice has been caused to the appellants. Hence on this ground, the trial does not stand vitiated.
In re offence u/S. 459, IPC
56. P.W. 1 Maman Singh, P.W. Jai Singh, P.W. 8 Krishna Devi and P.W. 10 Chandra Bai have in most unequi vocal, unambiguous and clear terms admitted that the appellants have a right of way to go to their house through the chowk, where the murder of Narsingh was committed. They have also admitted that the doors of two rooms of Shribux Singh, the father of the appellants, open in this chowk. Thus, there is voluminuous evidence on record to show that the appellants had a right to go through the said chowk, where Maman Singh had put a main gate. Hence no case of house trespassing is made out. The main ingredient for lurking house trespass is that the person who is said to have committed trespass must have taken precautions to conceal such house-trespass from some person, who has a right to exclude or eject the trespasser from the building, tent or vessel, which is the subject of the trespass. In the instant case, even as per the prosecution case, the appellants did not take any prosecution to conceal their presence. On the other hand, they had a right to go to the joint chowk in question, where the incident of murder of Narsingh had occurred. It is also not a case of house breaking by night. Section 459, IPC says that whoever, whilst committing lurking house-trespass or house breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years and shall also be liable to fine. Therefore, from the prosecution evidence on record, main ingredients constituting an offence under S. 459, IPC, have not been made out in this case.
57. Section 460, IPC lays down that if at the time of committing lurking house-trespass by night or house breaking by night, any person guilty of such offence voluntarily causes or attempts to cause death or grievous hurt to any person, then every person jointly concerned in committing such lurking house-trespass by night or house-breaking by night, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Admittedly, the learned trial Judge did not frame any charge against the appellants for the offence under Section 460, IPC. Moreover, the chowk where the murder of Narsingh was committed, was not exclusively owned and possessed by the complainant party and that the appellants also had a right of way through the said chowk and they did not take any precaution to conceal the house trespass from the inmates of the house. Hence in our considered opinion, the appellants can neither be convicted for offence under Section 459, IPC nor under Section 460, IPC. The learned trial Judge has, therefore, committed illegality of fact as also of the law in convicting appellant Dharampal Singh for offences under S. 459, IPC and appellant Jaivir Singh under S. 459 read with Section 34, IPC. As a matter of fact, charge under S. 459 IPC read S. 34 IPC, has also been wrongly framed against appellant Jaivir Singh. Therefore, conviction and sentence of the appellants under Ss. 459 and 459/34, IPC deserve to be quashed.
In re. Common Intention
58. In written report Ex. P. 1 and F.I.R. Ex. P. 2 neither any overtact nor active participation of appellant Jaivir Singh in respect of the murders of Hari Singh and Narsingh has been assigned. Even in police statements of the eye-witnesses (Ex. D. 1 to D. 9), which were recorded on 7-12-89 and 9-12-89, none of these witnesses attributed any overtact to Jaivir Singh either for abetting or exhorting appellant Dharampal Singh to open fire or shoot Hari Singh or Narsingh. On the other hand, it was the case of the prosecution during investigation that after Dharampal Singh had fired a gun shot and caused injuries to Narsingh, appellant Jaivir Singh exclaimed that two other brothers have remained alive and that they should be finished/eliminated. Thus, allegation against appellant Jaivir Singh was that he had exhorted or abetted appellant Dharampal Singh to kill Ganga Singh and Jai Singh. But, all the eye-witnesses have clearly stated that appellant Dharampal Singh, did not fire aiming at Jai Singh or Ganga Singh or caused injuries to them. Moreover, no injury was caused by firearm to any of these eye-witnesses. Admittedly appellant Jaivir Singh was unarmed. The prosecution has not adduced even a fringe of evidence, from which it can be gathered or inferred that appellant Jaivir Singh had a pre-meeting of mind with appellant Dharampal Singh or he had common intention to commit murders of Hari Singh or Narsingh and that in pursuance thereof, appellant Dharampal Singh had fired from his rifle and committed their murders. Therefore, the mere fact that Jaivir Singh came along with Dharampal Singh to chowk, and left the place of incident with him, is, itself not sufficient to conclusively prove that he had a common intention with appellant Dharampal Singh for committing murder of Hari Singh or Narsingh especially when he had a right of way or to stay in the chowk, which was jointly used by the appellants and the complainant party.
59. In Gajjan Singh v. State of Punjab, AIR 1976 SC 2069 : (1976 Cri LJ 1640), the charge under Section 302/149, IPC was framed against eight accused persons for committing murder in prosecution of common object. After trial, accused B was convicted for murder of A by a single rifle shot and accused G was convicted under S. 307 for attempting to murder D by a single rifle shot and he was also convicted under S. 302/34, IPC for murder of A, whereas all other accused persons were acquitted. Their conviction and sentences were maintained by the High Court of Punjab. In the S.L.P. filed by accused appellant Gajjan Singh, the Apex Court held that mere fact that accused A and G came together armed with rifles was not sufficient to indicate that they had come having their common intention to commit the murder and that on the evidence and the facts, it was not possible to draw an inference that accused G had shared common intention with B for the murder of A. It was further held that it may be that he had such a common intention but it was difficult to fill the gap between "may" and "must" to say that "G" must have shared common intention with B for causing death of A. The Apex Court, therefore, set aside the conviction and sentence of Gunder Section 302/149 IPC. Similar are the facts of the case on hand.
60. The learned Public Prosecutor placed reliance is State of U.P. v. Iftikhar Khan, AIR 1973 SC 863 : (1973 Cri LJ 636), wherein it has been held that in order to invoke Section 34, IPC, against the accused, prior concert or a pre-arranged plan has to be established and though common intention has to be inferred from his act, or conduct and other relevant circumstances, it is not necessary that any overtact must have been done by any particular accused. It is enough if the criminal act has been done by one of the accused in furtherance of the common intention. There is no dispute about this well crystalised principles of law. But it is needless to mention that common intention pre-supposes prior concert. It requires pre-arranged plan because before a person can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. In other words, there must have been prior meeting of minds. The plan need not be elaborate nor is a long interval of time required. It could arise or be formed suddenly, as for example when one man calls on bystanders to help him to kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But, for pre-arrangement there must be a premeditated concert. In the instant case, the alleged eye-witnesses of Hari Singh's murder namely, P.W. 13 Munshi Singh and P.W. 14 Sanwat Singh, who were named in the FIR, have stated that they were not present at the time of the alleged incident and they have been declared hostile. P.W. 9 Harnath Singh's name was not mentioned in the FIR. Though names of Munshi Singh and Sanwat Singh were mentioned therein. Harnath Singh's testimony has not been corroborated by any other eye-witnesses. He is real uncle of the deceased and his presence at the time of the alleged occurrence has been held to be suspicious. He is not at all a reliable witness. Had appellant Jaivir Singh any common intention with appellant Dharampal Singh to commit murder of Hari Singh, he would not have gone empty handed. No active participation was alleged against him nor any overt-act was attributed to him regarding the murder of Narsingh either in the FIR or in the police statements of the eye-witnesses. Therefore, in such circumstances, there is no evidence worth the name, from which it can be reasonably inferred that he had a pre-meeting of mind or pre-concert with appellant Dharampal Singh and that in furtherance of such common intention. Dharampal Singh had fired a gun shot and committed murder of Narsingh. Hence, Iftikar Khan's case renders little assistance to the prosecution.
61. The next case, on which the learned Public Prosecutor has placed reliance, is Rai Saheb v. State of Haryana, 1994 (1) SCC 74 wherein accused person faced trial for offences u/Ss. 302/149, 148, IPC & u/Ss. 25 & 27 of the Arms Act, and 6 of the TADA Act. The Designated Court convicted all of them under Section 302/149, IPC and sentenced to undergo life imprisonment. They were also convicted under Section 6 of the TADA Act. The appellant challenged their conviction. In that case, it was established that the accused persons came together and threw the deceased from the bus surrounding him and after firing 2 or 3 gunshots, ran away. It was held that those circumstances were sufficient to attract S. 149 or even S. 34. The facts of Rai Saheb's case (supra) are, therefore, clearly poles apart with the facts of the case on hand. Here the prosecution has miserably failed to prove beyond reasonable doubt that appellant Dharampal Singh had committed murder of Hari Singh near Dharamshala by firing gun shot, and that appellant Jaivir Singh had accompanied him or abetted/exhorted him for committing the murder of Narsingh. In such circumstances, it cannot be said that since appellant Jaivir Singh after murder of Hari Singh had further accompanied appellant Dharampal Singh and went inside the chowk of Maman Singh's house and, therefore, it should be inferred that he had a pre-meeting of mind and common intention with Dharampal Singh and that in furtherance of such common intention, Dharampal Singh had shot dead Narsingh in the chowk. In our considered opinion, from the facts and circumstances of this case and the evidence adduced on record, it cannot reasonably be inferred that the appellant Jaivir Singh had a common intention with Dharampal Singh for committing murder of Hari Singh or Narsingh or that he had activity participated in commission of their murders or even exhorted or abetted Dharampal Singh to commit those murders. Moreover, no charge was framed against Jaivir Singh for abetting or exhorting appellant Dharampal Singh to commit murder of Hari Singh or Narsingh. Hence for the aforesaid reasons, the learned trial Judge has misread the evidence against appellant Jaivir Singh and has committed patent error of fact as well as of law in convicting and sentencing appellant Jaivir Singh for offence under Section 302/34 IPC and, therefore, his conviction and sentence for the said offence cannot be sustained.
62. It is true that the eye witnesses PW 1 to PW 4, PW 6 to PW 8 and PW 1O are close relatives being father, mother, brothers, sister and sisters-in-laws of the deceased persons. But, this fact by itself, is not sufficient to discard their evidence straightway unless it is proved that it suffers from serious infirmities, which raises considerable doubt in the mind of the Court. Minor discrepancies or insignificant omissions in the evidence during trial and those made before the police, which do not affect the substratum of the prosecution story would not be sufficient to discard the testimony of such relative witnesses. On the other hand, the fact that the witnesses are close relatives of the deceased is all the more a good ground for believing their testimony because they are not expected to leave the real culprit and implicate an innocent person.
63. In State of Rajasthan v. Kalki, 1981 WLN 84 : (1981 Cri LJ 1012), a DB of this Court set aside the order of conviction and sentence passed by the trial Judge on the ground that the sole eyewitness, who was widow of the deceased, was a highly interested witness, that there was enmity between the deceased and the accused on account of dispute about their agricultural land and that there were material discrepancies in her statement. The Apex Court pointed out that there is distinction between "natural witness" and "interested witness" and that a "relative witness" is not equivalent to "interested witness". It was held that the widow of the deceased was most natural witness, who was present in the hut with the deceased, where the latter was murdered. The Apex Court further observed that of course, statements of relative witnesses should be closely, critically and carefully examined. In the instant case, the presence of PWs 1 to 4, 6 to 8 and 10 in their house was most natural. They are close relatives of the deceased Narsingh. Their statements have been closely scanned, carefully scrutinised and critically assessed by us and we are of the considered opinion that so far as their evidence against appellant Dharampal Singh for committing murder of Narsingh is concerned, their testimony is worthy of credence. The prosecution case in respect of murder of Narsingh from the very beginning i.e. from the time of the lodging the FIR, during investigation and till the conclusion of the trial has been quite straight forward, consistent and trustworthy. All these witnesses have in one voice deposed that appellant Dharampal Singh after coming inside the chowk had fired from his rifle towards Narsingh, who was standing near the "Parinda" and caused injuries on his chest, which is a vital part and which proved fatal resulting into his death. We also do not find any variance or contradiction in the ocular evidence of these witnesses and the testimony of PW 5 Dr. NS Gill, who has stated that the direction of the entrance wound on the chest of Narsingh was upward. All the prosecution witnesses have stated that appellant Dharampal had fired gun shot to Narsingh from a distance of about 5-7 ft. No question has been elicited in the cross-examination of these witnesses, about the heights of Narsingh and appellant Dharampal Singh. From the eyewitnesses it has also not been elicited that the level of Katcha floor (Aangan), where appellant Dharampal Singh was standing and where deceased Narsingh was standing near the 'Parinda' was of the same altitude or not. Therefore, in the absence of these basic parameters, we do not find any force in the contention of Shri Bajwa that the injuries sustained by Narsingh could have been caused only when Dharampal Singh had fired in a sitting position and thus, there is material variance between statements of the eye witnesses and the medical evidence. PWS Dr. NS Gill has specifically stated that the entrance and the exit wounds sustained by the Narsingh, which are incorporated in the post-mortem report Ex. P. 7, were caused by fire-arm and that those were ante mortem in nature and sufficient in the ordinary course of nature to cause his death.
64. The murder of Narsingh was committed in the chowk of Maman Singh's house at about 7 P.M. Hence there was no possibility of any person from the locality or vicinity to have come inside the house to witness that incident. The prosecution examined PW 11 Ashok Singh, who is neighbour of the locality, but he had reached place of the occurrence after the murder of Narsingh had already been committed. He has also been declared hostile by the prosecution. No question was put to the investigating officer to establish that some independent persons from the locality were also present at that time of murder of Narsingh. Therefore, it cannot be held that the prosecution has deliberately withheld independent witnesses of the locality in this case.
65. A perusal of arrest memo Ex. P. 11 of Dharampal, seizure memos of rifle and live & empty cartridges Ex. P. 9 & P. 10, respectively clearly indicates that the learned counsel for appellants had admitted the genuineness of those documents before the trial Court and their formal proof was dispensed with under Section 294(3) Cr.P.C. In such circumstances, it was not necessary for the prosecution to have examined either Mool Chand ASI, who had arrested Dharampal Singh and who had seized rifle and the cartridges or Sarvjeet Singh Inspector of C.R.P.F. who had produced the said rifle and cartridges on 1/6/90 to Mool Chand. Therefore, non-production of these two witnesses is not at all fatal to the prosecution.
66. It is true that appellant Dharampal did not volunteer any information under Section 27 of the Evidence Act in respect of 7.62 mm rifle and 66 live & 34 empty cartridges nor got those articles recovered at his instance. On the other hand, the said rifle and the cartridges with bandoleers were produced by Sarvjeet Singh to Mool Chand ASI alleging that those were entrusted to appellant Dharampal Singh.
67. In Bahadul v. State of Orissa, AIR 1979 SC 1262 : (1979 Cri LJ 1075), "Tongia" weapon of offence was merely taken out by accused from beneath his cot and handed over by him to the police without any disclosure statement u/S. 27 of the Evidence Act; that place was also accessible to all, it was held that such a recovery was barred by Section 27 of the Evidence Act and that the same did not connect the accused with the crime.
68. In State of U.P. v. Jageshwar, AIR 1983 SC 349 : (1983 Cri LJ 686), the gun was alleged to have been recovered in pursuance of the statement made by the accused. The evidence of the ballistic expert showed that the empty shells or cartridges found at the scene of offence were fired from that gun. However, that gun was not recovered from the possession of the accused but from some other person, who was not examined by the prosecution. It was held that the recovery of the gun coupled with the ballistic export report could have been very good evidence to connect the accused with the crime but since the police did not recover the gun from the accused nor did he make any statement that he had concealed the same at the spot, which he had pointed out, nor the person from whose possession the gun was recovered, was examined, an in such circumstances, there was no legal evidence to connect the accused with that gun. In the case on hand, admittedly, appellant Dharampal Singh did not volunteer any information under Section 27 of the Evidence Act nor he got recovered the rifle and the Cartridges at his instance, nor those were recovered from his possession. On the other hand, the said rifle and live and empty cartridges were produced by Sarvjeet Singh Inspector of C.R.P.F., who has not been examined by the prosecution to prove that the said rifle and live & empty cartridges were handed over or entrusted to appellant Dharampal Singh or as to when those were returned or deposited by appellant Dharampal Singh. In such circumstances, the ballistic expert's report Ex. P. 31 to the effect that the said 7.62 mm rifle was a serviceable firearm and that the cartridges cases (which were alleged to have been recovered from the chowk of Maman Singh's house) had been fired from the said rifle, looses its significance. Hence, the seizure of the rifle and the live & empty cartridges as also recovery of the empty cartridges from the chowk of Maman Singh's house is worthless and the same does not render any assistance to the prosecution.
69. PW 17 Sultan Singh SHO, had conducted initial investigation from 4-12-89 to 7-12-89 and PW 18 Gajanand Sharma, thereafter conducted investigation, they have given satisfactory explanation for the delay in recording statements of the prosecution eye witnesses on 7-12-89 and 9-12-89 and on this ground, it cannot be held that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye witnesses to be introduced. On the other hand, in this case, the FIR was lodged promptly wherein sufficient details of the crime pertaining to the murder of Narsingh and names of eye witnesses were given. Ofcourse, since the FIR was lodged in hot haste and two real brothers of Jai Singh were murdered, the informant was in a perplexed state of mind, we forgot to mention name of his brother PW 4 Ganga Singh, who was the scribe of the written report Ex. P. 1, and names of his wife Vimlesh as also PW 8 Krishna w/o Ganga Singh. The presence of these witnesses has been firmly established by the prosecution evidence on record. Therefore, the delay in recording statements under Section 161 Cr.P.C. of these witnesses is not at all a serious infirmity in this case and this fact does not cause any cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.
70. The sealed packets of the blood stained soil lifted from the floor of the chowk, the blood stained garments of deceased Narsingh, were sent to the State F.S.L. and as per the report of the Serologist vide Ex. P. 29 & P. 30, those articles were found to be stained with blood. This fact also corroborates the prosecution case. Moreover, as per the testimony of PW 5 Dr. NS Gill and PW 17 Sultan Singh IO, the Jersey (sweater), baniyan, and the shirt which Narsingh was putting on at the time of the alleged incident, had holes caused by bullet at the corresponding places of the injuries on his body. This fact also finds mention in the seizure memo Ex. P. 24. This fact further corroborates the prosecution case and post-mortem report Ex. P. 7.
71. The conduct of Dharampal Singh, who immediately after the occurrence had absconded and even did not report on duty in this unit and was later on arrested as late as on 1-6-90 vide arrest memo Ex. P. 11 is also a relevant circumstance pointing towards his guilt.
72. Therefore, in our considered opinion, the prosecution has successfully proved beyond reasonable doubt that appellant Dharampal Singh had intentionally and deliberately committed the murder of Narsingh by firing from the rifle causing fatal injuries on his vital part i.e. chest. Thus, the learned trial Judge has not committed any illegality either of fact or law in convicting him for offence under Section 302 IPC for committing the murder of Narsingh. Appellant Dharampal Singh has also been rightly convicted for the offence under Section 27 of the Arms Act.
73. Regarding the murder of Hari Singh, the evidence adduced by the prosecution on record is quite vague and unreliable and on the basis of unreliable and bald statement of PW 9 Harnath Singh, whose name also does not find mention in the FIR and whose testimony has not been corroborated by PWs Sanwant Singh and Munshi Singh, appellant Dharampal Singh cannot be held guilty for the offence under Section 302, IPC. Similarly, the prosecution has utterly failed to prove beyond reasonable doubt that appellant Jaivir Singh had common intention with appellant Dharampal Singh and that in furtherance of such common intention Dharampal Singh had committed murders of Narsingh or Hari Singh, and, therefore, the conviction & sentence of appellant Jaivir Singh for offence u/S. 302/34 IPC deserve to be quashed.

DB Criminal Appeal No. 155/95

In Re. Enhancement of sentence
74. It has not been conclusively proved beyond reasonable doubt that Dharampal Singh had committed the murder of Hari Singh. Civil, criminal and revenue cases were pending between the complainant party and accused party prior to the incident. PW 1 Maman Singh father of the deceased had installed an engine in the common well, wherein he and Shribux Singh, the father of the appellants had 1/4th common share. Thus we do not find any aggravating circumstances warranting for the exaction of the extreme penalty namely the capital punishment. To our mind, this is not such a rarest of the rare cases, wherein death penalty should be awarded to appellant Dharampal Singh. Therefore, the State appeal for enhancement of sentence deserves to be dismissed.
75. The net result of the above discussion is that (1) D.B. Cr. Appeal No. 155/95 State v. Dharampal Singh and another is hereby dismissed. (2) DB Criminal Appeal No. 463/93, Dharampal Singh v. State is partly allowed and the convictions & sentence of appellant Dharampal Singh for offence u/S. 302, IPC for committing murder of Narsingh and for the offence u/S. 27 of the Arms Act are hereby maintained. However appellant Dharampal Singh is acquitted for offences under Sections 459 & 302, IPC for committing the murder of Hari Singh by giving him benefit of doubt and his convictions & sentences for the said offences are hereby set aside. (3) Appellant Jaivir Singh is acquitted of offences u/SS. 459 and 302/34, IPC for the murders of Hari Singh and Narsingh and his convictions & sentences are hereby set aside. Appellant Jaivir Singh, who is at present lodged in jail be released forthwith, if not required in any other case. The record of the trial Court be sent back to the trial Court.
Order accordingly.
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Ram Chandra Tewari And Another, Appellants V. State Of U.P., Respondent.

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DATE : 01-09-1997
1998-(104)-CRLJ -1288 -ALL
PENAL LAW MURDER AND CAUSING DISAPPEARANCE OF EVIDENCE CIRCUMSTANTIAL EVIDENCE
Penal Code, 1860 - Sections 300, 201 & 498-A - Causing disappearance of evidence of offence - Allegation of killing deceased by her husband and his sister and placing her dead body between two lines of railway track - Even after marriage, there was constant demand of money by accused from parents of deceased - Which was a very strong motive for the murder of deceased - Case of accident by a running train is ruled out due to the nature of the injuries sustained by the deceased - Circumstances establishing that the victim was murdered in the room of the accused and this also leads to a presumption of murder and not to a presumption of accident - Evidence on the record showing the presence of all the accused persons in the said room - It is fully proved that the murder had been committed by accused and her sister and they tried to screen themselves from legal punishment by placing the dead body in between two lines of the railway track - Constant demand of money and other Articles by the accused persons and when deceased was unable to fulfil the demand, she was being cruelty beaten and tortured - Accused persons rightly convicted for the offence under sections 300, 201 and 498-A.
Penal Code, 1860 - Section 302 - Murder case - Award of death sentence - Case of circumstantial evidence - There is no direct evidence in the case - Therefore, it will not be safe to hang a person on the basis of circumstantial evidence only - Not a case rare of the rarest where death punishment only can be adequate penalty - Death sentence awarded to accused liable to be altered into imprisonment for life.
JUDGE(S) :

G P Mathur
K D Shahi
ALLAHABAD HIGH COURT
JUDGMENT
K. D. SHAHI, J. :- Appellant Ram Chandra Tewari has been convicted under Section 302 read with Section 34, I.P.C. and sentenced to death for having murdered his wife while appellant Smt. Munni Devi has been convicted under Section 302 read with Section 34, I.P.C. and sentenced to imprisonment for life and to pay a fine of Rs. 20,000/-. They have further been convicted under Section 201 read with Section 34, I.P.C. and sentenced to five years' R.I. and a fine of Rs. 2,000/- each. They have also been convicted under Section 498-A, I.P.C. and sentenced to 3 years' R.I. and a fine of Rs. 500/- each and in default of payment of fine to undergo further imprisonment for three months' R.I. All the sentences have been directed to run concurrently. The learned Sessions Judge has also made a reference for the confirmation of the death sentence awarded to appellant Ram Chandra Tewari.
2. The brief facts of the case are that the informant Prem Sagar Dwivedi, owner of Avadh Medicines Aminabad, Lucknow had wedded his daughter Smt. Samta alias Ranno Devi with appellant Ram Chandra Tewari son of Munshi Lal resident of village Gurdahi P.S. Sikandra district Kanpur Dehat. Mahendra Tewari is the younger brother of appellant Ram Chandra Tewari. Smt. Munni Devi appellant is the sister of Ram Chandra Tewari. The marriage took place, according to the informant, in 1985 and according to the accused persons in March, 1986. It is alleged that the marriage was solemnised with pomp and show and substantial dowry was given but still appellant Ram Chandra Tewari used to demand money from the informant. He also used to beat and torture Smt. Samta alias Ranno Devi. The informant always used to give money to Ram Chandra Tewari. Smt. Samta alias Ranno Devi had also written letters to the informant and other family members that she was being beaten and tortured by the accused persons.
3. It is alleged that the son of the informant had also brought ready made garments for the appellant Ram Chandra Tewari. With the help of the informant, appellant Ram Chandra Tewari carried on this business as well. At any rate, when he could not do anything, Mama of appellant Ram Chandra Tewari, who was a Constable at Lalitpur, took him to Lalitpur and there he used to drive a Tempo. He went to Lalitpur on 5-5-1993 and settled there as a tenant in one room measuring 6'x 9' in the house of PW-5, Rama Shanker son of Suresh Chand. Mahendra Tewari and Smt. Munni Devi also resided with appellant Ram Chandra Tewari in the said room.
4. Prem Sagar Dwivedi, the informant, had one another daughter, namely, Lata Dixit. She was married with Vinod Dixit. Smt. Lata Dixit and Vinod Dixit were residing at 30-University Campus, Jhansi. Smt. Samta alias Ranno Devi had given birth to one son and one daughter before Ram Chandra Tewari had come to Lalitpur. Smt. Samta alias Ranno Devi also came to Lalitpur. She started residing with Ram Chandra Tewari, Mahendra Tewari and Smt. Munni Devi. At that time, Smt. Samta alias Ranno Devi was still pregnant and on 28-7-1993 she was left at the house of Smt. Lata Dixit for the delivery in Jhansi. On 20-8-1993, she gave birth to a twins. One died immediately and the other became ill and subsequently died on 11th September, 1993. Appellant Ram Chandra Tewari brought Smt. Samta alias Ranno Devi to Lalitpur from Jhansi. While coming to Lalitpur, Smt. Samta alias Ranno Devi was crying that she would be killed by the accused persons.
5. It has come in evidence that in the night of 22/23rd September, 1993 near about 11.00 P.M. or thereafter Smt. Samta alias Ranno Devi was killed in the said room and her dead body was placed by the accused persons between the two lines of railway track as shown at place 'A' in the site plan prepared by the Investigating Officer. Smt. Lata Dixit got information about the death of Smt. Samta alias Ranno Devi on 23-9-1993 between 7 to 9 A.M. It has not been clarified as to who gave this information. She sent a telegram to her father at Lucknow. On receiving the telegram, the informant, brother of the deceased and others came to Lalitpur on 24-9-1993 and on the same day at 11.30 A.M. F.I.R. Ext. Ka-29 was lodged by Prem Sagar Dwivedi, father of the deceased at Police Chowki G.R.P. Lalitpur. By that time, the accused persons had cremeted the dead body of the deceased.
6. The Police registered and investigated the case. Ram Chandra Tewari was arrested on 27-9-1993. His statement was recorded by the Investigating Officer and he stated that he had killed the deceased in his room. He was taken to the room and there he opened the room and pointed out the place where he had murdered his wife. There blood stains were found on the cemented floor in a corner. Its samples were taken and sent for chemical examination. On chemical examination, the chemical examiner found human blood on this cemented floor which is item No. 6 in his report dated 25-5-1995.
7. After the investigation was complete, the police submitted a charge-sheet before the learned Magistrate and all the accused persons, Ram Chandra Tewari, Mahendra Tewari and Smt. Munni Devi, were committed to the Court of Session. The trial took place before Shri Sudhir Kumar Saxena, Additional Sessions Judge, Lalitpur, who by a detailed judgment found the accused persons, Ram Chandra Tewari and Smt. Munni Devi guilty of the charges under Section 302 read with Section 34, I.P.C. Section 201 read with Section 34, I.P.C. and Section 498-A, IPC. Ram Chandra Tewari was awarded death sentence for having murdered his wife. Smt. Munni Devi was given life imprisonment and a fine of Rs. 20,000/-. They were also awarded imprisonment and fine under Section 201 read with Section 34, IPC. However, the learned Sessions Judge found that the prosecution failed to prove its case against Mahendra Tewari, brother of Ram Chandra Tewari and Dewar of the deceased. He, therefore, acquitted him of all the charges. Being aggrieved by the death punishment, convictions, sentences and fine, both the appellants have preferred this appeal while there is also a reference made by the learned Sessions Judge for confirmation of the death sentence.
8. We have heard the learned counsel for the appellants and gone through the records. The case was registered under Sections 498-A and 304B, I.P.C. and Section 3/4, Dowry Prohibition Act by the Police. The business of the Police is to register the case and to write prima facie section under which the office is made out, but it is the duty of the Court to frame the charges under the Sections under which the offences are made out.
9. The deceased was married with appellant Ram Chandra Tewari in 1985 or in March, 1986 as stated by the appellant in his statement under Section 313, Cr.P.C. Therefore, the marriage took place before 7 years of the death. It appears, therefore, that the charge under Section 304B, IPC was not framed for this reason and the accused persons were charged with the offences under Sections 302/34, 201/34 and 498-A, I.P.C. only.
10. It has come in evidence that the informant Prem Sagar Dwivedi died due to shock within a month of the death of Smt. Samta alias Ranno Devi. He was not alive at the time of evidence. Therefore, his statement could not be recorded by the learned sessions Judge.
11. In evidence, the prosecution examined PW-1, Mohd. Riyaz Khan. He was a resident of Nehru Nagar, Lalitpur. On 27-9-1993, he was going to latrine when Ram Chandra Tewari appellant was arrested by the Police. The Police took Mohd. Riyaz Khan and one Kallu and in their presence took blood stained plaster from the room of the accused appellant.
12. P.W. 2 Smt. Lata Dixit is the daughter of the informant and elder sister of the deceased. She stated that she got the information about the death of her sister and informed her father by telegram. She also proved how the deceased was tortured and cruely beaten and how the demands were being made from the accused side.
13. P.W. 3, Ajai Kumar Dwivedi is the son of the informant and he had proved the letters which exhibited torture, cruelty and demand of money by Ram Chandra Tewari and Smt. Munni Devi. He also proved that the letters had been written by Samta alias Ranno Devi and he was fully acquainted with the hand-writing of his sister.
14. P.W. 4, Dr. S. K. Singh, conducted the postmortem examination on the dead body of the deceased at 4.00 P.M. The Doctor found the following ante mortem injuries on the person of the deceased :-
1. L.W. 9 cm x 1 cm x bone deep on the right side of skull 8 cm above the right ear underlying bone fractured.
2. Multiple abraided contusions 4 in number on the front of chest 6 cm below xiphistenum big 5 cm x 1 cm, small 1/2 cm x 1/4 cm.
3. Abraided contusion 1 cm x 1/2 cm. (sheet of assault has not been given in the postmortem report).
4. L.W. 2-1/2 cm x 1/2 cm x skin deep on the back of left elbow.
5. Multiple abraided contusion 5 in number on the outer aspect of back of right forearm, and elbow big 1-1/2 cm x 1 cm small 1/4 cm x 1/4 cm.
6. Multiple abraided contusion 7 in number on the whole right thigh, left and foot on front aspect in an area of 70 cm x 14 cm big, 6 cm x 3 cm, small 1/2 cm 1/2 cm.
7. Multiple abraided contusion 15 cm in number on the front of left thigh, leg foot (paper toxn) 14 cm big 6 cm x 2 cm x 1/4 cm.
8. Multiple abraided contusion in an area of 50 cm x 25 cm on the whole of back and left hip 6 in number big 11 cm x 6 cm small, 4 cm x 3 cm.
9. L.W. 4 cm x 2 cm x muscle deep just below the left posterior sup. iliac spine.
15. On internal examination, the Doctor found the right front perietal bone fractured. Thorax and vertebra were also found fractured. 7th rib was also fractured. He also found semi digested food in the stomach weighing 200 grms. In his examination, the Doctor proved the injuries and also stated that the death took place due to shock and heamorrhage as a result of ante mortem injuries.
16. P.W. 5, Rama Shanker was the landlord of appellant Ram Chandra Tewari. He stated that on the fateful night Ram Chandra Tewari, Mahendra Tewari and Smt. Munni Devi along with the deceased were in the room. In the next morning at about 6.00 A.M. Ram Chandra Tewari informed him that Smt. Samta alias Ranno Devi was missing and she should be searched. He along with the accused persons went to search Smt. Samta alias Ranno Devi.
17. The other set of evidence is about recovery of the dead body. PW6, Jagan Tanai Darau was posted as Point man at Lalitpur Station. He was given a memo paper No. 26-Ka by the Station Master for being handed over at G.R.P. Chowki. He gave this memo at the Chowki at 6.17 A.M.
18. P.W. 7, Abdul Hakeem, Deputy Station Master, Lalitpur stated that three trains had passed on the down track at 6.10 A.M. He was informed by the Cabin-man Shri Shree Dutt that a dead body was lying on the down track of the railway line near the cabin between 10.36/3-4 Km. It may be removed so that the trains may pass. He, thereafter, sent the information through memo 26-Ka to G.R.P. Chowki, Lalitpur.
19. P.W. 8, Santosh Kumar Tripathi, Switchman saw the gathering at the track at 5.58 A.M. He marked this fact in the train register. He passed the trains through the loop line. He was in the cabin and from the cabin he informed about the dead body on the railway track to the Station Master.
P.W. 9, Kapoor Singh, took the dead body for postmortem examination. PW-10. Prakash Dwivedi is the nephew of informant Prem Sagar Dwivedi. He had also gone to Lalitpur along with the informant and had written the F.I.R., which was lodged by Prem Sagar Dwivedi.
20. P.W. 11, Gyan Prakash Verma, was the Investigating Officer of the case. He prepared the inquest report and the police papers. He recorded the statements of the witnesses. He took blood stained earth. He had also taken the plaster of the room which was blood stained. He also recorded the statements of the witnesses at Lucknow and Jhansi. PW-13, Chandra Bhan Singh, was the Investigating Officer, who submitted the charge-sheet in the case.
21. After the close of the evidence of the prosecution, the statements of the accused persons were recorded under Section 313, Cr.P.C. The accused persons admitted the relationship of the witnesses. Accused Ram Chandra Tewari stated that his marriage took place in March 1986. There was no demand of dowry etc. He denied the other allegations of the prosecution. In reply to question No. 14, he stated that Ranno Devi died in the morning of 21st September, 1993. This palpably appears to be a confused statement. He further stated that at 10 or 11.00 A.M. he had sent a telegram to Jhansi. On the same Day Smt. Lata Dixit and her husband had come to Lalitpur. His father-in-law also reached Lalitpur on 23-9-1993 at 9.10 A.M. This is entirely false statement. This question was not asked to any witness nor any such paper was produced or summoned to show that the accused had given information to the Police. In reply to question No. 18, accused Ram Chandra Tewari admitted that Smt. Samta alias Ranno Devi had come in the house of Railway colony, Lalitpur before two or four days of her death. She was ill. He further stated that he had slept at 1.00 P.M. Ranno Devi had got stomach problem and used to go to latrine for three or four times. He did not know when the occurrence took place. He also stated that the letters produced had not been written by Ranno Devi and he had been implicated because the informant and others were demanding jewellery and expenses of the marriage. It is hard to believe that after seven or eight years of the marriage one would demand jewellery and expenses of the marriage.
22. The case of the other accused persons is that of total denial. Smt. Munni Devi stated that she was not present in the house. The prosecution also examined D.W. 1, Tirjugi Narain, to prove that there was no demand of dowry etc. He, however, proved the statement of the accused that Ranno Devi was married in 1986. He stated that it was wrong to state that Ranno Devi was married in 1985. He also supported the prosecution to some extent that from before one and a half years of the death of Ranno Devi, accused Ram Chandra Tewari had shifted to Lalitpur and before that he used to carry on food grain business in village Gurdahi. Ram Chandra Tewari had got no agricultural plot. The witness was unable to say why Ram Chandra Tewari had come to Lalitpur. He also admitted that Prem Sagar Dwivedi had got agricultural land and he used to give it on Batai. He had got a shop in Lucknow. He also stated that Ranno Devi was educated upto Class X.
23. We have discussed the entire evidence on the record and we have to see whether there was any motive for the accused persons to murder Smt. Samta alias Ranno Devi and whether this was a case of murder or accident. According to both the parties, this was not a case of suicide. According to the prosecution, this was a deliberate murder while according to the accused side, the victim went to the railway track where she was dashed by some train and died. We have also to see if this was a case of murder; where it took place and who had murdered the victim.
24. As regard the motive, this is not a case of dowry death. This is a case where even after marriage, there was constant demand of money by accused Ram Chandra Tewari. In this connection, there is specific evidence of the prosecution which we would deal with soon after, but the status of the parties also shows that there might have been demand of money. How marriage took place is a different thing because marriage is admitted, but there appears a long gap of status between both the parties. Prem Sagar Dwivedi, father of the deceased, was a resident of village Nadguwan district Etawah as admitted by D.W. 1, Tirjugi Narain. This has also come in evidence that Prem Sagar Dwivedi had got a medicine shop in business centre like Aminabad in Lucknow. His nephew Prakash Dwivedi had got a furniture shop. The informant side appears to be affluent person. To the contrary, DW-1, Tirjugi Narain, himself admitted that there was no agricultural land with accused Ram Chandra Tewari. His grandfather did only Panditayee. He further stated that accused Ram Chandra Tewari used to sell grains in village Guardahi, but he had shifted to Lalitpur. It is admitted fact that at Lalitpur accused Ram Chandra Tewari had not his Mama and there he used to drive Tempo. It has also come in evidence that the landlord PW-5, Rama Shanker, stated that Ram Chandra Tewari Mahendra Tewari and Smt. Munni Devi used to reside in a room measuring 6' x 9'. There were two living children also to Ram Chandra Tewari. This shows the wretched condition of Ram Chandra Tewari. It is also clear that the informant side was comparatively well off. It has also come in evidence that accused Ram Chandra Tewari left his village and had gone in the shelter of his Mama only for the sake of his livelihood. Therefore, the demand of money from the parents of the deceased was not unnatural when according to the own admission of the accused in his statement under Section 313, Cr.P.C. there were two living children, Ranno Devi was pregnant, she gave birth to twins and both of them died subsequently. Ranno Devi used to keep ill health and treatment was going on. In these circumstances, the demand of money from the Sasural side was rather natural. Not only this, there is specific allegation in the F.I.R. lodged by the informant Prem Sagar Dwivedi that there was constant demand of money by Ram Chandra Tewari. This fact has also been proved by Smt. Lata Dixit, sister of the deceased and Shri Ajai Kumar, brother of the deceased. These witnesses were cross examined, but they stood the test of cross-examination like a rock. The accused could not make out any case contrary to the allegations of the prosecution. It is also the admitted fact that when Ranno Devi was about to give birth, she was left at the house of Smt. Lata Dixit, her sister at Jhansi. This also shows that the accused Ram Chandra Tewari was not in a position to arrange for the delivery of his wife and, therefore, he left his wife at the house of her sister. It is also the admitted fact that she was brought to Lalitpur only 3-4 days before her death. In the circumstances enumerated above, accused Ram Chandra Tewari was in dire need of money and when the need of the accused was not fulfilled, he proceeded to kill Smt. Samta alias Ranno Devi.
25. The letters written by the victim also proved that the accused persons always tortured and cruely beat the victim. The entire allegations in these letters are against her husband and Smt. Munni Devi. The accused had denied that these letters are in the hand-writing of Ranno Devi, but did not specifically put any question to any of the prosecution witnesses. Admittedly, Ranno Devi was residing along with the accused persons. They must be in possession of some paper written by Ranno Devi. They did not produce any such paper to prove that the letters produced by the prosecution were not in the hand writing of the victim. These letters specifically proved that the accused persons always tortured and cruelly beat the victim and could have killed her at any time.
26. In view of the above discussions, we are of the opinion that there was a very strong motive for the murder of Smt. Samta alias Ranno Devi wife of accused Ram Chandra Tewari. It is not necessary that for every murder, there should be enmity. Sometimes, poverty, inability to provide medicines to the ailing wife are the causes of murder and may constitute motive which motive is fully established in this particular case.
27. The vital question in this case is whether this was a case of accident or a case of murder. It was admitted by the learned counsel for the appellants that this was not a case of suicide. The injuries of the victim and the postmortem report fully prove that this was a case of brutal murder.
28. We have first to take up the case of accident. By no stretch of imagination, we are able to arrive at a conclusion that there might be a dash or impact of some moving train and the victim had fallen down in between the two lines of one track. If she had fallen down in between the two lines of a track on account of dash or impact of some running train, her body would have been dragged and the entire body would have been torn. There would have been cutting of the body into pieces. The body would not have remained identifiable. There was only typical contusions and fractures on the person of the deceased but in case of train accident numerous grievous injuries would have been caused. Besides this, profuse bleeding at the place of occurrence would have been the natural consequence. There is no evidence that any blood was found on the track where the dead body was found. The Doctor has reported about haemorrhage and if the present injuries had been by a train, falling of blood on the railway track would have been the natural consequence. If a dead body is lying in between the two lines of one track, there may not be any damage to the dead body by a running train, but if a person is alive and falls in between the two lines of a track as a result of dash or impact of the train, his body will move due to life in it and necessarily due to the movement of the body it shall be cut into pieces. It shall not lie like a rock in between the two lines of the track.
29. The case of accident can be judged from another angle. If a person is dashed from side by a running train, he shall be thrown either on the right side or the left side of the train and in that case major injury may not come, but if the body is thrown in between the two lines of the track, it is but natural that there shall be vast damage to the body and not simply fracture of the parietal bone, fracture of the ribs and other contusions only. There shall be also cutting of the body into pieces. If it is presumed that due to dash by the running train, the victim fell down in between the two lines of the track by the side of the belly and the face on the ground, then also on account of hard substance such as bricks, stones lying on the track, numerous injuries would be sustained, but there is no such injury on the person of the deceased in this particular case. Therefore, the case of accident by a running train is ruled out due to the nature of the injuries sustained by the deceased. Not only this, learned counsel for the defence while cross-examining the witnesses was conscious enough of this fact and, therefore, he did not dare to cross-examine the Doctor on the point whether these types of injuries could have been caused by train accident. It is apparent that the injuries were not caused by train accident and if the case of accident is eliminated, the irresistible conclusion is that Smt. Samta alias Ranno Devi was killed and the dead body was planted so that it may appear that it was a case of accident. Lota was also placed at some distance from the track to show that Smt. Samta alias Ranno Devi had gone to ease herself, but the theory of going to ease herself is also falsified in view of the fact that the site plan shows that there was a latrine in the house where accused Ram Chandra Tewari was residing. There was absolutely no suggestion to the witnesses or the statement of the accused persons that they used to go towards railway side to ease them selves and they were not allowed to use the latrine. The landlord, namely, P.W. 5, Rama Shanker, in his statement tried to help the accused persons. He could have very well been asked whether the accused side was not allowed to use the latrine and they used to go to railway side to ease themselves. No such question was put to the landlord. The site plan shows that there were vacant plots towards east and west side of the house of the landlord. If the victim was ailing and she had got stomach problem, then she would naturally go either to the latrine or to nearby place to ease herself and not towards railway track to suffer accident. Therefore, the theory of going towards railway track to ease herself is totally falsified from this fact alone.
30. There is yet another circumstance which rules out the possibility of going to ease herself towards the railway track in the early morning. The postmortem report shows that there was 200 grams semi digested food in the stomach of the deceased. The food becomes semi digested within 2 or 3 hours of its taking. There is also no case that the victim took food at 2 or 3.00 A.M. The accused were residing with the victim in the house. It has also come in the statement of the witness Rama Shanker (P.W. 5) that in the morning the accused persons started to search Smt. Samta alias Ranno Devi. This shows that in the night both husband and wife were in the room. Therefore, the accused Ram Chandra Tewari is presumed to know when the victim took food. This case had not at all been taken that the victim took food before early morning at about 2 or 3.00 A.M. The natural presumption is that all of them took food in the night at about dinner time and within 2 or 3 hours she was killed. Thus, the case of the prosecution is fully established that she died at about 11 or 12 mid night. After all accused Ram Chandra Tewari was in the shelter of his Mama who was a Police Constable at Lalitpur. From 11.00 P.M. to 5.00 A.M. the accused got full opportunity to consult his Mama or to think himself how to get rid of the dead body and to plant the dead body at the railway track so that it may appear a case of accident.
31. It was argued by the learned counsel for the appellants and it has also came in the statement of Ram Chandra Tewari that if he had to plant the dead body at the railway track, he would have placed it on the line itself so that it may be cut into pieces. This argument may appear to have some force, but no body could sit in the mind of the accused. He may also have thought it to place the dead body in between the two lines of the track to show his bona fide that if he had to do it, he could have placed it on the railway line. It was also argued that the accused persons could have thrown the dead body at some dark place away from the railway line. If the dead body had been thrown at some dark place, then no defence would have been created in view of the injuries sustained by the deceased and the murder would have automatically been proved. It was further argued that there was light every where in the railway colony how the dead body could be thrown on the railway track. There is no evidence either way that the light was there and there was no electric failure and the accused persons were not in a position to bring the dead body towards the railway line. The accused Ram Chandra Tewari had got ample time to bring the dead body towards railway line with the help of his brother and sister. The accused persons might have taken the dead body themselves because the place where the dead body was planted was not far away from the railway colony where the accused persons were residing. Not only this, it has also come in evidence that accused Ram Chandra Tewari along with his brother and sister went to PW-5 Rama Shanker and requested him to search for Smt. Samta alias Ranno Devi. The accused persons themselves are the witnesses of this fact as to how they placed the dead body on the railway track either in the early morning or at any other time in the night after 11.00 P.M. The prosecution must be unable to produce any such evidence. There are also circumstances to show that the acts of the accused persons were not at all bona fide and may lead to natural presumption that the victim was murdered at the hands of the accused persons. The place Lalitpur is well connected with Lucknow by telephone. In the manner the information was given to the sister of the deceased, in the same way information could have been given to the father and brother of the deceased, but the accused persons preferred to cremate the dead body without waiting for parents of the deceased. They might have given the information to Smt. Lata Dixit, the sister of the deceased, but if their conduct was bona fide they could have given information to the parents of the deceased also and only after their arrival they could have cremated the dead body.
32. It is true that confession to the Police is not relevant, but under Section 27 of the Evidence Act no such statement is relevant which leads to some recovery or discovery and such statement can be proved. In this case, accused Ram Chanra Tewari stated before the Investigating Officer that he could show the place where he had murdered the victim. He went to the room, opened the room and there blood stains were found on the floor. The Investigating Officer took the plaster and sent it for chemical examination. The Chemical Examiner found human blood which fully proved the place of murder. The finding of human blood on the floor without any explanation from the accused side also proved the place where the victim was murdered. The Doctor also stated that there was heamorrhage of blood. If the two facts are taken together, this fully established that the victim was murdered in the room of the accused and this also leads to a presumption of murder and not to a presumption of accident. The circumstances fully reveal that the victim was murdered. The facts lead to irresistible conclusion that this murder took place inside the room where the victim was residing along with her husband Ram Chandra Tewari. The facts also conclusively prove that the death of the victim did not take place by accident at about 5 or 6 A.M. The presence of semi digested food in the stomach of the victim shows that death took place some where between 11 or 12 midnight. There is no case of the accused that the victim died at the railway track between 11 or 12 midnight. Therefore, she was necessarily murdered in the room. Now the question is who is responsible for this murder.
33. Learned Sessions Judge had acquitted accused Mahendra Tewari. He is Dewar of the deceased and brother of accused Ram Chandra Tewari. It is unfortunate that there is no State appeal against his acquittal and, therefore, by reversing the finding of acquittal, Mehendra Tewari cannot be convicted. However, there is consistent evidence, which we will discuss soon after, that all the accused persons, namely, Ram Chandra Tewari, Mahendra Tewari and Smt. Munni Devi were residing in the said room along with Smt. Samta alias Ranno Devi. If one is murdered in the said room, the other three are either murderers or witnesses. Ram Chandra Tewari and Munni Devi or Mahendra Tewari never came forward to say that he had seen some body committing murder of Ranno Devi and, therefore, he or she was a witness and not the assailant. As discussed above, these three accused persons were residing along with the deceased in a room measuring 6' x 9'. In the circumstances, none of the accused persons could say that the occurrence took place in the room but he could not known about the assailant. Therefore, each and every accused shall be responsible for the murder. Now the question is as to who was residing in the said room at that particular time. Smt. Munni Devi in her statement tried to say that she was not residing in the room at that time. She did not state where she was if not in the room. She did not state that she was in her Sasural at that particular time, but the evidence on the record fully established that she was present in the said room.
34. Coming to the actual participation of the three accused persons, the evidence on the record shows the presence of all the accused persons in the said room, but Mahendra Tewari has already been acquitted by the learned Sessions Judge. There is no Government appeal against his acquittal. Therefore, discussion about him shall be only of academic interest.
35. As regards appellant Ram Chandra Tewari he is the husband of the deceased. He has been named in the F.I.R. Admittedly, he had received the dead body after postmortem examination and had cremated the dead body. In his statement under Section 313, Cr.P.C. he nowhere stated where was he on the fateful night if not in the room. He himself had admitted that he gave the telegram to Jhansi at 10 or 11 a.m. He further stated that his father-in-law and brother-in-law came to Lalitpur in the morning at about 9 or 10 O'Clock. In reply to question No. 17 of his statement, he stated that it was he who gave information to the G.R.P. and in reply to question No. 20 of his statement, he specifically stated that he slept at about 10 O'Clock in the night. He did not state that he slept on the fateful night somewhere else than the room. His landlord, namely, Rama Shanker (P.W. 5) has specifically stated that in his room Ram Chandra Tewari, his brother Mehendra Tewari and the wife of Ram Chandra Tewari, namely, Smt. Samta alias Ranno Devi were residing. Regarding Smt. Munni Devi, he was specific that she was also there. In the second para of his statement, he stated that in the morning Mahendra Tewari, Smt. Munni Devi and Ram Chandra Tewari all were present. It was Ram Chandra Tewari who awoke him and told that Bhabhi (deceased) was not in the house and all of them went to search the victim. Thus, it is clear that not only Ram Chandra Tewari, but Smt. Munni Devi and Mahendra Tewari were there in the said room on the said night. It has also come in the statement of Lata Dixit who was residing in Jhansi, the neighbouring district of Lalitpur, that when Ram Chandra Tewari had taken the house, he had called for Mahendra Tewari and Smt. Munni Devi and the deceased as well and they were all residing in the said room. PW 3 Ajai Kumar Dwivedi, also stated that Smt. Munni Devi was also there at Lalitpur at the time of the occurrence. In the cross-examination, he stated that after the occurrence Smt. Munni Devi had run from the house. This evidence specifically shows that all the three accused persons were present at the time when the occurrence had taken place.
36. The argument of the learned counsel for the appellants was that Smt. Munni Devi was a married lady. She must be residing in her Sasural. Why she should reside at the house of the accused Ram Chandra Tewari. It is true that she was married, but it is also true that the deceased was ailing. She had given birth to twins only a few days before the occurrence. It is also an admitted fact that only before 3-4 days of the occurrence, she was brought from Jhansi. Necessarily ladies suffer from post delivery diseases which can be looked after by ladies only. Therefore, there is no improbability in this fact that Smt. Munni might have been called for that purpose and the evidence shows that she was there in the room. All the letters specifically show that Smt. Munni Devi was the main here to torture and cruelly beat the victim and it was she from whom the victim had got always fear of life. The participation of Mahendra Tewari has been disbelieved by the learned Sessions Judge. Even if that case is taken to be correct, then also it is not physically possible to assault the victim and then to take the dead body singly towards the railway track. The way in which the murder had been committed and the dead body had been removed, it is most natural and probable that the number of assailants must be two or three. The mere denial of Smt. Munni Devi and her mere marriage will not go to show that she was purely innocent lady and she had nothing to do with this brutal murder and the placing of the dead body at the railway track. Not only this, in her statement under Section 313, Cr.P.C. Smt. Munni Devi had only stated that she was not present at the said occasion. She did not utter a single ward where she was on the fateful night if not there with Ram Chandra. She did not state that she was in her Sasural in the said night. D.W. 1, Tirjugi Narain, the defence witness is not a witness of this fact that Smt. Munni Devi was not there in the room of accused Ram Chandra Tewari. He only stated in para 5 of his statement that Smt. Munni Devi had been wedded near village Rajpur. This fact is no where denied. In the Circumstances, it is fully proved that the murder had been committed by accused Ram Chandra Tewari and Smt. Munni Devi and they tried to screen themselves from legal punishment by placing the dead body in between two lines of the railway track.
37. There was constant demand of money and other articles by the accused persons and when Ranno Devi was unable to fulfil the demand, she was being cruelly beaten and tortured. Therefore, the offence under Section 490-A, I.P.C. is fully established against them. There is clinching circumstantial evidence which fully connects both the appellants with the murder of the deceased. Both of them are guilty of the offence under Sections 302/34, I.P.C. as well. They have tried to remove the dead body to screen themselves from legal punishment. Therefore, they are also guilty of the offence under Sections 201/34, I.P.C. The charges are fully established against the accused persons and the learned Sessions Judge has rightly convicted them under the three heads of the charges which were levelled against them.
38. It is true that there are certain observations and inference by the learned Sessions Judge which may be off the record and on surmises and conjectures, but the ultimate result on which the learned Sessions Judge has arrived at is absolutely correct.
39. We have discussed the entire evidence on the record and all the aspects of the case. In a case like the present one, there cannot be direct evidence. The volume and quality of evidence also differs from case to case and in this particular case the circumstantial evidence on the record is clinching and totally convicting and leads to no other conclusion except that there are the accused persons who have killed the victim.
40. Now coming to the sentence, the learned Sessions Judge has awarded death sentence to appellant Ram Chandra Tewari. He is the husband of the deceased and the circumstances in which this murder has been caused and if one goes by sentiment, the death punishment cannot be said to be excessive. The legal position is that this is a case of circumstantial evidence. There is no direct evidence in this case. Therefore, it will not be safe to hang a person on the basis of circumstantial evidence only. This is not a case rare of the rarest where death punishment only can be adequate penalty. In these circumstances, the death sentence awarded to appellant Ram Chandra Tewari is liable to be altered into imprisonment for life.
41. In addition to life imprisonment Smt. Munni Devi has been imposed a fine of Rs. 20,000/-. Appellants Ram Chandra Tewari and Smt. Munni Devi are to suffer imprisonment for life. They shall remain in Jail. The murder has also been caused mainly for the greed of money. There does not appear any possibility that the money may be realised from her. Therefore, it is meaningless to impose such a heavy fine upon her. In the circumstances, the order imposing the fine upon Smt. Munni Devi is liable to be set aside and is accordingly set aside. Both the appellants shall undergo imprisonment for life for the charge under Section 302 read with Section 34, I.P.C.
42. As regards the sentence under Sections 201/34, I.P.C., the learned Sessions Judge has rightly awarded rigorous imprisonment for five years and a fine of Rs. 2000/- to each of the appellants. The sentence for the offence under Section 498-A, I.P.C. is also appropriate. Therefore, the sentences under these sections are maintained.
43. In the result, the appeal fails and is dismissed. The convictions of the appellants under all the three sections are confirmed. However, the death senence awarded to appellant Ram Chandra Tewari is altered into imprisonment for life. All the sentences, shall run concurrently.
44. The reference for confirmation of death sentence awarded to appellant Ram Chandra Tewari is accordingly rejected.
45. Appellant Smt. Munni Devi is on bail. Her bail bonds are cancelled and the sureties are discharged. She shall be taken into custody forthwith to serve out the sentences awarded by the learned Sessions Judge, Appellant Ram Chandra Tewari is in jail. He shall undergo imprisonment as awarded by this Court.
46. The office is directed to send a copy of this order to C.J.M. Lalitpur within a week. The C.J.M. is directed to submit compliance report to this Court within three months of the receipt of a copy of this order.
Appeal dismissed.

Dharmendra Singh And Etc., Petitioners V. State Of U.P., Respondent.

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DATE : 19-08-1997
1998-(104)-CRLJ -2064 -ALL
Penal Code, 1860 - Section 300 - Accused-persons have committed murders in a very cruel and brutal manner inflicting as many as 53 injuries on five persons - Mere omission of certain facts in the FIR or in the statement recorded under section 161, CrPC or additions in deposition does not make testimony of eye0witness unreliable - Conviction of accused persons liable to be maintained however in the facts and circumstances of the case sentence of death is commuted to life imprisonment.
Conviction of accused persons liable to be maintained however in the facts and circumstances of the case sentence of death is commuted to life imprisonment.
JUDGE(S) :

Giridhar Malaviya
Kundan Singh
ALLAHABAD HIGH COURT
JUDGMENT
KUNDAN SINGH, J. :- The aforesaid appeals have been preferred by Dharmendara Singh, Narendra, Gopal, Sanjeev, Pushpendra and Jagvir Singh against the common judgment and order dated 5-12-1996 of Sri Dhani Ram, the then Special Judge/Additional Sessions Judge, Aligarh, in S.T. No. 1314 of 1994 whereby Dharmendra Singh, Narendra Yadav, Sanjeev, Jagvir, Pushpendra and Gopal have been convicted under Sections 148, 302, I.P.C. Dharmendra and Narendra have been sentenced to two years R.I. under Section 148, I.P.C. and they have also been sentenced to death by hanging them till their death under Section 302, I.P.C. Appellant Jagvir, Pushpendra, Sanjeev and Gopala have also been convicted under Sections 148 and 302, I.P.C. and they have been sentenced to undergo imprisonment for life under Section 302, I.P.C. and R.I. for two years under Section 148, I.P.C.
2. The Lower Court has also referred the matter for confirmation of death sentence awarded to Dharmendara Singh and Narendra Yadav by hanging them till their death.
3. The prosecution case, briefly stated, is that accused Dharmendra Singh, Jagvir Singh and Pushpendra Singh are residents of village Kamra Bagh, P. S. Mursan, District Aligarh while Narendra Yadav, Sanjeev and Gopal Kor and residents of Nagla Babu within the same police circle of Police Station Mursan, District Aligarh, Chandra Mohan and his family members had purchased 13(1/2) Bighas of agricultural land of village Khargu, Kothi and half share of Haveli with temple of village Karma Bagh from Shiv Saran Singh and Mahavir Saran Singh, who were grand-fathers of Dharmendra Singh accused, who was himself interested to purchase the same. As such Dharmendra Singh bore enmity against Chandra Mohan Singh complainant. The complainant was residing with his family members in the half portion of the Haveli while Dharmendra Singh was residing in another half portion of the Haveli in village Kamra Bagh. Km. Reeta, daughter of Chandra Vir Singh, another brother of the complainant, was studying in Class X in Mursan town. Narendra accused used to tease and outrage her modesty in her coming from and going to school. The complainant made a complaint to the family members of Narendra. Sanjeev Yadav and Gopal Kori are his friends. Narendra with his companions Sanjeev Yadav and Gopal Kori used to meet Dharmendra Singh at his residence in his portion of the Haveli. Purshpendra alias Pappu and Jagvir visited the house of Dharmendra Singh where they were entertained with food and drinks. About 4 or 5 days prior to the date of incident, Km. Reeta niece of the complainant, had gone to cattle pond for reparing cow dung cake where Narendra again tried to outrage her modesty and threatened her that in case she makes a complaint against him on this occasion that would not be proper. She returned to her house and reported the matter to her uncle, the complainant, who along with Narendra Singh, his nephew, went to Narendra Yadav and beat him which infuriated him against the complainant and Km. Reeta. On 26-5-1994 the complainant along with his brother Chandra Pal Singh and nephew Ajai Singh went to village Salot to attend a marriage party at the house of Hardam Singh by a scooter and they returned at about 3.00 a.m. in the night of 26/27-5-1994 to their house in village Kamra. Bagh. As soon as they reached near the temple which is also near the Haveli and saw Dharmendra Singh, Pushpendra alias Pappu, Jagvir residents of village Kamra, Bagh, Narendra, Sanjeev and Gopal Kori coming out of the Haveli holding knives in their hands. All the three persons identified them in the head light of scooter, electric bulb outside the Haveli and moon light. The complainant also asked Dharmendra as to why they were running but all the accused persons quietly ran away. The complainant with his brother and nephew entered into the Haveli and found a petromax lantern burning on the partition wall and Pitamber Singh, Narendra, Ravindra Singh, Km. Reeta, Smt. Ramwati lying dead in the court yard, as a result of injury sustained by them. They had been killed by Narendra and others. Chandra Mohan Singh dictated the F.I.R. to Sanjay Singh and sent it through Chandra Pal for lodging the same at police station Mursan, which was registered at 7.05 a.m. on 27-5-1994 at police station Mursan, District Aligarh.
4. P.W. 4, Om Prakash Sachan, S.O. of Police Stating Mursan, was present at the time of registration of the case. He took all the papers in his hands and started investigation. He copied out the F.I.R. in the Case Diary and recorded the statement of Chandra Pal Singh under Section 161, Cr.P.C. at the police station itself and then be proceeded to the place of occurrence at 7.55 a.m. He reached the place of occurrence, where he found a crowed of village people. The family members of the deceased persons were weeping there. He found the dead bodies of Pitamber, Ramvati, Km. Reeta, Ravi and Narendra. He made the arrangement of law and order at the spot. Some police personnel were sent for search of the named accused persons. In the meanwhile Sri Sharad Chandra Pandey, Inspector, Incharge Kotwali Hathras, Ram Kumar Tyagi S.I. of Police Station Kotwali Hathras, Amar Pal Singh, S.H.O. of P. S. Hathrasgate, Subhas Chandra Rana, S.O. Police Station Chandrama, also reached there with Police force and inquest registers. Yashwant Singh, C. O. Sonker, S.P. (R.A.) and others had also arrived there. A wireless message for dog squad and field unit was sent. The preparation of inquest report was meanwhile stopped till the arrival of dog squad and team of unit. The Investigating Officer took the statements of Chandra Mohan and Ajai Singh. He inspected the venue and on their pointing out a site plan was prepared. Dog squad with team of field unit also came there. The dog from the dead body went to the room of Dharmendra Singh accused and returned. An empty bottle of wine, two glasses, out of them one was broken, one sieve, Aluminium tea pot and few piece of burnt bidis were recovered from the room of the accused Dharamendra Singh. They were sealed and a recovery memo was prepared.
5. S. O. Amar Pal Singh, held inquest of Ravi from 1.20 p.m. to 2.10 p.m. Jawahar, S.I. also held the inquest of Pitambar Singh from 1.30 p.m. to 2.55 p.m. He also held inquest of Smt. Ramwati Devi from 3.5 p.m. to 4.15 p.m. R. K. Tyagi held the inquest of Km. Reeta from 1.30 p.m. to 2.45 p.m. He also held the inquest of Narendra from 3.00 to 4.15 p.m.
6. The Investigating Officer also collected blood stained and ordinary earth from the spot. He also copied out the recovery memos and inquest report in the case diary. He also copied out recovery memos of the blood stained piece of wood, blood stained underwear, blood stained string of the cots, blood stained bed sheet, skrit, blouse and bottle of wine etc. He recorded the statements of Chandra Mohan, Chandravir, Nemi Shankar, Rajesh, Kundan Singh, Brijendra Singh, Mahendra Singh, Chandra Pal Singh, Khajan Singh, Saheb Singh, who were witnesses of recovery memos. He also inquired from the persons gathered at the place of occurrence about the incident. The Investigating Officer along with Inspector Kotwali Hathras, S. O. Chandrapa, S. C. Hathras gate and force made search of the accused at their respective houses but none of them could be apprehended. The I.C. returned to the police station with recovered article at 8.30 p.m. Leaving P.A.C. at the spot for maintaining law and order. On 28-5-1994 he again made a Dabish at the house of the accused and apprehended Narendra and Gopal at 2.30 p.m. on 28-5-1994 from Mathura Road at the instance of the informer but no incriminating article was recovered from their personal search. He interrogated them at the spot and took them to the police station. The I.O. also made search of the remaining accused pesons at different places but they could not be apprehended. On 31-5-1994 he moved court for the measures of under Section 82/93, Cr.P.C. and after receiving orders for taking proceedings under Sections 82/83, Cr.P.C. he attached the property of the accused persons. He apprehended Sanjeev Kumar at 10.30 p.m. on 31-5-1994 from a canal near Gopalpur Mathura Hathras Road. However no incriminating article was recovered from his search. He also interrogated him. He got an information that Jagvir surrendered in the court on 2-6-1994. He interrogated him on 3-6-1994 in Jail. As soon as he came out of the district jail, he got information from the pairokar of the police station that Dharmendra and Pushpendra surrendered in the court on the same day i.e. 3-6-1994. With the prior permission from the Magistrate concerned, he interrogated them in the Court's lock up where they showed their intention to get recovered the knives used in the crime and hidden by them in the business on the bank of Nala going towards Kharagpur. The Investigating Officer went with the force to recover the same but could not trace them out. The Investigating Officer applied for police remand of Dharmendra, Pushpendra and Jagvir on 4-6-1994 and they were handed over to police on 7-6-1994. On 4-6-1994 he met one Saint at the temple infront of the complainant's Haveli, who told him that he saw the accused persons going into the Haveli in the night of occurrence. He gave out his name Ram Sukhdas who subsequently filed an affidavit in court. Three accused persons who were taken on police remand went with the police party to a place where they had hidden two blood stained knives. One blood stained knife each was recovered on the pointing out of Dharmendra and Pushpendra from the bushes near the bridge of canal near Kila mohalla in the presence of Khajan Singh and Gorey Lal. Both the bloods stained knives were sealed at the spot and a recovery memo was prepared and singed by the witnesses.
7. On 9-6-1994 the Investigating Officer received the Serologist report regarding Reeta and Copies of post-mortem examination report of Ravi, Pitamber Singh, Reeta Ramwati and Narendra. They were also copied out in the Case Diary. The I.O. Sri Om Prakash Sachan P.W. 4 was transferred on 6-7-1994. Then investigation was taken by Sri Gaya Prasad Inspector. He recorded the statement of Jai Ram Singh and others. He again inspected the place of occurrence and prepared site plan. On 29-7-1994 the investigation was transferred to the C.B. C.I.D. Laijnath Singh P.W. 11, Inspector CB CID took the investigation on 29-7-1994. He examined Chandra Mohan Singh and Smt. Saroj and others under Section 161, Cr.P.C. Chandra Mohan produced a patromax lantern which was examined and given in the superdgi of Chandra Mohan. A superdgi memo was prepared. Chandra Mohan Singh also presented an Investigation Card of Mardan Singh which was taken into custody and a recovery memo was prepared. Chandra Mohan Singh also produced a scooter which was given in his custody and a superdgi memo was prepared to 30-7-1994. He recorded the statement of Dr. R. K. Gupta. He also interrogated the accused persons, the witnesses of inquest reports and other witnesses. After completing other formalities of investigation this I.O. submitted charge sheet against the accused persons in court.
8. The investigation conducted by the Police I.O. Sri O. P. Sachan was found to be irregular; hence disciplinary action has been taken against him under the police Act and a report was submitted to CB CID Head quarter. Dr. Rajendra Kumar Gupta PW 9 conducted the autopsy on the bodies of the five deceased persons.
9. Dr. Rajendra Kumar Gupta P.W. 9 conducted the autopsy on the dead bodies of Ravi aged about 12 years on 28-5-1994 at 2.00 p.m. Pitamber Singh at 3.00 p.m., Narendra Singh at 3.30 p.m., Smt. Ramwati at 4.20 p.m., Km. Reeta at 5.00 p.m. The Doctor found 6 stab wounds and 6 incised wounds on the body of Ravi, one stab wound and four incised wounds and one contusion on the body of Pitamber, 3 stab wounds and 7 incised wounds on the body of Narendra 10 stab wounds and two incised wounds on the body of Ramwati, while on the body of Km. Reeta 12 stab wounds and two incised wounds. Thus he found 53 incised and stab wounds one contusion on the five dead bodies.
10. The prosecution examined 12 witnesses in all to prove its case. Out of them Saroj Devi P.W. 2 and Jai Ram PW. 3 were witnesses of factum of incident, PW 1 Chandra Mohan Singh saw the accused persons coming out of the house of Haveli soon after the incident and Jai Ram saw the accused going inside the house and committing the murders of the deceased persons with their knives from the doors of Haveli. Other witnesses were of formal nature.
11. The accused persons denied the prosecution version and stated that they have been falsely involved in this case due to faction of the locality and the prosecution witnesses are party men of the complainant. Dharmendra Singh admitted in his statement recorded under Section 313, Cr.P.C. that he, accused Pushpendra, Jagvir and the complainant are residents of village Kamrabagh. He also admitted that Raghuraj Saran Singh, Shiv Saran Singh, Mahavir Saran Singh were his grand-fathers. Girdhari Saran son of Raghuraj Saran Singh was his father. Regarding the purchase of 13 1/2 Bighas land of village Khargu and half portion of Haveli, Kothi with the temple of village Kamra Bagh by the informant and him family members from his grand-fathers Shiv Saran Singh and Mahavir Saran Singh, he stated that the transaction was done in his presence and he got it transferred himself. There was no electric light inside or outside the Haveli and Kothi. He was also intending to sell his own share. He further stated that he had gone to attend the marriage of the daughter of his wife's brother on 25-5-1994, where he fell ill and returned on 28-5-1994. His father was murdered by Billu Singh alias Ravindra nephew of Ram Saran M.L.A. His grand mother reported it against him. The complainant is a party man and relative of Ravindra; hence he has been falsely named in this case due to this enmity. Pushpendra admitted to be resident of village Kamra Bagh where Dharmendra, Jagvir and Chandra Mohan also reside. He also stated that Jagvir and Chandra Mohan also reside. He also stated that Jagvir was on inimical terms against him. There had been litigation regarding consolidation proceedings against him. Jagvir Singh also admitted that he, Dharmendra Singh, Pushpendra and complainant Chandra Mohan are residents of village Kamra Bagh. He further stated that Lagan Patrika of his sister was to go on 27-5-1994. He had enmity against Pushpendra and Dharamendra. The litigation is going on against the family members of Pushpendra. Narendra Yadav stated in his statement recorded under Section 313, Cr.P.C. that investigation was transferred to CB-CID at the instance of his uncle Dalvir Singh. His uncle Suresh Chandra Yadav contested election of Block Pramukh against Dharamvir Singh. The complainant is a party man of Dharamvir Singh. Due to this enmity he has been falsely nominated in this case at the instance of Dharam Vir Singh, Block Pramukh. Sanjeev Kumar also admitted to be resident of Nagla Babu and stated that there is a person named Raju Yadav residing in his village. He has a son named Sanjeev alias Ashok who is studying in Class XI Rajesh Yadav is on inimical terms against him. Gopal also admitted himself to be resident of Nagla Babu and stated that his brother Lalta Prasad was assaulted by Shyam Vir and his brother on 21-5-1994 when they went to lodge a report at police station, where they found Dharamvir Singh, Block Pramukh sitting there who is a sympathetic person of their opponent. Hence an altercation took place between them and that of Dharam Vir Singh, who is very close to Chandra Mohan and hence he has been involved in this case.
12. The accused also examined three witnesses in their defence. D.W. 1 Surendra Singh, Clerk Constable, Police Station Chandma was examined to prove the G.D. Report No. 11, time 9.55 a.m. on 27-5-1994 showing the rawangi of Subhash Chandra S.C. with the constables by Government Jeep No. UGI 4544 to police station Mursan.
13. D.W. 2 Constable Sri Ram was examined to show some irregularities in the Serial number of chik reports of police station Mursan.
14. D.W. 3 Chandraj Singh was examined to prove NCR dated 26-5-1963 by his father and his N.C.R. dated 8-10-1971 and N.C.R. dated 9-9-1977. Though he admitted that these N.C.Rs. were not against the complainant or his family members.
15. The Additional Sessions Judge after going through and analysing the evidence on record held the appellants guilty of the offences charged with and he convicted and sentenced them as stated above.
16. Learned counsel for the appellants challenged the evidence of witnesses mainly on the following rounds :-
1. F.I.R. in this case in ante-timed.
2. Reaching of PW 1 Chandra Mohan Singh at the spot is just a coincidence and saw the accused persons in fleeting glimpse. His conduct was unnatural. He did not go to other persons for help. He did not go to lodge the F.I.R. just after the incident. There was no light out side the Haveli.
3. P.W. 2 Smt. Saroj Devi was not present at the spot. Her conduct was unnatural. After seeing the incident, she went inside the room and slept there and she came out of the room at about 8.00 a.m. when the police persons and other persons had arrived there. Her statement was not recorded till 13-7-1994.
4. P.W. 3 Jai Ram did not see the incident. His conduct was also unnatural. After seeing the incident, he hid himself behind the bushes till dawn and then he went to his village and returned along with various persons at the spot where the police personnel and villagers had already arrived. His statement was also not recorded till 13-7-1994. All the witnesses were totally unreliable.
17. Before adverting to the submissions of the learned counsel for the appellants, we would like to examine the evidence of relevant witnesses.
18. Chandra Mohan Singh PW 1 deposed that Dharmendra Singh, Pushpendra Singh, Jagvir Singh are residents of village Kamra Bagh, while Narendra Singh Yadav, Sanjeev Yadav and Gopal Singh Kori are residents of village Nagla Babu. The complainant and his family members had purchased half portion of the Haveli. Dharmendra was residing in the other half portion of that Haveli. Other five accused were friends of Dharmendra Singh and they used to visit him at his house, hence they were very well known to him. Nagla Babu is at a distance of one Kilometer from the place of occurrence. He had also made it clear that Raghuraj Saran Singh, Shiv Saran Singh and Mahavir Saran Singh were grand-fathers of Dharmendra accused. Giridhari Saran Singh was son of Raghuraj Saran Singh and Dharmendra Singh is son of Girdhari Saran Singh, Shiv Saran Singh and Mahavir Saran Singh were living at the place of their in laws for about twenty years. Dharmendra Singh wanted to purchase the land and the house property of Shiv Saran Singh and Mahavir Saran Singh, but he could not do so due to insufficiency of money. The complainant and his family members purchased half portion of Haveli with temple, Kothi, 13 1/2 Bighas land, the share of Mahavir Saran Singh ad Shiv Saran Singh. The temple is adjoining the Haveli. Dharmendra was residing in the share of Raghuraj Saran Singh while the complainant and his family members were residing in the share of Shiv Saran Singh and Mahavir Saran Singh in the Haveli. There was a main gate of the Haveli for both the portions. From the Kothari there was two doors, one was for the accused Dharmendra and other was for the complainant party. There was a partition wall in the Haveli. Dharmendra was harbouring enmity against the complainant due to shares purchased by them. He used to extend threats. Km. Reeta was niece of the complainant. She was studying in G.S.S. Balika Schools, Mursan in High School. She had complained that Narendra Yadav resident of Nagla Babu used to tease her and outrage her modesty. A complaint was made to the family members of Narendra and warned that he should not do any such activity in future. About 4 or 5 days prior to the incident. Km. Reeta had gone to cattle pond for preparing the cow dung cake where Narendra Yadav again misbehaved and tried to outrage her modesty. She was also threatened that in case she makes any complaint, she will he killed. She made a complaint to her uncle, the complainant, and he along with his son Narendra Singh went to Narendra Yadav and gave beating to him, which annoyed him and his other companions.
19. Chandra Vir Singh, his wife Saroj Devi, son Ajai Singh and complainant with his wife Ramwati, son Narendra Singh, Ravindra Kumar and Km. Reeta daughter of Chandra Vir Singh were residing in the Haveli at the time of incident. In the evening of the day of incident, i.e. 26-5-1994, the complainant, with his brother Chandra Pal Singh and nephew Ajai Singh had gone to attend a marriage party in village Belot by a scooter. They left Pitambar Singh, Smt. Ramwati Devi, Narendra, Ravindra Singh and Km. Reeta, father, wife, son, nephew and niece, respectively. Two days prior to the incident i.e. on 24-5-1994, Smt. Saroj Devi hads gone to Nagla Bhujia, P. S. Sadabad. The complainant party returned at about 3.00 a.m. in the night of 26/27-5-1994. As soon as they reached near the Haveli and temple, they saw Dharmendra Singh, Pushpendra, Jagvir, Narendra, Sanjeev Yadav, Gopal Kori coming out of the Haveli, holding knives in their hands and going towards the east of Nagla Babu. The complainant asked Dharmendra as to why they were running, at that time the accused were frightened. The complainant and his companion identified them in the head light of the scooter and in the electric light. Thy went inside the Haveli and found that a Petromax lantern was burning on the partition wall and found his father Pitamber Singh, wife Smt. Ramwati Devi, Son Narendra Singh, nephew Ravindra Singh and niece Reeta lying in the pool of blood and they had knife injuries on their bodies. Reeta was found lying in front of verandah and she was naked from lower half portion of the body and that naked body was covered by a Dhoti. They trembled and terrorised that no person remained alive inside the house. Their condition was just like insant and they failed to think as to what they should do. They sat outside the Haveli and started weeping. In the morning some neighbours gathered there and they asked them to take steps with courage. Some of them asked whether any report has been lodged then the complainant regained his senses and dictated a report to his nephew Sanjai and then he signed it and sent to the police through Chandra Pal Singh. This report was lodged at 7.04 a.m. at the police station Mursan, District Aligarh. At about 8.00 a.m. the police reached the spot. At the time when the complainant, his brother and nephew had gone to attend the marriage party in village Belot, they had left Baba Sukh in the temple.
20. The Investigating Officer recorded his statement and that of Ajai Singh, Smt. Saroj Devi who came down from upper storey, Baba Sukh Ram and Jai Ram who is resident of Nagla Gopi. He used to come to see Baba Sukh Ram at the temple. The I.O. inspected the spot. He recovered blood stringes of cot, blood stained earth blood stained bed sheet, a piece of broken patra, skirt, blouse, Chaddhi and the recovery memos were prepared. The clothes of Reeta, Narendra, Ravindra, Ramwati Devi and Pitambar Singh, white bed sheet were blood stained. They were taken into custody and relevant memos were prepared. The petromax was also taken into custody and given in the supurdgi of the complainant and a supurdgi memo was prepared. The invitation card of the marriage party was handed over during the investigation to the Investigation Officer. Dog squad was also brought at the spot. The squad went inside the room of Dharmendra from where a bottle of wine, two glasses, pieces of bidis, gas cylinder and gas stove were recovered. Thereafter the dog came out of the house. The inquest reports were prepared and the dead bodies were sent to morturary for post-mortem examination and they were handed over to them after post-mortem examination. When the police was present at the spot and was taking the statements of the witnesses, Saroj Devi came from the room of the upper storey and she was also interrogated. She told him that she had witnessed the incident but due to fear she hid herself in the room. The P.A.C. was deputed at the spot for about two months from that date. In his cross examination he made it clear that his terms with the fellow villagers were not good.
21. The evidence of this witness was challenged by the learned counsel for the appellants that it was a just coincidence that the accused persons were going from the Haveli after committing murders and the complainant with his brother and nephew reached there and saw the accused persons coming out of the Haveli, hence no reliance can be placed on his testimony. We do not find substance in the submission of the learned counsel for the appellants inasmuch as there is no inherent improbability in the statement of this witness. The complainant with his other family members saw the accused persons coming out of the Haveli from a distance of 5 steps. The gate of his house was at a distance of 5 or 7 steps from the place where he, his brother and nephew saw the accused coming out of the gate of his house. Their return at his own house about 3 a.m. in the night after attending marriage party was quite natural, he nominated the accused persons in the F.I.R. Thereafter he made statement under Section 164, Cr.P.C. to the I.O. and deposed the same on oath in the court. He cannot be said to have invented himself to be a witness. His statement is throughly consistent. We may point out a case 'State of Punjab v. Hari Singh' reported in AIR 1974 SC 1168 wherein the trial Court convicted the accused persons but the High Court reversed it into acquittal on the ground that Zora Singh must have invented the story that he got up to urinate so that he may pose as an eye witness. Even it was a just coincidence that he woke up to urinate and saw the incident. The apex Court rejected the reasoning of the High Court and allowed the State appeal affirmed conviction and sentence of accused was awarded by the trial Court. The relevant portion thereof is reproduced below (at p 1172 of AIR) :
"It is in dealing with the evidence of Zora Singh PW 3 that the High Court seems to us to have adopted a patently erroneous approach and to have given grounds which do not appear to us to be reasonably sustainable. The High Court seems to have assumed that Zora Singh must have invented the story that he had got up to urinate sc that he may pose as an eye witness of the occurrence. The ordinary presumption is that a witness speaking under an oath is truthful unless and until he is shown to be untruthful or unreliable in any particular respect. The High Court reversing this approach, seems to us to have assumed that witnesses are untruthful unless it is proved that they are telling the truth. Witnesses, solemnly deposing on oath in the witness box during a Trial upon a grave charge of murder, must be presumed to act with full sense of responsibility of the consequences of what they state. It may be that what they say is so very unlikely or unnatural or unreasonable that it is safer not to act upon it or even to disbelieve them. The High Court had no doubt tried to show that this was the position with regard to the whole of the testimony of Zora Singh. But we do not think that it was successful."
22. Learned counsel for the appellants next contended that this witness had not full opportunity for identifying the accused persons, when this witness saw the accused persons coming out of the Haveli and going towards east in fleeting glimpse and it was highly improbable for him to identify all the six accused persons in fleeting glimpse. This contention had also no legs to stand inasmuch as all the six accused persons were previously known to him, three of them are residents of the same village and rest three are residents of village Nagla Babu which is at a distance of one km. All of the them used to visit the house of Dharmendra Singh. The witness identified all of the accused in the head light of the scooter, electric light of the bulbs on the Haveli and Kothi and full moon light. There was no difficulty for him to identify all the known accused persons. Dr. Hans Gross in his Text Book 'Criminal Investigation' I Edition 1962 gave out the human perception in the moon light for identification on page 159 in the following words :-
"By moon light one can recognize, when the moon is at quarter, persons at a distance of from twenty one feet, in bright moon light at twenty three to thirty feet; and at the very brighest period of the full moon, at a distance of from thirty three to thirty six feet moon light may be increased."
23. Similarly, Dr. Modi in his Text Book "Medical Jurisprudence and Toxicology" Twentieth Edition of 1977 on page 61 described the moon light for recognition in the following lines :-
"According to Tidy, the best known persons cannot be recognised in the clearest moon light beyond a distance of seventeen yards. Colonel Bary, I.M.S. is of opinion that at distances greater than 12 yards the stature or out line of the figure alone is available as a means of identification."
24. Night of the incident was of a full moonlit night. PW 4 Chandra Mohan Singh deposed in cross examination that he saw the accused persons from a distance of 5 or 7 steps from the gate of Haveli. It seems that he was at a distance of 5 or 7 steps from the gate of the Haveli when the accused were coming out of the Haveli. In view of the texts stated above he was within the limits of recognition in the full moon light and was in a position to recognize the known persons (accused). He has deposed that he recognised the accused persons coming out of the Haveli from a distance of 5 or 7 steps. We find no reason to discard his testimony.
25. Besides full moonlight there was head light of the scooter which is more effective and more creative of illumination for identification and provide clear vision to enable him for identifying the known accused persons. Known persons can very well be identified within seconds even in fleeting glimpse. This witness had full opportunity and sufficient light for recognition of the accused persons.
26. Learned counsel for the appellants challenged the statement of this witness on the basis of omissions of certain facts in the F.I.R. and in his statement recorded under Section 161, Cr.P.C. This witness deposed that he had left Baba Sukh Ram in the village. With reference to the F.I.R. and his statement recorded by the I.O. The witness admitted in his statement that when they went to village Belot, Baba Baba Sukh Ram was present in the village and it was not mentioned in the F.I.R. He also admitted that he had not stated to the I.O. that Baba Sukh Ram was present in the village at that time. It was further admitted by him that he did not state to the I.O. regarding their going by scooter of Har Narain. He also admitted to have told about their going by a scooter. It was further pointed out that there is no recital in the F.I.R. or in his statement recorded by the two I.Os. that this witness asked Dharmendra as to where he was going. He admitted that this fact was not disclosed to the I.O. When he was again interrogated by the second I.O. he told about this fact to him. He could not explain as to why this fact did not find place in his statement recorded by the Inspector C.I.D. He further pointed out that the witness admitted that he remained weeping, shrieking for about 2-3 hours but nobody came to him. This fact is not mentioned in the F.I.R. nor in his statement recorded under Section 161, Cr.P.C.
27. Learned counsel for the appellants referred the statement of this witness recorded under Section 161, Cr.P.C. in respect of which he admitted that he had not mentioned that Reeta had gone to cattle pond for preparing cow dung cake. There is a recital in the F.I.R. that about 4 or 5 days prior to the date of lodging of the F.I.R. his niece Reeta had gone to cattle pond where Narendra teased and outraged her modesty. It is true that in the F.I.R. it is not mentioned that she had gone to cattle pond for preparing the cow dung cake. Going of Km. Reeta to cattle pond is mentioned in the F.I.R. for what purpose she had gone to cattle pond is not mentioned in the F.I.R. that makes no difference at all. The omissions in the F.I.R. and statement recorded under Section 161, Cr.P.C. referred to by the learned counsel for the appellants are of minute details which are natural and irrelevant to affect the testimony of the witness.
28. Learned counsel for the appellants further pointed out that the witness could not tell about abadi (number of persons living) of the village of Nagla Babu. He had no relations and landed property there and he was no visiting that village hence he was not in a position to know the accused residents of village Nagla Babu. Thus the identification of the accused residents of village Nagla Babu by this witness is doubtful and cannot be relied on. Narendra was teasing and making assault and outraging modesty of his niece. There is no question that he was not known to this witness. He had made complaint against him to his parents and he was also beaten by this witness. So far as the other two accused persons residents of village Nagla Babu are concerned, they were friends of Narendra and were visiting Dharmendra Singh at the Haveli. Thus in our opinion all the three accused persons belonging to Nagla Babu were previously well known to this witness. It was also pointed out that this witness has not mentioned in the F.I.R. or in his statement recorded under Section 161, Cr.P.C. that Sanjeev Yadav and Gopal are friends of Dharmendra Singh. The fact is mentioned in the F.I.R. that they used to visit the house of Dharmendra Singh and entertain there. Visiting or entertaining Dharmendra Singh by Sanjeev Yadav and Gopal itself shows the friendship amongst them. The F.I.R. and the statement recorded under Section 161, Cr.P.C. are not encyclopaedia to give each and every minute details which had come into light during the deposition in the Court. Sometime witnesses do not think it proper to get it mentioned in the F.I.R. or in their statements recorded under Section 161, Cr.P.C. but it does not mean that the facts do not exist.
29. The learned counsel for the appellants contended that the relations of the complainant and Dharmendra were cordial. Dharmendra was living alone for about 5 or 6 days prior to the incident. His other family members including wife and children used to reside there. The witness admitted that they used to see whether Dharmendra had come and the outer door had been bolted but if he had not come the house was bolted from inside. In case Dharmendra came later on, the gate of the house was opened by them and Dharmendra went to his courtyard. As such it was not expected of Dharmendra to commit such heinous crime. The witness admitted in his cross-examination that Dharmendra was on inimical term but it was not expected of him for such atrocious action.
30. The general principle of appreciation of evidence is that in case the testimony of a witness regarding his presence at the scene of occurrence appears to be truthful in the fact and circumstances, the minor omissions or additions in his statement are not considered to make his testimony untruthful or unreliable.
31. In the present case we have examined the evidence from each and every corner and came to the conclusion that this witness reached at the time when the accused persons after committing five murders were coming out of the main gate of Haveli and he had full opportunity to recognise all of them and the accused were holding knives in their hand at that time. His testimony is our opinion is truthful, unimpeachable and inspires full confidence. Mere omission of certain facts in the F.I.R. or in the statement recorded under Section 161, Cr.P.C. or additions in deposition do not make his testimony unreliable.
32. The prosecution has also relied on the testimony of Smt. Saroj Devi, PW 2. She deposed that Dharmendra, Pushpendra, Jagvir, Narendra, Sanjeev Yadav and Gopal were previously known to her. All of them were standing in the dock and she knew them very well prior to the incident. The Haveli in which they were living was purchased from the grandfather of Dharmendra which annoyed him. The Haveli had two portions-one portion was occupied by them while Dharmendra was residing in the other. There is a partition wall in the Haveli. The house was electrified inside and outside both. The electric bulbs were fixed on the gate of the Haveli and on the Kothi which is near the temple. Besides the electricity they also used petromax. She had gone to village Nagla Bhuria prior to occurrence where sister of her husband's father was ill and she had gone to see her. She had returned to her house (Haveli) at about 7.00 or 7.15 p.m. in the night of the incident. At that time she found Baba Sukh Ram at the temple and husband's father Pitambar Singh, Ramwati Deorani, her daughter Km. Reeta, Ravi and Narendra sons of her Dever. She inquired from Reeta about Chandra Mohan and Ajai as to where they had gone. She told that Chandra Mohan, Ajai and Chandrapal had gone to village Belot. She also informed her that they would return at about 3.00 in the night. Pitambar Singh used to sleep outside the Haveli, Reeta was studying in Mursan. She used to inform that Narendra Yadav was in the habit of teasing her in the way. Chandra Mohan had complained to the parents of Narendra Yadav regarding teasing of Km. Reeta. After that complaint, Reeta had gone to cattle pond for preparing cow dung cake where she met Narendra who threatened her that in case she would make any complaint in future, he would kill her. Reeta complained regarding this fact to this witness and she also made a complaint to Chandra Mohan. Chandra Mohan and Narendra gave beating to Narendra Yadav. That incident took place about 4 or 5 days prior to the incident. Her father-in-law after taking dinner, was sleeping on the Chabutra outside the kothi. The electric light was there but she could not say as to whether the light was available in the night of occurrence. When they took dinner the petromax lantern was burning which was kept on the partition wall in the court yard of the Haveli. After taking dinner she had gone to sleep in her room on the upper storey. There is stair case having a door for the upper storey. At that time she had bolted the door of the stair case from inside. At that time she left Ramwati, Reeta, Narendra inside the courtyard. After mid night she heard cries, weeping and shrieks from the court yard. She woke up and came at the 'mudeli' and saw in the light of petromax lantern the six named accused persons who had knives and they were assaulting Pitambar Singh, Ramwati, Reeta, Ravi and Narendra with their Knives. After seeking the incident, she came perplexed and feared. She entered into her room and bolted the doors from inside. She heard noise in the morning then she woke up. She opened the room and came out of it. It was break-fast time. There was complete light of sun. The sun had arisen when she descended and reached there. She found various persons and police standing there. She found Reeta lying in the Verandah, Narendra on the ground. Ravi, Ramwati and Pitamber were lying dead on their cots. She told about the incident to the police persons. She also stated that she had heard that Dog was also called there. She could not say as to what time the dead bodies were sent for post-mortem examination. About a month and a week Chandra Mohan informed her that her statement was not recorded by the I.O. She came to Aligarh and at that time Sukh Ram and Jai Ram had also come. She dictated a draft of affidavit to a Typist there. On her affidavit her photo was also affixed. She was interrogated by the Inspector of C.I.D. She had told the facts to him which she had stated in the court on the date of her deposition. She also made it clear that besides Dharmendra, she knew all the accused persons from before because they used to visit Dharmendra and entertain drinking and eating with Dharmendra. By slip of tongue she stated that both the family members were residing in the Kothi which had one main gate and thereafter a room (Dwari) which has two openings. She corrected that it was Haveli and not Kothi.
33. Thus she is the eye witness of the occurrence and her statement was challenged on the ground that her conduct was unnatural as after seeing the incident she went inside her room of the upper storey. Her statement was not recorded by the I.O. of Civil Police and she is manufactured witness but this aspect will be considered later on.
34. Learned counsel for the appellants submitted that her maternal house is in village Rashipur. She showed her ignorance about the places where her sisters were married. There were three sisters including herself. She stated that she had no knowledge where sisters were married. She also told that she does not know that her sister was married in village Kila (Mursan). Although she admitted that Satendra was her brother-in-law, but she could not say as to whether Satendra was residing a Killa. It was also pointed out that the family members of Pushpendra were not known to her. She stated that she knew the residents of Nagla Gopi but she does not know Mahavir and Khajan Singh. She was not aware about the name of the mother of Jagvir. She had never seen her. She also did not know father. brother and sister Sharda of Jagvir. She also does not know mother of Pushpendra. She was not aware of the other persons living in village Kamra Bagh. On the basis of that statement the contention of the learned counsel for the appellants is that how she was able to know Pushpendra and Jagvir when she was not aware of other family members of these two accused persons. Jagvir and Pushpendra are friends of Dharmendra and they used to visit Dharmendra where they entertained eating and drinking. As such we do not find any force in the contention as she hid not know Jagvir and Pushpendra prior to the incident.
35. Learned counsel for the appellants again pointed out that she had gone to Aligarh. At that time Jai Ram and Baba Sukh Ram were also present with Chandra Mohan. All of them got typed their affidavits. Learned counsel for the appellants also pointed out certain omissions in her affidavit such as Reeta had informed that Chandra Mohan and others had told her to return at about 3.00 a.m. in the night and that fact is also not mentioned in the statement recorded by the C.I.D. She could not explain as to why that fact was not mentioned in her statement recorded by the C.I.D., particularly when she had stated about that fact to him. In the affidavit it is also not mentioned that after dinner Pitambar had gone to the Chabutra for sleeping. There is not recital regarding light in the affidavit and in her statement recorded by C.I.D. Inspector. It is also pointed out by the learned counsel that she and other family members had not talking terms with Gopal; hence she was not in a position to recognise him. But she had explained that he used to visit Dharmendra and Dharmendra called him as Gopal hence she knew the name of Gopal accused. For about a year prior to the incident Gopal was visiting Dharmendra where they took daily drinking etc. but none of the family members objects the habit of Dharmendra or any other accused or made any complaint to police station which was not liked by her family members. She did not know the names of father or brother of Gopal accused. She also did not know that Lalta Prasad, a brother of Gopal, was a practicing lawyer at Hathras. She made it clear in her cross-examination that she became faint and unconscious after seeing the accused persons assaulting the deceased and she could not say as to how long her shrieks continued. She regained her senses in the morning. She had not disclosed the fact of unconsciousness and fits either to the I.O. or in her affidavit and she could not explain the reasons therefore. She stated that her statement was recorded by the I.O. of Civil Police. She did not state at what time the statement of Chandra Mohan was recorded. At that time Baba Sukh Ram and Jai Ram were also present. She could not say as to whether their statements were recorded by the I.O. of Civil Police on that date. After giving her statement to the I.O. she again became faint and unconscious. She remained with police only for the period when her statement was recorded. She could not say how far she remained unconscious thereafter. After the night of incident next day she had gone to Nautal Gopi from village Kamra Bagh. She returned after three or four days. At that time she will not find higher officers (SSP) in the village. She did not disclose about the incident to any person till her affidavit was filed and her statement recorded by the I.O.
36. Learned counsel for the appellants submitted that the aforesaid statement of the witness clearly shows that she was a got up witness and was not present in the night of incident at the house but we are not in agreement with the learned counsel inasmuch as she could not be nominated as witness in the F.I.R. as well as in the statement of the complainant recorded under Section 161, Cr.P.C. only due to reason that the complainant along with his brother and nephew had gone at about 5 p.m. to another village to attend a marriage party while Smt. Saroj Devi came at the Haveli at about 7 or 7.30 p.m. In the morning the I.O. recorded his statement after reaching at the spot, by that time she was sleeping in her room on the upper storey. As such the complainant could not contact her and had no knowledge that she had arrived and was also present in the house at the time of incident. She is a rustic lady of rural area. Admittedly after the incident, at the venue four or five inspectors, Sub-Inspectors, S.P. (R.A.), S.S.P., D.I.G., D.M. C.Os and police of three police stations were present. The witness stated that she was suffering from fits for about 10 years and she has produced medical prescriptions of regular treatment of her fits. Where 5 persons being but chered by the accused persons and she saw the accused persons committed murder of 5 persons with knives there is nothing unusual for this rustic lady of rural area to become faint and unconscious and coming out of her room after the police had come. She was suffering from serious fits and after seeing the terrible and horrible scene she became faint and unconscious; hence nothing was improbable in her conduct. After going through her statement we find that she was present in the house at the time of incident.
37. Learned counsel for the appellants again submitted that her statement was not recorded by the I.O. at the spot and she was manufactured later on and her statement was recorded only to make the incident witnessed by her. We are not convinced at all. When she came form her room which was on the upper storey there were various police personnel. If she had disclosed about the incident to any of them that she had given her statement to the I.O. the impression of such type cannot be said to be unreasonable, in view of her being a rustic lady of rural area in the presence of police of three police stations and of high officers at that time.
38. Learned counsel for the appellants pointed out omissions of certain facts which were deposed in her statement in the court and had not been mentioned in her statement recorded under Section 161, Cr.P.C. She gave out a concise statement in her affidavit to show that she was present at the spot and she had witnessed the incident. Various facts had not been inquired by the I.Os.; hence she had not told about them. These facts did not affect the veracity of her testimony. If we come to the conclusion after going through her statement that she was actually present and saw the incident, her statement cannot be brushed aside only on the basis of omission of certain facts in her affidavit and her statement recorded under Section 161, Cr.P.C. We do not find any inherent improbability in her statement that she was present in her room at the time of the incident and had witnessed the incident. Thus we find the testimony of this witness is trustworthy and acceptable.
39. The prosecution has also examined Jai Ram (PW 3) regarding the incident. He deposed that he knew all the six accused persons standing in the dock prior to the incident. He is resident of village Nagla Gopi which is at a distance of about 1(1/2) Kos (about 2 miles) and the distance between Nagla Babu and Nagla Gopi is about 2 Kos (about 3 miles). On the day of incident, he had come to meet Baba Sukh Ram who was present at the temple situate opposite to the Haveli of the complainant. The witness had come in the evening at about sunset, and stayed with Baba Sukhram. There was a lamp (Deepak) in the temple. There was electric bulb on the gate of Haveli and on the Kothi besides the temple. He woke up on hearing the barking of dogs and saw that all the six accused persons were going from the side of the temple to the Haveli. When they reached near the Haveli, first of all Dharamendra made Pitambar Singh awaken who was sleeping by the side of the Kothi. He saw all those accused in the light of electric bulbs. They had taken Pitamber Singh inside the Haveli. After 5 to 7 minutes he heard shrieks from the Haveli. Both Baba Sukh Ram and this witness went to the Main gate of the Haveli and saw peeping through its doors all the 6 persons assaulting five persons with knives inside the house and saw the activities of the accused persons in the light of petromax lantern which was kept and burning on the partition wall. After seeing the horrible scene he ran away in order to save his live. He hid in the ditch behind heap of bricks (Chatta) where there was a bush, after dawn he went to his village Gopi Nagla where he disclosed about the incident to the villagers and he returned at about 9.00 at the place of occurrence and saw various police persons besides the public present there. He also saw Chandra Mohan and Saroj as well. At the time when Smt. Saroj was giving her statement to the Inspector he was standing behind her. Thereafter he also disclosed to the Inspector that he had also witnessed the incident and requested him to record his statement. He also gave his statement to the police Inspector. After about one month and a week he was informed by Chandra Mohan that his statement was not recorded by the Inspector then he went to Aligarh where he got his affidavit typed out and affixed his photograph thereon and that affidavit was given to C.I.D. Officer. In his cross examination he made it clear that there was no bulb light on the temple.
40. The statement of this witness was disputed by the learned counsel for the appellants that he is also a manufactured witness. His conduct was also unnatural and his statement also suffered from the informity that his statement was not recorded by the I.O. for a long time. Identification of accused persons by him at the spot was not reliable inasmuch as he had no relation in village of Babu Nagla. He had not visited the village Nagla Babu and he did not know any resident of Nagla Babu. Hence his identification is not worthy of reliance. The learned counsel for the appellants also referred the affidavit and statement recorded under Section 161, Cr.P.C. to show that he had not mentioned the fact that he met the accused at the time when he visited Baba Sukh Ram where accused used to come. This fact does not find place in the affidavit nor in the statement recorded under Section 161, Cr.P.C. and the witness could not explain about this fact as to why this fact was not mentioned in his affidavit and statement. We have earlier pointed out that some omission of facts in the affidavit which was a concise statement of fact that he had witnessed the incident and the statement recorded under Section 161, Cr.P.C. the whole testimony of the witness cannot be thrown out unless that omission materially affect the testimony. The affidavit is only a concise statement of the fact that he had witnessed the incident. If the I.O. has not inquired about various facts or the witness under wrong impression deposed that he had disclosed those facts to the I.O., omission regarding those facts in his statement recorded under Section 161, Cr.P.C. will not detract the reliability of the witness.
41. The learned counsel for the appellants again pointed out the omission regarding light of petromax lantern inside the house and electricity light on the Kothi and the Haveli besides the temple. We find in his affidavit that there was light of bulb out side the house and inside the Haveli. The observation of learned trial Judge is that there was a mention of the light in the affidavit and his statement under Section 161, Cr.P.C. but petromax was not mentioned therein. The light of electric bulb on the Kothi and the Haveli has been proved by Chandra Mohan whose testimony was very natural. The omission of the petromax by this witness in his affidavit and statements recorded under Section 161, Cr.P.C. will not affect the truthfulness of this witness.
42. The learned counsel for the appellants again challenged the evidence of this witness on the ground of introduction of fictitious story that he got up after hearing the barking of dogs and saw the accused persons going inside the Haveli and saw the incident peeping through the doors after hearing the shrieks of the deceased persons. But we are unable to agree with the learned counsel for the appellants inasmuch as the dogs in the village, if some persons go in the night, start barking; hence nothing is improbable that the witness awoke after hearing the barking of dogs. We have discussed the facts and circumstances of the case State of Punjab v. Hari Singh (AIR 1974 SC 1168) (supra) wherein the witness woke up to urinate and saw the accused persons. The High Court set aside the conviction and returned the verdict of acquittal which was reversed by the Supreme Court holding that there was nothing improbable in the facts and circumstances that the persons woke up to urinate which was just a coincidence to witness the incident.
43. From the lengthy cross examination of this witness learned counsel for the defence could not point out any inherent improbability or any fact leading to an inference of unreliability. Hence in our opinion the testimony of this witness cannot be brushed aside only on the ground that his statement was not recorded by the Ist I.O. and he is not named in the F.I.R. or his conduct was not proper as expected, which will be discussed later on. This witness deposed that he was sleeping with Baba Ram Sukh Das on the chabutra of the temple which was in front of the Haveli. He woke up on the barking of the dogs and saw all the six persons going inside the Haveli. After 5 or 7 minutes he heard shrieks of deceased persons inside the Haveli. He saw the accused persons assaulting with knives. He also explained that the accused persons were known persons. They also met Baba Ram Sukh Das and he saw them visiting Baba Ram Sukh Das. At the time of incident he apprehended great danger of his life, he could have been dealt with in the same manner. He hid in a ditch behind the heap of bricks. He went to his village in the dawn. We can imagine what would be condition of a witness who saw actual butchering which must have reflected him for several months. The explanation of the prosecution of omission of his name in F.I.R. and statement of PW 1 is acceptable that PW 1 had no knowledge that this witness was also present and saw the incident. On over all assessment of the testimony of this witness it appears that he was present and saw the accused persons going inside the Haveli and also saw the accused persons assaulting the deceased with their knives. His testimony is reliable and acceptable.
44. Now we revert to the general submission of learned counsel for the appellate.
45. Learned counsel for the appellants submitted that the names of PWs 2 and 3 were not mentioned in the F.I.R. and their statements were recorded under Section 161, Cr.P.C. by the Investigation Officer C.P. C.I.D. after about one month and 18 days; hence their evidence is not believable at all.
46. We have given our anxious thought to the submission made on behalf of the appellants. There is no bar in the Evidence Act or any other rule of law to consider the evidence of a witness who is not named in the F.I.R. or he is examined at later stage after one or two months by the I.O. There is no law to discard the testimony of such witnesses ipso facto as unreliable only on the ground that the witness is not mentioned in the F.I.R. or his statement was recorded at a later stage where the circumstances of the case lead to an inference that he was present at the scene of the incident and the prosecution has come forth with the explanation for omission of the name of the witness in the F.I.R. or his delayed examination by the I.O. It is certain that the evidence of such witness is subject to close scrutiny in the facts and circumstances of the case. The omission of a witness's name in the F.I.R. or late examination of the witness by I.O. is not by itself to be a ground for rejection of his testimony. Now we examine the circumstances of the case in this respect. The Ist I.O. investigated the case improperly or unvigilantly either negligently or deliberately. The Ist I.O. committed the following irregularities during the period in which he investigated the case.
(i) Scooter and petromax were mentioned in the F.I.R. itself. Even then he neither examined them nor he took them into custody, nor probed into their existence at the time of incident.
(ii) He had not inspected properly the house where the incident took place. He ought to have carefully seen the room of upper storey also and surroundings of the house. Had he inspected the room of upper storey, he could have found the presence of Smt. Saroj Devi PW 2 in the room of the upper storey and enquired her regarding the incident.
(iii) The Investigating Officer (Ist) got disclosed from the accused persons regarding blood stained knives hidden by them. He straightaway went to the place where the knives were said to have been hidden by the accused persons. It is a matter of chance that the knives could not be recovered either due to insufficient location of that place or inefficiency of the I.O. Had the knives been recovered by him on the information received from the accused persons, this recovery was not admissible and that recovery could not come under the purview of Section 27 of the Evidence Act.
(iv) He had not recorded the statements of Smt. Saroj Devi, Baba Sukh Ram and Jai Ram.
(v) He also did not inquire as to whether any person was present at the temple which was in front of that Haveli. Had he inquired about the presence of any person at the temple, he could have received information regarding the presence of Baba Sukh Ram and Jai Ram at the temple in the night of the incident.
(vi) He had also not inquired from the persons living in the vicinity of the incident as to whether they had seen the incident or not.
(vii) He also did not prepare the site plan properly. He could have mentioned the place where the complaint was present with his companions on the scooter at the time when the accused were coming out of the Haveli.
(viii) He had not properly in investigated regarding the light available to the witnesses for identifying the accused persons.
47. Due to reasons aforesaid PW 11 Baij Nath Singh deposed that the disciplinary action has been taken against the I.O. Sri Om Prakash Sachan on the ground that he had committed irregularities in the investigation hence the investigation was transferred to Sri Gaya Prasad, who of course, investigated the case for a week only and he has not been examined by the prosecution in this case. Then PW 11 Baij Nath Singh took over the investigation and conducted the same.
48. Where the investigation was not being conducted properly and fairly, it is but natural that the statements of PW 2 and PW 3 were not recorded by the I.O. Smt. Saroj Devi PW 2, is a rustic lady of rural area. When she came from the room where she was lying in fainted condition, she found several police personnel. Admittedly Inspectors, Sub-Inspectors five in numbers, C.O., S.P. (R.A.) along with police staff of four police station were present. The D.M. S.S.P. and various authorities were also present at that time. She disclosed regarding the incident to some of the police personnal considering that he was investigating the case. He might not be the I.O. but under misunderstanding or wrong impression of the fact the lady thought it that she had given her statement regarding the incident to the police. At the later stage, it came to know that her statement was not recorded by the I.O. She filed an affidavit on 6-7-1994 and on the basis of that affidavit, the police recorded her statement. Her statements were recorded on 13-7-1994 and 29-7-1994. As PW 2 Smt. Saroj Devi came at about 7.00 p.m. as such PW 1 had no knowledge regarding the presence of PW at the house, hence he had not named her in the F.I.R. as a witness. The statement could not be recorded by the I.O. after lodging of the F.I.R. only due to misunderstanding of the fact and negligence of the I.O. In the circumstances, it cannot be denied that Smt. Saroj Devi was not present in her room of the upper storey of the house at the time of the incident. If she was present and she had seen the incident, there is no reason as to why her statement should not be considered.
49. Similarly PW 3 Jai Ram was not named in the F.I.R. as witness of the incident. He had come at about sunset to meet Baba Sukh Ram Das at the temple which is in front of the Haveli. He was also sleeping with the Baba Sukh Ram Das. He woke up on the barking of dogs in the night and saw all the six accused coming to the Haveli where they took Pitambar Singh from the outside to inside the Haveli. He heard cries from the Haveli, he along with Baba went there and saw after peeping through doors, fierceful scene of murders by the accused persons. He was afraid of so much that he ran away and hid himself behind the bushes near the brick kiln till dawn. He went to his village Nagla Gopi and returned with several village fellows to the spot where he found a gathering of various persons, police Sub-Inspectors, Police Staff. He saw Smt. Saroj giving statement to Sub-Inspector and thereafter he also gave his statement about the incident. The complaint was not aware of the arrival of this witness as the witness reached the temple after his departure to village Belot, hence he could not be named by him in F.I.R. This witness under the misunderstanding gave his statement to some police staff considering him to be the Investigating Officer. Can we think that he would have courage to inquire as to which was of the police staff to record his statement. When he could know that his statement has not been recorded, he filed his affidavit. Then his statement was recorded by the I.O. As we have seen the Ist I.O. had not investigated the case properly hence his statement could not be recorded by the Ist I.O. There is satisfactory explanation for not recording his statement by Ist I.O. As such omission of the name of this witness in the F.I.R. and his relayed examination by the I.O. will not effect the credibility of his evidence.
50. Unnatural Conduct of the witnesses :-
Learned counsel for the appellants submitted that the conduct of the PWs was unnatural and was not acceptable in the facts and circumstances of the case. PW 1 deposed that after seeking the dead bodies of his family members in the Haveli be along with his brother and nephew came out and sat outside it where they continued weeping, wailing, shrieking till about 6.30 a.m. from the time of their arrival there (3.00 a.m.). They did not go to other persons of the village for help, to inform them about the incident, to the police at a distance of about one Km. for lodging report. Some one asked him as to whether report had been lodged, then he dictated the F.I.R. and sent it to police station. PW 2 Smt. Saroj Devi did not make hue and cry or raise alarm for help after she saw the murderous assault by accused persons with knives on her own family members and she did not make any attempt to save the deceased persons. She went inside her room, locked it from inside and slept there and woke up after hearing the noise of police and various persons gathered there at about 8.00 a.m. She did not disclose to I.O. about the scene witnessed for at long intervals. PW 3 Jai Ram woke up on hearing the barking of dogs and saw the accused persons going towards the Haveli and entering inside it. He along with Baba went to see the happening inside the Haveli after hearing the shrieks from the Haveli. He saw after peeping through the doors that the accused were assaulting the deceased persons with their knives. He ran away and went to a place behind the bushes due to fear he remained there till dawn-break. He went to his village and returned with some persons of his village to spot at the time when police had reached and various persons gathered there. He neither went to police station to inform about the incident nor he raised alarm or contacted other persons of the village of occurrence for the help of victims. He did not disclose about the incident to the I.O. for about one and half months of the incident.
51. We will first consider unnatural conduct of the witnesses.
52. There is no text or any rule of universe to describe the natural or human conduct in a particular situation, a person would act or behave in particular manner. Every person reacts in his own way. Such as in a train dacoity, a person seeing the dacoits surrenders all his property without any resistence, while other may resist in surrendering his property to the dacoits. Few may die but do not yield. Some may cowardly run away from the clutches of the dacoits while others may hide in a safe place to save their skin. A courageous person takes active role of catching hold of the dacoits without caring of his own life. Similarly, in a case of murder, one may shriek and start weeping. Some may run to save their own skin and seldom person shows his courageous conduct in fighting for saving others or catching hold or chasing the miscreans to apprehend. It depends upon mental, physical structure, stints of cowardness or courage of a person, social structure where he is residing and what are his relations with the persons living in the locality and society. We cannot ignore cases where the gruesome murders of kins of family members are committed by named miscreants and some of their family members sustained injuries in broad day light incident but the complainant and injured persons resiled from their earlier statements and F.I.R. In cross examination deposing that they could not recognise the real assailants, and they had not been examined by the I.O., their conduct in such fashion is only to save skin of remaining members of the family and allow the accused for acquittal. Course on the basis of present structure of law knowing that the witnesses are deposing false, and they have been won over by the accused persons, are helpless to dispense with correct decisions. As such there is no universal law that a particular person will act or behave in particular manner. Act of one person may differ from other in one set of facts and circumstances. There is no rule of law that a particular person has not acted in a particular manner and his action was against human conduct; hence his evidence should be ignored. We are required to examine the facts and circumstances of each case and decide whether the act of such person was justifiable in the facts and circumstances of the case and we have to scrutinize their evidence closely.
53. The Apex Court has laid down circumscription of human conduct of a witness of a murder case in the case of Rana Pratap v. State of Haryana reported in AIR 1983 SC 680 in the following lines (at p 682 of AIR) :-
"Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to rescue of victims, even going to the extent of counter attacking by the assailants. Every one reacts in this own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealiable and unimaginative way."
54. In the case in hand in which five members of the complainant's were brutally murdered. We can visuliase the conduct of this witness in havoc, heart burn horrible, trembling and fierceful scene wherein five members of his family including his wife were lying in cold blood. He could not understand what he should do. In such circumstance, it was nothing unnatural or impossible for one if he would have become insane or even died in shock. After seeing the murder of five members of the family in the Haveli, the complainant his brother and nephew came out of the Haveli and sat out side it, weeping, shrieking and wailing till 6.30 a.m. His terms with fellow villagers were not good. They did not go to other persons for help or to the police station by that time and some persons came there and some one asked him whether report had been lodged at the police station. He replied in negative and then the F.I.R. was dictated and was sent to police station. In our view, there was nothing unnatural or improbable in the conduct of the complainant. Moreover he had not good terms of his village fellows.
55. In similar way PW 2 Smt. Saroj Devi saw accused persons committing murder of her family members from the Mudeli of Verandah. She became stunned and speechless due to shock and went inside the room and locked it from inside due to fear. She is patient of fits for the last 10 years. She filed medical slips and prescription of her disease during her deposition. She due to shock went into fits and slept. On hearing the noice of various persons inside the Haveli, she woke up and came down where she narrated about the incident to some police personnel. We do not find any abnormality or unnaturality in her conduct. We cannot expect more from an illiterate rustic lady of rural area. The informant was not aware of her arrival in the evening. Had there been any possibility of plantation of evidence, he could not have been prevented from nominating her in the F.I.R. as witness. The defence has not disputed the existence of stair case for upper storey and of the room thereon. The First I.O. was most negligent. He did not enquire about the stair cases or inspect door and room of upper storey. No body interrupted her sleep. Had the spot been inspected by the I.O. carefully, he could have found her presence inside the room of upper storey.
56. So far as the conduct of PW 3 is concerned, he woke up on the barking of dogs and saw the accused going inside the Haveli. He heard shrieks and cries of the family members of the complainant's family members after 5 or 7 minutes. He went to the gate of the Haveli and saw the accused persons assaulting the deceased persons with their knives. He was afraid and thought that in case he was seen by the accused persons he would also be dealt with in the same manner. We can imagine the condition of a person who saw horrible and terrible scene wherein he found the accused persons butchering five persons with their knives and hearing shrieks and cries of dying 5 persons. Due to fear he ran and hid behind the bushes near the heap of bricks and he remained there till dawn, then he went to his village and returned with some persons of his village to the spot where he found various persons and number of police staff. Conduct of his hiding behind the bushes till dawn, not doing any thing to help deceased persons by making hue and cry or to go police station is not unnatural human conduct in view of the above discussion.
Ante timed F.I.R.
57. The learned counsel for the appellants further contended that the F.I.R. is ante-timed. It was not lodged at the time alleged by the prosecution. In support of this contention, he submitted that the police reached at the place of occurrence at about 8.00 a.m. and the dog squad was called in order to know about the actual assailants. The dog squad with unit reached at the place of occurrence and could not detect any thing then the inquest reports of the dead bodies were held by three Inspectors and Sub-Inspectors, that is why some offences have not been mentioned in the inquest report and the first page of the inquest reports have been subsequently filled up. The dead bodies were received at the mortuary at 1.30 p.m. on 28-5-1994. Till the receipt of the dead bodies, the matter was thought over and a false F.I.R. was prepared at the later stage. The F.I.R. was written by Ajai but subsequently it was replaced by Sanjai. We have thought over the matter and we do not find any substance in the contention of the learned counsel for the appellants inasmuch as the F.I.R. was lodged at 7.05 a.m. on 27-6-1994 at the police Mursan, district Aligarh. As the names of the accused had already been disclosed in the F.I.R., the Investigating Officer when reached at the place of occurrence, sent some police force in search of the accused persons, but none of the accused could be apprehended. In the evening he again sent the police force in search of the accused persons. Four telegrams on 28-5-1994 between 7.30 a.m. and 8 a.m. had been sent on behalf of Gopal and Narendra accused showing that they had been arrested about 10 p.m. on 27-5-1994 by the police apprehending false involvement (Ex. Kha-16 to Ex. Kha-19). The receipt of dead bodies was noted in G.D. No. 12 of Police lines at 7.20 a.m. on 28-5-1994 and they were received at 1.30 p.m. on 28-5-1994 at the mortuary. In case the F.I.R. was not ready prior to the receipt of the dead bodies at police lines and in the mortuary, the accused could not have been arrested as alleged by the defence. Though according to the prosecution Gopal and Narendra accused were arrested next day i.e. 28-5-1994. The Doctor, who conducted the post-mortem examination of the deceased, has also received the copies of inquest reports with chick reports, G.D. reports Challan Nash, Photonash and other papers and signed them. If the dead bodies had been sent at 4.15 p.m. on 27-5-1994 along with all the papers including inquest chick report (R.I.R.) and were received at Police lines at 7.20 a.m. on 28-5-1994 the very foundation of the contention of learned counsel falls down. In our view the F.I.R. is not ante-timed.
58. Recovery of blood stained knives :-
The learned counsel for the appellants submitted that the recovery of blood stained knives at the pointing out of Dharmendra and Pushpendra is fictitious and cannot be relied on inasmuch as they had already disclosed in respect of the place where they had hidden the knives of the crime and the I.O. had gone to search those knives. The I.O. himself planted those knives and showed them to have been recovered at the pointing out of the accused. This contention has also no force inasmuch as the I.O. negligently without knowing the consequence had gone to the place where the knives had been hidden as disclosed by the accused but due to insufficiency of location of that place, the knives could not be recovered. The accused persons, namely, Dharmendra, Pushpendra and Jagvir were taken by the police custody on 7-6-1994 on the police remand which was applied for on 4-6-1994. Two blood stained knives were recovered at the pointing out of Pushpendra and Dharmendra each by one from the bushes of eastern patri of canal near the bridge in the vicinity of Mohalla Killa of Mursan, in the presence of a public witness Khajan Singh (P.W. 12). Those knives were searched out by Dharmendra and Pushpendra from the bushes at that time which were handed over by them to the police and these knives were open and blood stained.
59. The blood of knives were analysed and serologist found it to be of human blood. Of course, the blood was found insufficient for analysing the blood group. It is a very important piece of evidence which corroborates the participation of these two accused Dharmendra and Pushpendra in the incident. The recovery has been proved by P.W. 12 Khajan Singh a witness of public besides the I.O. During the cross examination, nothing could be elicited to disbelieve the piece of evidence. We find this piece of evidence reliable and acceptable to corroborate the prosecution case.
60. We have also considered the defence version that the accused persons have been falsely involved in the present case. P.W. 1 Surendra Singh, who was posted as Constable at police station Chandrana, proved the copy of G.D. Ext. Kha-7, P.W. 2 Sri Ram has also been examined to prove certain papers regarding the crime No. 67 of 1994 under Section 13 G Act and copy of chick report of crime No. 68 of 1994 under Sections 147, 148, 149, and 302, I.P.C. copy of chick report of crime No. 68A of 1994 under Section 392, I.P.C. and some other copies of G.D. reports in order to show that there was some manipulation in the printing of number of chick reports. Actually there is no manipulation. It was due to manufacturing defect some printing numbers were not in seriatum. D.W. 3 Chandraj Singh produced three copies of N.C.R. dated 26-5-1983, 8-10-1971 and 9-9-1977 but they do not relate to the complainant or any member of his family.
61. Dharmendra stated in his statement that he had gone to attend the marriage of his some relation and he was not present in his house in the night of incident. The plea of alib has not been proved by any evidence even he has not stated in witness box; hence the plea of alibi of Dharmendra accused cannot be considered.
62. It was also contended that there was inter se enmity between Pushpendra and Jagvir. Both of them could not join their hands in the commission of the present crime. The defence has also filed the documents regarding the litigation between the families of Jagvir and Pushpendra, but the contention of the learned counsel for the appellants is not sustainable inasmuch as even the litigation had taken place between the families of Pushpendra and Jagvir, there is no evidence that both those accused were not friends of each other and were on bitter inimical terms hence they could not join in the commission of the crime. In our view they could join their hands for the common object for committing rape on Km. Reeta and murder of family members of the complainant.
63. We have throughly examined the evidence of P.W. 1 Chandra Mohan Singh, P.W. 2 Smt. Saroj Devi and P.W. 3 Jai Ram is fully convincing, reliable, trustworthy to place implicit reliance. We do not find any inherent improbability nor any scope for unreliability in their evidence. In the facts and circumstances stated above, their evidence does not suffer from any infirmity or illegality. We have no hesitation to place explicit reliance on their testimony.
64. Of course, we do not find any concrete evidence of rape committed on Km. Reeta by any of the accused persons, but the circumstances lead us to a conclusion that at least the accused persons had made attempt to commit rape on Km. Reeta. Her body was found in the verandah where her half lower portion was found completely naked. Her underwear and petticoat were torn and found at different places in the same house. In the circumstances the Sub-Inspector who held her inquest report, opined that there was probability of committing rape which clearly indicate that attempt was made for committing rape on her. She was dragged from her cot to verandah and the petticoat was torm and was thrown to a side and then her underwear was also term and was thrown to other side. She might have been rescued by other members of the family and they were killed then and there by the accused persons when she was to be subjected to rape and was over-powered. The accused persons inflicted knives injuries on her body. The doctor found 14 knife injuries on her body. It was Narendra Yadav accused who used to tease and outrage her modesty; she had made complaint to the complainant who lodged complaint with the parents of Narendra. About 5 days prior to the incident, she went to the cattle pond for preparing the cow-dung cake; she was again teased and her modesty was outraged by Narendra and a threat was extended to her that in case she made any complaint, she would be killed. She made complaint to her uncle complainant who along with his son went to Narendra and gave him a beating. Narendra visited the house of Dharmendra in the absence of complainant, both Dharmendra and Narendra made a plan to commit rape upon Km. Reeta. Dharmendra may or may not have been interested in committing rape but he was interested to eliminate the family members; hence both joined their hands for the common object for the commission of rape and murder. The other accused persons being companions also joined them and their participation has been proved by the prosecution evidence. Infliction of a large number of injuries on the bodies of each deceased and murder of two lads of 12 years and murder of an old person of 70 years and murder of 15 years girl and attempt of rape on her are indicative of the fact that the intention of the accused persons was much more than murder and rape. As the whole episode was planned and prepared by Dharmendra and Narendra; hence they deserve extence penalty for the commission of five murders of two boys of 12 years, Km. Reeta, Ramwati, wife of complainant, and Pitambar an old person of 70 years. They have committed murders in a very cruel and brutal manner inflicting as many as 53 injuries on five persons. The Court below has not committed any error in awarding the extreme penalty of death to Narendra and Dharmendra, who were instrumental behind the whole episode of awful tragedy. We, however, are conscious of the fact that the appellants Dharmendra and Narendra after their convicting by the trial Court are languishing in death cell since 3-6-1994 and 28-5-1994, respectively, i.e. more than three years. Consequently now it may not be proper to confirm the sentence of death passed on them by the trial Court.
65. Accordingly, all the appeals of Dharmendra Singh, Narendra, Gopal, Sanjeev, Pushpendra alias Pappu and and Jagvir Singh against conviction are hereby dismissed. However, the reference made by the learned Sessions Judge for confirmation of death sentence is rejected and the sentence of Dharmendra and Narendra is commuted to life imprisonment under Section 302, I.P.C. The sentences awarded to other appellants are confirmed.
66. The accused-appellants are in jail. They shall serve out their sentence.
Order accordingly.
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Nirmal Singh Alias Manbir Singh, Appellant V. State Of Haryana, Respondent.

DATE : 11-07-1997
1998-(104)-CRLJ -1008 -P&H
Penal Code, 1860 - Section 300 - Case of murder - Accused, Army Officer alleged to have committed murder of four persons and caused fire arm injuries to many others - Accused declared proclaimed offender as was ??? after commission of crime - Case of the prosecution with regard to gun shot injuries received by deceased is proved that these injuries were caused by accused by the evidence in the proceeding under section 299 CrPC and the evidence is reliable - Delay in delivering the special report to C.J.M. has been satisfactorily explained - Report of the ??? proving that the catridges which were lifted from various spots of the crime, had been fired from the stengun of the accused - No evidence led by accused for establishing the plea of alibi - Motive pales into insignificance when there is a positive and cogent evidence of murder - Conviction of accused justified - No interference called for.
JUDGE(S) :

S S Sudhalkar
Sat Pal
PUNJAB AND HARYANA HIGH COURT
JUDGMENT
SATPAL, J. :- By this judgment, we are disposing of Murder Reference No. 3 of 1996 and Criminal Appeal No. 261-DB of 1996 as both arise from the same judgment, dated 30th April, 1996, passed by Sessions Judge, Jind. By this judgment, the learned Sessions Judge convicted the appellants under Sections 302 and 307 of the Indian Penal Code and under Sections 25 and 27 of the Indian Arms Act. Under Section 302, IPC, the appellant has been sentenced to death and also to pay a fine of Rs. 1,000/-. The sentence of death is subject to the confirmation by this Court. Under Section 307, IPC, the appellant has been sentenced to undergo rigorous imprisonment for 10 years and also to pay a fine of Rs. 1,000/- Under Section 25 of the Arms Act, the appellant has been sentenced to undergo rigorous imprisonment for one year and has further been sentenced to undergo rigorous imprisonment for one year under Section 27 of the Arms Act. The learned Sessions Judge further ordered that in default of payment of fine on any count, the appellant would further undergo imprisonment for a period of three months. All the substantive sentences have been ordered to run concurrently.
2. In this case, F.I.R. Exhibit PW 44/A under Sections 302/34, Indian Penal Code, was registered at Police Station Safidon, District Jind, on 15th September, 1980 at 8.20 p.m. on the basis of the statement of Chhotu son of Indraj. The statement of said Chhotu was recorded by S.I. Ram Singh (PW 44) S.H.O.P.S. Safidon. In his statement, Chhotu stated that on 15th September, 1980 at about 7.45 p.m. he along with Manphool son of Bhola and Surat Singh son of Ram Kishan was present at the flour mill of Gaje Singh son of Abhey Ram in village Budha Khera when Nirmal Singh (appellant) who was serving in the Army and his brother Vijay Singh, both sons of Rulia Ram and two other persons whom he could identify if brought before him, came in the street Nirmal Singh fired at them with the small Army weapon which hit Surat Singh who fell down. Then he rushed towards the shop of Inder Singh and raised alarm that Surat Singh had been murdered. In the meantime, Nirmal Singh etc. came towards that side and fired at his nephew Des Raj who died on the spot. He further stated that firing was going on in the village. He also stated that about 6/7 months ago, a fight took place between Vijay Singh and Gaje Singh and due to that grudge, they had taken the revenge of it. Special report was sent to the Chief Judicial Magistrate, Jind through Constable Puran Singh (PW 3) on 16th September, 1980 at 3.30 a.m. It may be pointed out that distance between the place of occurrence and P. S. Safidon is 7 Miles. It is further the case of the prosecution that after recording of the FIR, PW 44 Ram Singh along with several police officials reached the spot for investigation. He found that four dead bodies were lying in the village, two at one place and two at another place. He prepared the inquest reports Exhibits PW 44/B, PW 44/C, PW 44/D and PW 44/E, of the dead bodies of Surat Singh, Des Raj, Lehna Singh and Ramesh Chand respectively. Then he sent the dead bodies to the Civil Hospital Jind, for post mortem through ASI Ram Charan. The dead bodies were identified by their close relatives at the spot and their names were mentioned in the inquest reports.
3. Dr. Satish Gupta (PW 31) conducted post-mortem examination on the dead body of Surat Singh and he found the following injuries on his dead body :
i) There was a wound of entrance (1 cm. x 1 cm) in size with contused lacerated and inverted margins, present on the left side of nose 2.5 cm above the tip and 1 cm from the midline. The wound was directed backwards and clotted blood was present.
ii) There was a wound of Exit (3 cm x 1.5 cm) size with everted and lacerated margins 2 cms. below the external occipetal protumberance transversely placed more towards the left. Clotted blood was present and underlying bone was missing.
On dissection : There was communited fracture of the maxilla and left patrous temporal tone. There is linear fracture of the left lateral part of the frontal bone, left temporal bone and occipetal bone on left side. The brain tissue in middle cranial fossa and posterior cranial fossa on left side was lacerated and there was fracture of the occipital bone with a piece missing.
4. In the opinion of the doctor, death of Surat Singh was due to shock haemorrhage and injuries to the vital organs i.e. brain and these injuries were as a result of fire arms. The injuries were ante mortem and were sufficient to cause death in the ordinary course of life.
5. Dr. R. P. Taneja (PW 32) conducted post mortem examination on the dead body of Ramesh Chand and found the following injuries :
1. An oval shape wound (1 x 3/4 cm.) on the lateral surface of left thigh, 1 cm above the level of upper border of Patiala directing inverse.
On dissection the wound underlying muscles and blood vessels were found lacerated and bone fractured, clotted blood was present. Edges of wound were lacerated. Injury No. 1 was leading to injury No. 2.
2. A wound (3 cm x 1 1/2 cm) with inverted margins lacerated present on the posterior medial aspect of the left thigh 5 cm. above the knee joint oblique in direction.
3. A wound with inverted and acerated margins present on the medial surface of the right thigh. 5 cm. above the knee joint.
On dissection underlying muscles and blood vessels were found lacerated and clotted blood was present. This injury was leading to injury No. 4.
4. A wound with everted and lacerated margins (1 1/2 cm. x 1 cm) on the posterior surface of the right thigh 5 cm. above the knee joint. Clotted blood was present.
5. An oval shaped wound (1/2 cm. x 3/4 cm.) on the anterior lateral surface of left thigh. 5 1/2 cm. above, anterio superior to injury No. 1, On and directing inward. On dissection underlying mussles and blood vessels were lacerated and bone fractured. Clotted blood was present. Edges of the wounds were lacerated and inverted, and continued to injury No. 6.
6. A wound (3 cm. x 1 1/2 cm.) with everted margins and lacerated margins present on the posterio medial aspect of left thigh oblique in direction 5 cm. above the injury No. 2 clotted blood was present.
7. A wound with inverted and lacerated margins present on the medial surface of right thigh. 4 1/2 cm. above injury No. 3 On dissection underlying muscles and blood vessels were found lacerated. Clotted blood was present and this injury was leading to injury No. 8.
8. A wound with everted and lacerated margins (1 1/2 cm x 1 cm.) On the posterio lateral surface of right thigh. 5 1/2 cm. above injury No. 4. Clotted blood was present.
6. In the opinion of the doctor, the cause of death in this case was due to shock and haemorrhage and all the injuries were ante mortem in nature which were caused by fire arm.
7. Dr. R. K. Sethi (PW 34) conducted the post mortem examination on the dead body of Lehna Singh and he found the following injuries.
1. A lacerated wound (1.5 cm. x .75 cm.) on the left lateral side of the neck of the level of lobule of left pinna. The margins of the wound were inverted and goes upward medially and anteriorly. Thus, opening to injury No. 2. There were multiple fractures of skull and blood clots were present in the wound.
2. A lacerated wound (1 1/2 x 1 1/2 cm.) in the right occipital parietal region of the skull. This was 4 cm. above the right pinna. The margins of the wound were everted. This wound was in continuation of injury No. 1 Blood and blood clots were present in the wound. There were multiple fractures of skull bone.
3. A lacerated wound (1 cm. x 1 cm.) on the lateral side of left buttock 4 cm. posterio inferior to left anteri superior spine of flaci crest. The margins of the wound were inverted and wound goes posteriorly and laterly and opens to injury No. 4.
4. A lacerated wound (1 1/2 cm. x 1 cm.) on the postereor aspect of left buttock. This was in continuation of injury No. 3 and 10 cm. from the above mentioned injury. The margins were everted. Blood and blood clots were present. This was wound of exist.
5. A lacerated wound (1 1/4 x 3/4 cm.) situated between the tips of 10th and 11th ribs along with left subscostal margin of chest, thus leading to fracture of both the ribs. The margins were inverted. Blood clots were present. The wound goes posteriorly and medially towards right chest. There was laceration of left lung (wound of entrance) and right lung. Fracture of 7th and 8th right ribs near the posterior angle was also seen. The distal end of the wound was on the right side of chest on back, just below the inferior angle of right scapula. From this site was recovered a piece of bullet.
6. A lacerated wound (1 1/2 cm. x 1/2 cm. x 12 cm.) deep in the mid-line on the back at the level of L-4 of vertebral column. The wound goes left laterally and anteriorly. A piece of bullet was recovered from the back on the left side at the level of iliaic crest. Margins of the wound were inverted and blood clots were present in the wound.
7. A lacerated wound (1 cm. x 1 cm.) on the posterior aspect of posterior fold of left axilla. The margins were everted. The wound goes downward and posteriorly opening to injury No. 8. The margins of the wound were inverted (wound of entry). Blood clots were present, in the wound.
8. A lacerated wound (1 1/2 cm. x 1 cm.) on the lateral border of left scapula 6 cm. above inferor angle of left scapula. The margins were everted (wound of exist) and blood clots were present.
9. A lacerated wound (1/2 cm. x 1/2 cm. x 7 cm.) on posterio lateral aspect of left forearm in the middle. The margins were inverted and blood clots were present in it. (This was wound of entrance.)
10. A lacerated wound (1 cm. x 1/2 cm. x 2 cm.) deep on the fronto lateral aspect left fore-arm in the middle. The margins were everted (wound of exit).
11. A lacerated wound (1 cm. x 1/2 cm.) on the anterior medial aspect of left knee joint. The margins were inverted and blood clots were present. The wound goes posteriorly and laterally thus causing fracture of lower end of femur (wound of entry).
12. A lacerated wound (1 cm. x 1/2 cm.), on the lateral aspect of knee joint. The margins were everted. This was in continuation of injury No. 11
8. In the opinion of the doctor, the cause of death in this case was shock and haemorrhage due to fire arm injury and all the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of life.
9. The post mortem of Des Raj was conducted by Dr. K. Chandra vide post-mortem report exhibit PW 44/D, PW 34, Dr. R. K. Sethi has proved this report and in his statement, has stated that Dr. K. Chandra died during his posting at Jind.
10. PW 44 directed other Police Officials to take all the injured namely, Nanhi, Kelo, Sarti, Nahar Singh, Inder Singh, Biro, Prem Singh, Ram Mehar, Inder son of Ratia, Banwari, Shanti, Sarjo and Chameli to get them medico-legally examined from the Civil Hospital. He also conducted house search of accused Nirmal Singh and from his father Rulia Ram, recovered one letter Exhibit PW 44/Q addressed by Nirmal Singh to his father and sent by post. On return to the Police Station PW 44 deposited all the sealed parcels with MHC Ram Niwas. He had recorded the statements of all concerned.
11. On 16th Sept., 1980, PW 44 got warrant of arrest of accused Nirmal Singh and he along with Sh. Surat Singh then DSP reached Jammu on 18th Sept., 1980. He and Sh. Surat Singh DSP went to the Unit of accused Nirmal Singh i.e. Three Sikh L-I near Chhamb Jaurian. They were informed by the Army Officer in writing vide Exhibits PW 28/C, PW 28/B and PW 28/A that Nirmal Singh had not rejoined after available leave from 15th September 1980 uptil 17th September 1980. P.W. 44 requested the Army Officer to restore to them the sten-gun vehicle was earlier issued to accused Nirmal Singh but they refused to give the sten gun. However, they agreed to the extent that live cartridges of 9 mm may be got fired from the sten gun of the accused and pellets and empties thereof may be collected for analysis and comparison from F.S.L. (H) Madhuban with the empties collected from the spot and leads removed from the dead bodies of the victims. F.S.L. authorities, however, wrote to Safidon police that the fired cartridges and leads could not be tested because the fires had been done in sand and that weapon concerned was also required for final test and analysis report. PW 44, DSP Surat Singh and Dr. Chug of FSL Madhuban again approached the Army authorities who gave 8 sten guns after pasting chits on the numbers of the sten guns in order to conceal their identity to Dr. Chug of FSL (H) Madhuban. All the eight sten guns were tested by test fires and after comparing those with the empties and leads recovered from the site of occurrence, Dr. Chug identified one sten gun with which, according to him, crime cartridges and leads were fired. The chit on the number of that sten gun was removed and it was found that the number of that sten gun was JJ-7587 and as per the report of the Army authorities, the said sten gun was issued to accused Nirmal Singh.
12. After completion of the investigation, challan against appellant Nirmal Singh, his brother Vijay Singh and their father Rulia Ram was prepared on 23rd March, 1982. The challan was, however, filed in the court on 31st March, 1984. By that time accused Rulia Ram had already expired.
13. As per the case of the prosecution, in the occurrence, No. 1 which has been shown at point 'A' in the scaled site plan Exhibit PW 27/A and happened at the flour mill of Gaje Singh where Surat Singh was shot dead, four empties and one lead were recovered. In the occurrence No. 2 which has been shown at Point 'B' in Exhibit PW 27/A, where Des Raj was shot dead and Inder son of Piare Lal and Kelo (PW. 5) were injured, 9 empties were recovered from the spot of occurrence. The occurrence besides the said injured was also witnessed by PW 3 Dalbir and PW 20 Suraj Mal. In the third occurrence which has been shown at Point 'C' in Exhibit PW 27/A and happened at the house of Banwari and the house of Lachhman, five persons, namely Banwari, Saroj, PW 13, Shanti, PW 14 Nanhi and PW 15 Prem were injured. Besides these injured, this occurrence was witnessed also by PW 19 Kitaba and PW 21 Dheer Singh. Six empties were recovered from the spot. In the occurrence No. 4 which has been shown at Point 'D' in Exhibit 27/A and which happened at the house of Nahar Singh son of Lehna Singh, two persons namely PW 6 Nahar Singh and PW 7 Surti were injured. This occurrence besides the injured was also witnessed by PW 8 Zile Singh, and PW 9 Chhattar Singh. Five empties and three leads of cartridges were recovered from the spot. Occurrence No. 5 which has been shown at Point 'E' in Exhibit PW 27/A and which happened at the house of Jage Ram, two persons, namely PW 10 Biro, W/o Jage Ram and PW 11 Chameli were injured. Besides these injured, this occurrence was also witnessed by PW 9 Chattar Singh PW 12 Inder brother of Jage Ram. Four empties were recovered from the spot. In the occurrence No. 6 which has been shown at point 'F' in Exhibit PW 27/A and which happened at the Baithak of Jai Lal, Lehna Singh and Ramesh were shot dead and two persons namely PW 16 Ram Mehar and PW 17 Inder son of Ratia were injured. Besides the injured, this occurrence was also witnessed by PW 18 Prakash. 21 empties and 5 leads of cartridges were recovered, and three documents letter of Insurance Company (Exhibit PW 44/K) Advance Pay Book (Exhibit PW 44/L) and one Arms Licence of Nirmal Singh (Exhibit PW 44/M) were also recovered from the spot.
14. As stated earlier, the warrants issued against Nirmal Singh could not be executed as he has not rejoined duties after availing of the leave upto 17th September 1980. On 1st October 1980, application for issuance of proclamation against Nirmal Singh was filed and proclamation was obtained from the Court on that day itself. On 15th November 1980, accused Nirmal Singh was declared the proclaimed offender. Thereafter accused Vijay Singh was also declared a proclaimed offender. As stated earlier, challan dated 23rd March, 1982 was filed on 31st March, 1984 and on that day accused Nirmal Singh and accused Vijay Singh were proclaimed offenders and accused Rulia Ram had already died. In these circumstances, the case was fixed before, the Ilaqa Magistrate for 23rd April, 1984 for recording the evidence under Section 299, Cr. P.C. On 23rd April, 1984, the Ilaqa Magistrate passed the order that he could not record the evidence under Section 299, Cr. P.C. As this could be done only by the competent court, i.e. the Court of Session. Accordingly, he sent the file to the learned Sessions Judge. However, the learned Sessions Judge by his order dated 14th August, 1984. Sent the case back to the learned S.D.J.M. as evidence under Section 299, Cr. P.C. could be recorded by the committing Magistrate. Thereafter on 22nd August, 1984, the learned S.D.J.M. passed the order for summoning the prosecution witnesses. During the period from August 1984 to 4th Nov., 1986, PW 48 Shri R. K. Bishnoi, then S.D.J.M. Safidon recorded the statements of 27 witnesses in the proceedings under Section 299, Cr. P.C. During the period from Nov., 1986 to May 1988, PW 49 Shri Rajinder Parshad, then S.D.J.M. Safidon, recorded the statements of Sh. Surat Singh, DSP Gopi Ram retired S.I. Dr. Ramesh Sehgal, Sh. V. P. Nagpal, Sh. Parhlad Singh S.D.M. Sh. Ram Singh, ASI, Constable Puran Singh and HC Ram Niwas, Subhash Chand, Draftsman, Sh. Ravi Mohan Bhatnagar, Sh. Ved Parkash, Sh. Chattar Singh, Dr. Satish Gupta in the proceedings under Section 299, Cr.P.C.
15. Accused Nirmal Singh remained absconder for a long time. Ultimately he was arrested on 11th Sept., 1994 by the police from New Delhi and after his arrest, the police presented supplementary challan against him in the court of S.D.J.M. Safidon who committed the case for trial to the Court of Sessions Judge, Jind. Accused Nirmal Singh was charged for the offence under Sections 302 and 307, I.P.C. and under Sections 25/27 of the Arms Act vide order dated 19th Nov., 1994 passed by the learned Sessions Judge, Jind.
16. In the proceedings under Section 299, Cr.P.C. the prosecution had examined as many as 27 eye witnesses. Out of these 27 eye witnesses, Chhotu, Johri Singh, Jage Ram son of Jai Lal, Jai Lal son of Shish Ram and Piare Lal son of Mattu had died when the charge was framed against the appellant by the learned Sessions Judge, Jind. The statement of Chhotu recorded under Section 299, Cr.P.C. is Exhibit PW 48/A of Johri is Exhibit PW 48/B, of Jage Ram is Exhibit PW 48/C, of Jai Lal is Exhibit PW 48/D; and of Piare Lal is Exhibit PW 48/E. The remaining 22 eye witnesses, PW 1 to PW 22 including 11 injured witnesses, who had earlier supported the case of the prosecution in the proceedings under Section 299, Cr.P.C. were declared hostile as they did not support the case of the prosecution before the learned Sessions Judge. Similarly, PW 23 Ram Saran then Sarpanch who was the witness with regard to the recovery and has supported the case of the prosecution in the proceedings under Section 299, Cr.P.C. did not support the case of the prosecution before the learned Sessions Judge, PW 25 Pratap Narain, Ticket Examiner proved the railway journey of Rulia Ram and his wife Krishna from Panipat to Jammu on 13th Sept., 1980. PW 27 Subhash Chander draftsman proved the scaled site plan, Exhibit PW 27/A, PW 28 retired Lt. Col. R. S. Vishwan proved that accused Nirmal Singh who was working as IInd Leutenant in his Unit was on leave from 15th Sept., 1980, to 17th Sept., 1980, with permission to prefix holidays but thereafter he did not rejoin his duties and had deserted the Army. PW 30 UGC Fluran Singh proved the delivery of special report to the Ilaqa Magistrate. PW 33 Dharam Pal, Records Officer, Medical College, Rohatak, proved the MLRs of the injured. PW 36 Ved Parkash Photographer, proved the photographs taken on the spot. PW 38 Inspector Chhattar Singh had partly investigated the case. PW 39, ASI Ram Chand had recorded the statements of the injured at Medical College, Rohtak. PW 40 Ram Niwas MHC proved the deposit of the case property and also proved the delivery of the case property to Constable Sat Narain for deposit at FSL Madhuban. PW 41 Krishan Kumar had filed the challan. PW 42 S.I. Hira Lal had arrested the appellant on 11th Sept., 1994 from 110, Kailash Hill, New Delhi, PW 43 HC Sat Narain had carried the case property to FSL Madhuban. PW 44 Ram Singh is the Investigating Officer.
17. In his statement recorded under Section 313, Cr.P.C. the appellant pleaded innocence. He, admitted that he did not rejoin the duty after availing the leave from 15th Sept., 1980, to 17th Sept., 1980. In reply to question 50, the appellant answered as under :
"My father was Lamberdar in the village. He remained as Sarpanch of the village for two terms. He was a political leader and used to decide the case of group of 12 villages, which is called 'BAARA'. He was having a lot of respect in the area of Safidon. However, S. I. Singh then SHO P. S. Safidon was against my father and he insulted my father in Panchayat to lower his image with a view to oblige his political masters. I had approached first S.P. Shri Raj Singh and complained against the conduct of S.I. Ram Singh. Shri Raj Singh S.P. talked to S.I. Ram Singh, on phone in my presence and asked me to contact Ram Singh in P. S. Safidon. The S.P. had given me sufficient hearing. Thereafter I went to S.I. Ram Singh but he felt offended due to my meeting with S.P. Shri Raj Singh and threatened me that my entire family will be eliminated if I continued making complaints against him. S.I. Ram Singh had also told me that he was politically connected and S.P. can do no harm to him. When I brought this matter to the notice of my father, he told me that Ram Singh was really well connected with political bosses and that I should talk to my Senior Officers for my safety and for the allotment of accommodation so that I may keep my parents with me. He also advised me to meet the Chief Minister of Haryana and complain against S.I. Ram Singh, When I talked to my Senior Officers in this respect, they totally refused to allot me accommodation saying that it was against service rules because I was a bachelor. My Commanding Officer also declined to meet the Chief Minister and told me that it was very risky and can involve Court martial proceedings. However, the Commanding Officer had written letters to the I.G. and D.I.G. of Haryana Police against the S.I. Ram Singh. I had written to my brother Vijay Singh to keep cool and avoid any confrontation with S.I. Ram Singh.
I know that my father Shri Rulia Ram has died because I has read the same in the news papers whereas I do not know about the whereabouts of my brother Vijay Singh. I also do not know anything about Dani and Abhey Ram and Gaje Singh or their relations with my family.
On 14-9-1980 stayed with my parents at Katra and on 15-9-1980 I along with my parents went to Mata Vaishnav Devi on pilgrimage and returned on 16-9-1980 and thereafter on 16-9-1980 itself I came to know about the occurrence in the present case and my false implication. Then my father advised me not to bother about the service and save my life. It was under these circumstances I did not rejoin my duties."
18. Relying mainly on the evidence of Chhotu, Johri Singh, Jage Ram, Piare Lal and Jai Lal which was recorded in the proceedings under Section 299, Cr.P.C. and the medical evidence and the report of Dr. Chug of FSL(H) Madhuban the learned Sessions Judge convicted and sentenced the appellant as stated earlier.
19. Mr. Cheema, learned Senior Counsel appearing on behalf of the appellant, submitted that before recording the evidence under Section 299, Cr.P.C. the Court has to satisfy itself that an accused person has absconded and there is no immediate prospect of arresting him. He, however submitted that in this case no finding was recorded by the Court which examined the witnesses under Section 299, Cr.P.C. to the effect that appellant Nirmal Singh had absconded and there was no immediate prospect of his arrest. He submitted that the possibility of procuring the presence of the appellant was not even considered by the Ilaqa Magistrate before declaring him a proclaimed offender.
20. He further submitted that in the proceedings recorded under Section 299, Cr.P.C. there was total non-application of mind. He submitted that after filing of the challan, the case was fixed for 23rd April, 1984 for recording the statements of the witnesses under Section 299, Cr.P.C. Before the S.D.J.M. Safidon but without application of mind, the learned Magistrate passed the order that the file be sent to the Court of learned District and Sessions Judge, Jind as the case under Section 302/307, IPC was exclusively triable by the Court of Session. He further submitted that on 29th May, 1984, the case was fixed before the Sessions Judge, who adjourned the case to 22nd August, 1984 for recording the prosecution evidence under Section 299, Cr.P.C. without recording any finding to the effect that the accused had absconded and there was no immediate prospect of their arrest. He further submitted that even before 22nd August, 1984, the learned Sessions Judge transferred back the case to the Court of S.D.J.M. Safidon. He submitted that a direction for sending the case to the Magisterial Court could be given only under Section 299(2), Cr.P.C. but the facts of the present case were not covered under Sub-section (2) of Section 299, Cr.P.C.
21. He submitted that the appellant was declared a proclaimed offender in the earlier proceedings in the year 1980 and those proceedings were not sufficient for the purpose of subsequent proceedings under Section 299, Cr.P.C.
22. He further submitted that the depositions of the witnesses recorded under Section 299, Cr.P.C. after the arrest of appellant Nirmal Singh could be relied upon only if the Court came to the conclusion that the deponents who deposed under Section 299, Cr. P.C. were dead. He, however, submitted that in the present case, the finding regarding the death of PW 2 Chhotu, PW 12 Jai Lal, PW 15 Piare Lal, PW 10 Zohri Singh and PW 11 Jage Rame, was not recorded by the learned trial Court though the conviction of the appellant is based on the depositions of these witnesses only. He submitted that even the trial Court in the impugned judgment has observed that these witnesses are reported to be dead. He submitted that neither the death certificates of the aforesaid five witnesses were produced in the Court nor even the date of death of those witnesses was proved.
23. The learned counsel contended that the conditions precedent for the proceedings under Section 299, Cr.P.C. have not been complied with and as such, the trial was vitiated. In support of the submissions, he placed reliance on the following judgments :
(1) Ghurbin Bind v. Queen-Empress, (1884) ILR 10 Cal 1097.
(2) Sheoraj Singh v. Emperor, AIR 1926 All 340 : (1926 (27) Cri LJ 874).
(3) Daya Ram v. Emperor, AIR 1926 Lahore 83 : (1926 (27) Cri LJ 247).
(4) Emperor v. Labbai Kutti, AIR 1930 Mad 190 : (1939 (40) Cri LJ 437).
(5) Manbodh v. Emperor, AIR 1944 Nag 274.
(6) State of Mysore v. Sanjeeva, AIR 1956 Mys 1 : (1956 Cri LJ 77).
24. The learned counsel submitted that the learned trial Court has misread the evidence while recording the finding of conviction against the appellant. He submitted that the learned Sessions Judge at page 33 of his judgment has observed that as per record, accused Rulia Ram died before the challan could be presented in the Court but in fact there is nothing on the record of the file which could show that Rulia Ram had in fact died before the filing of the challan. Similarly, at page 34 of the judgment, it has been observed that criminal proceedings under Sections 107/151, Cr.P.C. took place between Rulia Ram and Gaje Singh, and the case was pending before the S.D.M. Safidon, but no evidence with regard to this fact is on the record. He further stated that at page 37 of the judgment of the learned Sessions Judge, the distance between the place of occurrence and the Police Station has been shown as 7 Kms. whereas as per the statement of the Investigating Officer, the distance is 7 miles. He further submitted that at page 27 of the judgment, it has been observed that Zohri has corroborated the version as given by Chhotu that accused Nirmal Singh had killed Des Raj but as per the case of the prosecution itself, Des Raj was shot at in the second occurrence whereas Zohri had not seen the second occurrence and as per the case of the prosecution he had witnessed occurrence No. 1. He further submitted that at page 29 of the judgment, the learned trial Court has observed that since all these witnesses are reported to have died, evidently in view of Section 299, Cr.P.C., the depositions of these five prosecution witnesses have to be believed by this Court. He submitted that this observation is perverse, as there is no positive finding with regard to the death of these witnesses. He submitted that similarly the observation of the learned trial Court at page 33 that in view of the father of the accused having reached jammu, the conspiracy to commit serious crime was hatched, is perverse as simple visit of the father of the accused need not be a conspiracy. He submitted that at page 36 the finding of the learned trial Court that "it appears that accused Nirmal Singh had managed to deposit the sten-gun after the commission of the crime in his Unit through some source" is not a positive finding and is based on conjectures.
25. The learned counsel further submitted that the conviction with regard to occurrence Nos. 1 and 2 is based on the evidence of Chhotu which was recorded in the proceedings under Section 299, Cr.P.C. He, however, submitted that the evidence of Chhotu is not reliable at all and does not inspire confidence. He submitted that the first occurrence happened at 7.45 p.m. on 15th September, 1980 and second occurrence at 7.50 p.m. on the same day. Chhotu is alleged to have lodged the report at the Police Station at 8.20 p.m. and has narrated the facts of the first and second occurrence. He submitted that as per the statement of the I.O. the distance between the place of occurrence and the Police Station is 7 miles and it was impossible for Chhotu to reach the Police Station on foot within 30 minutes as Chhotu, in his statement, has admitted that he went to the Police Station on foot. He further submitted that the closest place for lodging the FIR was Police Post Pillu Khera which was at a distance to 6 kms. from the place of occurrence whereas Safidon Police Station is at a distance of 11 Kms. from the place of occurrence. He submitted that in such a case of magnitude where four persons were shot dead and many persons were injured, FIR should have been recorded in the village itself and in view of these facts, it becomes doubtful as to whether Chhotu had gone to P. S. Safidon to lodge the report at 8.20 p.m. He also submitted that in the second occurrence where Des Raj was shot dead, Inder and Kelo had been injured but Chhotu did not mention about the injuries caused to Inder and Kelo while lodging the FIR. This shows that Chhotu in fact had not seen the occurrence.
26. The learned counsel further submitted that there is unexplained delay in delivering the special report at the place of the Ilaqa Magistrate. He submitted that as per the statement of PW 44 (I.O.), he reached the place of occurrence at 8.55 p.m. on 15th September, 1980 but the special report was delivered at the place of the Ilaqa Magistrate at 3.05 a.m. on 16th September, 1980.
27. He further submitted that the FIR recorded at the instance of Chhotu was very sketchy with blanket statement that firing was going on. He submitted that in the FIR there is a mention of two strangers who were with the appellant but no investigation was conducted to apprehend those two strangers. He submitted that if firing was going on, Chhotu would not have ventured to come out at that time but on the contrary, he would have gone back to the room. He, therefore, contended that Chhotu has been projected as an eye-witness by the prosecution and even the rough site plan Exhibit PW 44/I prepared by the I.O. shows that Chhotu was not the eye-witness as his presence was not mentioned in the said site plan.
28. The learned counsel further submitted that besides Chhotu, PW 1 Manphool Singh and PW 2 Gaje Singh were the eye-witnesses of the first occurrence but both these witnesses have not supported the case of the prosecution. PW 1 Manphool Singh even stated that Chhotu was not present at the time of the first occurrence. He, therefore, contended that if the evidence of Chhotu is excluded, no case is made out against the appellant with regard to the first and second occurrence. In support of his contention the learned counsel placed reliance on a judgment of the Supreme Court in Vadivelu Thevar v. State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000).
29. With regard to 6th occurrence, where Ramesh and Lehna Singh were shot dead, the learned counsel submitted that as per the case of the prosecution this occurrence was witnessed by PW 16. Ram Mehr, PW 17 Inder son of Ratia Singh (both were injured), PW 18 Parkash and Jai Lal and Piare Lal whose statements were recorded as Exhibits PW 48/D and PW 48/E in the proceedings under Section 299, Cr.P.C. He submitted that PW 16, PW 17 and PW 18 have not supported the case of the prosecution and both Jai Lal and Piare Lal who were more than 80 years' old at the relevant time could not have seen the occurrence in the absence of the light. He submitted that both these witnesses did not mention any source of light. He further submitted that the statement of these two witnesses are full of contradictions. He submitted that Jai Lal stated that 3/4 shots were fired at them but Piare Lal did not say so. Again Jai Lal stated that the firing was through the window but Piare Lal did not say so. He, therefore, contended that the statements of Jai Lal and Piare Lal could not be relied upon for conviction of the appellant.
30. With regard to 5th occurrence, the learned counsel submitted that Jage Ram's own wife Biro and his daughter Chameli were injured in that occurrence but they have not supported the prosecution case. Even the alleged non-injured eye-witnesses PW 12 Inder who is the brother of Jai Lal and PW 29 Chatan have not supported the prosecution case. He, therefore, contended that the appellant could not be convicted with regard to the 5th occurrence. With regard to 4th occurrence, the learned counsel submitted that no prosecution witness has been examined in support of this occurrence.
31. With regard to 3rd occurrence, the learned counsel submitted that as per the case of the prosecution, this occurrence was witnessed by PW 13 Shanti, PW 14 Nanhi, PW 15 Prem and Zohri, whose statement Exhibit PW 48/B was recorded in the proceedings under Section 299, Cr.P.C. Besides these witnesses, this occurrence was witnessed also by non-injured persons, namely PW 19 Kitaba and PW 21 Dheer Singh. He, however, submitted that all the three injured persons PW 13, PW 14 and PW 15, as well as the two non-injured persons. PW 19 and PW 21 have not supported the case of the prosecution. He, therefore, contended that in view of these facts the statement of Zohri which was recorded in proceedings under Section 299, Cr.P.C. could not outweigh the above mentioned statements of five witnesses.
32. With regard to the documents, namely letter of LIC, Exhibit PW 44/K, Advance Pay Book Exhibit PW 44/L and licence Exhibit PW 44/M, which are alleged to have been recovered from the Baithak where Ramesh and Lehna Singh were shot dead, the learned counsel submitted that as per the case of the prosecution, the appellant had not entered the Baithak and had fired the shots from the window outside the Baithak. He, therefore, contended that the recovery of these documents from the Baithak could not be believed. He further submitted that there is no mention of these recoveries even in the site plan, Exhibit PW 27/A and the two eye-witnesses PW 22 Duni Chand and PW 23 Ram Saran have also not supported the case of the prosecution with regard to the recovery of these documents. He therefore submitted that in fact these documents were recovered from the house of the appellant.
33. The learned counsel further submitted that it was correct that sten gun No. JJ-7587 was issued to the appellant as per Exhibit PWW 44/U. He, however, submitted that this stengun was deposited with the authority concerned when the appellant proceeded on leave on 13-9-1980. In this connection, he referred to the cross-examination of PW 28, Sh. R. S. Vishwen, who admitted that every army officer/official before leaving on leave has to surrender the official arms and ammunitions issued to him. He, therefore, contended that the said weapon was not with the appellant after 13-9-1980. In this connection, he also referred to page 36 of the judgment of the trial Court and submitted that even the learned trial Judge had observed that "it appears that accused Nirmal Singh had managed to deposit the stengun after the commission of the crime in his Unit through some source."
34. The learned counsel further submitted that the report of Dr. Chug Ballistic expert of F.S.L. was very vague and indefinitive. He submitted that under the heading "Laboratory examination", the report says that the "fire mechanism of the stengun WI was found in working order. The fire pin of the gun WI appears to have been tampered with." He submitted that unless the fire pin mark tallied, it cannot be said that the firing has been done from a particular weapon. He further submitted that under the above mentioned heading, it has also been observed that "this physical evidence indicated the possibility of changing the barrel of the stengun W-I." He further submitted that the fired bullets cannot be said to be touching the ejector. The learned counsel also submitted that the opinion of Dr. Chug could not be relied upon because Dr. Chug was not made available for cross-examination by the appellant. The learned counsel further submitted that no opinion was obtained about the fired cartridges and the report was silent regarding inter se comparison of cartridges of envelope No. 1 and of the parcel. In support of his submission, the learned counsel placed reliance on the opinion of the following authors :
(1) J. Howard Mathew Volume I, 1973 Print Part I, Chapter III, at page 23, at page 39;
(2) Forensic Science and Criminal Trial by B. R. Sharma, 3rd Edition, 1990 page 243-244;
(3) Hicher's Fire-Arm Identification, 1995 Edition, Page 396, Item No. 4.
35. The learned counsel further submitted that the prosecution has relied on three motives for committing the offence by the appellant. The first alleged motive is that the uncle of the father of the appellant, namely, Amar Singh was issueless and his wife Dami inherited the land after the death of Amar Singh and the father of the appellant wanted to kill said Dami in order to grab her land but Dami had started living with Gaje Singh. He submitted that the aforesaid facts have been completely denied by the appellant in his statement under Section 313, Cr.P.C. wherein he clearly stated that his grandfather had no brother. The second motive alleged for the commission of the offence is that security proceedings between Rulia Ram (father of the appellant) and Gaje Singh were pending. The learned counsel, however, submitted that no copy of any Kalendra has been produced by the prosecution. The third motive which has been shown for committing the offence is that the appellant had taken possession of the house of Ram Kishan and Deep Chand and deceased Lehna Singh was a witness. The learned counsel, however, submitted that no documentary evidence has been brought on record to prove this motive and even no question with regard to this motive was put to the appellant while recording his statement under S. 313, Cr.P.C. He, therefore, contended that the prosecution has failed to prove any motive for committing the offence by the appellant.
36. The learned counsel further submitted that investigation has not been conducted properly in the present case. The prosecution has failed to collect any evidence with regard to the fast transport which could have enabled the appellant to reach back in his Unit at Akhnoor 16-9-1980. He also submitted that it was not probable for one man to fire at six places within a short interval.
37. Lastly, the learned counsel submitted that it was not the rarest of rare cases where death sentence ought to have been awarded by the learned trial Court. He submitted that the conviction of the appellant is based only on the evidence which was recorded in the proceedings under Section 299, Cr.P.C. but all the eye-witnesses (both injured and non-injured) have not supported the case of the prosecution. He submitted that though the scale of crime goes against the appellant but all other circumstances are against awarding death punishment. He submitted that there was no charge of conspiracy and the evidence does not show that the murders were planned by the appellant. He submitted that the appellant has got good academic record. He has already lost his career. His letter, Exhibit PW 44/Q which was addressed by him to his father also shows that the appellant was of cool temperament. At the relevant time, he was a young man of 23 years. As regards the absconding from duty, the learned counsel submitted that after this occurrence, his father was murdered and his brother died in mysterious circumstances. He further submitted that during the period of abscondance, the appellant has already married and is having two children. He submitted that during the trial, the appellant was granted interim bail from 01-12-1995 to 7-12-1995 and again from 22-1-96 to 31-1-1996 and on both occasions after the expiry of the period of interim bail, the appellant surrendered and this shows good conduct of the appellant. He submitted that the evidence on record clearly shows that peace had returned to the village. All the alleged eye-witnesses who are alive and are residing in the village have not supported the case of the prosecution. The appellant was having no enmity with deceased Surat Singh and Ramesh. As regards the murder of Lehna Singh, his sons PW 6 Nahar Singh and PW 8 Zile Singh and his wife PW 7 Sarti, have not supported the case of the prosecution. As regards the murder of Des Raj, he submitted that his close relative PW 13 Shanti, PW 14 Nahni and PW 21 Dheer Singh have not supported the prosecution. He, therefore, contended that keeping in view these facts the appellant ought not have been awarded the extreme punishment of death sentence.
38. Mr. Varinder Singh, learned Deputy Advocate General submitted that in the present case, murders were committed on 15-3-1980 and the appellant immediately thereafter absconded and it was only on 11-9-1994 that he was arrested by S.I. Hira Lal from New Delhi. He submitted that absconding was one of the determining factor for conviction under Section 8 of the Indian Evidence Act.
39. The learned Deputy Advocate General further submitted that sending of the case by the Magistrate to the Sessions Court at the initial stage and again sending the case by the Sessions Court to the Court of the Magistrate was a mere irregularity and the same could not vitiate the trial. He submitted that it is not disputed that SDJM Safidon who recorded the evidence in the proceedings under Section 299, Cr.P.C. was competent to do so. The learned counsel for the State further submitted that from the records it was clear that proclamation under Section 82, Cr. P.C. was ordered by the S.D.J.M. Safidon vide his order dated 1st October, 1980. The records further show that the SDJM Safidon had recorded the statement of SHO Safidon on 1-10-1980 before passing the order with regard to the issue of proclamation. The records further indicate that SDJM Safidon passed order, dated 15-5-1982 for attachment of the land of the appellant Nirmal Singh and the Tehsildar Safidon was appointed as the Receiver to sell the land. He submitted that when the proceedings under Section 299, Cr.P.C. commenced, the findings of the appellant having absconded were already before the Court.
40. As regards the duty of the prosecution to prove the fact that five witnesses whose statements were recorded in the proceedings under Section 299, Cr.P.C. were dead, the learned Deputy Advocate General submitted that PW 1 Manphool Singh, in his statement before the learned trial Court, had clearly stated that Chhotu had already died. With regard to death of Zhori Singh, Jage Ram, Jai Lal and Piare Lal, the counsel drew our attention to various copies of summons on record (file No. 109/96) and submitted that as reports on these summonses, these persons were dead on the date the summons were issued to them to appear in the Court. In support of his submissions, the learned counsel placed reliance on a judgment of the Patna High Court in Emperor v. Lalji Rai, AIR 1936 Pat 11 : (1935 (36) Cri LJ 235) and a Division Bench judgment of the Allahabad High Court in Tahsildar Singh v. State, 1958 Cri LJ 324 : (AIR 1958 All 214).
41. The learned counsel further submitted that there was no delay either in lodging the FIR or in delivering the special report at the place of the Ilaqa Magistrate. He submitted that the occurrence happened at 7/7.30 p.m. and the FIR was lodged at P. S. Safidon which is at a distance of 7 miles from the place of occurrence at 8.20 p.m. He submitted that the special report reached the Ilaqa Magistrate at 3.19 a.m. on the next day i.e. within 8 hours of the time of occurrence. As regards the contention of the learned counsel for the appellant, that complainant Chhotu could not reach P. S. Safidon within 20 minutes of the occurrence, the learned counsel submitted that a reasonable margin of 30/45 minutes should be given as complainant Chhotu was a simple villager.
42. As regards the presence of Chhotu at the place of occurrence, the learned counsel submitted that the presence of Chhotu has not even been denied by PW 20 Suraj Mal who otherwise has not supported the prosecution. He stated that PW 20 in his examination in chief had stated that "Chhotu son of Indraj had also come from his house while raising hue and cry about the firing and warning not to go towards Surat Singh's Chakki." He submitted that even non-mentioning the names of injured by Chhotu in his statement before the Police was natural as after watching the occurrence just in a short while he had run to the Police Station.
43. With regard to the action of the Police not apprehending the two strangers who were with the appellant at the time of firing, the learned counsel submitted that as per evidence on record, those two strangers were not armed with any weapon and it was only the appellant who had fired the shots from his stengun.
44. The learned Deputy Advocate General submitted that it was true that the stamped witnesses had not supported the case of the prosecution. He, however submitted that the statements of these witnesses recorded in proceedings under Section 299, Cr.P.C. could not be discarded altogether. He submitted that PW 16 Ram Mehar who was injured witness, in his statement before the learned trial Court admitted that he had appeared as a witness before the Judicial Magistrate Safidon on 14-12-1985 and had made a statement Exhibit PW 16/B (which was recorded in the proceedings under Section 299, Cr.P.C.). He admitted his signatures also in that statement. He, however, stated that the statement Exhibit PW 16/B was not the statement which he had given before the Magistrate. He, therefore, contended that it could not be believed that the learned Magistrate had not recorded the statement Exhibit PW 16/B correctly. He submitted that the same is the position of PW 17 Inder and PW 9 Chattar Singh. He submitted that in the same manner, PW 22 Duni Chand and PW 23 Ram Saran, who were the witnesses with regard to the recovery have stated before the learned trial Court that the earlier statements which they had given before the learned Magistrate in the proceedings under Section 299, Cr.P.C. were made by them under the pressure of the Police, which again was not probable. The learned counsel submitted that the statement before the Committing Magistrate is binding. In support of this submission, he placed reliance on a judgment in Ananta Mahanto v. State of Orissa, 1979 Cri LJ 1091 : (AIR 1979 SC 1431). The learned counsel further submitted that the documents Exhibits PW 14/K, PW 14/L and PW 44/M which have been recovered from the place of occurrence admittedly belong to the appellant. He submitted that the recovery of these documents from the place of occurrence has been duly proved by PW 44 Ram Singh, I.O. and the recovery memo in respect of these documents was duly attested by PW Duli Chand and PW Ram Saran. The learned counsel draw our attention to the report of F.S.L. (Haryana) Madhuban, Exhibit P.A.C. and Submitted that as per this report, it has been clearly proved that the cartridges cases Exhibits C 1 to C 49 had been fired from stengun No. JJ-7587 which was issued to the appellant before he proceeded on leave on 13-9-1980, for change in the sentence. In support of the submission, the learned counsel placed reliance on two judgments of the Supreme Court in Dalip Singh v. State of Punjab, 1979 SCC (Cri) 968 : (1979 Cri LJ 700) and Umashankar Panda v. State of Madhya Pradesh, (1996) 2 JT (SC) 747 : (1996 Cri LJ 1988).
45. In rejoinder arguments, Mr. Cheema, learned counsel of the appellant, submitted that by admitting the tendering of F.S.L. report in the Court, the appellant did not concede his right to cross-examine Dr. Chug who was the author of this report. He submitted that even now this Court could summon Dr. Chug under Section 367, Cr.P.C. He further submitted that while awarding the sentence, it will be relevant to note that after the occurrence, the father of the appellant was murdered and his elder brother was not traceable till today.
46. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. Before dealing with the submissions made by the learned counsel for the parties with regard to Section 299, Cr.P.C. it will be relevant to reproduce Section 299, Cr.P.C. which reads as under :
"299. Record of evidence in absence of accused. - (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try or commit for trial. Such person for the offence complained of may, in his absence, examine the witness (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
(2) If it appear that on offence punishable with death or imprisonment for life has been committed by some person or persons unknown, the High Court or the Sessions Judge may direct that any Magistrate of the first class shall hold an inquiry and examine any witness who can give evidence concerning the offence and any depositions so taken be given in evidence concerning the person who is subsequently accused of the offence, if the deponent is dead or incapable of giving evidence or beyond the limits of India."
47. From this section, it is evident that in case, it is proved that an accused person has absconded and that there is no immediate prospector arresting him, the Court competent to try (or commit for trial) such person for the offence complained of against him may in his absence examine the witnesses produced on behalf of the prosecution and record their deposition and any such deposition the arrest of such person, may be given in evidence against him in the trial if the deponent is died or incapable of giving evidence, or cannot be found or his presence cannot be procured without an amount of delay, or inconvenience which under the circumstances of the case would be unreasonable.
48. In the present case, it cannot be disputed that the appellant had absconded after the crime was committed on 15-9-1980. This fact is also proved from the evidence of PW 28 R. S. Vishwan, who deposed that the appellant who was working as second Lieutenant in the Army proceeded on leave for the period from 15-9-1980 to 17-9-80 and after availing himself of this leave, he did not join duties and thus deserted the Army. It has also come on record that the appellant was ultimately arrested from a house in New Delhi on 11-9-1994. Besides, from the records, we find that on 1-10-1980 SDJM Safidon had recorded the statement of SHO Safidon that the arrest of the accused could not be procured as he was absconding and on the same day, the learned Magistrate ordered the issue of proclamation under S. 82, Cr.P.C. vide order dated 15-10-1982, the learned Magistrate ordered the attachment of the land of Nirmal Singh. In the order, dated 12-11-1982, it was mentioned that the accused Nirmal Singh had been declared a proclaimed offender. In view of these facts, it is clearly proved that the appellant had absconded after the crime in the present case was committed.
49. The next question for consideration is as to whether there was no immediate prospect of arresting the appellant at the time when proceedings under Section 299, Cr.P.C. were initiated. As stated herein above, on 1st October, 1980, the learned S.D.J.M. Safidon had recorded the statement of SHO concerned that the accused Nirmal Singh had absconded. On 1-10-1980 itself proclamation under Section 82, Cr.P.C. was ordered. On 15-5-1982, the attachment of the land of appellant Nirmal Singh was ordered and Tehsildar Safidon was appointed as Receiver to sell the land as the appellant was still absconding and could not be arrested by the Police. All these facts were available before the learned S.D.J.M. Safidon when he initiated the proceedings under Section 299, Cr.P.C. From these facts, it can safely be concluded that there was no immediate prospect of arresting accused Nirmal Singh when proceedings under Section 299, Cr. P.C. were initiated. The learned counsel for the appellant, however, has raised the contention that even if sufficient material was available on the file that the appellant had absconded and there was no immediate prospect of arresting him, the learned SDJM was required to record a clear finding on the basis of the evidence on record that the accused had absconded and there was no immediate prospect of arresting him and since this finding has not been recorded, the proceedings initiated under Section 299, Cr.P.C. were vitiated. We, however, do not find any substance in this contention as we are of the opinion that in case sufficient material on record leads to the conclusion that the accused had absconded and there was no immediate prospect of arresting him, the proceedings under Section 299, Cr.P.C. shall not be vitiated simply on the ground that a clear finding has not been recorded by a Magistrate to this effect. In this connection, reference may be made to a Division Bench judgment of Lahore High Court in the case, Daya Ram v. Emperor, AIR 1926 Lahore 83 : (1926 (27) Cri LJ 247). In this case, relying on a Division Bench judgment of Allahabad High Court in Bhagwati v. Emperor, AIR 1918 All 60 : (1919 (20) Cri LJ 6) it was held as follows :
". . . . . .But the section required only that, before the Court records the depositions of the witnesses for the prosecution, it should be proved that the accused person has absconded and there is no immediate prospect of arresting him and not that a finding should be given to that effect."
In the case of Sanjeeva (1956 Cri LJ 77) (Mysore) (supra) relied upon by the learned counsel for the appellant, it was held that the basic rule in regard to evidence taken before the Court in judicial proceedings is that it must be taken in the presence of the parties to the proceedings. This is, of course, subject to statutory exceptions and one of these exceptions is contained in Section 299, Cr.P.C. (Section 512 of the Old Cr.P.C.), it was further held that the object of the section is to obtain and preserve valuable evidence in regard to an offence so that interests of justice may not suffer when the accused is found and put on trial after long delay because in the interval the evidence may have ceased to be available. It was observed that in these circumstances, the conditions required to be fulfilled under Section 512, Cr.P.C. have to be strictly construed. It was further observed that it was not enough, if it was shown that it was not possible to trade the accused soon after the occurrence but it has to be established that he was available at or about the commission of the alleged offence, and ceased to be available after the commission of the offence before he could be treated as absconder. Similarly it has to be established that there is no immediate prospect of attesting the accused.
50. In the present case, as stated earlier, the accused who was serving as an officer in the Army, after availing himself three days' leave from 15-9-1980 to 17-9-1980, did not rejoin the duty and deserved the army as proved by PW 28 R. S. Vishwan. Further he was declared proclaimed offender by the competent Court after recording the statement of the Police Officer concerned. Further steps were taken by the Police to attach his property and even a Receiver was appointed for disposal of his property. From these facts, it can safely be concluded that die appellant intentionally made himself unaccessable to the process of law and there was no immediate prospect of arresting the appellant when proceedings under Section 299, Cr.P.C. were initiated. The judgment of the Mysore High Court in the case of Sanjeeva (1956 Cri LJ 77) (supra) is, therefore, of no assistance to the learned counsel for the appellant. For the same reasons, we are of the view that the judgment of the Nagpur High Court in the case of Manbodh (AIR 1944 Nagpur 274) (supra), Madras High Court in the case of Labbai Kutti (1939 (40) Cri LJ 437) (supra) and of Allahabad High Court in the case of Sheoraj Singh (1926 (27) Cri LJ 874) (supra) are of no assistance to the appellant.
51. For the reasons mentioned herein above, we are in agreement with the view of the Division Bench of Lahore High Court in the case of Daya Ram (1926 (27) Cri LJ 247) (supra) that the only requirement under Section 299, Cr.P.C. is that it should be proved that the accused person has absconded and that there is no immediate prospect of arresting him and it is not necessary that formal finding should be recorded to that effect.
52. We do not find any substance in the contention of the learned counsel for the appellant that factum of death of five witnesses, namely PW 2 Chhotu, PW 12 Jai Lal, PW 15 Piare Lal, PW 10 Zohri Singh and PW 11 Jage Ram has not been established for the purpose of Section 299, Cr.P.C. as no death certificate of these persons was brought on record nor date of their death was placed on record. To appreciate this contention, we have carefully looked into original records and we find that repeatedly summons were sent by the learned trial Court summoning these witnesses to appear before the learned trial Court and every time these summons were received back with the report that these persons have already died. From the original records, we find that summons dated 20th March, 1995 were issued to Chhotu Ram son of Indraj to appear on 5th May, 1995 but the said summons were received back with the report that Chhotu had died two years ago. Similarly summons issued to Zohri to appear on 5th May, 1995 were received back with the report that Zohri had died about two years ago. Summons sent to Jai Lal to appear in the Court on 5th May, 1995 were received back with the report that he had died six years age. Summons sent to Piare Lal to appear on 5th May, 1995 were received back with the report that he had died about 6/7 years ago. Summons sent to Jage Ram son of Jai Lal to appear on 5th May, 1995 were received back with the report that he had died two years ago. From these facts, it is quite clear that these five witnesses had already died when they were summoned to appear before the learned trial Court.
53. Since we have come to the conclusion that the provisions of Section 299 were complied with at the time of declaring the appellant as an absconder and we have also held that the factum of death of five witnesses, namely, PW 2 Chhotu, PW 12 Jai Lal, PW 15 Prem, PW 10 Zohri Singh, PW 11 Jage Ram has been established for the purpose of Section 299, Cr.P.C., we have to examine as to whether the conviction of the appellant under Sections 302 and Section 307, IPC can be upheld on the basis of the evidence of the aforesaid five witnesses.
54. The first occurrence happened at about 7.40 p.m. on 15-9-1980 and the second occurrence happened at about 7.50 p.m. on the same day. As per evidence of Chhotu, he witnessed part of the first occurrence and went to the Police Station to lodge the report. This witness also stated that when he left the place of occurrence, the firing was still going on. He reached the Police Station Safidon at about 8.20 p.m. and the distance between the place of occurrence and Police Station Safidon is 7 miles. The contention of the learned counsel for the appellant that since Chhotu could not have travelled a distance of 7 miles within 40 minutes, his evidence could not be relied upon, cannot be accepted. From the statement of Chhotu, Exhibit PW 43/A, we find that the first occurrence started at about 7/7.30 p.m. and he had reached the Police Station 8.20 p.m. There may be slight miscalculation in mentioning the time of occurrence at the Police Station but the case of the prosecution cannot be rejected because of this minor discrepancy. Chhotu in this statement, clearly proved that at the time of occurrence, the appellant was carrying stengun and he fired on them and bullet hit Surat Singh who fell down in the stairs itself. He further stated that appellant Nirmal Singh had also fired at his nephew Des Raj who died on receipt of the shot. It may be relevant to point out here that the presence of Chhotu at the place of occurrence has been admitted by even PW 1 Manphool Singh who did not support the case of the prosecution and was declared hostile. This witness, in his cross-examination, clearly admitted that he had stated in his statement before the Judicial Magistrate that on 15-9-1980 at about 7.45 p.m. he, Chhotu, Surat Singh (since deceased) and Gaje Singh were present on the flour mill of Gaje Singh.
55. Besides Chhotu, the first occurrence was witnessed by PW 1 Manphool Singh and PW 2 Gaje Singh. Both these witnesses, in their respective statements recorded under Section 299, Cr.P.C. had supported the case of the prosecution and had in terms stated that on 15-9-1980 at about 7.45 p.m. the appellant Nirmal Singh caused gunshot injuries to Surat Singh and Des Raj. However, before the learned trial Court they resiled from their earlier statements recorded by the S.D.J.M. Safidon. Both PW 1 and PW 2 admitted that they had made the statements, Exhibits PA/1 and PB/1 respectively but they stated that they made these statements under pressure and influence of the Police. We, however fail to understand that as to how the Police could have influenced them when their statements were recorded in the open Court by Judicial Magistrate Safidon. In view of these facts, we have no hestitation to conclude that appellant Nirmal Singh had caused gunshot injuries to deceased Surat Singh and Des Raj at the place of occurrence Nos. 1 and 2 and our view is further strengthened by the report Exhibit PAC of Dr. Chug, Ballistic Expert which we will discuss in the later part of the judgment.
56. The case of the prosecution with regard to occurrence No. 6 where Ramesh and Lehna Singh were shot dead and Ram Mehr and Inder S/o. Ratia were injured is based on the basis of the evidence of Jai Lal and Piare Lal whose statements Exhibits PW 48/D and 48/E were recorded in the proceedings under Section 299, Cr.P.C. and who could not be examined before the learned trial Court as they had already died. Besides these two eye-witnesses, the prosecution examined injured PW 16 Ram Mehr, PW 17, Inder S/o. Ratia and PW 18 Parkash (non-injured). In their respective statements, Exhibit PW 48/D and PW 48/E, both Piare Lal and Jai Lal stated that appellant Nirmal Singh along with Vijay Singh came in the chowk in front of the house of Jai Lal at about 8/8.15 p.m. and at the instance of Vijay Singh, Nirmal Singh fired at Lehna Singh and Ramesh and both fell down and they also fired shots at Inder and Ram Mehr. They further stated that after departure of Nirmal Singh etc. they found that Lehna Singh and Ramesh were dead due to gunshots. Both these witnesses also stated that about 6/7 months prior to the occurrence, a quarrel between Lehna Singh and Inder Singh on the one hand and Rulia Ram, father of the appellant, on the other, took place in which they were challaned and due to that grudge, shots were fired. From the evidence of these two witnesses, it is clearly proved that appellant Nirmal Singh had shot dead Ramesh and Lehna Singh and also caused gun shot injuries to Ram Mehr and Inder S/o. Ratia. Since we have field that the proceedings under Section 299, Cr.P.C. were valid and the factum of death of PWs Jai Lal and Piare Lal was established before relying on the proceedings under Section 299, Cr.P.C. we are of the opinion that the conviction of the appellant under Section 302, IPC for the murder of Ramesh and Lehna Singh and under Section 307, IPC for causing fire-arm injuries to inder and Ram Mehar at the place of occurrence No. 6 is fully established, and our view is also strengthened by the report of Dr. Chug, Ballistic Expert, which we will discuss in the later part of the judgment.
57. It is true that PW 16 Ram Mehar and PW 17 Inder S/o. Ratia who were injured witnesses and PW 18 Parkash resiled from their respective statements recorded before the Judicial Magistrate, Safidon in the proceedings under Section 299, Cr.P.C. when they appeared before the learned trial Court. But it may be noted here that when confronted with their respective statements, Exhibits PW 16/B and PW 17/B recorded before the Judicial Magistrate Safidon PW 16 Ram Maehar and PW 17 Inder admitted that their statement were recorded by the Judicial Magistrate but they disputed the correctness of the statements recorded by the Judicial Magistrate. We fail to understand as to what was the interest of the learned Judicial Magistrate in not recording the statements of these witnesses correctly, particularly when there is no allegation of malafide against the learned Judicial Magistrate. PW 18 Parkash also admitted that his statement Exhibit PW 18/B was recorded by the learned Judicial Magistrate but he stated before the learned trial Court that the statement given by him before the Judicial Magistrate was under the pressure and fear of the Police, which again cannot be believed. We are, therefore, of the opinion that the occurrence at place No. 6 stands established also by the evidence of PW 16, PW 17 and PW 18.
58. To prove the occurrence No. 3, where PW 14 Nanhi, PW 15 Prem, Banwari and Surji were injured, the prosecution relied on the evidence of PW 10 Zohri Exhibit PW 10/B, recorded in the proceedings under Section 299, Cr.P.C. and the evidence of two injured witnesses PW 14 Nanhi and PW 15 Prem and two non-injured witnesses, PW 19 Kitaba and PW Dhir Singh. Zohri Singh, in his statement Exhibit PW 48/B, had stated that in the month of September, 1980 at about 8 p.m. he was present when Dhir Singh was in his Chaubara and an electric bulb of uppr side was burning. He heard reports of firing in front of the flour mill of Gaje Singh and shop of Inder, and in the meantime he heard the noise of Shanti, wife of Sultan and Nani W/o Megh Raj standing in the front of the house of Lachhman Singh saying that Nirmal Singh and Vijay Singh fired in their flour mill and Des Raj had also been fired at. He further stated that accused Nirmal Singh and Vijay Singh came towards the shop of Inder and when he asked him as to why they were stifling the village, Vijay Singh asked Nirmal Singh to fire, and upon this Nirmal Singh fired at Banwari and Shanti which hit them. Surji W/o. Richi Ram also received injury and this was witnessed by PW 19 Kitaba Singh also. As stated earlier, the evidence of Zohri Singh was recorded in the proceedings under Section 299, Cr.P.C. after the appellant was declared a proclaimed offender and further when this witness was summoned by the learned trial court, he had already died. Thus, the evidence of this witness can be relied upon. From the statement of this witness, we find that the case of the prosecution with regard to gun shot injuries received by Banwari, Shanti and Surji is proved to the effect that these injuries were caused by appellant Nirmal Singh.
59. It is true that PW 13 Shanti, PW 14 Nanhi, PW 15 Prem and PW 19 Kitaba and PW 20 Dhir Singh who had also witnessed this occurrence have not supported the case of the prosecution before the learned trial Court but from the evidence of these witnesses, we find that all these witnesses have admitted that their respective statements were recorded by the Judicial Magistrate Safidon in the proceedings under S. 299, Cr.P.C. PW 13 Shanti stated that her statement Exhibit PW. 13/B recorded in the proceedings under S. 299, Cr.P.C. was made by her before the Court but she was under the pressure of the Police. PW 14 Nanhi and PW 15 Prem also stated to the same effect that their respective statements PW 14/B and PW 15/B were made before the Judicial Magistrate Safidon when they were under the pressure of the Police. PW 19 Kitaba and PW 20 Dhir Singh deposed in the same manner that when they gave their statements before the learned Magistrate in the proceedings under Section 299, Cr.P.C. they were under the pressure of the Police. We, however, are not impressed with the reasons given by these witnesses that they were under the pressure of the Police when their statements were recorded in the open court by the learned Sub Divisional Magistrate. We are, therefore, of the opinion that occurrence at place No. 3 stands established by the evidence of the said witnesses also.
60. With regard to the occurrence at place No. 4, prosecution has not led any evidence and as such the conviction with regard to the place at occurrence No. 4 cannot be sustained.
61. The occurrence at place No. 5 was witnessed by PW 12 Inder S/o Jai Lal and PW 9 Chhattar Singh S/o Bholar. PW 9 stated before the learned trial Court that Nahar Singh and Sarti who were his neighbours received fire arm injuries on 15-9-1980 at 8.30 p.m. He, however, stated that these injuries were not caused by Nirmal Singh or his brother Vijay Singh. Since this witness had supported the case of the prosecution with regard to the injuries caused to Nahar Singh and Sarti in the proceedings under S. 299, Cr.P.C., he was confronted with the statement Exhibit PW 9/B given by him before the learned Magistrate. On this, he replied that his thumb-impression was obtained by the learned Magistrate on a statement but nothing was enquired from him by the Magistrate. We, however, cannot believe the said version given by this witness, as the learned Magistrate had no interest whatsoever to obtain his thumb impression on the statement which was not given by him and even there is no allegation of mala fides against the learned Magistrate. Similarly, PW 12, in his statement recorded in the proceedings under Section 299, Cr.P.C. had supported the case of the prosecution with regard to injuries caused to Biro, Dilbagh and Chameli, but in his statement recorded before the learned trial Court, he had stated that he had made the statement Exhibit PW 12/B in the court of SDJM Safidon on 19-4-1985 but that statement was given by him under the pressure of the Police. He, however, admitted that no Police official was present in the Court. In view of these facts, we do not agree with the said version given by PW 12 with regard to injuries caused to Biro, Dilbagh and Chameli by the appellant Nirmal Singh. Accordingly, we hold that the appellant had caused gunshot injuries to Nahar Singh, Sarti, Biro, Dilbagh and Chameli at the 5th place of the occurrence.
62. The learned counsel for the appellant has contended that there was a delay in delivering the special report at the place of C.J.M. Jind. We, however, do not find any merit in this contention. It is proved on the record that the occurrence happened on 15-9-1980 at about 7/7.30 p.m. and the statement of PW Chhotu was recorded at P. S. Safidon at 8.20 p.m. on the same day and thereafter the Police went to the place of occurrence which was at a distance of 7 miles from the Police Station. The special report was delivered at the residence of the C.J.M. Jind at 3.10 a.m. on 16-9-1980. In this connection, reference may be made to the affidavit Exhibit PW 30/A of UGC Puran Singh. In this affidavit, he has stated that the special report was given to him at about 9 p.m. at P. S. Safidon but the Ilaqa Magistrate, was not available at Safidon and as such, he had to go to Jind to deliver the special report at the place of the Chief Judicial Magistrate, Jind, after delivering a copy of the same at the residence of the Superintendent of Police, Jind. In view of the explanation given in this affidavit, we are of the opinion that delay, if any, in delivering the special report to C.J.M. Jind has been satisfactorily explained.
63. As regards the contention of the learned counsel for the appellant, that stengun No. JJ-7587, alleged to have been used in the crime, was not available with the appellant, we do not find any merit in this contention. It is not disputed that this stengun had been issued to the appellant before he proceeded on leave on 13-9-1980. It is true that as per the record of the Army authorities, this stengun was deposited by the appellant at the time of proceeding on leave but the report of the Ballistic Expert Dr. O. P. Chug of S.F.L. Madhuban has clearly proved that the cartridges cases Exhibits Cl to C-49 which were found from the place of the occurrence had been fired from stengun No. JJ-75/87. In view of these facts, the only irresistible conclusion which can be drawn is that the appellant must have ensured that the said stengun was shown as having been deposited in the records of the Army on 13-9-1980 but in fact the stengun was deposited after the crime was committed. It may be relevant to point out here that the report of Dr. O. P. Chug was tendered in evidence by the prosecution on the ground that Dr. Chug, the author of the report had gone abroad and the appellant had taken no objection to it and he and his counsel had stated before the Court that they had no objection if report Exhibit PAC was read in evidence. We do not find any merit also in the contention of the learned counsel for the appellant that the report of Dr. O. P. Chug was vague. After carefully examining the report, we find that in this report, it has been clearly proved that the cartridges Exhibits C 1 to C 49 which were lifted from various spots of the crime, had been fired from the stengun No. JJ-7587 of the appellant. As stated earlier, this report was admitted by the appellant in evidence.
64. As regards the contention of the learned counsel for the appellant that the prosecution has failed to prove that the documents Exhibits PW 44/K, PW 44/L and PW 44/M were recovered from the place of occurrence, we do not find any merit in this contention also. From the evidence on record, we find that the recovery of these documents from the place of occurrence No. 6 has been duly proved by PW 44 Ram Singh, I.O. and the recovery memo in respect of these documents was duly attested by PW Duli Chand and PW Ram Saran.
65. It was also argued on behalf of the appellant that the appellant was not available in village Budha Khera on the day of occurrence as he had gone to Mata Vaishno Devi Temple in those days. This plea of alibi also cannot be accepted as no evidence has been led on behalf of the appellant for establishing the plea of alibi. As held by the Supreme Court in Binay Kumar v. State of Bibar, AIR 1997 SC 322 : (1997 Cri LJ 362), strict proof is required for establishing the plea of alibi.
66. It was also argued on behalf of the appellant that the prosecution has failed to prove the motive for committing the crime. But the question of motive pales into insignificance when there is a positive and cogent evidence of murder. Since we have come to the conclusion that there is sufficient evidence on the record to prove that the appellant had committed the murder of four persons and had caused fire arm injuries to many others, the question of motive is not of much relevance in this case.
67. Now coming to the sentence awarded to the appellant, it will be relevant to refer to Sub-section (3) of Section 354, Cr.P.C. which reads as under :
"When the conviction is for an offence punishable with death or in the alternative, with an imprisonment for life, or an imprisonment for a term of years, the judgment shall state reasons for the sentence awarded and in the case of sentence of death, the special reasons for such sentence."
68. Thus, under the provisions of the Code of Criminal Procedure, life imprisonment for the offence of murder is the rule and death sentence is an exception to be resorted to for special reasons to be recorded in the judgment. As far as the extreme penalty of death is concerned, the sentencing discretion of the Court is circumscribed by the guidelines laid down by the Hon'ble Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636). In this case, it was held that the extreme penalty should not he inflicted except in the rarest of a rare cases and "on the four principles namely (1) the extreme penalty of death may not be inflicted except in cases of extreme culpability, (2) before opting for the death penalty the circumstances of the offender be also take in into consideration along with the circumstances of the crime, (3) life imprisonment is the rule and the death sentence is an exception. In other words, death sentence has to he imposed only while life imprisonment appears to be altogether inadequate punishment having regard to the relevant circumstances of the crime and (4) aggravating and mitigating circumstances have to be given full weightage and the balance has to be struck between the aggravating and mitigating circumstances before the option of the punishment has to be exercised. It was also observed in this judgment that the scope add the concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing Policy writ large in Section 354(3).
69. The mitigating circumstances mentioned in the case of Bachan Singh (supra) are as under :
(1) That the offence was committed under the influence of extreme mental or emotional disturbance;
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above.
(5) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
70. Having regard to the guidelines formulated by the Hon'ble Supreme Court discussed above, we have given our thoughtful consideration to the question of sentence awarded to the appellant and have also examined the facts and circumstances of the case and the reasons assigned by the learned trial Court for awarding extreme penalty of death to the appellant. The facts of the present case present a tragic situation in which the appellant had taken the lives of four persons which depicts acruel personality of the appellant but the question which still remains for consideration is as to whether it will be just and proper to affirm the sentence of death passed against the appellant. As stated earlier, the offence was committed in the year 1980. From the evidence on record, it is also clear that all the injured witnesses who are alive and are residing in the village, have not supported the case of the prosecution before the learned Sessions Judge. The evidence on record further shows that some of these injured persons are closely related to the deceased persons. From these facts, it is clear that peace has returned to the village and there is no ill will.
71. Another mitigating circumstance in favour of the appellant is that he was a young man of 23 years at the time of the occurrence. There is no charge of conspiracy and the evidence does not show that the murders were planned. On the contrary, the evidence of P.Ws. Chbotu, Zohri Singh, Jage Ram, Jai Lal and Piare Lal shows that the appellant committed the murders at the instance of his elder brother Vijay Singh. Besides, during the period of abscondance, the appellant has already married and is having two children. Keeping in view these facts, it is not possible to say that it is the rarest of rare cases which may warrant the extreme penalty of death sentence for the occurrence which happened more than 16 years ago. In our opinion, it will meet the ends of justice if we substitute the sentence of death with that of sentence of imprisonment for life on the appellant under Section 302, I.P.C. while maintaining his conviction as recorded by the learned Sessions Judge. The view we have taken finds support from a recent judgment of the Supreme Court in Mukund alias Kundu Mishra v. State of Madhya Pradesh, (1997) 5 JT (S) 134 : (1997 Cri LJ 3182).
72. Accordingly, the appeal is allowed to a limited extent that the sentence of death passed against the appellant under Section 302, I.P.C. is set aside and instead he is sentenced to life imprisonment. We, however, confirm the conviction and sentence awarded to the appellant under Section 307, I.P.C. and under Sections 25 and 27 of the Arms Act. We further direct that all the sentences shall run concurrently.
Order accordingly
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Santokh Singh, Appellant V. The State, Respondent.

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DATE : 27-06-1997
1998-(104)-CRLJ -0218 -J&K
JUDGE(S) :

Bilal Nazki
G D Sharma
JAMMU AND KASHMIR HIGH COURT
JUDGMENT
G. D. SHARMA, J. :- The appellant, Santokh Singh, an octogenarian (89 years old), has been awarded capital punishment by the learned Ist Additional Sessions Judge, Jammu for murdering two young real brothers who were his nephews.
2 The genesis of the incident is the internecine quarrel which took place on 27-5-1954 (43 years ago). On a trivial incident regarding the non-payment of a paltry amount of Rs. 5/-, the deceased Kahan Singh and Chain Singh were brutally done to death. The prosecution case is that the deceased Kahan Singh owed Rs. 5/- to one Lalman - a shopkeeper of the town of Samba. On Jeth 15, 2011 Bikrmi i.e. on the day of occurrence, the said Lalman came to the house of the deceased Kahan Singh and demanded the payment of the debt of Rs. 5/-. Kahan Singh pleaded the liquidation of the debt by stating that he had made the payment through the appellant but the said creditor denied its receipt. For verification, contesting parties called the appellant on the spot who admitted the receipt of Rs. 7/- from Kahan Singh but showed that the amount was given for making purchases of tabacoo and cigarette from the bazar for him. Deceased Kahan Singh admitted the receipt of only one packet of cigarette from him in lieu of this sum of money and claimed the balance amount. The heated arguments gave rise to frayed tempers. Deceased Kahan Singh went into bellicose mood and he violently pushed the appellant who fell on the ground. He also hurled a volley of abuses on him. Abhey Singh (brother of the deceased Kahan Singh) emerged on the spot and with his intervention, the warning parties were separated. The other brother of the deceased namely, Talab Singh also reached the spot who held out an olive branch as he made payment of rupees five from his own pocket to the creditor Lalman and bade him goodbye. The deceased Kahan Singh was constructing a house and needed timber. After some-time, he in the company of his brother Chain Singh set out to their fields to fetch the same on the back of their camel. The appellant could not bear with the insult and was smarting under humiliation. He resolved to take revenge and came out from his house after arming himself with a 303 gun. He waylaid the deceased by camouflaging himself under "Phly" Tree and when the deceased reached within the firing range of his gun, he opened the fire. The first fire was aimed at Chain Singh who was hit in the chest and he fell down stone dead. The second fire of the gun was made at Kahan Singh who received the injury in his stomach and fell down in a pool of blood. The occurrence was witnessed by Jagdish Singh and Parveen Singh. The latter informed Talab Singh (brother of the deceased) about the incident who in the company of Jagdish Singh immediately went to the spot and lifted Kahan Singh who was gasping for breath. He was brought to home where he succumbed to the injury within 3/4 hour. He had made dying declaration which implicated the appellant. Prosecution witnesses namely, Abhey Singh (brother of the deceased) and Gunjar Singh had also seen the appellant running from the spot when he was carrying the gun in his hands. He had held threat to do away with the life of Abhey Singh. On the same day. Thakara Singh and Chandu Chowkidar lodged an oral report of the incident in the Police Station, Samba whereunder, F.I.R. No. 7 of Samat 2011 case was registered for the commission of offence under section 302, R.P.C. The appellant had absconded and in his absence final report for the commission of offence under section 302, R.P.C. was submitted before Munsiff Magistrate First Class, Samba. He initiated proceedings under Sec. 512, Cr.P.C. against the appellant and in his absence recorded the statements of prosecution witnesses namely, Abhey Singh, Talab Singh, Surman, Chandu, Jagdish Singh, Gunjar Singh, Sarda Ram, Lalman, Ludermani, Dr. P. R. Prabbakar and Bakshi Dhan Raj, S.I. of Police. After appreciating the evidence, on 14-5-2011 (Bikrmi) the learned Munsiff Magistrate passed the committal order and held that the appellant had intentionally murdered the deceased. In the absence of the appellant, the case could not be committed to the Court of learned Sessions Judge but was consigned to the records. Non-bailable warrant of arrest was issued against him which remained in operation and could only be executed in the year 1987. On 3-8-87, the police produced the supplementary challan in the Court of learned Sub-Judge, JMIC, Samba who vide his order dated 3-9-87 committed the case to the Court of learned Sessions Judge, Jammu, who transferred the same to the Court of learned First Additional Sessions Judge, Jammu. The appellant was charged for the commission of offence under section 302, R.P.C., the contents whereof were read over and explained to him. He pleaded not guilty and the prosecution examined Talab Singh, Sarda Ram, Dr. P. R. Parbhakar and Parveen Singh as prosecution witnesses. Kuldip Raj, Selection Grade Constable was also examined to prove the fact that the prosecution witnesses namely, Chandu Ram, Jagdish Singh, Abhey Singh and Gunjar Singh had died. The appellant, in defence examined Golay Ram, Dinku, Narsing Singh and Bishen Dass as his witnesses. The learned trial Judge has convicted the appellant under Section 302, R.P.C. and sentenced him to be hanged by neck till death. This judgment has been challenged on the following grounds :-
1. The learned trial Judge has believed those witnesses whose testimony was recorded in the absence of the appellant. Such an evidence is inadmissible and any finding based thereon is illegal.
2. The prosecution evidence was replete with material contradictions but the trial Judge has wrongly ignored them.
3. The motive behind the murder is not established and there could be no murder without any motive.
4. The trial Judge has wrongly disbelieved the defence witnesses.
5. While awarding the death sentence, the trial Judge has wrongly relied upon the ratio of the judgment of Raj Gopal Nayers' case. The facts and the circumstances of both the cases are different.
3. Heard the arguments.
4. The learned defence counsel at the outset has contended that the proceedings under Section 512, Cr.P.C. were not taken against the appellant in accordance with law and the evidence of the witnesses recorded in his absence cannot be read against him. This plea is not borne out from the record which reveals that on 4-4-2011 (Bikrmi), constable Sita Ram was examined in the Committal Court who had stated that in execution of the warrant of arrest issued against the appellant, he searched to locate him but failed in his attempts. He had categorically stated that there was no immediate prospect of arresting him. This statement was believed by the committing Magistrate who ordered that proceeding under section 512, Cr.P.C. were initiated against him and directed the prosecution to produce the prosecution witnesses on the next day i.e. on 5-4-2011 (Bikrmi). On this day, the statements of prosecution witnesses namely, Abhey Singh, Talab Singh, Surma, Chandu, Jagdish Singh, Gunjar Singh, Sarda Ram, Lalman, Ludermani, Dr. P. R. Prabhakar and Bakshi Dhan Raj, SI were recorded. The Prosecuting Officer had given the statement that the remaining witness namely, Parveen Singh will be examined in the Sessions Court. The requirements for initiating proceeding under Section 512, Cr.P.C. are that it must be proved that an accused person has absconded and there is no immediate prospect of arresting him. The Court competent to try or commit for trial such person for the offence complained of may, in his absence examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the enquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances of the case, would be unreasonable.
5. The Additional Public Prosecutor in the trial Court had made the application that the statements of those prosecution witnesses who have died may be transferred from the record of the Committal Court. The defence counsel had filed the objections and pleaded that the application was not maintainable as the amended Code of Criminal Procedure does not permit any such transfer. The trial Court had ordered the production of that witness who could depose about the death of the witnesses. Accordingly, the prosecution examined Kuldip Raj, SGC who stated on oath that prosecution witnesses namely, Chandu Ram, Jagdish Singh, Abhey Singh and Gunjar Singh had died. The defence was given the opportunity to cross-examine the witness but this opportunity was not availed of. The trial Court in its order dated 9-6-88 had held that the above stated witnesses had died and directed the prosecution to produce the remaining witnesses. When the defence did not put any question to Kuldip Raj, SGC in cross-examination that means that the appellant had no doubt about their death. Even in his statement recorded under Section 342, Cr.P.C., the appellant was specifically asked that these witnesses had died and what he had to say about that fact. The reply of the appellant was that he had nothing to say. On these admitted facts, the depositions of these witnesses can be given in evidence against the appellant and the argument that the evidence was inadmissible loses its significance.
6. The learned counsel for the appellant has further contended that the trial Judge recorded the statements of the appellant at two occasions i.e. on 13-12-1988 and on 21-11-1989 and at no time, he was enabled to explain the circumstances appearing in the evidence against him. In the presence of such illegality, his conviction and sentence cannot be sustained. In support of his contention, the counsel has cited the case of S. Harnam Singh v. The State (Delhi Administration), AIR 1976 SC 2140 : (1976 Cri LJ 913). In this case, the Apex Court has held (Para 22) :
"that Section 341, Cr.P.C. casts a duty on the Court to put, at any enquiry or trial, questions to the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him. Therefore, each material circumstance appearing in evidence against the accused is required to be put to him specifically, distinctly and separately. Failure to do so, amounts to serious irregularity vitiating the trial if it is shown to have prejudiced the accused. If the irregularity does not, in fact, occasion a failure of justice, it is curable under section 537 of the Code."
7. A reference to Section 342, Cr.P.C. reveals that it has been incorporated in the statute for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him and the Court may at any stage of any inquiry or trial without previously warning the accused put such questions to him as the Court considers necessary. But the Court has the limited scope to use this discretion not at all the time when the proceedings are before it but only after the witnesses of the prosecution have been examined and before the accused is called on for his defence. In the present case, the appellant was examined after the prosecution had examined its witnesses. The first examination was made on December 13, 1988. After this, a controversy had arisen as to how for the depositions of those witnesses who had died after deposing before the Committal Court could be read in evidence. On 23-3-89, the prosecution examined Kuldip Raj, Selection Grade Constable to prove the fact that witnesses Chandu Ram, Jagdish Singh, Abhey Singh and Gunjar Singh had died. The Court accepted this version and gave a finding that they had died. On the discovery of this new fact, the Court had felt it necessary to examine the appellant again. Accordingly, on 21-11-89, the examination of the appellant was made and he was also asked this aspect of the case. Besides that he was made to explain all the circumstances appearing in evidence against him. The appellant had put up a defence of alibi as according to him, at the time of the occurrence he was in village Ramnagar Tehsil and District Lakhanpora of the State or Uttar Pradesh where he had started tilling the land. His only explanation was that the ancestors of the deceased had enmity with him so this false case was foisted against him. He had even denied that he remained absconding for 35 years and in execution of the arrest warrant issued against him, he was produced in the Court. From the perusal of the record of the examination of the appellant, it is found that each material circumstance appearing in evidence against him was put to him specifically, distinctly and separately. The learned counsel has failed to show how the appellant has been prejudiced by not putting any relevant circumstance to him. In the absence of any irregularity, it cannot be said that there is an occasion which has caused failure of justice. The argument of the learned counsel is devoid of legal force and does not hold good.
8. The other argument advanced by the learned defence counsel is that mandatory provisions of Section 173, Cr.P.C. have not been complied with as the appellant was not given any copy of the documents which accompanied the final report submitted to the Committal Court. That this omission has vitiated the proceedings. It may be noted that this argument has been taken up for the first time at this stage. Even the memo of appeal does not contain any such ground. In the order dated 5-10-87 passed by the learned trial Judge, the prosecution was directed to supply the copies of the documents to the defence counsel within weeks' time. Afterwards, the case was adjourned for five dates of hearing for the reasons recorded therein. On 23-11-87, the arguments of the prosecution and the defence counsel regarding framing of charge were heard and the appellant was charge-sheeted for the commission of offence u/S. 302, RPC. In case the defence counsel was not given any copy of the documents he would not have argued the case without raising a plea of his inability to appreciate the facts. His participation in advancing the arguments shows that he had received the requisite copies. Now it is too late in the day to advance such an argument which is an after thought and has no bearing with the factual matrix of the case.
9. The learned defence counsel has vehementally contended that there is no legal evidence which proves the commission of murder against the appellant. The material contradictions in the statements of the prosecution witnesses render the evidence unbelievable. This argument requires a close scrutiny of the prosecution evidence. The prosecution case is that Jagdish Singh and Parveen Singh were the witnesses of the actual commission of the crime, Jagdish has died during the proceedings but his statement had been recorded by the Committing Court under section 512, Cr.P.C. Now, this statement can be given in evidence. From the perusal of his statement, it is found that he had stated that he in the company of Parveen Singh had heard the gun fire and when their attention was drawn to the place of fire, he saw Chain Singh who had been hit by that gun shot. The appellant was holding a 303 gun in his hands and hidden himself below a "Phly" tree. After sometime, the appellant made a second fire from his rifle which hit the deceased Kahan Singh who also fell down. He and Parveen Singh returned from the fields and informed Talab Singh PW (brother of the deceased) about the incident. He again in the company of Talab Singh went to the spot and found Chain Singh lying on the ground. He was facing the ground and bleeding profusely. He was gasping for breath. At a distance of 10 or 12 yards, Kahan Singh was also lying but he was trying to stand up. The bullet had caused the injury in the stomach from where the blood was oozing out. Talab Singh P.W. lifted Kahan Singh and brought him to his house. Chain Singh had died on the spot but Kahan Singh breathed his last after 3/4 hour. The evidence of other eye-witness namely, Parveen Singh was not recorded by the Committing Court. The prosecution on 7-10-88 examined him in the trial Court. He feigned ignorance about the incident. As he did not support the prosecution case, so he was declared as a hostile witness.
10. Talab Singh, who is the real brother of the deceased has appeared as a witness in the trial Court and affirmed the deposition of Jagdish Singh P.W. when he stated that the incident was reported to him by Jagdish Singh and Parveen Singh. He admits to have hurriedly gone on the spot and seen the appellant running away. Both the injured had received gunshot injuries and were lying in pools of blood. Kahan was alive and he had narrated the incident to the effect that he as well as his brother Chain Singh were injured by the appellant with gun fires.
11. Sarda Ram has also appeared as a witness in the trial Court and stated that on the day of the incident, the deceased Kahan Singh had engaged him as a carpenter. Altercation between Kahan Singh and the appellant had started in his presence which had developed into physical scuffle. In his presence, the deceased had gone to fetch the timber from their fields and he had also heard gun fires. He is also categorical in stating that he had heard Jagdish Singh and Parveen Singh saying that the appellant had fired gunshots from the rifle on the deceased and ran away from the spot.
12. The prosecution has also examined Dr. P. R. Parbhakar. He has performed the autopsy on the dead body of the deceased. He was examined in the Committal Court as well as his statement has been recorded in the trial Court. In his opinion, the deceased had died of shock and haemorrhage due to gunshot injuries.
13. Now, there remains the testimony of Abhey Singh, Gunjar Singh and Chandu Ram. These witnesses after deposing before the Committal Court have died. Abhey Singh had seen the appellant running away from the spot and he was carrying a gun in his hands. The appellant while running had threatened him also and at the advice of Gunjar Singh PW, he concealed himself from the view of the appellant. He had met the deceased Kahan Singh before life had ebbed in him. Kahan Singh had named the appellant to have caused the gunshots to him as well as to Chain Singh. Gunjar Singh had also seen the deceased from a distance of 2/3 "Jareebs" while he was running after carrying the rifle in his hands. He had visited the spot. Jagdish Singh and Parveen Singh PWs had told him that the appellant had fired the gunshots at Kahan Singh and Chain Singh. He had also met Kahan Singh who before his death had narrated the incident to him and implicated the appellant. Chandu Ram was the Chowkidar of the village. Immediately, after receiving the information of the occurrence, he in the company of Thakara Singh went to the Police Station and lodged the F.I.R. He has also stated that Jagdish Singh had told him that the appellant had killed the deceased. In the presence of such evidence which is of impeccable nature, it cannot he said that the account given by the witnesses suffered from material contradictions and it was not worthy of any credence. The argument advanced by the learned counsel is only an argument of despair.
14. Be that as it may, the defence which the appellant has taken to prove his innocence goes in a way to implicate him with the crime. In his statement under section 342, Cr.P.C. he has set up a plea of alibi that at the time of the incident, he was in his village of migration namely Ramnagar Lakhanpura-Ekhree in the State of U.P., where he had started tilling the land. His defence witness namely, Golay Ram who is a resident of the same village has stated that when about 40 years ago the appellant came to their village, he was clean shaved and had told him that he was a domicile of the State of Punjab. His other witness of the same village is Dhinku who has stated that the appellant after settling himself for ten years in the village, converted himself as a Sikh and raised a family. The appellant has not tendered any explanation as to why he left his family members and the native place for good. A criminal trial is not an inquiry into the conduct of the person charged with the crime. However, conduct of the accused immediately after the occurrence is a relevant fact u/S. 8 of the Evidence Act. In this connection, that a piece of conduct can be held to be incriminatory which has no reasonable explanation except on the hypothesis that he is guilty. Conduct which destroys the presumption of innocence can alone be considered as material. In the instant case, there is no reasonable explanation for the sudden disappearance of the appellant from his home, leaving the family including wife and the child in lurch and starting a new life in a far off village by converting himself as a Sikh and concealing the real identity and raising a new family are the factors which destroy the presumption of innocence and speak volumes in favour of his guilt.
15. The learned defence counsel has advanced a novel argument when he challenge the veracity of material prosecution witnesses and especially that of eye-witnesses. According to him, their names should have figured in the F.I.R. and as this has not happened, so no reliance should be placed upon them. This argument is devoid of any legal force as the law does not require that the names of such witnesses should always find a place in the F.I.R. This settled proposition of law has recently been reiterated by the Apex Court in the cases of Baldev Singh v. State of Punjab, AIR 1996 SC 372 and Rattan Singh v. State of Himachal Pradesh, AIR 1997 SC 768 : (1997 Cri LJ 833). In the case of Baldev Singh (supra), it has been held (at p. 375 of AIR) :-
"FIR is not substantive piece of evidence. Non-mentioning of some facts or vague reference to some others not fatal."
In the case of Rattan Singh (1997 Cri LJ 833) (supra), the Apex Court has held (at p. 836 of Cri LJ) :-
"Criminal Courts should not be fastidious with mere omissions in the First Information Statement, since such statement cannot be expected to be a chronicle of every details of what happened, nor to contain an exhaustive catalogue of the events which took place ....... The person who furnishes first information to authorities might be fresh with the facts but he need not necessarily have the skill or ability to reproduce details of the entire story without anything missing therefrom. Some may miss even important details in a narration. Quite often the Police Officer, who takes down the first information, would record what the informant conveys to him without resorting to any elicitatory exercise. It is the voluntary narrative of the informant without interrogation which usually goes into such statement. So any omission therein has to be considered along with the other evidence to determine whether the fact so omitted never happened at all."
16. In the present case, the F.I.R. was lodged by Chandu Ram, Chowkidar who was accompanied by Thakara Singh. They were not the witnesses of the actual commission of the crime. It is not the case of anybody that the informant had suppressed the material facts. Chandu Chowkidar had received the information of the incident through a third person and he in a natural and straight forward manner, laid the same in the Police Station. Such type of argument in the given circumstances, has no relevance.
17. At the last leg of his argument, the learned counsel has contended that the appellant who is an old man of 89 years and a sick person did not deserve the imposition of death sentence. The offence was committed in the year 1954 when he was under the fit of rage and thereafter, he had to leave his home and hearth including wife and a child. He entered into a new order of life by embrassing Sikhism. He again married and was leading a peaceful normal family life. The death sentence was awarded five years ago and he has been lying ever since under threat of execution. He is made to suffer the most excruciating agony and anguish. This argument of the learned counsel has to be appreciated in the light of the rule as laid down by the Apex Court in Bachan Singh's case, AIR 1980 SC 898 : (1980 Cri LJ 636). The matter again came up for consideration before the constitutional bench of the Apex Court when it had to deal with the case of Trivedi Ben v. State of Gujarat, AIR 1989 SC 1335 : (1990 Cri LJ 1810). While approving the guidelines indicated in Bachan Singh's case which were ratified in Machhi Singh v. State of Punjab, AIR 1983 SC 957 : (1983 Cri LJ 1457), the propositions which had emerged were enumerated as under :-
(i) "The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
In order to apply these guidelines inter alia the following questions may be asked and answered :
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?
If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."
18. Applying the above stated guidelines to the facts of the present case, it is gathered that the appellant had perpetuated the crime in a most fiendish and diabolical manner. On a trifling incident, he took away two precious lives of real brothers who at that time were at the prime of their youth. Their family members were made to suffer the mental, emotional and economical pangs and constraints throughout their lives. In order to satisfy his false ego, the appellant not only killed Kahan Singh but his real brother Chain Singh also who had done no harm to him at any point of time. This shows the depraved and savage moral fibre of the character of the appellant. His conduct had stolen the heart of law and he deserved the extreme penalty.
19. The mitigating circumstances in favour of the appellant are that the crime was committed 43 years ago and now he is getting his nemesis at an advanced age when his days are numbered. He cannot walk but was brought in the Court on crutches with the help of the attendants. It is also stated that he is suffering from many ailments including old age infirmities. He is incapable to be a danger to the orderly society. Rather, there is evidence that he had been leading a reformed family life. He had even become a member of Panchayat in village Ramnagar (U.P.). He has lived under the shadow of death from the date of impugned judgment (30-11-92). As between funeral fire and mental worry it is the latter which is more devastating. The balance sheet of aggravating and mitigating circumstances has thus been drawn and after according maximum weightage to the mitigating circumstances they are found to have spoken in favour of the appellant. In this view of the matter, the extreme penalty of death sentence be not inflicted on the appellant. The ends of justice will be served by commuting the death sentence to life imprisonment. Accordingly, the appeal is accepted to the limited extent that sentence of death awarded to the appellant is commuted to life imprisonment. Furthermore, the Jail Authorities shall take note of his advanced age and the present state of health. In case these factors weigh in giving some further concession to the appellant, as sympathetic view under law be taken. The accompanying reference No. 42/92 made by the learned trial Judge accordingly stands disposed of.
Order accordingly.
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State Of Maharashtra, Appellant V. Vinayak Shivajirao Pol And Others, Respondents.

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DATE : 09-04-1997
1998-(104)-CRLJ -0306 -BOM
PENAL LAW MURDER APPEAL AGAINST ACQUITTAL
Penal Code, 1860 - Sections 300, 201 - Murder case - Appeal in case of acquittal - Allegation against accused of killing his wife and causing the evidence disappear thereafter - Extra judicial confession of accused made before the military authorities was voluntary and without any threats or coercion - No allegation that the military officers were biased against accused - Discovery of two parts of body (turnk and head) separately in decomposed condition - Medical evidence as regards anti-mortem or post-mortem injuries becomes immaterial - Discovery of the missing head of deceased at the instance of accused fully corroborates the material part of the extra judicial confessional statement - Letter written by accused disclosing the plan of killing his wife proving the motive as he was suspecting her character - Accused liable to be convicted under section 302 IPC
Penal Code, 1860 - Section 302 - Sentence - Accused serving in the Army as Sepoy, has killed his wife in a very brutal and barbarous manner - Deceased an educated cultured young woman and a mother of a child - Accused was suspecting her character and fidelity without any basis of suspicion - Premeditated to kill her and a plan for killing her was designed and implemented in a very brutal and barbarous manner - Gross and gruesome murder case, gravest of grave case and rarest of rare case in its kind - Accused liable to extreme penalty of death provided under section 302 of the IPC
Accused liable to extreme penalty of death provided under section 302 of the IPC.
JUDGE(S) :

Ranjana Desai
V H Bhairavia
BOMBAY HIGH COURT
JUDGMENT
BHAIRAVIA, J. :- This appeal is preferred by the State against the order dated 31st March, 1984 passed in Sessions Case No. 61 of 1983, thereby the respondents accused have been acquitted of the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code.
2. The prosecution case, in brief, is that respondent accused Vinayak was serving as a sepoy in military at 14th Maratha Light Infantary, Aundh Camp, Pune. Respondent accused Baban was also serving as a sepoy in the said Camp. In the year 1980 respondent accused Vinayak was married with Vimal who was about 18 years' old at that time. After marriage, Vinayak used to visit his native place on long leave once in a year and used to stay with his wife Vimal and his parents in his house at village Tisangi. After about one year of the marriage, Vimal became pregnant and she was brought to her parents' house at village Hingangaon. Thereafter Vimal gave birth to a female child. Two months after the delivery, the father of respondent-accused Vinayak went to Hingangaon and brought Vimal and the child to his village Tisangi. It reveals from the record that Vimal was not keeping good health after the delivery and her father Mahadeo (PW-11) received a letter from the father of respondent-accused Vinayak, informing about the sickness of Vimal and he was requested to take his daughter Vimal to his house. Accordingly, Mahadeo (PW-11) went to Tisangi and brought Vimal to his house at Hingangaon and consulted Dr. Karande of Vite who checked Vimal and diagnosed the disease as tuberculosis. Vimal was advised complete bed rest for 6 to 7 months and to avoid sexual intercourse at least for a period of one year. It further reveals that after about a month, the father of respondent-accused Vinayak came to Hingangaon and told Mahadeo that his son Vinayak had come on leave and, therefore, Vimal should be sent to his house and it appears that Mahadeo reluctantly allowed Vimal to go to her matrimonial home at Tisangi. It appears that respondent-accused Vinayak and his father did not believe that Vimal was suffering from tuberculosis and, therefore, she was taken to a doctor at Miraj who also diagnosed the same disease tuberculosis. Therefore, Vimal was sent back to her parents' place at Hingangaon. It reveals that after about a week, respondent-accused Vinayak himself went to Hingangaon to bring his wife Vimal but as Vimal had gone to Pune for interview in the nursery school and returned after four days' from Pune, respondent-accused Vinayak had to stay at Hingangaon for four days. Thereafter respondent-accused Vinayak came to his house along with his wife Vimal at Tisangi. It is stated that at the time of leaving the house of Mahadeo respondent-accused Vinayak was in angry mood and was asking Mahadeo as to why Vimal was allowed to go to Pune. It further reveals from the record that respondent-accused Vinayak was also suspecting the character of his wife Vimal as she was found chitchatting with one Laxman Kadam in the presence of others at Hingangaon. It is stated that respondent-accused Vinayak, on expiry of his leave, went back to his place of service and joined duty in the military camp and his wife Vimal remained at Tisangi. Thereafter, it reveals from the record that Mahadeo (PW-11) received a post card with postal stamp of 6-2-1983 (Exhibit 36) from his daughter Vimal requesting him to come to Tisangi immediately. Accordingly, Mahadeo went to Tisangi on 10-2-1983 to the house of respondent-accused Vinayak at about 4 p.m. At that time the mother of respondent-accused Vinayak was present in the house but did not find his daughter Vimal in the house. Mahadeo (PW-11) was informed that Vimal had gone for cooking in the house of one Patil and she would come back soon. However, Vimal did not come back for a pretty long time. Therefore, Mahadeo started asking about the whereabouts of his daughter Vimal. In the meantime, at about 7 p.m. the father of respondent-accused Vinayak returned from the farm land with some she-buffaloes. When Mahadeo (PW-11) asked him about the whereabouts of Vimal, the father of respondent-accused Vinayak asked him (PW-11) to accompany him to the house of his brother Ganpat. Accordingly, Mahadeo (PW-11) went to the house of Ganpat alongwith respondent-accused Vinayak's father and there Mahadeo was told by Ganpat that Vimal had run away in the dawn with a cash of Rs. 125/-, certain ornaments and clothes. Hearing this, Mahadeo told Ganpat that his daughter Vimal was not of that type. However, Ganpat told Mahadeo not to disclose this to any one. As that was night time, Mahadeo had to stay at the house of respondent-accused Vinayak and he left for Hingangaon in the early morning by bus at about 3.00 a.m. and reached his house at Hingangaon on 11-2-1983 in a disgusted mood.
3. It is the further prosecution story that one Ramchandra Bhausaheb Deshmukh (PW-8) owns a land bearing block No. 1198 at village Pusegaon and there is a well in this land. One Suresh Masne (PW-9) was in the service of PW-8 Ramchandra Deshmukh and was working in this field. On 13-2-1983 at about 8 a.m. PW-9 Suresh went to the said land and when he came near the well by about 10 a.m., he saw a bundle of gunny bag floating on the water in the well and one hand of a human being emerged out of the gunny bag. Therefore, PW-9 Suresh went to PW-8 Deshmukh and told him about this fact. Thereafter both of them (PWs-8 and 9) went to the said land. In the well PW-8 Deshmukh saw a floating human body. Thereafter PW-8 Deshmukh went to Pusegaon Police Station. He reported the situation he saw in the well to the Police and this information was recorded by PW-22 Arjun Narayan Dhuri, Assistant Police Inspector, of the said police station at the relevant time. On this information, PW-22 registered the offence as C.R. No. 15 of 1983 and made entry in the station diary. Thereafter PW-22 Dhuri started investigation and went to the land of PW-8 Ramchandra. One photographer and two panchas were called there. After taking photographs, the bundle of gunny bag floating in the well was taken out and on opening the said gunny bag, a headless trunk of a female body was found and the head was found missing. A Panchnama (Exhibit 14) was drawn to that effect. Again, photographs of that trunk were taken by the photographer and inquest Panchnama (Exhibit 15) was drawn. It was found that there was only blouse on the trunk and both the legs were tied with a green cloth piece. There were five stones in that gunny bag. Some injuries were found on the neck and the thumbs of the hands were found out. Certain other fingers were found half cut. The trunk was then entrusted with PW-23 Jadhav, a police constable, and thereafter the Medical Officer, Pusegaon, was called on the spot for autopsy. After drawing a panchnama (Exhibit 13), a search was made for the head of the trunk in the nearby lands and wells but it was not found.
4. Dr. Mhamadapure (PW-20), the Medical Officer Incharge, Primary Health Centre, Pusegaon, performed the post mortem examination of the trunk on 14-2-1983 at about 9.30 a.m. The trunk was in highly decomposed condition. He prepared his memorandum as per Exhibit 54. In all three incised wounds were found over the 5th vertebra one after the other and parallel to each other and horizontal in direction. The fourth incised wound was found on the right palm. Right thumb was found cut from the metacarpal pharynx joint and the left thumb was found cut from the metacarpal pharynx joint.
5. It appears from the record that on 14-2-1983 PW-22 Dhuri, the police officer, along with other police constables again went to the same land block No. 1198 of PW-8 Ramchandra and water from the well was pumped out by a motor pump and tried to find out the missing head. It reveals that up to 4 p.m. they endeavoured to find out the head and the water was almost pumped out from the well but they could not find out the head. To that effect a panchanama was drawn at Exhibit 16. Thereafter, PW-22 Dhuri caused this fact to be proclaimed by beat of drums in the nearby villages so that the trunk of the female body could be identified. It further appears that PW-22 Dhuri made enquiries with people at villages Vardhangad and Visapur till 15-2-1983. On 16-2-1983, Sub Inspector Mohite (PW-34) of Pusegaon Police Station, who was on bandobast duty, resumed his duties at the said police station and he took over the investigation of this case from PW-22 Dhuri. Sub Inspector Mohite recorded the statements of PW-8 Ramchandra and PW-9 Suresh on 17-2-1983.
6. The other part of the crucial prosecution story emerged from the record is that on 9th and 10th February, 1983 respondent-accused Vinayak was allotted the duty of a guard at the residence of Commanding Officer at Ghorpadi, Pune, for 24 hours in rotation. However, he was found absent from his duty on 9th and 10th February, 1983 and he reported for duty on 11th February, 1983 at 1 p.m. Respondent-accused Vinayak has given explanation for his absence to the military authorities that he had gone to his sister's house at Akurdi, Pune. This explanation of respondent-accused Vinayak was found not satisfactory and, therefore, he was punished under the Army Act by the authorities. The prosecution story proceeds further, that on 17-2-1983 in the morning, respondent-accused Vinayak approached one Mr. A. S. Gill, the Major, Captain Deshpande (PW-32), Subedar Raghuvir Savant and Havaldar Dhond in the military office and confessed before them that he has killed his wife Vimal. However, he was asked by them to put in writing whatever he wanted to say. It is the further case of the prosecution that respondent-accused Vinayak then reduced in writing his confessional statement (Exhibit 73) in Marathi language and signed below it. This writing was attested by the aforesaid four military officers. It was stated that since then respondent-accused Vinayak was kept under watch by the higher authorities in the guard room. Thereafter the military authorities informed the Superintendent of Police, Sangli, about the confessional statement of respondent-accused Vinayak and sent a copy of the said confessional, statement. Since the offence was alleged to have been committed at Pusegaon, District Satara, the military authorities were requested to contact the Superintendent of Police, Satara. Accordingly, the military authorities communicated to the Superintendent of Police, Satara, on 22nd February, 1983. On receiving this, Sub-Inspector Mohite (PW-34) felt that the offence has taken place as disclosed in the extra judicial confession (Exhibit 73) at Tisangi, within the jurisdiction of Kavathe-Mahankal Police Station. Accordingly, he forwarded all the papers to Kavathe-Mahankal Police Station, which were received by PW-35 Deshmukh, Police Jamadar. Thereupon, he registered a fresh offence at Kavathe-Mahankal Police Station vide C.R. No. 18 of 1983 under Sections 302 and 201 of the Indian Penal Code and started investigation. He immediately proceeded to village Tisangi to the house of the respondent-accused Vinayak. On reaching there, the house was searched but nothing incriminating was found. He recorded the statements of four witnesses. It further reveals that the Deputy Superintendent of Police arrived at about 2 p.m. on that day and under his supervision, further investigation was carried out. Further, on 25-2-1983 Sub-Inspector Patil (P.W. 36), who was on leave, has resumed his duties and took over the investigation from P.W. 35 Deshmukh. P.W. 36 Soubhash Patil recorded the statements of P.W. 11 Mahadeo, the father of deceased. Vimal, and others. On 27-2-1983 with the permission of the Superintendent of Police, he proceeded to Pune to arrest respondent-accused Vinayak and reached there on the very day but the military authorities declined to hand over respondent-accused Vinayak to his custody since no permission was received from the higher authorities. On 2-3-1983, it is stated that a warrant from the Judicial Magistrate, Kavathe-Mahankal, was obtained for the arrest of the respondent-accused Vinayak and Sub-Inspector Patil (P.W. 36) went to Pune on 5-3-1983 with that warrant of arrest. Accordingly, the respondent-accused Vinayak was arrested by drawing a panchanama (Exhibit 10) on 2-3-1983 from the military camp. The respondent-accused Vinayak then produced his clothes and articles from a bag (articles 8 to 14) and the same were attached under a Panchanama (Exhibit 11). P.S.I. Patil along with the respondent-accused Vinayak went to Satara and thereafter he started further investigation. On 16-3-1983 the accused was produced before the Judicial Magistrate, Koregaon, and obtained remand of respondent-accused Vinayak. It further reveals that during the interrogation of the respondent-accused Vinayak, the name of respondent-accused Baban Shankar Suryavanshi was transpired. Thereafter, P.W. 36 Patil went to village Jakhangaon and apprehended respondent-accused Baban from his house and he was brought to Pusegaon Police Station after drawing a panchanama. It further reveals that respondent-accused Baban offered to make discovery and made a statement (Exhibit 24-A) in the presence of panchas and then took them to his house at Jakhangaon from where he produced the muddamal articles viz., kukhari (muddamal article 15) and a steel box like a military box (muddamal article 16). From the said steel box, a letter in postal envelope (muddamal article 20), certain other documents and a woollen rug were found. There were some blood stains in that box. All these were attached under a panchanama (Exhibit 24-8) and were duly sealed. Then respondent-accused Baban produced his pant, manila and handkerchief (muddamal) articles 23 to 25) from his house which were also attached under panchanama Exhibit 25. After recording the statements of some witness, the police came back to Pusegaon at about 1.30 p.m. It further reveals that at about 2 p.m. on the same day respondent-accused Vinayak offered to make discovery of the missing head of his wife Vimal and made a statement in the presence of panchas at Exhibit 18-A and thereafter he led the police and the panchas to the land of P.W. 18 Madhukar Deshpande within the limits of village Pusegaon through Satara-Pandhurpur Road. P.W. 18 Madhukar was present in his other land and he was called there. Respondent-accused Vinayak threw one stone in the well in the land of P.W. 18 Madhukar bearing block No. 1245 and pointed out the place where he had thrown the head of his wife Vimal. Thereupon, police constable Sahaji Patil P.W. 24 Jagadale and constable Mane and one other person jumped into that well and police constable Shahaji Patil found the head under the water which he took out. There was a bunch of hair on the skull of that head. One eye was open and the other one was found eaten by the animals. Whitesh yellow liquid was oozing from the neck and the skin was wrinkled. There were tatooing marks on the forehead. Panchanama (Exhibit 18-B) was drawn. Medical officer, Pusegaon, was called there for postmortem examination. P.W. 20 Dr. Mhamadapure came to the spot at 4.30 p.m. and conducted the autopsy. He prepared his memorandum of his examination as per Exhibit 55. Further, it is alleged that respondent No. 2-accused pointed out one place where blood stains were seen on the ground and the dry leaves lying at that place. It is alleged by the prosecution that the head of Vimal was severed at that place as such there were blood stains. The blood mixed with earth, sample earth and dry leaves (muddamal articles 26 and 27) were collected and attached under panchanama (Exhibit 19). Thereafter, it is alleged that respondent-accused Vinayak pointed out one more place where some ash was seen. According to the prosecution, respondent-accused Vinayak had burnt certain clothes and articles at that place. The ash (muddamal article 29) was collected and attached under panchanama (Exhibit 20). Thereafter, supplementary statements of P.W. 8 Ramchandra Deshmukh, P.W. 24 Jagdale and others were recorded. It further reveals that on 8-3-1983 Head Constable Gadekar was instructed to go to the well of P.W. 18 Madhukar Deshpande and by pumping out the water, Gadekar found some stones and a piece of cloth which were attached by drawing a panchanama.
7. The prosecutions story continued further that on 8-3-1983 at about 2 p.m. respondent-accused Vinayak again offered to make discovery as per Exhibit 27-A in the presence of panchas and then he led the police and the panchas to Pune near one bridge known as 'Morewada Bridge' on Ghorpadi Road and from the bushes he look out one lungi (muddamal article 30) which had blood stains and the same was attached by drawing a panchanama (Exhibit 27-B). On 9-3-1983 the skull and the hair of deceased Vimal were sent to B.J. Medical College, Pune, with constable Mali but the same were returned with instructions to send to Miraj Medical College and accordingly they were sent to Miraj Medical College. On 17-3-1983 the Medical Officer, Kavathe-Mahankal, collected the sample blood of each of the respondent-accused in separate phials. On 19-3-1983 the statements of conductor Bhagwan Khashaba Patil (P.W. 16) and driver Yakub Meerasaheb Gavandi (P.W. 17) were recorded. On that day in the presence of two panchas, the specimen handwriting of respondent-accused Vinayak was obtained as per muddamal article 20 and panchanama of this event was drawn as per exhibit 34. On 29-4-1983 the muddamal articles were sent to the Chemical Analyser, Pune, with constable Mali with letter as per copy Exhibit 83. Yadi was written to the military authorities to send the original confessional statement to the police station but the same was sent to the Public Prosecutor, Sangli. On 16-5-1983 the specimen handwriting as per Exhibit 83 and the letter (muddamal article 20) were sent to the handwriting expert at Pune for comparison and opinion. Further, it is stated that Sub-Inspector Patil (P.W. 36) went to the military camp, Aundh, Pune, and there the Quarter Master, Ghadage, produced from the box of respondent-accused Vinayak one diary (muddamal article 33) which was attached by drawing a panchanama (Exhibit 49). It was found that pages of diary bearing the dates from 13th September to 16th September were missing. The photograph of respondent-accused Vinayak was found affixed on the first page of the diary. One card size photograph of actress Hema Malini was also found in the diary and there were some contents written on the reverse of the photograph. Some contents were written in the green diary (muddamal article 33). The diary and the photograph of Hema Malini were sent to the finger print and handwriting expert, Pune, with a letter as per Exhibit 66. Sub-Inspector
Patil (P.W. 36) received report of the Chemical Analyser regarding the blood group of respondent-accused Vinayak and respondent-accused Baban as per Exhibit 85 and in respect of the muddamal articles as per Exhibit 86 respectively on 10-7-1983 and 25-9-1983 respectively. He received the report of the handwriting expert on 28-8-1983 as per Exhibit 75. Thereafter, on 21-10-1983 Sub-Inspector Patil (P.W. 36) filed charge-sheet in the Court of the learned Judicial Magistrate, First Class, Kavathe-Mahankal, against the respondents-accused who committed the case to the Court of Sessions, Sangli.
8. After recording the evidence, the learned Additional Sessions Judge, Sangli, (as he then was) framed the following points for his consideration and decided the same with his findings :-
1. Whether it is proved by the prosecution that Vimal, the wife of accused No. 1, met homicidal death on 10-2-1983 ? In the affirmative.
2. Whether it is proved by the prosecution that accused Nos. 1 and 2 committed murder of Vimal in furtherance of their common intention by causing her death ? Not proved.
3. Whether it is proved that accused Nos. 1 and 2 knowingly or having reason to believe that offence of murder of Vimal punishable with death was committed, did cause the evidence of the said offence to disappear by carrying the dead body in a trunk within limits of village Pusegaon and by cutting it from the head and throwing it into the well ? Not proved.
4. Whether accused Nos. 1 and 2 did so with intent to screen the real offender from legal punishment ? Not proved.
5. Whether this act was committed by the accused in furtherance of their common intention ? Does not arise.
6. What offences are committed by accused Nos. 1 and 2 ? No offence proved against any of the accused.
9. After considering prosecution evidence, the learned Judge has finally held that the prosecution has failed to prove the charges against the respondents-accused and, therefore, acquitted them for the offences with which they have been charged by his judgment and order dated 31st March, 1984. Hence this appeal by the State against the impugned order of acquittal.
10. Heard Mr. V. T. Tulpule, learned Public Prosecutor for the appellant-State, and Mr. R. S. Mohite, learned counsel for the respondents-accused.
11. It appears that this is a very gross and gruesome case of murder, in the rarest in rare cases in its kind. However, we cannot be oblivious of the fact that we are dealing with an appeal against the order of acquittal. Unless we come to conclusion that the impugned judgment and order is perverse and that appreciation of evidence is faulty and that there is a patent illegality attached, to the impugned judgment and order, we cannot upset the judgment and order of acquittal. (AIR 1976 SC 832 : (1976 Cri LJ 638)) and AIR 1976 SC 924 : 1976 Cri LJ 685.
12. In this case, the prosecution story is in two fold based on two sets of evidence.
Firstly :
Extra judicial confession (Exhibit 73) of respondent-accused Vinayak before the Army Officers;
Secondly :
Circumstantial evidence emerged from the discoveries of the dead body in two parts viz.,
(a) trunk and head found from two different wells : Accidental discovery of trunk from one well by P.W. 9 Suresh and discovery of missing head of Vimal from another well at the instance of respondent-accused Vinayak and some incriminating muddamal articles like letter (muddamal article 20) and diary (muddal article 33).
(b) The motive behind committing the murder of Vimal, wife of respondent-accused Vinayak.
13. Before we discuss the prosecution evidence in the light of settled principle of law, we must first consider the findings of the learned trial Judge held to be proved in favour of the prosecution but not relied. They are :
(a) The motive behind committing the murder has been established by the prosecution (page 297 line No. 20); by relying on the handwritings on muddamal article 20 letters and muddamal article 33 diary, which were held to be proved as that of respondent-accused Vinayak.
(b) The statement of extra judicial confession (Exhibit 73) held to be voluntary (page 300 line No. 20).
(c) Recovery of head at the instance of respondent-accused Vinayak (pages 310 and 311 line No. 25).
14. However, Mr. Mohite, learned counsel for the respondents, has submitted that he does not agree with the findings of the learned Judge. He has further submitted that the extra-judicial confession is a weak piece of evidence and if at all it is to be relied, it must be relied as a whole and the prosecution evidence must be read and appreciated as it is and no new prosecution story can be advanced in an appeal against acquittal. In support of his aforesaid submissions, he has relied on the following authorities :-
(1) AIR 1976 SC 975 : 1976 Cri LJ 706;
(2) 1990 (4) SCC 17 : 1991 Cri LJ 395;
(3) 1990 (2) SCC 113 : 1990 Cri LJ 1205;
(4) 1988 Supplementary SCC 526 : AIR 1988 SC 1705;
(5) 1995 Supplementary SCC 519;
(6) AIR 1959 SC 18 : 1959 Cri LJ 108;
(7) AIR 1952 SC 343 : (1953 Cri LJ 129) and
(8) 1974 SCC 745.
15. It has been held by the learned trial Judge that though the extra judicial confession (Exhibit 73) was voluntary, it is not acceptable as it is not consistent with the medical evidence. Secondly, there is no reference of the name of respondent-accused Baban Shankar Suryavanshi. Thirdly, probability of carrying the dead body in a trunk is doubted. On all these three counts, the learned trial Judge has not believed the said statements in the extra judicial confession (Exhibit 73) made by respondent-accused Vinayak as true.
16. In the instant case, the source of prosecution evidence is based firstly on the extra judicial confession (Exhibit 73). Therefore, it would be necessary for us to go back to the contents of the extra judicial confession which is in the hand writing of respondent-accused Vinayak and signed by himself and it is also attested by the four officers. It is an admitted fact that respondent-accused Vinayak was serving as a sepoy in the military at Pune. He was allotted duty on 9th and 10th February, 1983 along with 14 other sepoys for 24 hours in rotation. It appears that respondent-accused Vinayak was absent on 9th and 10th February, 1983 and he reported for duty on 11th February, 1983. It appears from the record that the explanation for his absence from duty was given to the effect that he had gone to his sister's house at Akurdi, Pune, but the same was not found satisfactory and he was punished for it under the Army Act. A trunk of a female body was found from the well on 13th February, 1983. However, it was not identified by anybody as that of Vimal, the wife of respondent-accused Vinayak and no body suspected that her murder was committed by her husband, the respondent-accused Vinayak. The respondent-accused Vinayak was admittedly on his duties on 13th February, 1983 from 1.00 p.m. The investigating agency was in search of the head which was separated from the body and was not found from the same well. On 17th February, 1983, as per the evidence of Captain Deshpande (P.W. 32), the respondent-accused Vinayak himself had come to him and disclosed the fact and made a oral confession of commission of the murder of his wife Vimal before him and other three officers viz., Mr. A. S. Gill, the Major; Subhedar Raghuvir Savant and Havaldar Dhond but the said officers insisted him to put the same in writing. According to P.W. 32, the respondent-accused Vinayak then reduced the same (Exhibit 73) into writing in his own hand writing and gave it to the military officers. Till that time, no body was suspecting him of committing any such serious crime. On 17th February, 1983, on receiving this extra judicial confession (Exhibit 73), the military officials reported the same to the Superintendent of Police, Satara. It is also in evidence of P.W. 32 that the army authorities sought legal opinion from the legal officer. On coming to know about the said extra judicial confession, the Police Sub-Inspector Mohite (P.W. 34) went to the military camp and requested to hand over custody of respondent-accused Vinayak but custody was refused. Therefore, the Investigating Officer Patil (P.W. 36) obtained a warrant from the Court of Judicial Magistrate and went with that warrant to the military camp on 5th March, 1983 and thereafter the respondent-accused Vinayak was arrested on the very same day. Till respondent-accused Vinayak was arrested, he was kept under watch in the guard room. It appears, from the record that the extra judicial confession (Exhibit 73) came in possession firstly of the military authorities on 17-2-1983 and then of the investigating police officer on 27-2-1983. This leads us to believe that whatever confession respondent-accused Vinayak had made before the military authorities was voluntary before his arrest and without any threats or coercion. That apart, it is not the defence case of respondent-accused Vinayak that it has been obtained under any threat or coercion. However, in the statement recorded under section 313 of the Criminal Procedure Code, respondent-accused Vinayak has stated that the military officers have brought this document to him and obtained his signature. There is no allegation that the military officers were biased against him. If it were a retracted statement and the military officers were biased, they might have arrested him and prosecuted him under the Army Act on the basis of the said extra judicial confession. However, they did not act upon that but waited for a pretty long time till the Investigating Officer obtained arrest warrant against the respondent-accused Vinayak and arrested him on 5th March, 1983. Till then, he was kept under watch in a guard room and thereafter the said statement (Exhibit 73) was sent to Public Prosecutor, Sangli, on 22-3-1983 by the Army Commandar. It is submitted by Mr. Tulpule, learned Public Prosecutor, that the learned Judge has committed a serious error of law and fact in not accepting the statement (Exhibit 73) as true statement of respondent-accused Vinayak and that the reasoning of the learned Judge is absolutely perverse. Therefore, question raised before us is as to "whether the statement of extra judicial confession (Exhibit 73) is a valid document under Section 24 of the Evidence Act and it could be used against the accused a maker of the document" ? It is a settled law that the requirement of legal evidence must be complete before coming to a definite conclusion in a criminal prosecution. The legal position in the matter of a case like this, which rests on the sole prosecution evidence mainly based on extra judicial confession made under Section 24 of the Evidence Act, has been considered by the Apex Court in various cases.
17. The Supreme Court in the case of State of U.P. v. Deoman Upadhyaya, reported in 1961 (1) SCR 14 : (1960 Cri LJ 1504), has observed thus :-
"........... The extra-judicial confession made by an accused before he is arrested or after he is released on bail is certainly relevant evidence to the case."
In the case of Subramania Goundan v. The State of Madras, reported in 1958 SCR 428 : (1958 Cri LJ 238), the Supreme Court has observed thus (at page 243; of Cri LJ) :-
"........... A confession of a crime by a person, who has perpetrated it, is usually the outcome of penitence and remorse and in normal circumstances is the best evidence against the maker."
In the case of State of U.P. v. M. K. Anthony, reported in 1985 SCR 48 : (1985 Cri LJ 493). It has been observed by the Supreme Court thus (at page 500; of Cri LJ) :-
"There is neither any rule of law nor of prudence that evidence furnished by extra-judicial confession cannot be relied upon unless corroborated by some other credible evidence. The Courts have considered the evidence of extra-judicial confession a weak piece of evidence. If the evidence about extra-judicial confession comes from the mouth of witness/witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive for attributing an untruthful statement to the accused; the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it, then after subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, if it passes the test, the extra-judicial confession can be accepted and can be the basis of a conviction. In such a situation, to go in search of corroboration itself tends to cast a shadow of doubt over the evidence. If the evidence of extra-Judicial confession is reliable, trustworthy and beyond reproach, the same can be relied upon and a conviction can be founded thereon."
18. In the light and spirit of this settled principle of law, while appreciating the statement of extra-judicial confession in question (Exhibit 73), it is necessary to peruse the said extra-judicial confession which is reduced in writing by the respondent-accused Vinayak himself in Marathi language and its translated version reads as under :-
"1, Shipai No. 277/892, am giving in writing as to how I killed my wife as her behaviour was not good and I myself had caught her with another man."
On 9th February in the afternoon at 4.00 p.m. I was on duty at Brigadier Saheb's Bungalow at Ghorpadi, Pune. From there I straightway came to bus stand and went to Satara by bus. While going I was carrying one steel box, one kukri and one rug. With these luggage I reached home at 2.00 a.m. on 10th. After reaching home, I went to the place where my mother, father and wife were sleeping. I woke up my wife. At that time my mother also woke up. I did not allow anybody to talk. My wife said, 'Come, I will prepare tea for you'. I told my mother that I am taking my wife and she should stay there only. Then, I came with my wife to the other home. After coming to the other home, I closed the outer door and also closed the inner door of the room. Then I pretended to sleep with my wife and pressed her neck. I pressed the neck till she died. After she was dead, I put her in the tin box which I had taken with me and covered with rug. Then at 2.30 a.m. I came to bus stop at the platu of Ghat Nagre which is 2 1/2 miles away from our village. Thus, in the morning at 5.30 a.m. I came to Nagare Fata by Bombay to Jat bus. At that spot within two minutes one truck came. I got into the truck and came to Miraj. I came to Miraj Railway Station at 10.00 a.m. on 10th. Again at 10.25 a.m. I boarded a train and got down at Koregaon. After getting down at Koregaon, I went to Koregaon bus station in Bullock Cart. Then in the afternoon at 1.00 p.m. I went to Aundh Fata bus stop, which is 2 miles west of village Puregaon by bus. It was 3.30 in the afternoon. At that time I waited there till night 8 p.m. and after the vehicular and human traffic was stopped, I started my work. Earlier I had inspected the wells in the area. Then I carried the box to a gulch (Nala). After reaching the nala, I took out the dead body from the box and servered the head and both the thumbs. Then I put the body only in a gunny bag and went to a well. At the well I put big stones in the gunny bag and tied the mouth closed of the gunny bag and throw it in the well. Then again I came back near the box. I wrapped the head in a cloth and with that head went near other well. Then I tied two stones with that head and threw it in the well. Then I tied the thumbs in a cloth and put them in pocket. I washed the box and kukri in the well. At that time one truck came from Puregaon. I came to Satra S.T. station at 10.30 p.m. at night in that truck. Then I removed the kukri from the box and kept it in the cloth bag which was with me. I left the box there only and came to W.C. at the Station. In the W.C. I throw the thumbs and kukari and flushed it. At Aundh Phata I burnt her clothes and mixed it in soil. And then at 11.00 p.m. I sat in the bus and got down at Pune on 11th at 1.00 a.m. Then I went for Guard. Then there was report. I told the Guard Commander that I had gone to my sister at Akurdi. Then on 14th at 12.00 noon I came to the Main Line. I had given the same statement to Company Commander on 16th.
This entire statement is absolutely true.

Shipai Vinayak Shivaji Pol
No. 277/892 Sd/-
17/2/1983"

19. This is a document coming from the custody of them military authority against whom no allegation of bias or coercion is made and it is the prosecution case that after obtaining copy of Exhibit 73, the investigation commenced further in the direction as stated therein. The very important missing link has been completed by discovery of head of deceased Vimal at the instance of the respondent-accused Vinayak. On his arrest, the respondent-accused Vinayak made a statement before the panch (P.W. 18) that he will show the place where the head of deceased Vimal was thrown by him in the following words :-
"I will produce the head of my wife Vimal."
P.W. 18 Madhukar has stated in his evidence -
"The accused in our presence stated that he will show the well in which he has thrown the head."
Accordingly, the head was discovered from the well. This discovery was at the instance of respondent-accused Vinayak and it was in the exclusive knowledge of Vinayak as to where the head was lying. This evidence is held by the learned trial Judge to be proved by the prosecution and we are concurring with the said finding.
20. It is pertinent to note that the confessional statement came to be submitted to the military officers on 17th February, 1983 after the trunk of the female was found from the well. This confessional statement has been challenged by the defence counsel on the ground that it is contrary to the medical evidence and respondent-accused Vinayak has not mentioned the name of respondent-accused Suryavanshi in this confessional statement. The medical evidence shows that the injuries found on the body of deceased Vimal were anti-mortem. Before the trial Court, as per the prosecution, the body was carried in a tin box and according to the defence counsel, it was not possible to accommodate a body in a trunk like article 16 and after 18 hours of travelling, no living body could survive in the trunk. In our opinion, the learned trial Judge has lost sight of the other side of the medical evidence. It is the medical evidence that the body was found in complete decomposed condition. In the postmortem notes (Exhibit 54) in column 18(a) it has been mentioned thus :-
"18(a) : Can you say definitely that the injuries shown against serial Nos. 17 and 18 are ante-mortem injuries :
Ante-mortem injuries.
In Exhibit 55, postmortem notes, in column 18(a), it has been mentioned thus :-
"18(a) : Can you say definitely that the injuries shown against serial Nos. 17 and 18 are ante-mortem injuries ? No, due to severe decomposition with mutilation of margin and inner surface by matter creatores (sic)."
21. This is the report of the postmortem notes. In his evidence also, P.W. 20 has stated that the head was severely decomposed. Despite this postmortem report, the doctor (P.W. 20) has opined that the injuries were anti-mortem injuries.
22. Mr. Mohite, learned counsel for the respondents, has emphatically submitted that in view of the medical opinion, that the injuries found on the body were anti-mortem, and further that the murder has been committed at Koregaon, which is also corroborated by Exhibit 73, the area of commission of the offence will be Sangli and not Satara and, therefore, the prosecution is vitiated and deserves to be quashed. In support of his arguments, the learned counsel has relied on the following authorities :-
1. AIR 1976 SC 975 : 1976 Cri LJ 706;
2. 1990 (4) SCC 17 : 1991 Cri LJ 395;
3. 1990 (2) SCC 113 : 1990 Cri LJ 1205.
23. In the instant case, the prosecution has not introduced any new theory of committing murder. The learned Public Prosecutor has argued on the basis of medical evidence which shows that the injuries were anti-mortem. It is found that the food consumed by deceased Vimal was digestive food which the deceased might have taken 7-8 hours before she died. We cannot take the opinion of the doctor as a definite opinion. The postmortem notes speak that the body was in decomposed position and hence, in our opinion, it was not possible to give any definite opinion regarding the cause of death and the injuries, whether it was anti-mortem or post-mortem. This conclusion of ours is strengthened by the fact that in the post-mortem notes regarding head, it is observed that due to severe decomposition, no definite opinion can be given as to whether injuries are ante-mortem or post-mortem. Normally, when the head is severed and separated from the body, it would be a presumption that because of head injury, the person might have died and that would be the cause of death. As the trunk of the body was in highly decomposed position, the mark of throttling might have not been noted by Dr. Suresh (P.W. 20). Unfortunately, the prosecution has not examined the doctor on this point. Mr. Mohite, learned counsel for the respondents-accused, has argued that in view of the argument of the learned Public Prosecutor regarding the time and place of committing the murder of deceased Vimal, it would create doubt regarding the contents of the extra judicial confession (Exhibit 73). Learned counsel has also submitted that the extra judicial confession must be accepted as a whole and cannot be accepted in part. We are unable to agree with the submission of Mr. Mohite in view of the settled law. In the case of Nishi Kant Jha v. State of Bihar reported in AIR 1969 SC 422 : (1969 Cri LJ 671), it has been observed thus :-
"It is permissible to believe one part of a confessional statement, and to disbelieve another, and it is enough that the whole of the confession is tendered in evidence so that it may be open to the Court to reject the exculpatory part and to take inculpatory part into consideration if there is other evidence to prove its correctness."
Further, in the case of Piara Singh v. State of Punjab, reported in AIR 1977 SC 2274 : (1977 Cri LJ 1941) has been observed thus (at page 1945; of Cri LJ) :-
"Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. Thus, where the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants, it was held that there was a hardly any justification for the Session Judge to disbelieve the evidence of such a witness particularly when the extra judicial confession was corroborated by the recovery of an empty cartridge from the place of occurrence."
24. It has been submitted by Mr. Mohite, learned counsel for the respondent-accused, that if there are two contrary prosecution stories advanced by the prosecution, then both must be discarded and the accused is entitled for the benefit. He has relied on a ruling in Harchand Singh v. State of Haryana, reported in 1974 Criminal Law Journal 366 : (AIR 1974 SC 344), wherein it has been held thus (at page 368; of Cri LJ) :
"Two accused were arraigned in the assault on the deceased as a result of which the latter died. The prosecution in support of its case examined two sets of eye-witnesses. The evidence of one set consisted of the testimony of three eye-witnesses who were not present at the time of the occurrence according to the fourth eye-witness who according to the prosecution case was with the deceased at the time of the assault. This fourth eye-witness was also shown to be an unreliable witness by the other evidence produced by the prosecution. Held, it was a case wherein one set of evidence condemned the other set leaving the Court with no reliable and trust worthy evidence upon which the conviction of the accused might be based."
25. So far as evidence of extra judicial confession is concerned, in our opinion, talking into account the overall prosecution story and the evidence found to be satisfactory, it can be relied and conviction can be based on it; infirmities in the prosecution oral evidence cannot affect the material part of the extra judicial confession. In a case like this, viz., discovery of two parts of body (trunk and head) separately in decomposed condition, medical evidence as regards anti-mortem or post-mortem injuries becomes immaterial and conviction can be safely based on this evidence alone. This view of ours is supported by the Supreme Court in the case of Manguli Devi v. State of Orissa, reported in AIR 1989 SC 483 : (1989 Cri LJ 823), wherein it has been observed thus (at page 824; of Cri LJ) :
"........... The confessional statement recorded by the 1st Class Magistrate has been rightly held to be correct inasmuch as in accordance with the statement, the dead body was recovered from a room of the deceased's house after removing the earth on the pointing out of place by the appellant where the corpse was buried by the appellant herself. This dead body was recovered in the presence of P.W. 6, who is the Tehsildar. Secondly, the dead body was in a highly decomposed state as it was recovered after 10 days from the date of dumping the dead body under earth and as such the injuries on the dead body were not clearly visible and it is not possible for the doctor. P.W. 5, who held the post-mortem examination, to see all the injuries on the person of the deceased. The evidence of the doctor was not very relevant in this connection as has been held by the High Court. Moreover, the confession made by the appellant herself clearly proved that the crime was committed by her. In such circumstances, the finding of the High Court convicting the appellant under section 302, I.P.C. is unexceptionable and the sentence of imprisonment for life was properly imposed on her."
26. However, the prudent view under the Criminal Jurisprudence is that the prosecution evidence must be impinging and not a slightest doubt not to be left out in the mind of the Court.
27. Therefore, we have seriously considered the above circumstantial evidence which also fully corroborates the extra-judicial confession if any corroboration is required. In particular, the discovery of the missing head of Vimal at the instance of respondent-accused Vinayak is a very material and strong circumstantial evidence, which fully corroborates the material part of the extra judicial confessional statement to prove the guilt of murder. Moreover, the panchnama of the trunk of Vimal (Exhibit 14) also fully corroborates the extra judicial confession on material part that head was severed and thumbs were cut. Under the facts and circumstances, we are unable to agree with the above submission made by Mr. Mohite, learned counsel for the respondents-accused.
28. If we appreciate the circumstantial evidence, the motive of respondent-accused Vinayak behind committing the murder of his wife Vimal, in our opinion, is established from the letter (muddamal article 20). The original letter is in Marathi language written by respondent-accused Vinayak himself to respondent-accused Baban and the translation thereof is as under :-
"Dear friend Buban Suryawanshi,
Greeting from your unfortunate friend.
The reason for sending you letter is because I have received your letter about 8 to 10 days back but I was not able to reply, Dear Buban as I was helpless.
I am at present working as a flag guard in brigade. I came here on the next day of your departure.
Friend, tell me truely are you my dear friend ? Do you love me ?
Friend, will you not forgive your friend ? I am sure, you will forgive me.
Buban, just read what I have written above.
Dear Buban, I have definitely deceived you. You understand or not that I have deceived you ? I have deceived not you but I myself does not matter. I did not come not because that work is cancelled, there is a fire burning in my body.
Buban, I am writing truely that I will come to your home between 7th and 12th February in these six days anytime. I will definitely come, do not take it as joke. If I do not come then take it that Vinayak has left this world.
O. K. Buban, I have no money. You help me and carry with you box, plastic bag, kukari keep ready.
Also see that canal and come also the place where pieces are to be broken.
Dear Buban, the child in her womb is not mine.
By your dear friend
Vinayak"
29. This letter was written by respondent accused Vinayak himself disclosing the plan of killing his wife Vimal as he was suspecting her character. The pages of this letter undoubtedly are the same which were found missing from the dairy (article 33) produced by the Quarter Master of the Military. This leads us to believe that there was plan with definite intention to kill his wife Vimal, and he sought help of his friend, respondent-accused Baban. It is true that we do not find any reference or mention of respondent-accused Baban in Exhibit 73. But it reveals from the record and the evidence of P.S.I. Patil that the name of respondent accused Baban Suryavanshi transpired during the interrogation of respondent-accused Vinayak after his arrest. We do not find any reason for not believing this evidence. Once it is held proved that the contents of this letter are written by respondent-accused Vinayak disclosing his mind and motive behind planning to commit murder of his wife, this leads us to believe without any slightest doubt that respondent-accused Vinayak has a very strong motive which is held to be proved by the prosecution. We are unable to agree with the findings of the learned trial Judge which are not only perverse but appears to be total ignorance of law and/or wrong notion of law, which results into gross miscarriage of justice in this case. The order of acquittal is liable to be quashed and set aside and respondent-accused Vinayak is held to be guilty for offences punishable under sections 302 and 201, I.P.C. However, there is no sufficient legal evidence against respondent No. 2-accused No. 2 to directly connect him with the offence.
30. In the result, the appeal against respondent-accused Suryavanshi is dismissed. The appeal against respondent-accused Vinayak is allowed and the order of acquittal is quashed and set aside and respondent-accused Vinayak is convicted for the offence punishable under Section 302, I.P.C.
30th April, 1997
31. Having found respondent-accused Vinayak guilty for killing his wife Vimal punishable under section 302, I.P.C., he was directed to remain in Court. He appeared in the Court and we heard him on the question of sentence. He has submitted a written statement praying for mercy. He has been heard in person also. It has been submitted that he had committed the crime in the year 1983 and he has been acquitted in the year 1984. Till then he remained in jail. After his acquittal, he remarried with one Vijaya and out of that wedlock he has got two minor sons. He is serving in military and during the period from 1984 to 1997 he has not committed any crime. Not only that, he has also been given higher position in his service and has reached up to the post of Hawaldar. He has old aged parents and he is looking after them. He is the only earning member in his family.
32. Further, Mr. Mohite, learned counsel for the respondent-accused Vinayak, has submitted that sentence of death is not required in this case in view of the fact that respondent-accused Vinayak was acquitted by the trial Court in 1984 and since then he has remarried and has settled in his life. In support of his submission, learned counsel has cited the following authorities :-
1. 1997 (1) SCC 93.
2. 1972 (3) SCC 46.
3. AIR 1986 SC 576 : 1986 Cri LJ 546.
4. 1988 (4) SCC 462.
5. 1981 (2) SCC 300.
6. 1979 (3) SCC 683.
The submission of the learned counsel, in short, is that in view of the decision taken by the Apex Court in the aforesaid cases in awarding the extreme penalty of death after a lapse of time, the gap between the commission of offence and the time of awarding punishment requires to be considered at the time of awarding the extreme penalty. The learned counsel has also submitted that in the case of acquittal by the trial Court and conviction by the High Court on two contrary views, normally lesser sentence is imposed. We have gone through the above cited authorities and we are in full agreement with the views expressed by the Apex Court therein. However, it all depends on the individual case based on the peculiar facts of each case.
33. We are conscious that in the case of conviction under section 302, I.P.C., the punishment for life is a rule and sentence to death is an exception and in the gravest of grave case and/or rarest of rare case, the judicial discretion compels the Court to execute the extreme penalty. In the case of Bachan Singh v. State of Punjab, reported in AIR 1980 SC 898 : (1980 Cri LJ 636), the Supreme Court has observed thus (at page 667; of Cri LJ) :-
"The provision of death penalty as a alternative punishment for murder in Section 302, Penal Code is not unreasonable and it is in the public interest. Therefore, it can be held that the impugned provision in Section 302 violates neither the letter or the ethos of Article 19 of the Constitution."
34. Simultaneously, we are also conscious that we should not be swayed by our own convictions. We must never allow our individuality to overshadow or supersede the philosophy of our Constitution ensured under Article 21 of the Constitution. However, it is held by the Supreme Court in number of cases that death sentence does not violate Articles 19 and 21 of the Constitution of India. We are equally concerned with the view expressed by the Apex-Court in the case of Allaudin Miya v. State of Bihar, reported in 1989 (3) SCC 16 : (1989 Cri LJ 1466) wherein it has been observed thus (at page 1476; of Cri LJ) :-
"It must, at once be conceded that offenders of some particularly grossly brutal crime which send tremors in the community have to be firmly dealt with to protect the community from the perpetrators of such crimes where the incidents of a certain crime is rapidly growing and is assuming managing proportions, for example, acid pouring or bride burning, it may be necessary for the courts to award exemplary punishment to protect the community and deter others from committing such crimes. Since the legislature in its wisdom thought in some rare cases, it may still be imposed penalty to deter others and to protect the society and in a given case to the society."
35. We have anxiously considered the gravity of the offence held to be proved against the culprit Vinayak who is serving in the Army as Sepoy, has killed his wife Vimal in a very brutal and barbarous manner. Deceased Vimal was an educated and cultured young woman of age 20-22 years and a mother of a child. She has taken training of Montessory Course and was ambitious to go for Montessory service. However, respondent-accused Vinayak was suspecting her character and fidelity without any basis of suspicion. He premeditated to kill her and a plan for killing her was designed and implemented in a very brutal and barbarous manner that after throttling, her body was put in a trunk, taken to some remote place, head was servered, rather slaughtered, and separated from the body, even thumbs were cut and her body (trunk) was thrown in one well and the head in another well. It is a gruesome murder of a young innocent and helpless woman who was suffering from tuberculosis. We feel this is a gross and gruesome murder case, the gravest of grave cases and rarest of rare cases in its kind; knocking our judicial conscience, which should be condemned and the perpetrator of the crime should be awarded the extreme penalty of death provided under section 302 of the Indian Penal Code. We cannot keep our eyes shut over the cases of atrocities on the women rapidly growing shamelessly and fearlessly. It is our misfortune that helpless society is watching it as a silent spectator. The history speaks of human mind attitude towards women since its inception which remained unchanged. We are not against the arguments promulgated by philosophers and the champions of human rights against the capital punishment, death, but so long as it is on the statute book of the penal law, culprits cannot take it for granted that law is blind and helpless. Culprits must be aware that the vision of the law is powerful and the blade of a weapon in the hands of the Court is sharper than the culprits. It protects the innocents and punishes the culprits. No culprit can escape from the blow of the law.
36. In the instant case, murder was committed in 1983, culprit was acquitted in 1984 and since then he enjoyed all liberties as a free man of the society and we have been told that he has remarried and settled in life. Unfortunately, under the system of our judiciary, this appeal of 1983 came to be heard in 1997, after 13 years. It does not matter, after the commission of the offence, whatever greatness he might have achieved. However, we will not allow ourselves in our judicial discretion to be party to 'delay defeats justice. In the case of Sher Singh v. State of Punjab, reported in AIR 1983 SC 465 : (1983 Cri LJ 803) it has been observed thus (at page 810; of Cri LJ) :-
"........... The death sentence should not, as far as possible, be imposed. But, in that rare and exceptional class of cases where in that sentence is upheld by the Supreme Court, the judgment or order of Supreme Court ought not to be allowed to be defeated by applying any rule of thumb."
Further, in the case of Munawsar Harun Shah v. State of Maharashtra, reported in AIR 1983 SC 585 : (1983 Cri LJ 971), it has been observed thus (at page 973; of Cri LJ) :-
"........... having regard to the magnitude, the gruesome nature of the offences and the manner of perpetrating them, this case, in all the facts and circumstances, must be regarded as falling within the rare of the rarest category and the extreme penalty of death is clearly called for. Any leniency shown in the matter of sentence would not only be misplaced but will certainly give rise to and foster a feeling of private revenge among the people leading to destabilization of the society. In the circumstances, no leniency is called for in this case."
37. It may be noted here that Mr. Tulpule, learned Public Procecutor, at the time of his arguments from the very beginning has urged that as this is a gross case of murder, the respondent-accused Vinayak be sentenced to death. However, the learned Public Prosecutor has urged today for the reasons best known to him that a lesser penalty be imposed on the respondent-accused Vinayak. We are not agreeable with the learned Public Prosecutor for the reasons noted above. We must compliment Mr. Mohite, learned Counsel for the respondents-accused for maintaining the dignity of the Court while arguing such a sensitive and serious case with calmness and patience.
38. After giving a serious thought and consideration to the gross and hard facts and circumstances of this case, as observed above, this case falls in the category of the gravest of grave and rarest in rare cases. It does not allow our judicial conscience to show any mercy towards the culprit Vinayak for awarding lesser sentence than death. Therefore, the culprit, respondent-accused Vinayak is sentenced to death. He should, be hanged till death.
39. On oral request made by Mr. Mohite, learned counsel for the respondent accused Vinayak, the execution of the sentence of death is stayed for a period of 120 days from today for enabling the respondent-accused Vinayak to move the Supreme Court. The respondent-accused Vinayak, who is present in Court be taken into custody from the Court and he be kept in jail during this period.
40. Issuance of certified copy be expedited.
Order accordingly.
*-*-*-*-*

Nagoor Hanifa, Appellant V. State By Inspector Of Police, Respondent.

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DATE : 16-04-1996
1997-(103)-CRLJ -0880 -MAD
JUDGE(S) :

M Karpagavinayagam
T S Arunachalam
MADRAS HIGH COURT
JUDGMENT
M. KARPAGAVINAYAGAM, J. :- This is a case of quadruple murder, in which the appellant Nagoor Hanifa faced his trial in S.C. No. 119 of 1987 before the learned Second Additional Sessions Judge, Madras. The charge was framed against the appellant, in respect of each of the deceased under Section 302, I.P.C.
2. The gravamen of the charge is that on 18/19-5-1987 at about 2.00 a.m. mid-night at Door No. 38, Kutty Maistry Street, Sevenwells, Madras-79, the appellant Nagoor Hanifa, committed the murders of one Sabiya Begum, her son Jiyabudeen aged about 2 years, her daughter Aneeth Fathima aged about 4 years and her husband Abdul Muthaliff, by spilling over the kerosene in their room and on their person and igniting with a match stick, and thereby he intentionally caused the death of the persons referred above.
3. Hereinafter, we shall refer to Sabiya Begum, the wife as D1, Jiyabudeen and Aneeth Fathima, the children as D2 and D3 and Abdul Muthaliff, the husband as D4.
4. On termination of trial, the learned trial Judge found the appellant guilt of murder under Section 302, I.P.C. (four counts) and sentenced him to undergo imprisonment for life under each count and ordered the substantive sentences to run concurrently.
5. Let us state the case of the prosecution as could be discerned from the evidence brought on record :-
The house bearing Door No. 38, in Kutty Maistry Street, Sevenwells, Madras-79 belongs to PW-1 Abdul Rahman. Apart from the ground floor, the house consists of two more floors. The second floor was occupied by PW-1 along with his family members. Ground and first floors were let out to tenants. In the first floor, there are four rooms and one hall. PW-1 Abdul Rahman let out the entire premises of the first floor to D4 Abdul Muthaliff for a rent of Rs. 800/- per month. Six years ago, D4 Abdul Muthaliff, sub-let one room to the appellant and another room to PW-4 Abdul Majeeth.
6. Initially, D4 Abdul Muthaliff, PW-4 Abdul Majeeth and the appellant Nagoor Hanifa were together employed in F.A. stores at Panthar street. In 1985, D4 Abdul Muthaliff resigned his job and started his own business of printing and selling note books. PW-4 Abdul Majeeth and the appellant Nagoor Hanifa joined him as his employees.
7. Nearly six or eight months prior to the occurrence, there was misunderstanding between the appellant Nagoor Hanifa and D4 Abdul Muthaliff, over the business dealings and the delay in payment of rent. Due to this, the appellant Nagoor Hanifa stopped going to work to the shop of D4 Abdul Muthaliff for three months. Then, he insisted D4 Abdul Muthaliff to give back his rental advance, to enable him to take his family and settle at the village of his father-in-law. Over this also, a quarrel ensured between them. So, both D4 Abdul Muthaliff and the appellant Nagoor Hanifa approached PW-4 Abdul Rahman, the landlord, asking him to intervene and settle the dispute. On the advise of PW-1, the appellant agreed to vacate the room on repayment of advance rental amount by D4 Abdul Muthaliff. As instructed by PW-1, D4 Abdul Muthaliff, returned the advance amount to the appellant. The appellant assured that he would go to the village and after leaving the family at the village, he would come back within four days and vacate the room. But the appellant did not turn up as promised. One month later he came back to the house, when D4 Abdul Muthaliff demanded him to pay rent for one more month and asked him to take and remove the articles from his room only after such payment. D4 Abdul Muthaliff, as well put a second lock over the lock already put by the appellant in his room.
8. On 16-5-1987 at about 9.30 p.m. the appellant went to the shop of D4 Abdul Muthaliff, when he was not there, but PW-4 Abdul Majeeth, his employee was available. The appellant waited for the arrival of D4 Abdul Muthaliff. Half an hour later, D4 Abdul Muthaliff came. On seeing him D4 Abdul Muthaliff abused the appellant in filthy language. The appellant represented that he would give one month rent within a week and asked him to allow for removing his articles, for which D4 Abdul Muthaliff refused to accede. At that point of time, the appellant exclaimed at D4 Abdul Muthaliff "(Vernacular matter omitted).
9. On the night of 18-5-1987 D4 Abdul Muthaliff, his wife D1 Sabiya Begum with their children D2 Jiyabudeen and D3 Aneeth Fathima were sleeping inside their room. It was at about 2 a.m. (mid-night), on 18/19-5-1987, on hearing the tapping sound of the door of his room, D4 Abdul Muthaliff woke up and opened the door. At the entrance, the appellant was standing with a bucket. He was also found carrying a gunny bag in his hand. Suddenly the appellant poured out the kerosene from the bucket inside the room. He also threw the gunny bag, direnched in the kerosene, inside the room. Then, he lighted the match stick and threw it on the gunny bag inside the room. The entire room caught fire. The appellant shouted "(Vernacular matter omitted), and so saying, the appellant tried to close the door of the room from outside, D4 Abdul Muthaliff did not allow him to do so. The ball of fire engulfed the entire room and all the four deceased screamed. All the deceased, who were inflamed sustained burn injuries. On hearing the hue and cry from the house of the deceased, PW-1 Abdul Rahman and his brother (not examined) came down running from the second floor and found the appellant Nagoor Hanifa speedily getting down the steps from the first floor to ground floor. PW-2 Mohan, and PW-3 Guna who were in the opposite house also came to the house of the deceased, and saw the appellant getting down speedily from the first floor. D4 Abdul Muthaliff exclaimed "(Vernacular matter omitted) on hearing this, PW-2, PW-3 and another, chased the appellant. However, they were not able to catch him, since he ran away and disappeared. Then all the neighbours came to the house of the deceased and extinguished the fire. They found all the deceased with burn injuries all over the body. An auto-rickshaw was brought and all the injured were taken to Stanley Medical College Hospital, Madras by PW-2 and PW-3. All the victims (D-1 to D4) were admitted in the Hospital by PW-7 Doctor Premkumar. Exs.P7, P10, P8 and P6 are the case-sheet maintained by Stanley Hospital for the treatment given to D1 to D4 respectively. Subsequently, PW-19 Doctor Dakshinamoorthy, examined all the deceased, gave treatment and issued accident registered extracts Exs.P28 to P31, according to which the burns sustained by D1 to D4 are at 60%, 60%, 4% and 20% respectively.
10. On receipt of a telephonic message at 4 a.m. on 19-5-1987, PW-21, R. Eganathan, Sub-Inspector of Police, Sevenwells Police Station went to Stanley Hospital, and obtained complaint Ex.P36 from D4 Abdul Muthaliff, and registered the case in Cr. No. 180 of 1987 under Section 307, I.P.C. and after preparation of printed FIR, (Ex.) 37, he despatched the same to the Court as well as to the higher officials.
11. PW-22, Sethumadavan, Inspector of Police, in charge of Seven-wells Police station, on receipt of the message at 5.40 a.m. went to the police station at 6.00 a.m. and took up further investigation. After visiting the Stanley, Hospital, he went to the venue of crime at 6.20 a.m. He prepared the observation mahazar Ex.P25 and scene sketch Ex.P38. He arranged for taking photographs. The photos are Exs.P45 to P58 and the negatives are Exs.P59 to P72. He recovered M.Os. 1 to 12 (plastic tin, piece of gunny bag, burnt plastic bucket, burnt mat, muram, pillow burnt lungi, mirror, two pairs of chappel and banian), under Ex.P28 from the house of the deceased, attested by PW-14, Noor Mohamed. PW-22, Inspector examined PWs. 1 to 4, 14 and others.
12. Then he came back to Stanley Hospital and recorded statement Ex.P39 from D4 Abdul Muthaliff and Ex.P40 from D1 Sabiya Begum. He recorded M.O. 16 saree and M.O. 17 inskirt from D1 Sabiya Begum under Ex.P41. Since their condition became serious, he sent requisition Ex.P1 to the Magistrate for recording dying declaration. At 11.00 a.m. PW-22. Inspector of Police received the death intimations Exs.P9 and P11 in respect of D2 Jiyabudeen and D3 Aneeth Fathima, respectively. So, he altered the case into Section 302, I.P.C. and sent express report Ex.P42 to the Court and the higher officials.
13. Between 11.30 a.m. and 1.30 p.m. on 19-5-1987 PW-22, Inspector of Police conducted inquest over the dead body of D2 Jiyabudeen. Ex.P43 is the inquest report. He sent the body of D2 through PW-16, Kuttiyappan, Police Constable along with Ex. P. 23 requisition for post mortem.
14. Between 1.45 p.m. and 3.45 p.m., PW-22 conducted inquest over the dead body of D3 Aneeth Fathima. Ex.D44 is the inquest report. He sent the dead body of D3 for post-mortem along with Ex.P21 requisition, through PW-17, Selvaraj, Police Constable.
15. In the meantime, D1 Sabiya Begum and D4 Abdul Muthaliff were taken to Kilpauk Medical College Hospital for further treatment PW-9 Doctor Ramkrishanan, admitted D1 Sabiya Begum in Kilpauk Medical College Hospital at 12.20 noon on 19-5-1987 and gave treatment. Ex.P14 is the case sheet maintained in respect of D1. PW-8 Dr. Mathivanan, admitted D4 Abdul Muthaliff in the same hospital at 12.40 noon on 19-5-1987 and gave treatment to him. Ex.P12 is the case sheet in respect of D4 Abdul Muthaliff.
16. On receipt of Ex.P1 from PW-22, PW-5 Pasupathi, XII Metropolitan Magistrate, Madras, went to Kilpauk Medical College Hospital at 1.00 p.m. On 19-5-1987 and recorded dying declaration Ex.P2 from D1 Sabiya Begum and Ex.P4 from D4 Abdul Muthaliff, attested by PW-6 Dr. Jayaraman, who appended his certificates Exs.P3 and P5 at the bottom of Exs.P2 and P4 respectively.
17. On 19-5-1987 at 2.55 p.m. PW-13, Doctor Ravindran, conducted post-mortem on the dead body of D2 Jiyabudeen and found the following injuries :-
"Extensive II degree burns over the nose, lips, both cheeks, neck, whole, of back including buttocks, both upper limbs, both lower limbs, perineum and scrotum. The skin has peled off in all the areas exposing the underlying inflamed reddish coloured subcutaneous tissue. The skin over the chest and abdomen (except the area around the umbilicus) is free from burns - 70% burns.
On internal examination : Hear chambers contained fluid blood, Curt Section of the lungs were congested. Exudes copious frothy fluid. Stomach contained 50 gms. of partially digested food materials. Liver, spleen and kidneys (cut section) were congested. Bladder was empty. Brain was hyperaemic. The cut-section showed numerous patichiae."
PW-13 Doctor issued Ex.P24 Post-mortem certificate. The Doctor was on the opinion that the deceased (D2) would appear to have died of shock due to extensive hurns.
18. On 19-5-1987 at about 3.45 p.m. PW-12, Doctor Vimala Gopalan, conducted postmortem on the dead body of D3 Aneeth Fathima and she found the following injuries :-
"Burns seen over right side of forehead, left side of face, left side of nose, front of chin, small area of left ear, front of neck on the right side, entire front of chest, abdomen, both shoulders, upper half of back, front of thigh right and left, both knees, front of both legs, front of dorsum of both feet, front and back of arms and fore-arms, both plams, skin over front of chest and both shoulders has been peeled of exposing the underlying inflamed tissues.
On dissection, the following was found :- All chambers of heart contained fluid blood. Lungs congested and oedematous. Stomach contained 40 gms. of semi-digested rice particles. Liver, spleen and kidneys were all congested. Bladder was empty. Brain was congested."
PW-12, Doctor issued Ex.P22 post-mortem certificate. She was of the opinion that the deceased would appear to have died of shock due to extensive burns.
19. Next day on 20-5-1987 at about 11.00 a.m. PW-23, Thanikkachalam, the jurisdiction Inspector took up investigation. At 3.30 p.m. he received the death intimation of D1 Sabiya Begum Ex.P15. Then PW-23 went to the Kilpauk Medical College Hospital and conducted inquest between 4.15 p.m. and 5.45 p.m. on the body of D1 Sabiya Begum. Ex.P73 is the inquest report. He sent the body of D1 Sabiya Begum through PW-16 Police, Constable along with requisition Ex.P18 for post-mortem.
20. On 20-5-1987 at about 6.00 p.m., PW-11, Doctor Maruthi, conducted post-mortem on the dead body of D1 Sabiya Begum and found the following injuries :-
"Mixed burns were present over parts of the face, neck, menubrium sterni, upper part of right breast, both upper limbs, front of left thigh, left ankle and foot, right side of umbilical and right lumbar region, right foot, right scapular region, a strip on the front of the scalp 3 cm in width and 7 cm. in length and a strip of 5 cm. in width encircling the waist, amounting to about 50% of the body surface area. Hands were open empty. Finger nails were pale. Heart chambers were empty. Coronary vessels were patent Aorta normal. The mucosa of the larynx glottis, trachea and bronchi was congested and convered by mucous, which contained fine carbon particles. Hyoid bone was intact Stomach contained 30 ml. of greenish yellow fluid. Mucosa was cogngested. All other internal organs were congested. Bladder was empty. Uterus contained a male foetus (with placenta) 32 cm. in length (about seven months old)."
PW-11 Doctor issued Ex.P20 post-mortem certificate. She gave opinion after receipt of chemical report in regard to viseera Ex.P19, stating that the deceased would appear to have died of shock due to mixed burns.
21. PW-20, Thiyagarana, Court Clerk, on receipt of requistion Ex.P33 from Inspector of Police on 20-5-1987 sent M.Os. 1 to 12, along with the Magistrate's requistion Ex.P34 for chemical Analysis. Ex.P35 is the report of the chemical analyst.
22. On 21-5-1987 at about 7.00 a.m. PW-23, Inspector of Police arrested the accused near Erukkancherry high road and recovered his clothes viz., Shirt, dothi and trouser, M.Os. 13 to 15 in the presence of PW-15 Gopi under Ex.P27 mahazar. As the accused was found with burn injuries, PW-23, sent him to hospital for treatment.
23. On 21-5-1987 Dr. Hammath Sheik (not examined), attached to Stanley Hospital, examined the appellant at 1.05 p.m. for his burn injuries said to have been caused at 2.00 a.m. on 19-5-1987, while lighting a match stick after pouring kerosent in the house of D4 Abdul Muthaliff. The said Doctor found injuries over the fore-arms index and middle fingers of the appellant. Ex.P32 is the accident register extract.
24. On the early morning on 24-5-1987 at 2.35 a.m. PW-23 received Ex.P13 death intimation from he hospital in respect of D4 Abdul Muthaliff. He went to the hospital and conducted inquest over the dead body of D4 Abdul Muthaliff between 8.45 a.m. and 10.45 a.m. Ex.P74 is the inquest report. He sent the body of D4 Abdul Muthaliff for post-mortem through PW-18 Sriramulu, Police Constable along with Ex.P16 requisition.
25. On 24-5-1987 at 11.50 a.m. PW-10 Doctor Nithyanandam, conducted post-mortem on the body of D-4 Abdul Muthaliff and found the following injuries :-
"There were external mixed burn injuries over the legs, back of both the thighs, right upper limb and back of upper part of left fore-arm 32% burns. Internal Examination :
Internal organs were congested, Hyoid bone was intact, Heart chambers were filled with dark red blood. Stomach was empty. Mocosa congested. Intestines - Distended with gas mucosa congested. Bladder was empty. Brain was congested. Membranches - intact. There was no injury to had, pelvis and spinal column".
PW10 Doctor issued Ex.P17 post-mortem certificate. On Completion of investigation, PW-23, Inspector of Police filed the charge-sheet against the appellant on 21-8-1987.
26. When the trial Court, after the prosecution evidence was over, questioned the appellant under Section 313 Cr.P.C. to explain the incriminating circumstances appearing against him in evidence brought on record, the appellant chose to deny his complicity in the crime. He further stated that he has no connection whatever with the above incident, and that since over lock was put on the lock put by him in his room, he went to his landlord, D-4 Abdul Muthaliff, in order to question his act, and at that point of time, police came, arrested and foisted a false case against him.
27. After conclusion of trial, on appraisal of the evidence, oral and documentary adduced by the prosecution, as well as the statement by the accused, the trial Court found the appellant guilty under Section 302, I.P.C. on four counts and dealt with him as stated earlier.
28. Mr. Selvarangan, learned counsel appearing for the appellant took us through the entire evidence and contended that though in the various dying declarations made by D-1 Sabiya Begum and D-4 Abdul Muthaliff to the police officer and the Judicial Magistrate, they had implicated the appellant as the perpetrator of the crime, in Ex.P12 Hospital case-sheet, it is mentioned that unknown person was responsible for the above said incident, and that the dying declarations given by the D-1 and D-4 suffer from various infirmities and as such, the above dying declarations cannot be the basis for conviction. In short, learned counsel for the appellant would say, that there was no acceptable material to conclude beyond doubt that the offence was committed by the appellant.
29. Per contra, Mr. B. Sri Ramulu, learned Public Prosecutor, appearing for the State, countered his submissions, by relying upon the evidence of PWs. 1 to 3, and the dying declarations and contended that there was ample material to establish the guilt of the accused and that the trial Court was correct in finding the appellant guilty for the charge of murder of our counts.
30. Now, we would recapitulate the facts in a nut shell :-
D-4 Abdul Muthaliff was a tenant under PW1 Abdul Rahman. D-1 Sabiya Begum is the wife of D-4 Abdul Muthaliff. D-2 Jiyabudeen and D-3 Aneeth Fathima are their son and daughter. The landlord, PW-1 Abdul Rahman occupied the second floor of the premises. The entire first floor was let out to D-4 Abdul Muthaliff. Of the four rooms, in the first floor, which was in the possession on D-4 Abdul Muthaliff, one room was let out to the appellant Nagoor Hanifa, and another room was let out to PW-4 Abdul Majeeth. Both PW-4 Abdul Majeeth and the appellant Nagoor Hanifa were working under D-4 Abdul Muthaliff, who was doing paper business. Due to misunderstanding, the appellant stopped going for work in the shop of D-4 Abdul Muthaliff. Since a further quarrel arose between the appellant Nagoor Hanifa and D-4 Abdul Muthaliff. PW-1 Abdul Rahman, the landlord intervened and advised the appellant to vacate the premises and asked D-4 to repay the advance rental amount to the appellant. As advised by PW-1 Abdul Rahman, D-4 Abdul Muthaliff, returned the advance rental amount forthwith. The appellant assured that he would go to his village and come back within four days and then vacate the premises. But the appellant came back only after a month. So, D-4 Abdul Muthaliff put a second lock over the lock already put by the appellant.
31. On 16-5-1987 at about 9.30 p.m., the appellant went to the shop of D-4 and questioned about this, while D-4 Abdul Muthaliff abused him in a filthy language. Then the appellant exclaimed that he would close his entire family within three days.
32. On 18-5-1987 night, while D-1 to D-4 were asleep inside their room, the appellant came and tapped the door. D-4 Abdul Muthaliff opened the door. The appellant immediately poured out the kerosene from the bucket and lighted a match stick and threw it inside the house, with the result, all the four deceased caught fire and sustained serious injuries. They cried. PW-1 Abdul Rahman, PW-2 Mohan and PW-3 Guna came running and saw the appellant running down from the first floor to ground floor and escaping in trice inspite of their chase.
33. PW-2 Mohan and PW-3 Guna took all the victims to the Stanley Medical College Hospital. PW-21, Sub-Inspector of Police, Seven-wells Police station on 19-5-1987 at 4.00 a.m., went to the Stanley Hospital and obtained the complaint from D-4 Abdul Muthaliff and registered the case. PW-22 Inspector of Police came to the scene at 6.20 a.m. and recovered M.Os. 1 to 12. Then he came to the Stanley Hospital and recorded the statements from D. 4 Abdul Muthaliff and from D-1 Sabiya Begum.
34. At 11.00 a.m. PW-22 received the death intimations of D-2 Jiyabudeen and D-3 Aneeth Fathima and then he altered the case into Sec. 302 I.P.C. In the mean time D-1 Sabiya Begum and D-4 Abdul Muthaliff became serious and so they were taken to Kilpauk Hospital for further treatment. PW-22 sent Ex.P1 requisition to PW-5 Pasupathi, XII Metropolitan Magistrate, to record dying declarations from D-1 Sabiya Begum and D-4 Abdul Muthaliff. So, on 19-5-1987 at 1.00 p.m. PW-5, Metropolitan Magistrate came and recorded dying declarations from D-1 Sabiya Begum and D-4 Abdul Muthaliff. These dying declarations were attested by PW-6 Dr. Jayaraman. On 20-5-1987 at 11.00 a.m. PW-23, another Inspector of Police, took up further investigation. At 3.30 p.m. he received the death intimation of D-1 Sabiya Begum.
35. On 21-5-1987 at 7.00 a.m., PW-23, arrested the appellant and since he was found with burn injuries, he sent him for medical examination. On 21-5-1987 at 1.05 p.m., Doctor Hammath Sheik, examined him and issued Ex.P32 accident register extract. On 24-5-1987, D-4 Abdul Muthaliff died.
36. Regarding the motive for the occurrence, the prosecution relies upon the evidence of PW-1 Abdul Rahman, the landlord, PW-4 Abdul Majeeth, the employee of D-4 Abdul Muthaliff and the dying declarations made by D-4 Abdul Muthaliff in Exs.P36, P39 and P4. Appellant Nagoor Hanifa, who was a Sub-tenant under D-4 Abdul Muthaliff had developed misunderstanding with D-4 Abdul Muthaliff, six or eight months prior to the occurrence and PW-1 Abdul Rahman intervened, in order to settle their dispute and advised the appellant Nagoor Hanifa to vacate the premises after getting the advance rental amount from D-4 Abdul Muthaliff, and that since both of them agreed for the same, he obtained Rs. 1,050/- the advance rental amount from D-4 Abdul Muthaliff and handed it over to the appellant. On receipt of the amount, the appellant assured that he would go to the Village and leave the family there, come back soon and then vacate the premises. This was accepted by D-4 Abdul Muthaliff. But the appellant come back only one month letter, i.e. five days prior to the date of occurrence. Then, the appellant tried to open his room, but D-4 Abdul Muthaliff objected, saying that he should pay rent up to date and then take the articles. On 16-5-1987, in order to prevent the appellant from opening his room again, he put a over-lock, so, the appellant shouted at D-4 Abdul Muthaliff.
"(Vernacular matter omitted)
This is the first incident with reference to motive aspect.
37. Thereafter, the appellant was not able to stay in that house and he had to stay in some other house of his friend in the same street. Both D-4 Abdul Muthaliff, the tenant and the appellant Nagoor Hanifa were staying in the said premises for the past six years. Both of them had respect for PW-1 Abdul Rahaman. That was the reason, why they approached him to settle the dispute. Then, on the advise of PW-1, the appellant agreed to vacate the premises, on return of the rental advance amount.
38. PW-4 Abdul Majeeth is related to both the families on D-4 Abdul Muthaliff and the appellant Nagoor Hanifa. He was also a sub-tenant under D-4 Abdul Muthaliff, staying in the other room. Moreover, he was also working under D-4 Abdul Muthaliff in his shop dealing in paper business. According to him, on receiving the rental advance amount, the appellant took his family to his village, assuring D-4 Abdul Muthaliff, that he would come back, remove the articles and vacate the premises within four days and that only on 12-5-1987 i.e. nearly after a month, the appellant came and tried to enter into the room, but D-4 Abdul Muthaliff did not allow him and put an over lock in the room.
39. Apart from this incident, PW-4 speaks about another incident, which took place on 16-5-1987 night. At about 9.30 p.m., when PW-4 Abdul Majeeth was in the shop belonging to D-4 Abdul Muthaliff, the appellant came there. D-4 Abdul Muthaliff was not in the shop then. Half an hour later, D-4 Abdul Muthaliff came. He asked the appellant as to why he came to the shop and abused him in filthy language. The appellant said, that he would give the rental arrears within a week and asked D-4 Abdul Muthaliff to allow him to remove his articles. But D-4 Abdul Muthaliff did not agree for the same. At that point of time, the appellant exclaimed that "(Vernacular matter omitted) and so saying he went away. So, these incidents were the immediate motive for the instant occurrence.
40. These details as well are found available in Ex.P. 4, the dying declaration given by D-4 Abdul Muthaliff to PW-5, the Judicial Magistrate, in Ex.P36, the complaint given by D-4 Abdul Muthaliff to PW-21 the Sub-Inspector of Police, and in Ex.P. 39, the statement given by D-4 Abdul Muthaliff before PW-22, Inspector of Police. Regarding the earlier misunderstanding which arose due to the non-compliance of his undertaking in vacating the premises and the non-payment of the rental arrears by the appellant, details are available in Ex.P40, the statement given by D-1 Sabiya Begum before PW-22, Inspector of Police and in Ex.P. 2, dying declaration given to PW-5 Judicial Magistrate. These materials would clinchingly show that the appellant had a grudge against D-4 and strong motive to finish the entire family of D-4 Abdul Muthaliff.
41. Regarding the main incident, which took place in a most inhuman and cruel manner, the prosecution relies upon the dying declarations. There is no eye witness in this case. However, the evidence of PWs. 1 to 4, throws some light regarding what had happened, subsequent to the main incident.
42. On 18-5-1987 midnight at about 2.00 a.m. on hearing screams from the house of the deceased, PW-1 Abdul Rahman and his brother woke-up from their beds and rushed to the first floor. On seeing them, D-4 Abdul Muthaliff, cried saying "(Vernacular matter omitted)".
They also saw the appellant going down from the first floor to the ground floor. PW-1 Abdul Rahman and others attempted to catch him.
43. PW-2 Mohan and PW-3 Guna were working in a lorry shed. PW-3 Guna was staying in D. No. 36 near the house of PW-1 Abdul Rahman. PW-2 Mohan, used to take bed in front of the house of PW-3 Guna. On 18-5-1987, PWs 2 and 3 went and saw the night show and came back. After finishing their food, they look bed in front of the house of the deceased. At that time, they heard the sound from the house of the deceased in the first floor. Then they, rushed to the first floor. They also say the appellant swifty running away from the house of the deceased. They chased and tried to catch him, but, unfortunately the appellant escaped. Then they came to first floor and found D-1 to D-4 with burn injuries all over their bodies. This portion of the evidence as referred to by PWs 1 to 3 is also mentioned in Ex.P. 4 Ex.P. 36 and Ex.P. 39, statement given by D-4.
44. PW-4 Abdul Majeeth, a sub-tenant under D-4 Abdul Muthaliff was in the shop at the time of occurrence. On knowing this incident, he went to Stanely Hospital, where the deceased were admitted and asked D-4 Abdul Muthaliff, as to what had happened. D-4 Abdul Muthaliff said that "(Vernacular matter omitted)"
45. As referred to earlier, the details of the main incident could be culled out only from the dying declarations made by D-4 Abdul Muthaliff and D-1 Sabiya begum. The occurrence took place on 18/19-5-1987 at 2.00 a.m. Ex.P36, the complaint was given by D-4 Abdul Muthaliff to PW-21, Sub-Inspector of Police at 4.20 a.m. on 19-5-1987. On the basis of this complaint, the case was registered in Cr. No. 180 of 1987, for the offence under Section 307, I.P.C. by PW-21 Sub-Inspector of Police. It is stated in Ex.P. 36 (1st dying declaration) that on 18-5-1987 at about 2.00 a.m. midnight, while all the deceased were sleeping inside the room, he (D-4) heard the tapping sound and when he opened the door, he found the appellant Nagoor Hanifa, standing with a bucket and also a gunny bag in his hand and then, immediately the appellant poured out the kerosene and threw the gunny bag and shouted saying
"(Vernacular matter omitted)
and so saying he lighted match stick and threw it on the gunny bag drenched with kerosene and due to which all the deceased sustained serious burn injuries.
46. The next dying declaration is Ex.P. 39, which was given by D-4 Abdul Muthaliff under Section 161, Cr.P.C. before PW-22, Inspector of Police at about 9.30 a.m. on 19-5-1987. The other dying declaration is Ex.P. 4 given by D-4 Abdul Muthaliff recorded by PW-5 Judicial Magistrate at 2.10 p.m. On 19-5-1987 at Kilpauk Medical College Hospital. Of-course in these statements, Exs.P. 36 and P. 39 no certificate of Doctor was appended, to show the fitness of the mind of D-4, at the time of recording the same. But the dying declaration Ex.P4 given by D-4, which has been recorded by PW-5 Judicial Magistrate, in question and answer form, would disclose that the Judicial Magistrate, PW-5 recorded the dying declaration only after satisfying himself as to the consciousness of D-4 Abdul Muthaliff, Ex.P. 5 has the endarsement made by PW-6 Doctor certifying that D-4 Abdul Muthaliff was conscious while the above dying declaration was recovered. As such, all these three dying declarations (Exs. P36, P39 and P4) reflect the consistency and truth which inspire confidence in our mind.
47. Apart from these three dying declarations by D-4 Abdul Muthaliff, the dying declarations given by D-1 Sabiya Begum in Ex.P. 40, recorded at about 9.30 a.m. on 19-5-1987 by the Inspector of police PW-22 and Ex.P2 dying declaration recorded by PW-5 Magistrate at 1.45 p.m. on the same day and the certificate given by PW-6 Doctor under Ex.P3 would as well reveal the same details, as found in the dying declarations given by D-4 Abdul Muthaliff. Moreover, the dying declaration Ex.P. 2 recorded by PW5 Magistrate, was appended with a certificate of fitness of the mind, given by PW-6 Doctor. Since all these dying declarations are consistent in all material particulars, we have no hesitation whatever to accept these dying declarations as true as we could smell the fragrance of the truth from them.
48. The evidence of PW-5 the Judicial Magistrate would as well as establish that the statements were recorded after all the formalities were observed. The question were put in order to find our whether they were in conscious State of mind. After recording their dying declarations (Ex.P2 and P4), the same were read over to them, signed by D-1 Sabiya Bagum and D-4 Abdul Muthaliff respectively As such, there is no reason to reject the evidence of PW-5, who recorded the dying declarations of D. 1 Sabiya Begum and D-4 Abdul Muthaliff, in the presence of PW-6 Doctor, who speaks about the fitness of the mind of the deceased (D-1 and D-4) While giving these dying declarations.
49. Ex.P. 36 complaint was recorded at 4.20 a.m. on the date of occurrence. This report has been received by the Magistrate, on the same day at 10.45 a.m. itself. Even at 2.00 a.m. midnight, when the deceased were brought to the hospital, PW-19, Doctor Thatchinamurthy examined them and issued wound certificates Exs.P28 to P. 31. The said Doctor gave the details in these exhibits about the burn injuries. He also deposed in Court that such injuries could have been sustained by the deceased in the manner alleged by the prosecution. PW-7 another Doctor premkumar, who gave treatment to the deceased has also given these details in Exs.P6 to P. 10. In Kilpauk Medical College Hospital, D-4 Abdul Muthaliff was given treatment. The details of which are as well available in Ex. P. 12, case-sheet. Ex.P. 14 is the case-sheet relating to the treatment given to D-1 Sabiya Begum.
50. D-2 Jiyabudeen died at 5.30 a.m. and D-3 Anneth Fathima died at 6.40 a.m. on 19-5-1987. D-1 Sabiya Begum died on 20-5-1987 it 2.35 p.m. D-4 Abdul Muthaliff died on 24-5-1987 at 2.35 a.m. PW-10, Doctor conducted post-mortem over the body of D-4 Abdul Muthaliff and issued Ex.P. 17, post-mortem certificate and gave opinion that the deceased (D-4) would appear to have died on complication out of the burn injuries. PW-11, another Doctor conducted post-mortem over the body of D-1 Sabiya Bagum and issued post-mortem certificate Ex.P. 20 and she gave opinion that the deceased (D-1) would appear to have died on shock due to mixed burns. She would also say that these injuries could have been caused by pouring kerosene and setting fire to it and these injuries were necessarily fatal. PW-12, another Doctor, conducted post-mortem on the dead body of D-3, Aneeth Fathima and issued Ex.P22 post-mortem certificate and opined that the deceased (D-3) would appear to have died of shock due to extensive burn injuries and the injuries could have been caused by pouring kerosene and setting fire to it and these injuries were necessarily fatal. PW-13, Doctor who conducted post-mortem over the body of D-2 Jiyabudeen, issued Ex.P. 24 post-mortem certificate. The Doctor was of the opinion that the deceased (D-2) would appear to have died of shock due to the burn injuries and these injuries were necessarily fatal.
51. Thus, the evidence of Doctor as discussed earlier, regarding the various burn injuries mentioned in the post mortem certificates would clearly establish that these four deceased, the members of one family, sustained extensive burn injuries, on account of a brutal act of the appellant and they succumbed to those injuries one after another. As such, the medical evidence as projected by the prosecution corroborates the dying declarations given by D. 1 Sabiya Begum and D-4 Abdul Muthaliff.
52. The law on dying declaration is well settled by now. Under Clause (1) of Section 32 of the Indian Evidence Act, 1872, statement made by a person, who is dead, as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of his death comes, into question, is a relevant fact and is admissible in evidence.
53. Thus, Section 32(1) of the Evidence Act is an exception to the general rule, that hear-say evidence is not admissible. However, the reliability of such statement/declaration should be subjected to a close scrutiny. If there are more than one dying declarations, then the Court has also to scrutinise all the dying declarations to find out whether each one of them passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent with each other in material particulars, before accepting and relying upon the same. Once the statement of the dying person and the evidence of the witness or witnesses testifying to the same is found reliable on careful scrutiny, it becomes a very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any impediment, such a dying declaration by itself would be sufficient for recording a conviction even without looking for any corroboration.
54. In the light of these principles laid down by this Court as well as by the Apex Court, when we consider all these dying declarations after close scrutiny, there is no difficulty for us to come to the conclusion that the oral dying declarations and the dying declarations recorded by the police and the Judicial Magistrate have passed all the necessary tests to arrive at a conclusion that all the dying declarations are consistent, throughout having the ring of truth and trustworthiness.
55. Another important clinching circumstances against the appellant is that burn injuries were found on the appellant as well. Ex.P. 32 is the accident register extract issued by Doctor Hammath Sheik, in respect of the injuries sustained by the accused. The accused was arrested on 21-5-1987 and since he was found with burn injuries, he was sent to Stanley Hospital for treatment. While the Doctor examined him, the accused himself stated that he sustained those injuries while litting fire with match stick in the kerosene in the house of D-4 Abdul Muthaliff at 2.00 a.m. on 19-5-1987. This was incorporated in Ex.P. 32 itself. This document corroborates the evidence of PWs 1 to 3 and the dying declarations given by D-1 Sabiya Begum and D-4 Abdul Muthaliff, which confirms the presence of the accused at the time of occurrence in the house of the deceased.
56. It is contended by learned counsel for the appellant that in Ex.P. 12, the case-sheet relating to the treatment given to D-4 Abdul Muthaliff, it is mentioned as "unknown person." Ex.P. 12 is the case-sheet maintained by the Medical Officers in Kilpauk Medical College Hospital. D-4 Abdul Muthaliff was admitted in Stanley Medical College Hospital, immediately after the occurrence, and Ex.P. 6 is the case sheet maintained in stanley Medical College Hospital. In the very first page of the case-sheet viz. Ex.P6, it has been clearly mentioned as 'a known' person. Further more, over the page of the first sheet of Ex.P. 12 maintained by Kilpauk Medical College Hospital, It has been specifically mentioned as a known person. Of course, in one sheet in Ex.P. 12, it is recorded as 'a unknown person.' This could be only a mistake and nothing more. Further more, Ex.P. 12 case-sheet has been marked through PW-8 Doctor, T. Mathivanan. But no question has been put to him with reference to this mistake, by the defence. In fact, PW-8 was not at all cross examined.
57. Ex.P. 38, the complaint, which is the first document, recorded by PW-21, Sub-Inspector of Police from D-4 Abdul Muthaliff, and which has also reached the Magistrate at 10.45 a.m. contains the name of the appellant as accused. But, D-4 Abdul Muthaliff was admitted in Kilpauk Medical College Hospital, only at 12.45 p.m. on 19-5-1987, where Ex.P. 12 was written. So the mentioning in one of the sheets at Ex.P. 12 as 'unknown person' has no significance.
58. Ex.P. 29 is the accident register extract in respect of D-1 Sabiya Begum and Ex.P. 31 is the accident register estract in respect of D-2 Jiyabudeen, which were recorded at 2.00 a.m. on 19-5-87 a few minutes after the occurrence. In that also, the Doctor mentioned the name of the accused as having poured the kerosene and set fire. So, the earliest documents Exs.P. 29 and P. 31, as spoken to by Doctor would disclose that the victims told that a known person was responsible for the injuries. In those documents, the name of the person who brought the deceased to the Hospital was also mentioned as Rahim and Guna (PW-3).
59. One another strong corroborative piece of evidence is the recovery of the burnt gunny bag and the plastic bucket contained kerosene, which were thrown into the house of the deceased by the appellant. This is mentioned in the observation mahazar Ex.P. 25. Besides this, half burnt clothes were also recovered from the deceased by PW-22, Inspector of Police. All these M.Os. were sent to chemical analysis under Ex.P. 34. The analyst's report discloses that kerosene was detected in the said M.Os. Even Ex.D. 1 the remand report, with reference to the arrest of the appellant would reveal that the appellant sustained burn injuries on his left fore-hand and middle finger and index finger. Not only that, the clothes worn by the accused with the smell of kerosene were also recovered. Thus, these circumstances would clinchingly prove that besides the dying declarations, there are are other sample material in support of the said declarations.
60. In brief, the following are the pieces of evidence available in this case, which connects the appellant/with the commission of the above offence :-
(i) Pws 1 to 3 immediately after the occurrence, on hearing the hue and cry of D-4 Abdul Muthaliff from his house came running towards his house and saw the appellant running down from the first floor to ground floor and then running away from the place of occurrence, inspite on the hot chase.
(ii) Oral dying declaration which has given by D-4 Abdul Muthaliff to PWs 1 to 3, stating that "(Vernacular matter omitted)"
(iii) The oral dying declaration given by D-4 Abdul Muthaliff to PW-4 Abdul Majeeth, on the same day and on the same night at the Hospital bout the occurrence, implicating the appellant.
(iv) The oral dying declaration in the form of a complaint Ex.P. 36 given to Sub-Inspector of Police, PW-21, given by D-4 Abdul Muthaliff at 4 p.m. on 19-5-1987.
(v) Exs.P. 39 and P. 40 viz. the dying declarations in the form of statements under Section 161 Cr.P.C., given by D-4 Abdul Muthaliff and D-1 Sabiya Begum respectively to the Inspector of Police, PW-22 at 9.30 a.m. on 19-5-1987.
(vi) Exs. P2/and P4, the dying declarations given by D-1 Sabiya Begum and D-4 Abdul Muthaliff respectively to PW-5 Magistrate, at 1.45 p.m. on the same day.
(vii) The recovery of half burnt materials, which the appellant had brought to the house of D-4 Abdul Muthaliff, in order to commit the crime.
(viii) Recovery of burnt clothes from D-1 Sabiya begum and D-4 Abdul Muthaliff.
(ix) The arrest of the accused and the burn injuries found on the fingers of the accused referred in Ex.D. 1 and recovery of clothes with the smell of kerosene from the accused as found in Ex.P. 27.
(x) The medical evidence through Doctors who treated D-1 to D-4 and the Doctors who conducted the post-mortem of the dead bodies of the deceased.
61. On the foregoing analysis and appreciation of evidence, we are of the view, that the appellant and the appellant alone has committed the offence under Section 302 I.P.C. (four counts)
62. There cannot be two opinions that these murders are cruel, inhuman, barborus and cold bloded. Moreso, the trial Court while considering the question of sentence has made the following observations :-
"(Vernacular matter omitted)".
We are at loss to understand, as to why, the trial Court having given this finding should have imposed mere sentence of life, instead of awarding the death sentence, which in our view, is the proper and appropriate sentence, on the facts and circumstances of the case. The trial Court further held"
(Vernacular matter omitted)".
63. It is unfortunate the trial Court has failed to follow the guidelines given in the above case by the Apex Court. The Supreme Court in the above case held;
"A Court may, however, in the following cases impose the penalty of death in its discretion :
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or ...
stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other ...
We cannot obviously feed into a judicial computer all such situation since they are astrological imponderable in an imperfect and undulating society .....
In Jagmohan's case (1980 Cri LJ 636) (SC), the Constitution Bench reiterated that if a murder is "diabolically conceived and cruelly executed", it would justify the imposition of the death penalty on the murderer. The same principle was substantially reiterated in Edica Anamma's case (1974 Cri LJ 683) (SC) that "the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence".
It is apparent that the learned trial Judge has not only misread the judgment of the Apex Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636) but has also misread the view expressed by Sarkaria, J. in the above judgment.
64. In Ranjeet Singh v. State of Rajasthan, AIR 1988 SC 672 : (1988 Cri LJ 845), the Apex Court, while dealing with similar facts, observed as follows :
"With regard to the sentence of death, there cannot be two opinions. The manner in which the entire family was eliminated indicates that the offence was deliberate and diabolical. It was predetermined and cold-blooded. It was absolutely devilish and dastardly. The innocent children were done to death with lethal weapons when they were fast asleep. The sentence of death awarded cannot, therefore, be said to be inappropriate."
We are of the definite view, that this observation made in the above decision would squarely apply to the present case.
65. The sentence of imprisonment for life is a rule in a murder case, while the sentence of death is an exception, which is inflicted in rarest of rare cases. Therefore, the Court while considering the imposition of sentence, in a case of commission of heinous offence of murder, has to draw a balance sheet of aggrevating and mitigating circumstances and strike a proper balance in awarding appropriate sentence. So, the trial Court, in this case, instead of evaluating the aggravating and mitigating circumstances, to find out as to what should be the appropriate sentence, has simply awarded imprisonment for life.
66. The great poet Thiruvalluvar had no difficulty in evaluating the circumstance, giving rise to the imposition of death penalty, to certain category of offenders, in the following couplet :
(Vernacular matter - Omitted)
The literal translation for the said couplet, as given by Shri C. Rajagopalachari, in a book titled "Kural - The Great Book of Tiruvaluvar", is as under :-
"Capital punishment for grievous offences is like the weeding of fields, necessary for the protection of the crops".
If the operation of weeding out the weeds is not done, the crops would definitely withter away or get destroyed, thereby making the society suffer. So the wicked and the cruel like the appellant in this case are like weeds and their existence in the word/society is likely to cause perilous consequences in menancing proportion to the society and therefore, they must be weeded out from the society, which could be done only by the imposition of death penalty.
67. However, since no appeal against sentence has been filed by the State, we leave it at that, but will express our anguish, on non-awarding of the appropriate sentence. In other respects, we are in entire agreement with the reasoning given by the trial Court for convicting the appellant, for the offence under Section 302, I.P.C. (four counts)
68. As such the convictions and sentences imposed upon the appellant are confirmed. This appeal is dismissed.
Appeal dismissed.

Islam-ud-din Alias Islamu, Appellant V. The State, Respondent.

DATE : 20-03-1996
1996-(102)-CRLJ -2613 -DEL
JUDGE(S) :

Mohd Shamim
P K Bahri
DELHI HIGH COURT
JUDGMENT
MOHD. SHAMIM, J. :- Convict/appellant (hereinafter referred to as the appellant for the sake of convenience) has approached this Court through the present appeal with a request for setting aside the impugned judgment and order dated September 29, 1992 whereby the learned Sessions Judge found him guilty under Section 302 of Indian Penal Code and sentenced him to undergo imprisonment for life with a fine of Rs. 500/- In case of failure to clear the fine the appellant was further directed to undergo rigorous imprisonment for one month.
2. It would be necessary to state in brief the facts which led to the present appeal in order to fully and properly appreciate the points raised by the appellant. The facts as adumbrated in the report under Section 173, Cr.P.C., F.I.R. and in the statements of the witnesses examined by the prosecution are as follows : that Constable Sube Singh (PW 2) was posted at P.S. Nangloi during the intervening night of 1st/2nd July 1988. He was on emergency duty along with S.I. Raghbir Prasad (PW 12). An information was received at 3.30/3.45 p.m. with regard to a murder having been committed at house No. E-194, Shiv Ram Park, within the area of PS Nagloi. The same was recorded vide D.D. No. 3A dated February 2, 1988 as a corollary whereof Shri Bharat Singh (PW 14), SHO, PS Nangli along with S.I. Raghbir Prasad and other Constables left for the place of occurrence, alluded to above. Inspector Bharat Singh met over there one Bholar (PW 7). On being questioned with regard to the occurrence Bholar stated that he was a resident of village Shara, District Panipat (Haryana). Aslam alias Makkar (hereinafter referred to as the deceased) was the son of his brother-in-law. He was married to one Jannat, a co-accused (since dead) near about two years ago. Smt. Jannat was the daughter of PW 1 Jami-ud-din. However, after the marriage she returned to her parents after a stay of one day only at the house of her husband. He along with the elder brother of the deceased known as Karim-ud-din again approached Jami-ud-din (PW 9) alias Jammu to send his daughter along with them to the house of her in-laws. However, PW 4 Jami-ud-din did not accede to their request and said that she would be sent after the harvesting season was over. Consequently both of them again called on him with the abovesaid request. This time they met over there one Islam-ud-din i.e. the appellant. The appellant challenged them and declared as to how they would take Jannat alias Shaku along with them. On the refusal of Jami-ud-din to send his daughter they got suspicious and tried to enquire as to what was the reason as to why she was not being sent. On enquiries they came to know that Jannat alias Shaku was having illicit relations with the appellant. It led to some altercation also. Thereafter they again returned to their houses. Later on Jami-ud-din (PW 4) called on them to the first week of June 1988 with an invitation to the marriage of his son Rattan Khan (PW 3) which was to come off on 28th/29th June, 1988. He along with the deceased went to the house of PW 4 Jami-ud-din on June 28, 1988. After attending the marriage they sought leave of Jami-ud-din to leave for their houses whereupon PW 4 asked them to take Jannat alias Shaku along with them. Jannat alias Shaku, however, on being asked to leave for the house of her in-laws declined to accompany the deceased. She bluntly told that she would stay with the appellant. Meanwhile, a police constable came and informed that Jannat alias Bhaku had presented some complaint before the police authorities. The deceased went to the office of the police on being summoned by them. After having returned from the police officer the deceased informed him that Jannat alias Shaku, co-accused had agreed to go along with her husband on July 2, 1988. After having taken their supper he along with the deceased and one Chhotu slept on the roof of the house, adverted to above. They went on talking till 12.00 in the night. It was nearabout 2.00 a.m. that he heard the sound of foot steps of someone. He opened his eyes and saw that the appellant was standing by the side of the cot of the deceased. He saw that the appellant was removing the bed sheet with which the deceased had wrapped himself. On enquiry as to what was the matter the appellant hit the deceased with a knife on his abdomen. The deceased shrieked, stood up, tried to wake but fell on the cot of Chhotu (PW 8). The appellant fled from the spot along with knife. He raised an alarm. He tried to chase the appellant. The appellant, however, succeeded in making good his escape. The said statement of Bholar (Ex. PW/2A) was sent to the police station by Inspector Bharat Singh (PW 14) along with his endorsement (vide Ex. PW 10/A) whereupon the F.I.R. was recorded by ASI Ishwar Singh (PW 10) vide Ex. PW 10/B.
3. The place of occurrence was got photographed through HC Sajjan Kumar vide Ex. PW 13/A-1 to Ex. PW 13/A-8. He prepared the rough site plan (vide Ex. PW 14/A) with correct marginal notes. He also conducted the inquest proceedings. The inquest report is Ex.PW 3/B. He recorded the statements of the witnesses during the inquest proceedings (vide Ex.PW 14/C and Ex. PW 14/D). The body was sent for post-mortem through constables Sube Singh and Prem Singh. The application for post-mortem is Ex.PW 5/B. The post-mortem on the dead body of the deceased was conducted by Dr. Barua (PW 5). The report of the post-mortem is Ex.PW 5/A. Inspector Bharat Singh during the course of investigation took into police custody from the spot a dari Ex. P4, a sheet (chadar) Ex. P5 and a cot Ex. P. 6 which were found to be blood-stained. We lifted blood from the spot with the help of cotton. All the said articles were separately packed and sealed with the seal of "RP" and were taken into possession vide memo Ex.PW 7/B.
4. The appellant was arrested at the instance of PW 7 Bholar. The appellant made a disclosure statement (vide Ex.PW 7/A). He led the policy party to a room and got recovered the dagger (Ex. P3) which was slightly blood stained after digging the earth from the floor of the said room. The pointing out memo is Ex.PW 12/A. The sketch of the dagger was prepared vide Ex.PW 12/B. The same was taken into police custody vide memo Ex.PW 12/C.
5. The co-accused Mst. Jannat was also arrested on the same day. All the exhibits which were taken into police custody were subsequently sent to the CFSL for analysis. The reports of the Chemical Analyst are EX.PX, PY and PZ. After completing all the formalities a charge-sheet was submitted against the appellant and his co-accused Mst. Jannat alias Shaku before the Magistrate concerned. The learned Magistrate committed the appellant and the co-accused Mst. Jannat to the Court of Session for standing their trial under S. 302, Indian Penal Code.
6. Mst. Jannat alias Shaku died during the pendency of the proceedings before the Court of Session.
7. The learned Sessions Judge after appraisal of the evidence led by the prosecution as well as the evidence led by the appellant in his defence came to the conclusion that the prosecution has succeeded in bringing home the guilt to the appellant. He thus found him guilty under S. 302, Indian Penal Code, and sentenced him to imprisonment of life and a fine of Rs. 500/- as referred to above.
8. Learned counsel for the appellant Mr. Suri has contended that there is absolutely no evidence against the appellant to warrant a finding of conviction. Thus according to the learned counsel, the learned Additional Sessions Judge was not correct in his view that the appellant was guilty under S. 302, Indian Penal Code. The learned counsel has further argued that there is the solitary statement of PW 7 Bholar only against the appellant. Bholar is inimically disposed towards the appellant. Hence his statement was required to be scrutinised with with great care and caution and it was not safe to rely on his statement unless it was corroborated by other independent evidence on record. The next limb of the argument advanced by the learned counsel for the appellant in his connection is that the presence of Bholar (PW 7) at the scene of occurrence is very much doubtful and there is absolutely no evidence to show and prove that in fact Bholar was present at the time of the alleged commission of the crime.
9. The learned Public Prosecutor, Mr. Butalia, has urged to the contrary.
10. It is the statement of PW 7 Bholar that he saw with his own eyes the appellant standing by the side of the cot of the deceased armed with a knife. He further goes on to state that the appellant stabbed the deceased with the said knife. The deceased immediately thereafter succumbed to the injuries sustained at the hands of the appellant. Learned counsel for the appellant Mr. Suri has contended that there is the only solitary statement of PW 7 Bholar with regard to the fact that it was appellant who gave the knife blow on the abdomen of the deceased. There is absolutely no other evidence placed on the record in support of the above statement. The thrust of the argument of the learned counsel is that in the above circumstances it would be highly unsafe to convict a person under S. 302, Indian Penal Code, on the basis of the said statement. According to the learned counsel, in case of grave offences like the one under S. 302 of the Indian Penal Code a duty has been cast on the shoulders of the Court to be more vigilant and cautious while placing reliance on the testimony of a particular witness as the consequence which flow therefrom may lead to the infliction of very serious types of punishment, such as imprisonment for life or death penalty.
11. There is no dispute with the said proposition of law that in case of the sole ocular witness with regard to commission of a particular crime the Courts should be on their tiptoe and guard and must scrutinise the evidence with greater care and caution. However, there is no such principle of law that conviction cannot be based on the solitary statement of a witness. Had that been the position of law in that eventuality there must have been a provision to that effect in the Code of Criminal Procedure or in the Evidence Act which lays down the law with regard to the appreciation of evidence. In this connection the provisions of S. 134 of the Evidence Act can be adverted to with profit. It is in the following words :-
"No particular number of witnesses shall in any case be required for the proof of any fact."
11-A. It is fully manifest from above that no particular number of witnesses has been laid down under the Evidence Act to prove a particular fact. A fact can be proved by a single witness is there is only one witness who has witnessed the said fact. The only condition precedent for placing reliance on the testimony of such a witness is that the statement of the said witness should inspire confidence and must be credit-worthy in the circumstances of a given case. There may be three types of witnesses in case :
(a) wholly reliable;
(b) wholly unreliable; and
(c) neither wholly reliable nor wholly unreliable.
12. It is abundantly clear from above that the testimony of the oral witnesses can be divided into three categories, as mentioned above for the purposes of the appraisal of their evidence. A Court of Law would not face any problem while dealing with the testimony of a wholly reliable witness. In case of such type of a witness the Court need not look for any corroboration from any quarter whatsoever. The Court can simply say that the said witness is truthful witness and as such, worthy of placing reliance. Similarly, there would be no problem for a Court of Law while dealing with the evidence of a witness who is a liar and thus not worthy of placing any reliance. The Court in such cases may straightway observe that the said witness being un-truthful his testimony is liable to be flung to the winds and straightway to be rejected.
13. This brings us to the third type of witness who is neither wholly reliable nor completely un-reliable. The question precariously perched on the tip of the tongue in such cases would be how to treat the statements of such cases would be how to treat the statements of such type of witnesses ? It is here that the Courts of Law stand in need of guidance. Our reply to the above question is that while dealing with the statements of such of the said witnesses the Courts would be on their tiptoe and guard and would scrutinise statements of such witness with utmost care and caution. The statements of the said witnesses cannot be relied upon unless they are corroborated by other testimony on record either in the form of statement of a witness or some documentary proof in connection therewith.
14. Their Lordships of the Hon'ble Supreme Court while faced with a similar situation in case entitled Kartik Malhar v. State of Bihar, (1995) 8 JT (SC) 425 : (1995 AIR SCW 4540) cited with approval the earlier observations of the said Court in Vaidivelu Thevar v. State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000). "..... On a consideration of the relevant authorities and the provisions of the Evidence Act, the following proposition may be safely stated as firmly established :
(1) As a general rule, a court can and may act on the testimony of single witness though uncorroborated. One credible witness outways the testimony of a number of other witnesses of indifference character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon for example, in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in matter like this and much depends upon the judicial discretion of the judge before whom the case comes.
In view of theses consideration, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act, has categorically laid it down that "no particular number of witnesses shall, in any case, be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses ..... If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness ..... only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding Judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected ....."
15. It is crystal clear from above that the Court is concerned with the quality of the evidence of a particular witness in a particular set of circumstances. If the statement of particular witness is credit-worthy and inspires confidence in a given set of circumstances then there is no impediment in the way of the Court to act upon it and base the conviction thereon.
16. The next contention urged for and on behalf of the appellant is that PW 7 Bholar cannot be said to be an eye-witness by any stretch of imagination. According to the learned counsel he could not have been present at the scene of occurrence. The learned counsel has in this connection argued that as per the case of the prosecution Bholar came to the house of Jami-ud-din (PW 4) in order to attend the marriage ceremony of the son of Jami-ud-din known as Rattan Khan (PW 3) which was to be solemnised on 28/29th June, 1988. Surprisingly enough no document has been place on record to substantiate the said contention that in fact any marriage took place on the abovesaid date. Neither any invitation card nor any extract from Nikah Register nor any photograph was placed on the file in support of the above version. Hence the presence of Bholar at the time of occurrence is highly redolent of suspicion.
17. The contention of the learned counsel we feel is devoid of any force. Admittedly, Jami-ud-din (PW 4), his son Rattan Khan (PW 3), whose marriage is alleged to have been solemnised, and Bholar (PW 7) come of a lower strata of society. They are very poor persons. They can hardly afford to indulge in such types of luxuries as printing of the invitation cards for their (sic) and relations particularly when it is a hard nut to crack for them to eke out their existence. Thus there is nothing strange if no invitation cards were printed and extended to Bholar. In any case, we do not find it to be a suspicious circumstance sufficient enough to cast doubt on the authenticity of the statement of PW 7 Bholar.
18. Learned counsel has then contended that admittedly the deceased was a relation of Bholar (PW 7). Bholar came to the house of Jami-ud-din in Qamruddin Nagar, Nangloi, along with the deceased in order to attend the marriage ceremony of Rattan Khan (PW 3), son of Jami-ud-din. The deceased and Mst. Jannat were called to the Police Headquarters, Delhi in connection with a complaint made by coauccused Mst. Jannat to the police for the purposes of an enquiry by them. Thus it is very strange as to why Bholar (PW 7) did not accompany the deceased to the Police Headquarters. The argument advanced by the learned counsel is that had Bholar been present over there he would have definitely accompanied the deceased. The learned counsel thus wants us to infer therefrom that Bholar was not present on the date of the occurrence. Hence he could not have seen the same.
19. We are sorry we are unable to agree with the contention of the learned counsel. A close scrutiny of the statement of PW 7 Bholar reveals that he was never asked as to why did he not accompany the deceased to the Police Headquarters. Thus, he was not given an opportunity to explain his absence, if any.
20. Furthermore, admittedly, Bholar is a labourer, illiterate persons shudder even at the name of the police. They will go to any extent to avoid the presence of the police unless they are compelled and impelled to do so. A member of the public would not like to face the police as he considers it a humiliation. Thus there is nothing strange if he did not go to the Police Headquarters particularly when his presence was not at all required over there.
21. The learned counsel has then led us through certain documents, such as, pointing out memo (Ex. PW 12/A), the seizure memo (Ex. PW/12/B) with regard to the seizure of the knife (Ex.P 3), and the personal search memo (Ex.PW 14/E) and has contended that the said documents which were prepared immediately after the occurrence do not bear the signatures of PW 7 Bholar. He thus wants us to conclude therefrom that Bholar was not present in the village on the date of the occurrence. Hence he could not have seen the same.
22. The contention of the learned counsel we feel is devoid of any merit. It is true that the said documents do not bear the signatures of Bholar. However, we are unable to draw an inference therefrom in regard to the absence of Bholar from the scene of occurrence. Admittedly, it was not put to the Investigating Officer, Inspector Bharat Singh (PW 14) as to why did he not obtain the signatures of Bholar on the said documents. Had this question been put to him he would have given an explanation for the same. Admittedly, the signatures of Bholar appear on Ex.PW 7/B i.e. the seizure memo with regard to different things taken into possession from the spot. Similarly, the signatures of Bholar are there on Ex.PW 7/A i.e. the disclosure statement made by the appellant leading to the recovery of the knife. Thus the said documents point out in unequivocal terms that Bholar was very much present on the date of occurrence dated July 2, 1988. Hence he could have very well seen the incident.
23. It has then been urged that Bholar, the only ocular witness in the instant case, is inimically disposed towards the appellant as according to the learned counsel, his (Bholar's) son was engaged to the daughter of the aunt of the appellant, but the said engagement did not materialise and was broken by him (Bholar). Thus the learned counsel argues that it would not be safe to place reliance on the statement of PW 7 Bholar. The learned counsel in support of his argument has led us through the observations of the Hon'ble Supreme Court as reported in Badruddin Rukonddim Karpude v. State of Maharashtra, AIR 1981 SC 1223 : (1981 Cri LJ 729). ".......... After hearing learned counsel for the parties we find ourselves at one with learned counsel of the appellants that implicit reliance cannot be placed on the testimony of Shahbuddin (PW 1) and Ismail (PW 5) both of whom are not only deeply interested in the deceased but have also been shown to have made. during the course of their testimony, improvements in the prosecution story propounded by them at the investigation stage, and that in material particulars. We need not give the details of those improvements as they have been already adverted to by the learned trial Judge and it is conceded by learned counsel for the state that the depositions of these two witnesses do suffer from that defect. In this view of the matter we propose to look for assuring circumstances for their testimony in the case of each of the appellants and to confirm the conviction of only those of the latter whose guilt as testified to by Shahbuddin (PW 1) and Ismail (PW 5) finds support from reliable evidence."
24. The contention of the learned counsel we feel does not hold any water. These is no evidence on record to show with regard to the said matrimonial engagement in between the daughter of the aunt of the appellant and son of Bholar (PW 7) except a suggestion which was made to him during his cross-examination which was denied by him.
25. Admittedly the appellant led evidence in defence and examined three witnesses. Thus the appellant could have examined certain witness on the said point also. Furthermore, on being asked during the course of his statement under S. 313, Cr.P.C. as to why the witnesses have deposed against him, he was simply contended himself by stating that they are false and interested witnesses. Thus, he was nowhere stated in his statement under S. 313, Cr.P.C. that PW 7 Bholar was hostile and inimically disposed towards him. In the above circumstances we do not see any reason, whatsoever, not to believe PW 7 Bholar.
26. The learned counsel further while an inadverting on the statement of PW 7 Bholar has argued that it is in the statement of Bholar that he heard the shrieks of the deceased. Hence he could not have seen the appellant stabbing the deceased. The argument of the learned counsel is devoid of any force. We are unable to appreciate as to what the learned counsel while advancing the said argument wants to canvass through the same. Almighty God has bestowed upon the homo sapiens different faculties in order to enable them to perform a variety of functions. They do so with the assistance and help of different members of the body. They see through their eyes whereas they hear through their ears. A man while witnessing a certain incident is not incapacitated thereby from hearing some thing. Thus there is nothing strange while witnessing the incident Bholar (PW 7) also heard the shrieks of the deceased which is some thing very natural on being injured by someone. Furthermore, the statement of Bholar finds support from the statements of PW 3 Rattan Khan and PW 8 Chhotu.
27. There is another side of the picture. It is in the statement of PW 3 Rattan Khan, real brother of co-accused late Mst. Jannat, and PW 4 Jami-ud-din, father-in-law of the deceased and father of Mst. Jannat co-accused, that the appellant had developed illicit connections with Mst. Jannat. He did not want that Mst. Jannat should live with the deceased and he wanted her to sever off all her relations with him. Thus it was but natural for him to have enmity with the deceased who happened to be the husband of Mst. Jannat. Thus he must have regarded the deceased as an obstruction in his relationship with the co-accused late Mst. Jannat. Consequently there was a motive for doing what the appellant did.
28. It is a well-established principle of criminal jurisprudence that motive plays considerable role in the commission of crime and the Courts are justified in looking for the motive in order to arrive at a correct conclusion. We are tempted here to cite a few lines from the observations of their Lordships of the Supreme Court as reported in Rajinder Kumar v. State of Punjab, AIR 1966 SC 1322. ".......... The motive behind a crime (in this case one punishable under S. 302, Indian Penal Code) is a relevant fact of which evidence can be given. The absence of a motive is also a circumstance which is relevant for assessing the evidence ....."
29. A faint argument was advanced by the learned counsel for the appellant that the doctor i.e. Dr. L. K. Barua (PW 5) who conducted the autopsy on the dead body of the deceased found that rigor mortis was complete all over the body. He has then referred to the statement of the doctor when he says that the rigor mortis passes off the body in 20-30 hours. Thus the learned counsel contends that the death in the instant case must have occurred much prior to the time which we find in the statement of the prosecution witnesses i.e. 2.00 a.m. Thus the statement of the doctor who is a medical expert sets at naught the prosecution version set out through the statements of PW 7 Bholar, PW 8 Chhotu Khan and PW 3 Rattan Khan.
30. We do no find any force in the contention of the learned counsel. A close scrutiny of the statement of Dr. L. K. Barua (PW 5) reveals that he has opined the time since death about 2 hours. The post-mortem was conducted at 4.30 p.m. on July 2, 1988. If we compute the time of the death from that particular point of time we can safely conclude that the death must have taken place at 2.00 a.m.
31. There is yet another aspect of the matter. The time of onset of rigor mortis varies according to the circumstances in which a man died and the climatic conditions and the condition in which the body was kept subsequent to his death. The death in the instant case took place during the month of June. Month of June is the hottest month of the season when even the walls and floors of the buildings spit fire. Thus in such climatic conditions the lime of onset of rigor mortis would be comparatively quicker than in the cold weather. In any case, much would depend upon the conditions in which the body was kept. If the body is kept in a cold storage or in an air-conditioned room in that eventuality the onset of the rigor mortis would take some time to commence. We are tempted to cite a few lines from the enthralling commentary on 'Medical Jurisprudence and Toxicology' by Modi. He has got this to say (at page 171) :-
"Time of Onset. - This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates and it may take two to three hours to develop. In India, it usually commence in one to two hours after death.
Duration. - In temperate regions, rigor mortis usually lasts for two to three days. In Northen India, the usual duration of rigor mortis is twenty-four to forty-eight hours in winter and eighteen to the investigations of Mackenzie in Calcutta the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours ......... When rigor mortis sets in early it passes off quickly and vice versa. In general rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours, is maintained for about 12 hours about passes off in about 12 hours. If on examination the body is stiff, the head cannot be fixed towards the chest then in all probability the death might have occurred 6-12 hours or more before the time of examination."
32. He has further observed at page 172, para (d) under the heading "Atmospheric Conditions :
"Rigor mortis commences slowly, but lasts for a long time in dry, cold air. On other hand, its commencement is rapid, and durations short, in warm, moist air. It comes on rapidly, and disappears late in bodies immersed in cold water."
33. In the abovesaid circumstances we are unable to take a different view from the view taken by the learned lower court. We do not see any force in the present appeal. The same is liable to be dismissed. It is dismissed as such.
Appeal dismissed.
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Joseph Alias Jose, Appellant V. State Of Kerala, Respondent.

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DATE : 08-02-1996
1996-(102)-CRLJ -4094 -KER
JUDGE(S) :

K G Balakrishnan
S Krishnan Unni
KERALA HIGH COURT
JUDGMENT
BALAKRISHNAN, J. :- Appellant was tried by the Court of Sessions, Thodupuzha and was found guilty of the offence punishable under Section 302, IPC, and by the judgment of the Sessions Judge dated 21-1-1992 he has sentenced to undergo imprisonment for life. Though he was found guilty of offence punishable under sections 449 and 309, IPC, there was no separate sentence. The appellant filed Crl. A. No. 137/92 challenging the conviction and sentence, and the Division Bench of this Court confirmed the conviction of the appellant under Section 302, IPC, but as regards the sentence, the matter was remanded to the Sessions Judge for fresh consideration. The Division Bench was of the opinion that on a perusal of the judgment it would find that there was no proper consideration by the learned Sessions Judge as to whether the case was coming within the category of 'rarest of rare cases'.
2. After the remand of the matter to the Sessions Court, no fresh material was brought on record by the appellant on the question of sentence. Learned Sessions Judge by judgment dated 10th Oct, 1995 held that this was a pre-medidated cold blooded murder, and considering the nature and gravity of the offence, it would come within the ambit of 'rarest of rare cases', and death sentence was imposed on the appellant. Thus the matter has again come up in appeal challenging the sentence.
3. A brief history of the facts leading to the conviction of the appellant may be of use to decide the question of death sentence. The appellant was a teenaged boy of 19 years at the time of commission of the crime. The appellant had an infected wound and he went to a private hospital for treatment. The three deceased woman were working as Nursing Assistants/Pharmacists in that hospital during the relevant time. Appellant was in the hospital for some time and he was discharged. He had a complaint that he was discharged before his wound got healed and that he was forced to pay Rs. 300/- to the hospital authorities without there being a proper cure for his illness. On the fateful day, he went to the hospital and trespassed into the laboratory room where these three women were doing work and bolted the room from inside. He demanded Rs. 300/- from these woman and this did not invoke any response from them and the finding of the Sessions Judge which was confirmed by a Division Bench of this Court is that the appellant incessantly stabbed these women and thereby caused fatal injuries on them. The appellant caused some self-inflicted injuries, possibly in a bid to commit suicide.
4. The appellant's father is a pan shop owner. He has got 25 cents of land in his possession, but he has not obtained any title deed for this property. Appellant is the only son of his parents and he has two sisters. One has already been given in marriage. The appellant has studied up to 10th standard. The family background of the appellant shows that he is from a poor strata of society.
5. Reference was made to various decisions of the Supreme Court. The decision regarding sentence turns mainly on the facts and circumstances of each case. Even the mitigating circumstances and the aggravating circumstances assume its own colour and shade based on the particular facts of that case. Suresh v. State of U.P., AIR 1981 SC 1122 : (1981 Cri LJ 746) is a case relating to an accused who was 21 years old at the time of commission of the crime. He was a servant in a house and he caused death of one of the sons of his master and caused injury to another son. He was sentenced to death by the Sessions Court which was confirmed by the High Court. The Supreme Court held that, having regard to the fact that the accused was 21 years of age on the date of the offence and very probably, a sudden impulse of sex or theft made him momentarily insensible, that immediately after the crime, the accused was found sitting in the chowk of the house crying bitterly, having achieved his purpose, he did not even try to run away which he could easily have done, the sentence of death was liable to be altered to one of life imprisonment.
6. In Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636) the constitutional validity of death sentence was considered and held that it is not violative of Arts. 19 or 21 of the Constitution. In an illuminating judgment, the Supreme Court held that (Para 207).
"There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. It cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, in the instant case, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated, will discharge the onerous function with evenmore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
7. In another decision reported in Amruta v. State of Maharashtra, AIR 1983 SC 629 : (1983 Cri LJ 1057), the appellant was convicted for the murder of his wife and daughter. The Sessions Court sentenced him to death and it was confirmed by the High Court but the Supreme Court altered the sentence to life imprisonment and while doing, so observed that (Para 3) :
"......... but we do know that accused nurtured and was labouring under a sense of grievance and was often dejected and moody presumably because of his suspicions. He was apparently inclined to brood over the wrong suspected by him to have been done to him. While no one one can hold a brief for a modern Othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs. After considering all the circumstances, we do not think that there are sufficient grounds for departing from the rule of normal punishment and imposing the sentence of death. We, therefore, allow the appeal set aside the sentence of death and substitute the sentence of imprisonment for life. The conviction for murder is confirmed."
8. In another case reported in Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466) it was observed that (Para 12)
"Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only ..........."
The Court further added that,
"Where in a case of murder the material for choice of sentence was scanty and motive for the crime was obscure and the killings were not for gain ....... was not sufficient to bring a case within the category of 'rarest of rare cases.'."
9. In the instant case, one of the most important mitigating circumstances is that the appellant was aged 19 years at the time of the incident. There is also some evidence to indicate that he was under some psychic disorder. Two doctors were examined as defence witness to prove that the appellant was under the influence of some neurotic disability. These witnesses were examined in an attempt to prove the general defence of insanity. Eventhough that plea was turned down by the Court, the evidence given by these witnesses gives some indication regarding the mental state of the appellant during the relevant period. The appellant had no close acquaintance with any of these deceased woman. The evidence in this case indicates that the appellant had demanded Rs. 300/- from them. This amount according to the appellant was paid by him to the hospital for his treatment. It is clear that the appellant came to the place of occurrence with a sharp edged weapon and it shows his criminal intention. But from the facts and circumstances of the case, it cannot be said that there was any previous enmity on the part of the appellant against these women and the murder was cold-blooded. It is also not possible to assume that this was a murder for gain. Nevertheless, the act perpetrated by the appellant was cruel and inhuman.
10. Having given our anxious consideration to the entire facts and circumstances and the manner in which the crime was committed, we do not think that this is a fit case where the Sessions Judge should have altered the sentence of life imprisonment which was hanging over him for a period of four years. Therefore, we are unable to accept the view taken by the learned Sessions Judge that, this is one of the "rarest of rare cases" and the appellant should be sentenced to death. Hence we commute the sentence of death imposed on the appellant to that of life imprisonment.
We allow the criminal appeal and dispose of the R.T. No. 1 of 1995 as stated above.
Appeal allowed.
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Additional Sessions Judge, Guntur, Referring Officer V. Gantela

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DATE : 02-11-1995
1996-(102)-CRLJ -0703 -AP
PENAL LAW MURDER RAREST OF RARE CASE
JUDGE(S) :

Bhaskara Rao
Syed Shah Mohammed Quadri
ANDHRA PRADESH HIGH COURT
JUDGMENT
SYED SHAH MOHAMMED QUADRI, J. :- On the fateful morning of March 8, 1993 at about 4.45 A.M. petrol was sprinkled in Super Express APSRTC Bus bearing No. AP. 9z-4236, which was proceeding from Hyderabad to Chilakaluripet, near Kondrupadu village, which resulted in the death of 23 persons besides causing burn injuries to the other passengers and burning of the bus completely. The appellants were tried for various offences under sections 302, 392, 307, 341, 448 and 120-B of the Indian Penal Code on as many as 31 charges by the learned III Addl. Sessions Judge, Guntur, and were convicted on charges 1 to 23 and 31, among others, and sentenced to death for the offence under Sections 302 and 120-B I.P.C. The conviction and sentences on other charges for the other offences need not be referred to here having regard to the contentions urged before us. The learned III Addl. Sessions Judge, Guntur, found the appellants guilty of the charges and awarded the punishments, referred to above, referred the case to this Court for confirmation of the death sentence under section 366 of the Code of Criminal Procedure and the appellants filed Criminal Appeal No. 620 of 1995 being aggrieved by the conviction under sections 302 and 120-B I.P.C. and the sentence of death awarded to them by the learned III Addl. Sessions Judge.
2. The gravamen of the charge is that the Super Express RTC Bus AP-9Z-4236 was started on 7-3-1993 at 10 P.M. on its journey from Hyderabad to Chilakaluripet. The bus was being driven by P.W.6 and conducted by P.W. 7. It reached Narasaraopet Bus-Station in the early morning of March 8, 1993 at about 4-00 A.M. and started at about 4-15 A.M. from there with 33 persons in the bus, including the driver and the conductor. On Vinukonda Road at the Railway level crossing gate two persons, the appellants herein, stopped the bus and boarded on it. The appellants obtained tickets for Chilakaluripet. The first appellant was carrying a bag. When the bus was about to reach Kondrupadu village, the second appellant started sprinkling petrol from the rear portion of the bus. The driver of bus, examined as P.W. 6, smelling the petrol, switched on the lights and stopped the bus. The second appellant stood by the side of the conductor of the bus, examined as P.W. 7. Both the appellants were armed with knives. Noticing this, the passengers in the bus stood up and raised hues and cries. Having instructed the first appellant to lit a match stick, the second appellant got down from the bus. The first appellant accordingly lit a match stick, which resulted in the bus catching fire. A few passengers of the bus, one of whom was examined as P.W. 1, managed to escape from the door by the side of the drivers seat. The first appellant also jumped out of the bus from the door by the side of the driver and in the process he received burn injuries, P.W. 1 was chased by the second appellant and was made to part with cash of Rs. 700/- and H.M.T. wrist watch, which was recovered during investigation and marked as M.O. 1. Another passenger, examined as P.W. 5, also escaped through the same door. He was chased by the first appellant. On being threatened by him P.W. 5 parted his belongings including his pant. The first appellant gave his pant to P.W. 5 and took the pant of P.W. 5 and wore it. The fire in the bus resulted in injuries to P.W. 5, P.W. 7 and P.W. 9 and another passenger. Nine persons who received burn injuries also got down from the bus. They include deceased Nos. 4, 7, 9, 10, 11, 13, 17, 18 and 20. Fourteen other persons including deceased Nos. 1, 2, 3, 5, 6, 8, 12, 14, 15, 16, 19, 21 and two others whose identity could not be established were burnt to death. At about that time another R.T.C. bus AP. 9Z-4591 came from the opposite direction. The conductor of that bus was examined as P.W. 20. It is in that bus that the injured persons were taken to the Government Hospital, Chilakaluripet and from there they were shifted to Government Hospital, Guntur, where nine persons, described as deceased Nos. 4, 7, 9, 10, 11, 13, 17, 18 and 20 succumbed to the injuries. P.W. 1, the fortunate survivor reached Chilakaluripet Rural Police Station and narrated the incident to the duty Constable. His statement was recorded and the same was marked as Ex. P. 1. On the basis of Ex. P. 1 a case was registered in Crime No. 19/93 of that Police Station. The F.I.R. was registered by the Head Constable which was marked as Ex. P. 128. At 5-00 A.M. the Inspector of Police of that Police Station received phone call about the setting fire to the bus near Kavuru village and reached the scene of offence at 5-30 A.M. by which time the bus was still burning. He was examined as P.W. 59. Having deputed a constable at the scene of offence he returned to the Police Station and learned that the Head Constable had registered the case on the basis of the statement of P.W. 1. He informed this incident by phone to the Deputy Superintendent of Police, Narasaraopet who was examined as P.W. 60 during trial. He reached Chilakaluripet Police Station at 7-00 A.M. Having recorded the statements of P.Ws. 1, 4, 6 and 8, he visited the scene of offence along with P.W. 55 in the presence of P.W. 50 and another person, and prepared observation report, marked as Ex. P. 91 during trial. A photographer, P.W. 56 was called by the Police to take photoes of the scene of occurrence and the dead bodies. They were marked as Exs. P. 92 to P. 108. The negatives of those photographs were marked as Exs. P. 109 to P. 125.
3. From the hospital, the Casuality Medical Officer sent a requisition to the Seventh Additional Munsif-Magistrate, Guntur at about 8-00 A.M. on the same day. The Seventh Additional Munsif-Magistrate was examined as P.W. 45 during trial. He came to the hospital and recorded the dying declarations of deceased Nos. 4, 5, 7, 9, 10, 11, 13 and 17 and also of the Conductor (P.W. 7). The dying declarations recorded by P.W. 45 are marked as Exs. P. 65 to P. 73. The statement of P.W. 7 recorded by the learned Magistrate is marked as Ex. P. 75. Having regard to the number of injured persons who were struggling for life, another Magistrate, viz., the Sixth Additional Munsif-Magistsrate, Guntur was also requisitioned for recording the dying declarations. He recorded the dying declaration of deceased No. 20, which was marked as Ex. P. 88. Inquest was held over the dead bodies of those unfortunate victims. Post-mortem examination was also conducted on their bodies. The doctors who conducted the post-mortem examination were examined as P.W. 43 and P.W. 44 during the trial. The investigation was taken up by the Sub-Inspector of Police, C.C.S., Guntur who was examined as P.W. 62. On receipt of radio message from the I.G. of Police, C.I.D., Hyderabad he made enqiries and on receiving credible information about the suspects in the case he went to the house of the first appellant accompanied by two mediators of whom one is examined as P.W. 57. He found A-1 in his house with burn injuries over his leg hands and face. Though the first appellant tried to escape, on seeing P.W. 62, yet he was arrested. A sum of Rs. 230/-, the pant of P.W. 5 (M.O. 2) Hydrozin peroxide bottle (M.O. 18) and a plastic tin containing Nibasulf powder (M.O. 19) were seized from him. The statement of the first appellant was recorded (Ex. P. 126). Thereafter they went to the house of the second appellant, which was in the same locality, at about 7-00 P.M. The Second appellant was also arrested and his statement was recorded. It is marked as Ex. P. 127. The said statement disclosed that the second appellant pledged HMT Wrist Watch with Siva Pawn Broker. P.W. 62 seized cash of Rs. 155/- from A-2. The Deputy Superintendent of Police, C.I.D. Circar zone, Vijayawada, examined as P.W. 63 in the trial court, went to the house of the second appellant. He also collected the statements Exs. P. 126 and P. 127, recorded by P.W. 62. He took the accused to the C.I.D. Office, Guntur for interrogation and proceeded to the Siva Pawn Brokers Shop and seized the wrist watch and the pawn brokers receipt book Ex. P. 3 under Ex. P. 130 mediators report. The first appellant who was having burn injuries was referred to the doctor P.W. 36. P.W. 36 examined the first appellant and issued the medical certificate Ex. P. 36. The first appellant identified M.O. 2 which was seized from P.W. 5 under Ex. P. 133. He also obtained the specimen signatures and hand writing of the second appellant in the presence of the mediator. They are marked as Exs. P. 76 to P. 81. P.W. 63 then went to the house of the second appellant on 23-3-1993 at 10.00 A.M. A packet containing pant and shirt was produced by the second appellant. In the pockets of the pant were found lodge chits. The pant and the shirt were marked as M.Os. 21 and 22 and the said lodge chits were marked as Exs. P5 and P6. The first appellant led them to a cotton field near Kuppaganji vagu and the knife. M.O. 23 was recovered at his instance from the thorny bush, which was seized under Ex. P. 136 mediatornama. The second appellant led them to Thurlapadu Major Canal and at his instance the knife, M.O. 24 was recovered from the cotton field of Kumba Venkateswarlu, which was seized under Ex. P. 137 mediatornama. The appellants were taken to Narasaraopet by P.W. 63. P.W. 63 visited the shops of P.W. 13 to 19 and recorded their statements. The learned Sixth Additional Munsif-Magistrate, Guntur, who was examined as P.W. 49, conducted test identification parade on April 23, 1993. The identification proceedings are marked as Ex. P. 19. Ten of the witnesses examined by the prosecution, viz. P.Ws 1 to 8 and 10 and 11 participated in the said identification parade. After completion of the investigation, P.W. 63 filed the charge-sheet on June 11, 1993.
4. The prosecution examined as many as 63 witnesses of whom P.Ws. 1 and 4 to 9 are the eye-witnesses to the occurrence, and marked Exs. P1 to P139 and M.Os. 1 to 24. The prosecution also led evidence with regard to the movements of the appellants before the occurrence the summary of which is as follows : P.W. 18 spoke about the appellants purchasing a plastic tin for Rs. 5/-; P.W. 13 spoke to purchase of plastic bag for Rs. 2-50 by the appellants; P.W. 15 spoke to the fact that on 7-3-1993 the appellants purchased four liters of petrol from his petrol bunk at about 6-30 or 7-00 P.M., the price of which was paid by the first appellant. P.W. 16 spoke to the fact that the appellants came to Kumaraswamy Lodge after second show and about their stay in the lodge upto 3.00 A.M. He identified Exs. P5 and P6 lodge receipts, referred to above, as the chits issued by him. Taking of tea by the appellants in the hotel in the early hours of 8-3-1993 was spoken to by P.W. 17. They purchased pan. (beetle leaves) cigerettes and match-box from the pan shop of P.W. 19 near Vinukonda Railway Gate, at about 4.00 A.M.
5. The movements of the accused after the occurrence are also brought on record by the prosecution. After the occurrence, the first appellant went to the shop of P.W. 2 a barber, which is at Boyapalem village. He wanted to get his head shaved there P.W. 2 spoke to this fact and stated that the first appellant was wearing pant and banian and that his hair were burnt and that there were burn injuries on the head. While the first appellant was coming out of the shop of P.W. 2, P.W. 3 noticed him with burn injuries and he spoke to that fact. The first appellant was found going to his village Gopalapuram from Boyapalem at about 2 or 3 P.M. This fact was spoken to by P.W. 11. He further deposed that he had seen burn injuries on the head and legs of the first appellant. The appellants went to the hotel which was situate by the side of Chilakaluripet road where they had taken tiffin which fact was testified by P.W. 14.
6. The evidence of the prosecution, referred to above, was accepted in toto by the learned III Addl. Sessions Judge and the appellants were found guilty of all the 31 charges framed against them and were awarded various punishments. Of those charges, charges 1 to 23 were framed against the appellants under section 302 of the Indian Penal Code for causing the death of deceased Nos. 1 to 23 and charge No. 31 was framed under section 120-B I.P.C. for conspiring to commit highway robberies by illegal means, trespassing into the R.T.C. Bus for causing death of 23 passengers and burn injuries to some passengers. The learned III Additional Sessions Judge convicted the appellants for the offences under sections 302 and 120-B of the Indian Penal Code on all the charges and sentenced them to death, subject to confirmation by the High Court. In this appeal and the Referred Trial, we are concerned with the said charges only and sentence of death awarded to the appellants.
7. Sri C. Padmanabha Reddy, the learned senior counsel appearing for the appellants urged before us three contentions. The first contention is that the version of the prosecution presented before the court is different from the facts noted in the statement of P.W. 1 (Ex. P. 1) and the dying declarations of D-17, D-13, D-20, D-7, D-10, D-4 and D-11, which were marked as Exs. P. 65, 66, 88, 67, 68, 69, 70 and 72 respectively, therefore the story set up by the prosecution ought not to have been accepted by the learned III Additional Sessions Judge, as such the conviction and sentence are liable to be set aside.
8. Ex. P. 1, it has been pointed above, is the statement given by P.W. 1, one of the passengers in the bus, P.W. 1 is a resident of Ananthavaram village and was working as Field Assitant in the Imperial Chemicals of India, Nelakondapally Branch. He said that he travelled in the bus at Mirayalaguda on 7-3-1993 at 11-00 P.M. and got down at Narasaraopet at 4.00 A.M. (early morning of the next day). There he boarded Hyderabad-Chilakaluripet bus to reach his village. He deposed that when the bus reached Railway Crossing in Narasaraopet Town and was proceeding slowly, two persons got into the bus. He identified them as the appellants. He was sitting in a seat behind the dirvers seat. He stated that the appellants were in the back seat and that they sprinkled petrol in the bus and that some petrol fell on his body. The driver having noticed the smell of the petrol stopped the bus and put on the lights. After sprinkling the petrol, the second appellant stood by the side of the conductor, arming himself with a knife, while the first appellant, who was also armed with a knife, stood by the side of the driver. At that time the passengers in the bus stood up from their seats and raised cries. Then the 2nd appellant instructed the first appellant to lit a match stick and got down from the bus. The first appellant accordingly lit the match stick which resulted in the bus cateching fire. All passengers were raising cries and he managed to escape through the door by the side of the driver. After he jumped out of the bus, the second appellant chased him holding the knife in his hand and threatened him to hand over all his belongings. He parted with Rs. 700/- cash which was with him and H.M.T. Wrist Watch. He identified the wrist watch (M.O. 1) which he gave to the second appellant. He said that after taking the wrist watch from him, the second appellant went away and he returned to the bus which was by then engulfed in flames. He found 12 persons with burn injuries lying on the road. He spoke to the shifting of the passengers with burn injuries to the Government hospital, Chilakaluripet where he accompanied the injured persons. His request to the hospital authorities to admit the injured persons in the hospital was not being headed to on the ground that they would do so only on the requisition of the police. Hearing this, he and some others went to Chilakaluripet Police Station. He gave his statement to the Station Writer about the occurrence. It was marked as Ex. P. 1. He said that he identified the appellants and his wrist watch before the Magistrate during the test identification parade on March 20, 1993. This statement has to be tested on the basis of the Statement Ex. P. 1. We may refer to the statement now. In that statement of P.W. 1 recorded on 8-3-1993 at about 6-00 A.M., inter alia, he stated that at about 4-45 A.M. while the bus was passing between Kapuru, Kondrapadu the driver shouted that the petrol smell was emitting in the bus. Meanwhile somebody sprinkled petrol on them from behind. The relevant portion reads as follows :
which means two persons were sprinking petrol while one person was standing with a knife, another person lit the match stick. In the later part of that statement he said that he could identify the said four persons.
9. The other documents relied upon by the prosecution as giving the earliest version of the occurrence are the dying declarations. They are Exs. P65 to 70 and P. 72. Exs. P71, P73 and P75 are the declarations given by P.W. 5, P.W. 9 and P.W. 7 respectively, but as they survived, those statements are not treated as dying declarations. We shall refer to them a little later.
10. Ex. P65 is the dying declaration of D17. The relevant portion of Ex. P65 reads as under :
"I got into the RTC bus that goes to Chilakaluripet from Hyderabad, which reached Narasaraopet by 4.00 A.M. By the time it started and reached half the way in between Narasaraopet and Chilakaluripet, one of the four persons in the bus threatened the driver with a knife and stopped the bus and then the remaining persons poured petrol in the bus and lit with a match stick and got down from the bus and ran away. Myself, and some persons were burnt in the flames. Afterwards some persons came and brought me and others over here. Read over to me and found correct."
These dying declarations were recorded by the VII Addl. Munsif-Magistrate, P.W. 45. To the same effect are the other dying declarations.
11. It is true that in Ex. P1 as well as in the dying declarations Exs. P65 to P70 and P72, it is stated that four persons participated in the commission of the offence, but in our view nothing turns on this lone inconsistency in view of irrefragable evidence of eye-witnesses - P.Ws. 1 and 4 to 9 and other corroborative evidence, referred to above. Further the appellants were identified by the witnesses in the test identification parade. P.Ws. 2, 3, 5 to 8, 10 and 11 identified the first appellant and P.Ws. 1 and 6 identified the second appellant, both in the identification parade as also in the Court. While considering this aspect it would be appropriate to bear in mind that at about 4.00 A.M. the passengers would be either sleeping or feeling drowzy in the Bus. In this connection the statements of the driver and conductor who are not merely expected to be awake but also noticed the persons boarding and alighting in such buses, require consideration. The driver, P.W. 6, stated that at the railway level crossing gate of Vinukonda road two persons raised their hands to stop the bus and he then stopped the bus. Those persons boarded the bus. Thereafter the bus proceeded towards Chilakaluripet. Having smelt petrol smell in the bus he stated in a loud voice to the conductor that petrol smell was emanating and he stopped the bus and switched on the lights. He identified the appellants as the persons who boarded the bus at the railway level crossing. After some time he found the first appellant near the bonnet holding a knife in one hand and carrying a match box and the second appellant standing near the main door by the side of the conductor holding a knife threatening the conductor not to move from his seat. On seeing this, the passengers raised from their seats. Then the second appellant instigated the first appellant to lit match stick and set the bus on fire and so saying he got down from the bus. The first appellant lit the match stick and set fire to the bus. After four or five persons and the driver jumped out from the bus, the first appellant also got down. P.W. 7, the conductor, stated that the appellants signalled the bus to stop at the railway level crossing gate and that the driver stopped the bus. Thereafter the appellants got into the bus. He also stated that the first appellant was carrying a bag. The appellants took two tickets from him for Chilakaluripet. When the bus was nearing the outskirts of Kondrupadu village, P.W. 6 put on the lights by stating that petrol smell was emanating and so saying he stopped the bus. At that time he found the second appellant standing in front of him armed with a knife and threatened him and all the passengers that should they move he would kill them. P.W. 7 also spoke to the fact that the first appellant stood near the bonnet armed with a knife and having a match box in his hand. The second appellant poured the remaining petrol into the bus, instructed the first appellant to lit the match stick and set fire to the bus and so saying he got down from the bus, P.W. 7 received burn injuries. As the condition of P.W. 7 was serious due to burn injuries, his statement was also recorded as dying delcaration, which is marked as Ex. P75. In the said declaration he stated, ".... Two persons boarded at the Railway gate after starting from Narasarapet ..... I felt petrol smell ..... a youth came with a knife and threatened to hack if anybody raises up." He further stated in Ex. P75 "I was surprised. The person who shouted, sprinkled the petrol in the bus. By that time, the bus was already stopped. Before opening the door to run away flames rose up in the bus due to petrol. I fell on somebody and pushing on the door fell on the road. ...."
12. So far as the admissibility of this declaration of P.W. 7 (Ex. P75) is concerned, true it cannot be admitted as dying declaration but as it is a statement made shortly after the occurrence, at the earliest opportunity and is so connected with the fact in issue as to form part of the same transaction. So in our view it is relevant and admissible as res-gestae under section 6 of the Evidence Act. This piece of evidence apart from being consistant with the version of the occurrence given by P.W. 7 in court, also corroborates the statement of P.W. 6 the driver and other witnesses. There are no discrepancies in the material particulars in the evidence of the witnesses as well as the dying declarations except the number of persons who were involved in the crime. Having regard to the fact, as already indicated above, that P.W. 1 and the deceased whose dying declarations were recorded must have been in a drowzy condition in the bus when this occurrence happened and by the time they woke up there was lot of commotion and number of persons were standing, there is every possibility for them to say that four persons were involved. That would not in any way demolish the case of the prosecution that the appellants were the persons who were involved in the offence.
13. It is then argued by Mr. Padmanabha Reddy that the first appellant was having burn injuries as such his identification by the witnesses in the test identification is not a proper identification and as P.W. 7 did not identify the second appellant, he cannot be said to be properly identified.
14. So far as the first appellant is concerned, he was identified by P.Ws. 2, 3, 5, 6, 7, 8, 10 and 11 in the test identification parade conducted by the Magistrate P.W. 49 under Ex. P90, proceedings of the identification parade. The only comment with reference to the identification of the first appellant is that as the first appellant was having burn injuries it was easier for anybody to identify him and therefore that identification of the first appellant under Ex. P90 in the presence of the Magistrate P.W. 49 cannot be believed. We are unable to accept this contention. In his cross-examination P.W. 49, the Magistrate, has categorically stated that the burn injuries on the person of the suspect were covered by trouser and therefore they were not visible to the witnesses and that the witnesses went nearer to the row of the persons and identified him. He failed to give any plausible explanation for the burn injuries. Having gone through the depositions of P.Ws. 2, 3, 5, 6, 7, 8, 10 and 11, we are satisfied that the identification of the first appellant as the person who was involved in the commission of the offence, has been proper and his participation in the offence has been amply established.
15. So far as the second appellant is concerned, he was identified by P.Ws. 1 and 6. Those witnesses identified both in the test identification parade conducted by the Magistrate P.W. 49, as recorded in Ex. P90 proceedings as well as in the trial court. Nothing is elicited in the cross-examination of these two witnesses to discredit their testimony. Failure of P.W. 7 to identify him in the test identification parade would not create slightest doubt of his presence and participation in the commission of the offences.
16. We have already referred to the evidence of P.Ws. 13, 14, 15, 16 and 17 with regard to the movements of the appellants before the event and also to the movements of the appellants after the event. However, we would like to advert to two aspects. The first aspect is that the first appellant who had received burn injuries chased P.W. 5 and compelled him to part with his pant as the pant of the first appellant was burnt. He took the pant of P.W. 5 (M.O. 2), P.W. 63 stated that on the statement of the first appellant M.O. 2 pant of P.W. 5 was recovered from the first appellant, so also the pant of the first appellant was recovered from P.W. 5. The second aspect is after P.W. 1 the passenger who was sitting behind the driver's seat jumped out of the bus he was chased by the second appellant with the knife in his hand. The witness parted with the cash of Rs. 700/- and the wrist watch which was marked as M.O. 1. That wrist watch was pledged by the second appellant with Siva Pawn Broker as spoken to by P.W. 12, who worked as Clerk in the pawn broker's shop in 1993. P.W. 12 stated that the second appellant pledged a cycle with Siva Pawn Brokers shop in his presence. He drafted the receipt Ex. P2 which is said to contain the signature of the second appellant. He further stated that on 10th March, 1993, the second appellant pledged an H.M.T. wrist watch for Rs. 150/- and the pledge receipt executed at that time was marked as Ex. P3. The witness says that the second appellant left the original receipt (Ex. P4) and that the same was handed over to P.W. 63. P.W. 63 stated that the second appellant gave the statement which led to the discovery of M.O. 1. These circumstances also establish the involvement of the second appellant.
17. The second contention of Mr. C. Padmanabha Reddy is that the appellants could not be convicted of the offence under Section 302 I.P.C. simpliciter. We are unable to appreciate this submission. A plain reading of the charges particularly charge No. 31 and the sentence awarded by the Court will make it evidence that the contention is devoid of merit. Charge No. 31 reads as follows :
"... That you some time prior to 7-3-1993 agreed to do an act viz. to earn easy money committing highway robberies by illegal means, to wit by trespassing into the R.T.C. bus and by restraining, or causing hurt or causing death of the passengers travelling in the bus and that some act viz. resulting 23 deaths of passengers and burn injuries to some and robbery from some persons were done in pursuance of your consipiracy due to sprinking petrol in the bus and litting fire with match stick and thereby committed an offence punishable under section 120-B of the Indian Penal Code and within my cognizance".
18. Clause (1) of sentence awarded by the Court is in the following terms :
"(i) For the charges under section 302 I.P.C. and 120-B I.P.C. the accused 1 and 2 are sentenced to death and they be hanged by the neck till they are dead. The sentence of death passed is subject to the confirmation by the High Court of A.P."
19. From the above charge it is evident that this charge itself refers to conspiring together not merely by highway robberies by illegal means but also by causing hurt or death of the passengers travelling in the bus and by the same act causing deaths of 23 passengers and injuries to some of them and of robbing some persons pursuant to the said conspiracy, burn injuries to some by sprinkling petrol in the bus and litting fire with match stick and thereby committing offence punishable under section 120-B I.P.C. And clause (i) of the sentence, above extracted, makes it clear that for the charges under section 302 I.P.C. (charges 1 to 23) and for charge under section 120-B I.P.C. (charge No. 31) appellants 1 and 2 are sentenced to death and are directed to be hanged till they are dead but the sentence of death is subject to the confirmation by the High Court. Thus the sentence is passed not only under section 302 I.P.C. simpliciter but also under Section 120-B I.P.C.
20. Further the appellants together participated in the offences; the second appellant sprinkled petrol in the bus and the first appellant lit the match stick to the bus after petrol was sprinkled. These facts are sufficient to bring the case under section 302 I.P.C. because these very acts were such that the accused would be deemed to know that pouring the petrol in the bus and litting fire are so eminently dangerous that in all probabilities it would cause death or such bodily injury as is likely to cause death of the passengers. Therefore, they were rightly found guilty of the offence under section 302, I.P.C.
21. For the aforesaid reasons the evidence on record, discussed above, clearly establishes the guilt of the appellants beyond and reasonable doubt for the offence under section 302 and Section 120-B of I.P.C. and in our view that learned trial Judge was right in convicting the appellants for the said offences.
22. The third and the last contention of Mr. C. Padmanabha Reddy relates to quantum of punishment. The learned counsel countends that this case does not fall within the rarest of the rare cases as the number of deaths is not the criteria to bring the case in that category, so the punishment should be reduced to one of life imprisonment.
23. In regard to the quantum of punishment, the Indian Penal Code gives a very wise discretion to the Court in the matter of awarding punishment. The maximum and the minimum punishments are prescribed under the Code and it is left to the discretion of the court to award appropriate punishment having regard to the aggravating and mitigating circumstances in each case. Though there are no general guide lines for purposes of awarding punishment, yet it is the judicial discretion that guides the courts in the matter of sentencing. However on the question of awarding the sentence for the offences for which life imprisonment as well as the death sentence is prescribed, sub-section (3) of Section 354 of the Code of Criminal Procedure enjoins that in the case of sentence of death, special reasons for such sentence shall be stated. The provisions of the said Section fell for consideration of the Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 : 1980 Cri LJ 636. The Supreme Court pointed out the change in the policy of sentencing thus :
"Section 354(3) of the Code of Criminal Procedure, 1973, marks a significant shift in the legislative policy underlying the Code of 1898 as in force immediately before April 1, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder and for certain other capital offences under the Penal Code were normal sentences. Now, according to the changed legislative policy which is patent on the face of Section 354(3) the normal punishment for murder and six other capital offences under the Penal Code is imprisonment for life (or imprisonment for a term of years) and death penalty is an exception."
and elucidated the principles for awarding proper sentence. It will be advantageous to note the following observations :
"... For making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. In many cases the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist.
24. The principles laid down in the above case were applied in various cases by the Supreme Court. In Allauddin Main v. State of Bihar, AIR 1989 SC 1456 : 1989 Cri LJ 1466. His Lordship Justice A. M. Ahmadi (as he then was) while upholding the death penalty, laid down the principles for imposing extreme punishment of death as follows :
"In the face of the statutory provision in Cl. (3) of Section 354 of Cr.P.C. requiring giving of special reasons while imposing death penalty which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, extreme plea of death in no case cannot be countenanced and the death penalty cannot be said to be violative of Article 21.
Section 302 IPC casts a heavy duty on the Court to choose between death and imprisonment for life. When the court is called upon to choose between the convict's cry 'I went to live' and the prosecutor's demand 'he deserves to die' it goes without saying that the Court must show a high degree of concern and sensitiveness in the choice of sentence. ..... In cases of murder, however, since the choice is between capital punishment and life imprisonment the legislature has provided a guideline in the form of sub-section (3) of Section 354. This provision makes it obligatory in cases of conviction for an offence punishable with death or with imprisonment for life or for a term of years to assign reasons in support of the sentence awarded to the convict and further ordains that in case the Judge awards the death penalty, "special reasons" for such sentence shall be stated in the judgment. ....... In order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should be reserved for 'the rarest of rare' cases which are of an exceptional nature. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only."
25. We may also notice here the recent pronouncements of the Supreme Court on this aspect. In Shamshul Kanwar v. State of U.P., AIR 1995 SC 1748 it was laid down that in determining the category of 'the rarest of rare' cases the number of deaths will not ipso facto be a ground to bring the case in that category. In that case there were factions between the prosecution party and the accused party. While the prosecution party came to the village along with gunmen accompanied by armed police party to bury an old lady, fight broke out between the two parties. That resulted in the death of ten persons on the side of the prosecution party and one death on the side of the accused party. Their Lordships of the Supreme Court held :
".... The large number of deaths on one side cannot ipso facto be a ground to bring the case into the category of "rarest of rare cases" particularly when we take into consideration the other aspects mentioned above."
26. In Balraj v. State of U.P., AIR 1995 SC 1935 it was observed that in awarding death sentence the Court has to take into consideration the mental condition of the accused and that fact should be given weight in determination of the sentence. There was evidence in that case that the accused was mentally disturbed and had expressed that the other party wanted to kill him and therefore he would finish them. It was held, on the facts and circumstances of that case, that it could not be said that the accused would be a menace to the society if allowed to live.
27. In Sheikh Ishque v. State of Bihar, 1995 Current Cri Rep 48 two principles were laid down by the Supreme Court -
(i) in considering the question of awarding death sentence the number of victims alone would not make the case 'rarest of the rare'; and
(ii) imposition of proper sentence is an obligation on the court and even if no argument had been addressed on behalf of the appellants the court was expected to take note of the legislative intendment relating to the award of capital punishment as manifest from the provisions of Section 354(3) Cr.P.C. and award and appropriate sentence, after taking into account the aggravating as well as the mitigating circumstances.
28. On the application of the aforementioned principles, the Supreme Court did not find any of the cases, referred to above, as falling in 'the rarest of the rare' case and so decline to confirm the death sentence.
29. Hence it would also be appropriate to take note of the cases where applying the same principles awarding death sentence was confirmed by the Supreme Court.
30. Kehar Singh v. State, AIR 1988 SC 1883 : 1989 Cri LJ 1 is a well-known case of the trial of the persons who were involved in the assassination of the great daughter of India and the Prime Minister of our country, Madame Indira Gandhi. It was pointed out that the act of the accused not only took away the life of the popular leader but also undermined out system which had been working so well for the last forty years. There was an important factor which warranted serious consideration. The accused were persons who were posted on the security duty of the Prime Minister. Their posting was to protect her from any intruder or from any attack from outside and therefore if they themselves resorted to that kind of offence, there appeared to be no reason or no mitigating circumstances for consideration on the question of sentence. There was yet another additional factor which was considered and that was that an unarmed lady was attacked by the accused with a series of bullets and it had been found that a number of bullets entered her body. The manner in which mercilessily she was attacked by the accused on whom the confidence was reposed to give her protection repelled any consideration of reduction of sentence.
31. In Shankar v. State of T.N., (1994) 4 SCC 478 while considering the question of awarding death sentence the Supreme Court referring to the principles laid down in the earlier cases and pointed out that the aggravating circumstances and the mitigating circumstances should be considered in each case. There, the first accused was the leader of the gang which indulged in the business in illicit arrack and broth business which was unlawful and most harmful to the society. He was responsible for spoiling the lives of many girls some of whom he kept for himself. He used to be very cruel to them and used to burn the young girls with cigarrette butts as a result one of them committed suicide and one of them who could not adjust herself to live with him, was brutally murdered and in order to screen the said offence he got the body burried. It was pointed out that the said accused indulged in those crimes in an organised manner and his own confession gave the details of the diabolical and cruel manner in which he participated in killing D1 to D3 as well as D4 to D6. The crime indulged was gruesome, Cold-blooded, heinous, atrocious and cruel and he was proved to be an ardent criminal and thus a menace to the society. In those circumstances it was held that the case fell within the category of "the rarest of the rare cases".
32. From the above discussion, the following principles emerge :-
(i) Though under the Indian Penal Code, the Court has a very wide discretion in the matter of awarding sentence, yet when the conviction is for an offence punishable with death or in the alternative with imprisonment for life or imprisonment for a term of years, the court, if it deems fit to award death sentence, shall state special reasons for such sentence and the choice of maximum punishment of death should be reserved for the rarest of the rare case.
(ii) What reasons constitute special reasons, will have to be determined on the facts and in the circumstances of each case and in the very nature of things no criteria can be specified. Even so a case of 'special reasons is made out, where the facts of case disclose that the culpability of the accused has assumed extreme depravity; where the accused is found to be an ardent criminal and menace to the society; where the crime is committed in an organised manner and is gruesome, cold blooded, heinous, atrocious and cruel; where innocent unarmed persons are attacked and murdered without any provocation and where murder is committed by an accused who was in duty bound to protect the victim. This is not exhaustive.
(iii) To determine whether the case falls in 'the rarest of the rare' cases, the court shall consider both the aggravating as well as the mitigating circumstances in the case.
(iv) Here again we may observe that it is neither possible nor desirable to attempt to specify the aggravating and the mitigating circumstances. They take their colour from the setting in which they occur and their effect will have to be considered on the facts of each case. However, it may be pointed out that number of deaths ipso-facto will not make a case 'the rarest of the rare' case but will be a relevant aggravating circumstance and the mental condition of an accused will be a relevant mitigating circumstance.
33. Keeping the above principles in mind, we shall now consider whether the case falls in 'the rarest of the rare' cases, with due regard to the aggravating and mitigating circumstances in this case. The appellants were interested in some gain from the passengers of the bus. To fulfil their objective, they conspired to board a bus, illegally extract money and the valuables and then burn the bus. For that purpose they purchased petrol and the match box. Without any provocation or seeing danger to their lives from the passengers who were almost asleep in the early hours of the day, at about 4-00 A.M. sprinkled petrol in the bus and lit fire to the bus resulting in the death of 23 innocent persons who had done nothing to invite their wrath or to instigate them to take the extreme step. It is not a case where due to any danger to their lives or to avert being overpowered by the passengers they did something spontaneously without any pre-meditation which had unfortunately resulted in the occurrence, but it is a case where they came fully prepared for the crime and executed it in an atrocious and cold-blooded manner. These facts indicate culpability of extreme depravity. Though we are not unmindful of the fact that the number of victims alone does not bring the case within the category of the rarest of the rare case yet we cannot ignore the fact that they were armed with knives, the second appellant was standing near the door of the bus close to the conductor and the first appellant was standing near the driver by the side of the bonnet threatening them with dire consequences if anyone should try to move and lit the bus soaked in petrol by them and made thus 23 innocent persons have lost their lives because of the cruel and gruesome acts of the appellants. By no stretch of imagination it can be said that the consequence of burning a bus having about 31 persons on board, in such a situation, would not be known to the appellants. As against this, the mitigating circumstances pleaded by the learned counsel for the appellants are that they are aged about 22 years and that they had no previous record of having committed any such offences; it was only because of poverty they made an attempt for some gain; though they were armed with knives they did not inflict any injury to anybody and that the pouring of petrol and litting fire was only to cause terror but not to kill the passengers but to rob their belongings. We must observe that while making the choice of death sentence for an accused, the court invariably gives the most anxious consideration keeping in mind that the life once taken under the order of the Court cannot be restored by the order of the Court and that mercy seasons justice, but at the same time guards against misplaced sympathy for that would shake the confidence of the citizens in the administration of justice and would have the tendency to tempt them to resort to private vengeance which sould be destructive of the administration of justice. But where the circumstances are such and the behaviour of the accused to commit the offence is so cruel and gruesome that if accused is allowed to live he would become menace to the society, the court would have no option but to confirm the death sentence of such persons though reluctantly.
34. Having considered the aggravating circumstances and the mitigating circumstances pleaded by the appellants, in our view the case falls within 'the rarest of the rare' cases as by their cruel and heinous acts the appellants have exihibited such tendency in committing the offence for petty gains they did not hesitate to burn the bus by sprinkling petrol without paying heed to the cries of innocent persons, particularly of girl of 7 years who threw her golden chain praying not to set fire to the bus and burn 23 persons alive, so if they are allowed to live, after a few years they would come out of the jail and become menace to the society. Confirmation of death sentence, in our view, would best serve the interest of justice.
35. Insofar as the culpability of the accused, in our view no distinction can be made and both are liable for the crime they have committed.
36. In the result, the convictions of both the appellants and the sentence of death awarded against them for the offence under sections 302 and 120-B of the Indian Penal Code are confirmed, and the reference is answered accordingly. The Criminal Appeal preferred by the appellants is dismissed.
Appeal dismissed.
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In Re : Deivendran
DATE : 31-10-1995
1996-(102)-CRLJ -2209 -MAD
JUDGE(S) :

J Kanakaraj
Janarthanam
MADRAS HIGH COURT
JUDGMENT
KANAKARAJ, J. :- This referred trial case arising under S. 366, Cr.P.C. and the Appeal on behalf of three accused/appellants arise under the following circumstances. The three appellants along with P.W. 1 and the fifth accused stood charged before the Principal Sessions Judge, Madurai, in S.C. No. 91 of 1994 for the following charges :-
The first charge says that all the five accused had conspired together two days prior to 25-11-1992 to commit robbery in the house of P.W. 5 at Dharmathupatti, Mela Gudalur, an offence punishable under S. 120B, IPC. The second charge was that on 25-11-1992 at about 2-00 a.m. accused 1 to 4 had entered the house of P.W. 5 with guns, Iron rods and other weapons and had committed rioting punishable under S. 148, IPC.
The third charge related to accused 1 to 4 in having unlawfully entered into the house of P.W. 5 with deadly weapons for the purpose of committing house trespass and to commit offence punishable with death, thus making themselves, liable under S. 449, IPC.
The fourth charge related to the murder of the first deceased Deivammal by the first accused, with the second and the fourth accused assisting in the act of murder, thus punishable under S. 302 read with S. 34, IPC.
The fifth charge related to the murder of one Saraswathiammal by the first accused by strangling her with accused 2 to 4 assisting him in the act of murder, thus punishable under S. 302 read with S. 34, IPC.
The sixth charge related to the act of the first accused in shooting Nagarajan and thus, committing the murder of Nagarajan and accused 2 to 4 were present during the said act of murder and thus liable under S. 302 read with S. 34, IPC.
The seventh and last charge related to the accused 1 to 4 in shooting of P.W. 5 by the first accused and causing grievous injuries and thus committing an offence punishable under S. 326 read with S. 34, IPC.
2. Learned Sessions Judge by judgment dated 14-7-1995 acquitted the fifth accused of the only charge framed against her under S. 120-B, IPC. The fourth accused applied for pardon and became an approver and was examined as P.W. 1. Accused 1 to 3 were not found guilty under S. 148, IPC. Accused 1 to 3 were, however, found guilty under S. 449, IPC and sentenced to 10 years rigorous Imprisonment each. They were also found guilty under S. 302 read with S. 34, IPC. for committing the murder of Deivammal and they were imposed a sentence of life imprisonment. Similarly, they were found guilty under S. 302 read with S. 34, IPC for committing the murder of Saraswathi Ammal and were imposed the sentence of life imprisonment. On the sixth charge accused 1 to 3 were found guilty for the murder of Nagarajan and while the first accused was sentenced to the extreme penalty of death, second and the third accused were sentenced to life imprisonment. Similarly, accused 1 to 3 were found guilty under S. 326 read with S. 34, IPC. and sentenced to three years Rigorous Imprisonment each. All the sentences were directed to run concurrently. The reference under S. 366, Cr.P.C. relates to the death sentence imposed on the first accused. Criminal Appeal has been filed by all the three accused, accused 1 to 3 and they are respectively represented by learned counsel Mr. Gopalakrishna Lakshmana Raju, Mr. M. Jagadeesan and Mr. K. R. Thyagarajan.
3. The prosecution case is as follows :-
The first accused is said to be the owner of an S.B.B.L. country gun and the country pistol, M.Os. 1 and in the case. He is also said to be owning certain Ganja fields and engaged in poaching forest elephants for the purpose of getting their tusks. P.W. 1 who was the fourth accused in the case and later turned as approver, had married in Kerala and was blessed with a male and a female child. But for some unknown reason his wife had quarrelled with him and deserted him about four years prior to the occurrence. On account of this P.W. 1 became seriously ill with typhoid fever and had no money even for medical expenses. It is at that time that the first accused had met him and helped him with a sum of Rs. 50/- for taking injections to cure his typhoid fever. After he was restored to normal health, the first accused asked him to work in his house. This happened about 2 1/2 years prior to the occurrence. P.W. 1 was being paid Rs. 10/- or Rs. 5/- for defraying his expenses. About 10 days prior to the occurrence, the second accused was injured in a lorry accident and the first accused went to see the second accused. Thereafter, second and the third accused had come to the house of the first accused and at that time the second accused told the first accused that there were lot of jewels and cash in the house of P.W. 5 and they could commit robbery in the said house. The first accused responded by saying that without knowing the topography of the house of P.W. 5 it would be difficult to commit robbery. The second accused replied by saying that his mother, fifth accused, was working in the house of P.W. 5 for about 10 years and she knew the topography of the house of P.W. 5. Fifth accused is said to have drawn a sketch of the house by drawing a 'Kolam' with water. The first accused could not understand the topography and therefore, the second accused was deputed to go to the house of P.W. 5 personally to see the topography. Second accused is said to have gone to the house of P.W. 5, apparently under the umbrage of P.W. 5 and had even taken tiffin in the house of P.W. 5. The second accused disclosed that the family members of P.W. 5 were going to Madurai on that day and that it might take two or three days for them to return. He also explained that one could get entry into the house only through the smoke exit or chimney. Thereupon the first accused suggested that the next day namely, 24-11-1992 being a New Moon day, they could go and commit robbery on the night of 24-11-1992. Second and third accused were asked to come at about 11-00 p.m. At about 7-30 p.m. first accused asked P.W. 1 to go to Prabu Cycle shop owned by P.W. 8 and get a cycle for hire. Accordingly, P.W. 1 brought Cycle No. 12 and parked the same in the lane adjoining the house of the first accused. Second and third accused promptly arrived at 11-00 p.m. First accused gave a sum of Rs. 50/- to the second accused and asked P.W. 1 as well as both second and the third accused to have tiffin and come back. They returned within half-an-hour. Accused 2 to 4 were then asked to sleep in the noon meal centre, called as market. At about 1-00 a.m. P.W. 1 was weeping, apparently because he was being involved in a heinous crime, while second and third accused were sleeping. The first accused came there and he is said to have beaten P.W. 1 and told him that he need not commit robbery and it is enough if he could stand outside the house. Second accused had brought a bag which could be hung on the shoulder. He also brought a gun and was also sporting a pistol in his hip. In the bag, he had brought four masks and eight hand gloves, a small knife, a crow-bar, torch light, and four pieces of white ropes. He loaded the pistol and inserted the same in his hip. He took the barrel of the gun separately and gave it to the third accused, and the wooden portion of the gun was given to the second accused. P.W. 11 was then asked to carry and transport second and third accused in a cycle to be left near the house of P.W. 5. Though P.W. 1 did not know the house of P.W. 5, second accused offered to show the way. P.W. 1 first took the second accused and left him near the house of P.W. 5. He then took the third accused and left him in the same place. Lastly, he took the first accused in the cycle and dropped him near the house of P.W. 5. At the request of the first accused. P.W. 1 took the cycle near the house of one Maharaja and left it in the Chavadi. It is stated that the first accused accompanied P.W. 4 for the purpose of leaving the cycle because the first accused had a doubt that P.W. 4 might run away.
4. P.W. 5's house is a palatial house facing south on the Dharmathupatti street. There is a main gate on the southern side on the injunction of Dharmathupatti street and Sowdamman Kovil Street. As one enters the gate, one could see a large pavement area covered by cement concrete and on the western extremity of the cement concrete there is a car shed. On the eastern end of the concrete, there is a cattle-shed, a place for storing fire-woods. There is again a large open space north of the cattle shed and east of the house. There is another portico on the eastern side and a door providing entry into the house. This eastern door leads to the kitchen store-rooms, bath-room and a stair-case leading to the first floor. On the North-Western side there is a door leading to the Kurichi Gounder Street, on the north side of the house. Adjacent to the door-way on the western side there is room for keeping vessels and on the eastern side there is a store-room. The house is practically surrounded on all four sides by streets except on the western side where there is no indication that there is any street. On the other hand, immediately adjoining western wall of P.W. 5's house there is the house of one Ponram, which faces north. According to the prosecution case, the terrace of P.W. 5's house and the house of Ponram and another house on the western side are on the same level and one could walk easily from one terrace to the other. There are as many as five lamp posts shown in the rough sketch Ex. P.65 as well as in the observation Mahazar Ex. P.21.
5. P.W. 1 says that there was a lamp post near the house of P.W. 5 and the first accused climbed the same first. Second accused climbed the lamp post next to the first accused. From the lamp post the first accused is said to have jumped on the terrace of P.W. 5's house. From there, he is said to have gone to the terrace of the adjacent house. Similarly, the second accused also followed the first accused. P.W. 1 is said to have climbed the lamp post after the second accused. Thereafter, the third accused climbed the lamp post. All the four are said to have gone to the same place to which the first accused had gone. At this stage, all the four covered their faces with masks and hand gloves brought by the first accused. P.W. 1 then says that there was an adjacent house and it is only through the said terrace of the adjacent house that they could go to the chimney of P.W. 5's house. Accordingly, they proceeded to the Chimney in the P.W. 5's house which was covered by a slab. The slab was removed and kept on the terrace by accused 1 to 3. At this stage, the first accused beat P.W. 1 and asked him as to why he was standing simply. So saying, the first accused asked P.W. 1 to tie a rope on the four bricks at the top of the chimney. Accordingly, P.W. 1 tied the rope. The first accused then dropped the rope inside the house. The first accused used the torch-light to look inside the chimney. The first accused then descended into the house through the rope. The second accused followed; after him the third accused went inside the house. Lastly, P.W. 1 also got into the house. They were now inside the kitchen. The first accused then took a tumbler in the kitchen and threw it inside the main hall on the western side of the kitchen. He also cried like kitten. Thereupon, they heard a noise like the unlatching of the door of a room. The first accused asked the second accused, third accused and P.W. 1 to hide inside the bath-room. An old woman came inside the kitchen. P.W. 1 was standing by the side of the bath-room whereas the second and the third accused were very near the first accused. Immediately, the first accused pounced upon the old woman who happened to be the first deceased Deivammal and twisted her neck as if breaking the neck. P.W. 1 says that the first accused adopted a particular tactics in holding the jaw at two extremes and making a fast twist of the neck. Simultaneously, the third accused tied the legs of the first deceased with a rope. P.W. 1 was asked to stand as guard over the first deceased, while other three accused proceeded inside the house. The dying first deceased is said to have asked P.W. 1 to bring water. Before P.W. 1 could get the water, the first deceased passed away. Without knowing whether the first deceased had passed away, P.W. 1 dragged the first deceased to the next hall on the western side. There was another old woman lying in a cot, where accused 1 to 3 had entered. The first accused took a cloth and closed the mouth and nose of the said old woman and pressed, the cloth. The said old woman happens to be the second deceased Saraswathiammal. The second accused was holding the legs of the second deceased while the first accused was pressing the cloth. The second deceased was dragged from the bed to the floor. By that time, the second deceased also passed away. At that stage, P.W. 2 entered the room. The second accused took the pistol from the first accused and held it against P.W. 2's forehead asking her not to shout, as otherwise he would not hesitate to shoot her down. The jewels owned by P.W. 2 was taken by the third accused and deposited in his pocket. The second and the third accused demanded the keys of the house from P.W. 2. P.W. 2 gave one key to them. P.W. 2 had taken the key from a place where several keys were kept. The second and the third accused utilised the said key for opening one of the bureaus. In that bureau there were a lot of jewels and cash. The second and the third accused proceeded to take a suit-case from the house which is marked as M.O. 8 and filled the same with the cash and jewels found in the bureau. When P.W. 2 was asked to give other keys, she denied knowledge of any other key. Thereupon they took the crow-bar and broke the another bureau which was fitted with mirror. At that stage they heard the horn noise of a jeep. P.W. 2 immediately dashed off towards the front door. The second accused relieved the third accused of the pistol and ran behind P.W. 2 asking her to stop. The second accused turned back and told the first accused that the house owner had come back. The first accused asked the others to keep ready, the suit case and proceeded to the front door with the SBBL gun. Two persons were advancing towards the house from the jeep. The first accused aimed at them and fired. One person caught hold of his chest and fell down. Another persons caught hold of his chest and ran outside the house. The person who fell down happens to be the third deceased Nagarajan. All the accused/appellants and P.W. 1 took the stolen jewels and cash and proceeded via stair-case and reached the terrace of the next house. At that stage the suit-case which was held by the second accused fell down. The second accused got down and collected all the fallen jewels and put it back in the suit-case. P.W. 13 who was the resident of the said house is said to have got up on hearing the noise and when he switched on the torch-light, he could see the four persons coming from eastern side to the western side. They were wearing masks, one of them had fallen down in front of his house along with a suit case M.O. 8. When P.W. 13 and others tried to chase the second accused, the other three persons who were standing on the terrace threatened them. The man with a gun threatened to shoot if anybody tried to catch the second accused. The first accused again beat P.W. 1 and asked him to help the second accused to get up with the suit-case. Accordingly, P.W. 1 helped the second accused to get up with the suit-case and all the four ran away.
6. When they reached a place called pethukottai, the first accused gave Rs. 20/- to P.W. 1 and asked him to return the cycle. It was about 5-30 a.m. P.W. 1 was asked to come back to a place called "Vatta Kinaru" which is on the outskirts of Gudalur. Accordingly, P.W. 1 returned the cycle and proceeded to "Vatta Kinaru". The first accused gave two gold bangles to P.W. 1 and asked him to sell the same after some time and utilise the proceeds for his expenses. P.W. 1 received the bangles and concealed the same in the Noon Meal Centre which is referred to as Market. About three days later the Police had enquired him, but P.W. 1 denied knowledge because the first accused had warned him that he would destroy the entire family with country bombs if he disclosed the occurrence to the Police. P.W. 1 went back to Kerala to continue his fishing trade. About 2 1/2 months later, the third accused met P.W. 1 at Kumizhi. The third accused told P.W. 1 to meet the first accused at Surali Falls near the ladies' cloak room. When P.W. 1 and the third accused went there, cumbum Inspector of Police, came there along with certain others. The third accused gave a confessional statement on the basis of which the police recovered certain jewels, from the third accused. P.W. 1 also gave a confessional statement and produced the two bangles which he had kept concealed.
7. P.W. 1 was kept in the Central Jail, Madurai, for about five months. On 17-11-1994, the Judicial Magistrate, Uthamapalayam, had committed the case for trial before the Sessions Judge, Madurai and posted the case for appearance on 10-2-1994. P.W. 1 was granted bail on 17-6-1994. On 4-8-1994 charges were framed. By a requisition dated 18-8-1994 received from the Inspector of Police, Gudalur, P.W. 17, the Judicial Magistrate, periyakulam, was asked to record a confession from P.W. 1 u/S. 164, Cr.P.C. After following the procedure prescribed by law and after administering the usual caution, a statement u/S. 164, Cr.P.C. was recorded from P.W. 1 and the proceedings are exhibited as Ex. P.17.
8. P.W. 2 is the daughter of P.W. 5. The second deceased Saraswathi Ammal is her father's mother. The first deceased Deivammal is the younger sister of Saraswathi Ammal. Her marriage with her uncle's son Jaikumar was arranged to take place on 6-12-1992. On 23-11-1992, P.W. 2's father (P.W. 5), mother, brother and a neighbour Mohan had proceeded to Madurai in a Jeep 6666 for purchase of things and articles for the marriage. On 24-11-1992 the only inmates of the house were P.W. 2, the first deceased, second deceased, and P.W. 6 Venkatkumar a servant. The servant was sleeping outside the house. At about 3-30 p.m. they had locked all the doors and retired to sleep. P.W. 2 was sleeping in a hall called "Pooja Room" which is on the side of the house. The first and the second deceased were sleeping in a room on the eastern side of "Pooja Room". Since, P.W. 2 was not able to sleep, she moved over to an office room which is adjacent to the bed room of the first and the second deceased. At about 2-30 a.m. she heard a noise of a person moaning and also the noise of a cat. P.W. 2 went to the second deceased and asked her as to the reason for the noise. Second deceased told her that the first deceased had gone to see it and P.W. 2 could go and sleep. P.W. 2 went back to the office room. A little later she heard the noise of men running towards the bed room and when P.W. 2 went and saw as to what was happening, she found the second deceased was being pressed down by some of the men. She could see four persons standing in the room and two were pressing the second deceased. The body of the first deceased was also dragged inside the room. Two persons approached her and told her that they would shoot her down if she made any noise. All of them were wearing masks. One of them was having a long gun M.O. 1. Another man was having a pistol, M.O. 2. The third man was having an Iron-rod, M.O. 9 and one other man was having a bag. They came to remove her jewels on her body. P.W. 2 told them that she would herself remove the jewels and hand them over to them. Accordingly, a gold chain, M.O. 14, eight bangles, M.O. 13 and a pair of ear-rings, M.O. 15 were removed by her and handed over to the said persons. They received the jewels and put them in the pocket. They wanted the key from P.W. 2. She told them that only her grand-mother was having the key. They removed the key from a bag belonging to the first deceased and proceeded to open the bureau. From the bureau they removed cash and jewels and loaded them in a blue colour suit-case belonging to her brother. M.O. 8. Since they could not find the key for one of the bureaus, they broke it open. All these bureaus were in the place adjacent to "Pooja Room". One of the persons tied her hands in a loose manner. All of them were talking in Tamil. At that time, they heard the noise of the jeep. Immediately, P.W. 2 pushed down the rope loosely tied around her hands and rushed towards the main entrance. The door was slightly open and simply closed without the latches on. As soon as she saw her father, she warned him that the thieves are inside the house and they were armed with a gun. She also told him that they had removed all the jewels from her. Thereupon, her father, P.W. 5 and the driver Nagarajan proceeded into the house. Behind them, her brother and the neighbour Mohan were proceeding. A little later they heard the noise of a gun shot. Her father, P.W. 5 ran out with blood-stains. Her mother and brother attended to her injured father and took him to the house of Mohan. Later she came to know that both her grand-mothers Deivammal, the first deceased and Saraswathiammal, the second deceased had been done to death and the Driver Nagarajan had also died. P.W. 2 and her brother proceeded to Gudalur Police Station. Sub-Inspector, P.W. 23 was there and he recorded a statement from P.W. 2. After verifying thew contents, P.W. 2 signed the same, and her brother attested it. Ex. P.1 is the said complaint. P.W. 2 also says that the night lamp was burning in the house.
9. P.W. 3 is the son of P.W. 5 and brother of P.W. 2. He corroborates P.W. 2 with reference to the incident which took place after 2-00 a.m. on the night of 24-11-1992/25-11-1992 relating to P.W. 2 rushing out from the house and the subsequent events leading to the giving of complaint Ex. P.1. Similarly, P.W. 4 is the mother of P.Ws. 2 and 3, who also corroborates the evidence of P.Ws. 2 and 3 and had also identified the jewels. P.W. 5 is the father of P.Ws. 2 and 3 and the husband of P.W. 4 and the owner of the house in which dacoity was committed by the accused. P.W. 6 is the servant of P.W. 5 who was also in the house on the date of occurrence.
10. P.W. 14 was the resident of the cattle-shed of P.W. 5's house. He was working in a Coffee-shop. He speaks to the fact that the fifth accused was working in the house of P.W. 5 and he also speaks to the fact that the second accused, her son was involved in a lorry accident. He refers to the fact that the fifth accused was drawing a 'Kolam' relating to the topography of P.W. 5's house and the same was being witnessed by four persons. P.W. 15 as the person who had advanced a loan of Rs. 12,000/- to the first accused about seven days after the occurrence. He is said to have demanded the money from the first accused. The first accused promised to settle the account on the next day. Accordingly, on the next day, the first accused returned the sum of Rs. 12,000/- in the form of Rs. 50/- currency notes and Rs. 100/- currency notes. These currency notes to the tune of Rs. 20,100/- are M.O. 63 series.
11. P.W. 23 was the Sub-Inspector of Police who was in attendance at the Gudalur Police Station on the early hours of 25-11-1992. He recorded the complaint of P.W. 2 and registered the same as Crime No. 693/92 under Ss. 302, 307, and 397, IPC and Section 25(1)(A) and (B) of the Indian Arms Act. He took the signature of P.W. 2 in the First Information Report Ex. P.64. He gave a telephonic message to the Inspector of Police, Cumbum. Express First Information Reports were sent through P.C. Nos. 1027 and 1024 to the higher authorities. He proceeded to the scene of occurrence and within five minutes the Inspector of Police, Cumbum had also arrived there.
12. P.W. 25 was the Inspector of Police, Cumbum, who received a message from P.W. 23 at about 4-00 a.m. on 25-11-1992. Immediately, he proceeded to Gudalur Police Station and received the First Information Report. By about 5-00 a.m. The reached the scene of occurrence. He prepared the observation mahazar Ex. P.21 in the presence of P.W. 20, who had attested the same. He conducted an inquest on the body is the third deceased. Nagarajan between 7-45 a.m. and 9-45 a.m., Ex. P. 66 being the inquest report. He then conducted an inquest on the body of the second deceased Saraswathi Ammal between 9-45 a.m. and 11-45 a.m., Ex. P.67 being the inquest report. Lastly, he conducted an inquest on the body of the first deceased Deivammal between 11-45 a.m. and 13-45. Ex. P.68 being the inquest report. At the inquest, he examined P.Ws. 2, 3, 6 and others. By about 2-00 p.m. he entrusted the bodies to P.W. 22 for the conduct of an autopsy at the Cumbum Government Hospital. He recovered from the scene of occurrence the broken glass pieces M.O. 66, a crow-bar about two feet in length (M.O. 9), an aluminium school box, (M.O. 67), a brandy bottle M.O. 68 under Ex. P.22 Mahazar attested by P.W. 20. At about 2-30 p.m. he recovered the blood-stained mosaic flooring where the third deceased was lying and also sample mosaic flooring piece, being M.Os. 69 and respectively, under Ex. P.23 attested by P.W. 20. At about 3-00 p.m. he recovered from the scene an eight feet rope which had been removed from the body of the first deceased and the sari worn by her, being M.Os. 4 and 71 respectively under Ex. P.24 Mahazar. At about 3-30 p.m. he recovered a similar rope removed from the body of the second deceased being M.O. 5 under Ex. P.25. At about 3-45 p.m. he recovered from the door step of the bed-room adjoining the main hall, cartridge zinc rounds (two in number). M.O. 72 and cartridge covering paper, five in number, being M.O. 73 under Ex. P.26 Mahazar. At about 4-00 p.m. on the Southern side of the house at the main entrance near a lavatory, he recovered a woollen gloves M.O. 3 and rope M.O. 6 under Ex. P.27. At about 4-30 p.m. he recovered from the top of the stair-case situate near the bed-room of the first and the second deceased, an empty cartridge relating to 410, musket being M.O. 74 under Ex. P. 28. At about 4-45 p.m. he recovered rope hanging from the chimney in the Kitchen, which was about 36 feet long and was in two rows being M.O. 7 under Ex. P.29. At about 5-00 p.m. on the western side of P.W. 5's house in front of the house of Gunasekaran he recovered a 11"" long pistol M.O. 2 under Ex. P.30. He examined P.W. 13 and others after 5-00 p.m. He had also arranged for a dog squad and photographs to be taken.
13. On 26-11-1992 he examined P.W. 7 a blacksmith, by showing M.O. 2 to him.
14. On 26-11-1992 at about 4-00 p.m. in the presence of P.W. 20 and others, he searched the house of the first accused. He recovered M.O. 80 being Car No. plates, M.O. 75 cartridge rounds, M.O. 76 Balrus cartridge rounds, M.O. 77 gunpowder in rolls, M.O. 78 an empty 410 cartridge, M.O. 93 paper used for filling up cartridges, M.O. 79 12 bore empty cartridge under Ex. P.31. Ex. P.32 is the inventory taken during the search. He also examined some more witnesses like P.W. 20 and others. On 27-11-1992, he examined P.W. 4 and others. He also came to Madurai Meenakshi Mill Hospital to examine. P.W. 5 who was taking treatment there.
15. On 3-12-1992, he gave a requisition to the Magistrate to send the viscera of the three deceased for chemical analysis. He also requested the hyoid bone of the first deceased to be sent for chemical analysis. He sent a separate requisition Ex. P.48 for forwarding M.Os. 2, 72 and 74 for examination by Ballistic expert. Ex. P.59 is the requisition for sending certain other material objects for chemical analysis. On 18-12-1992 he examined P.Ws. 9, 10, 11, 22 and 23. He was all the time searching for the accused.
16. On 7-2-1993, on information P.W. 25 proceeded with a police party to Udayar bridge at Karunakka Muthanpatty and arrested the first and the second accused. The first accused gave a confessional statement, admissible portion of which is Ex. P.33, in the presence of P.W. 20 at 10-00 a.m. the first accused produced M.O. 24 double rowed chain with a doller and neckless. Similarly, he seized M.O. 81 being 52 currency notes of Rs. 20/- and the pant worn by the first accused. M.O. 82 under Ex. P.34 Mahazar. At 10-30 a.m. the second accused gave a confessional statement, in pursuance of which he produced from his pocket M.O. 29 'C' design neekless as well as the underwear M.O. 83 under Ex. PP.35 Mahazar. In pursuance of the confession of the first accused, P.W. 25 was taken along with the witnesses to the Thamari Falls, east of Kullappa Goundenpatty and from a hole in the forest tree, he produced a yellow bag containing most of the jewels stolen from the house of P.W. 95. They are M.Os. 16 to 23, 26, 28, 30, 33, 35, 36, 37, 38, 42 to 52, 55, 56, 84 to 86 under Ex. P.36. The first accused look P.W. 5 and witnesses at about 2-00 p.m. on that day to the east of Kullappa Gounder Patty and near the Siluvai tree he produced M.O. 1 gun kept concealed under the earth. The gun was wrapped in a polythin paper M.O. 87. He also produced M.O. 88 a cloth belt for hanging the gun. All of them were recovered under Ex. P.37. The first accused again took them to a round well near the field of Ponniah Gounder and by baling out the water in the well, M.O. 8 the suit case was produced. Inside the suit-case M.Os.89 yellow colour jewel box and M.O. 90 yellow box without lid. They were recovered under Ex. P.38.
17. All the Mahazars were signed by P.W. 20 and others.
18. At about 9-00 a.m. fifth accused was arrested near the cattle-shed of Anbazhagan in the 11th Ward of Gudalur in the Presence of P.W. 20. On 8-2-1993, P.W. 25 went to the Suruli Falls at about 7-15 a.m. Near the Ladies' Cloak room he arrested the third accused and P.W. 1 in the presence of P.W. 20. The third accused gave a confession and in pursuance of the same produced from his underwear M.O. 13 series of bangles, M.O. 14 a chain with collar and M.O. 5 a pair of ear drops. He also produced the underwear M.O. 91 and polythene bag M.O. 92. All of them were seized under Ex. P.39. In pursuance of the confession given by P.W. 1 he produced from his underwear, M.O. 10 series bangles and the underwear M.O. 11. They were seized under Ex. P.40. P.W.25 examined P.Ws. 2 to 5 on that day. The said witnesses also identified the jewels shown to them. From P.W. 5 he recovered the shirt M.O. 61 worn by him at the lime of the occurrence. The accused were sent for remand.
19. On 8-2-1993 P.W. 25 examined P.W. 8 and recovered Ex. P.2, the note-book kept in the cycle shop under Mahazar Ex. P.41. On 10-2-1993 he examined P.W. 6 and others. On 18-2-1993 he examined more witnesses. On 20-2-1993 he examined Doctor, P.W. 16 and the Doctor. P.W. 16 had already entrusted the cartridge zinc rounds M.O. 64 recovered from the body of P.W. 5. On 10-3-1993, he proceeded to Coimbatore and from P.W. 16 he received Ex. P.16. the wound certificate. On 11-3-1993, he examined P.Ws. 20, 23 and others, he also examined the Doctor P.W. 12 and received the wound certificate, Ex. P.30. Ex. P.18 is the treatment file relating to P.W. 5 issued by the Doctor P.W. 18. He gave a requisition to the Magistrate to send M.Os. 1, 62, 64, 72 and 79 chemical analysis. On 11-5-1993 he sent a requisition to send the blood-stained shirt of P.W. 5, M.O. 55 for chemical analysis.
20. Doctor P.W. 9 received the deadbody of Nagarajan on 25-11-1992 with a requisition Ex. P.4 to conduct an autopsy. He found on the deceased six oval shaped injuries on the chest. The skin on the edge of the injuries were protruding inside the body. Four of the injuries were right on the right chest and one was on the centre of the chest. The last one was on the upper portion of the stomach. There were five more injuries on the left side of the stomach with the skin protruding outside. One cartridge zinc round was taken from the third injury, and it was preserved in a plastic pocket. The opinion of the Doctor is that the third deceased would have died about 10 to 14 hours prior to autopsy, the deceased would have died due to the injuries on the vital parts and loss of the blood. Ex. P.5 is the post-mortem certificate. M.O. 62 series are the cartridge zinc round recovered from his body.
21. P.W. 10 is the Doctor who received the body of the second deceased Saraswathi Ammal with a requisition Ex. PP. 6 (along with the history of the case) to conduct an autopsy. He commenced the autopsy at 4-50 p.m. on 25-11-1992. He found the tongue drawn inside. Blood had oozed out from the mouth and the nose. Hyoid bone was intact. Trachea was found broken above the sternal notch. In the opinion of the Doctor, the second deceased would have died because of the stoppage of oxygen and difficulty in breathing. Death would have been caused about 10 to 14 hours prior to autopsy. Ex. P.7 is the post-mortem certificate and Ex. P.8 is the final opinion.
22. P.W. 11 is the Doctor who received the body of the first deceased Deivammal with a requisition Ex. P.9 to conduct an autopsy. He commenced the autopsy at 4-05 p.m. on 25-11-1992. He found on the body a number of abrasions with contusions. He also bound abrasions on the right side of the neck. On the left shoulder there was a contusion to the extent of 7.5 cms. Hyoid bone was broken on the right side. In the opinion of the Doctor, the deceased would have died because of the strangulation and closure of the nose and mouth. Ex. P. 10 is the post-mortem certificate and Ex. P.11 is the final opinion.
23. After the conduct of the post-mortem of all the three deceased, P.W. 22 constable who was in charge of the dead bodies, recovered the clothes worn by the third deceased Nagarajan, namely M.Os. 60, 94, 95, 96 and 97. He also recovered from the body of the first deceased Deivammal, the blood-stained sari of the first deceased M.O. 98, the jacket, M.O. 99, skirt M.O. 100 as well as four gold bangles, M.O. 101. From the body of the second deceased, he recovered the blood-stained sari M.O. 102, Jacket M.O. 103, a gold-ring M.O. 104, a pair of gold ear drops, M.O. 105 and handed over to the Police Station under Form 95.
24. P.W. 12 was the Doctor in attendance at Cumbum Government Hospital. On 25-11-1992 at about 4-00 p.m. P.W. 5 was brought with injuries. He was told that the injuries were caused on account of a gun shot by certain thieves. He found the injuries caused by gun shots on the chest of P.W. 5. Two of the injuries were grievous in nature. Ex. P.12 is the copy of the Accident Register. Ex. P.13 is the wound certificate. P.W. 12 sent P.W. 5 to the Government Rajaji Hospital, Madurai, for further treatment and management. P.W. 18 is the Surgeon in the Madurai Meenakshi Mission Hospital. On 25-11-1992 at about 12-45 p.m. P.W. 5 was admitted in the hospital as an inpatient. P.W. 18 examined him at 1-15 p.m. He was told that injuries on P.W. 5 were caused by bullets fired from a gun. He found that the bullet had entered on the second right chest bone and near sternum. Though he was discharged on 5-12-1992, he was re-admitted on 8-12-1992. He was instructed to proceed to Coimbatore for further management. Ex. P.18 is the case sheet relating to P.W. 5 and Ex. P.19 is the wound certificate. P.W. 16 is the Surgeon in the Kuppuswamy Naidu Hospital at Coimbatore. The hospital is authorised to take up Medico Legal Cases. P.W. 5 was admitted on 18-12-1992. He found from the records that he had suffered bullet injuries. His lungs had shrunk because of the injuries. X-ray discloses that the bullet might be lodged near the liver. He was operated upon on 23-12-1992 by P.W. 16. The bullet was found in the bottom portion of the liver. It was removed and handed over to the Police and the same is marked as M.O. 64. Ex. P.16 is the wound certificate issued by P.W. 16.
25. P.W. 21 was the Head Clerk working in the Court of the Judicial Magistrate, Uthalapalayam at the time of investigation of the case. He received Ex. P.43 on 3-12-1992 for sending the viscera taken from the first, the second and the third deceased to the Forensic Science Laboratory for chemical analysis. He also received Ex. P.45 for send in the hyoid bone of the first deceased to the Forensic Science Laboratory for opinion. Exs.P. 44 and P.46 are the copy of the letters addressed by the Magistrate to the Forensic Science Laboratory. Ex. P. 47 is the report of the Professor of Forensic Medicines in relation to the hyoid bone. Ex. P.45 is the requisition made by Inspector of Police, Cumbum, to the Judicial Magistrate, Uthamapalayam, for sending the revolver, M.O. 2, cartridge zinc round, a 410 empty cartride for the opinion of the Ballistic expert. Ex. P.49 is the copy of the letter addressed by the Magistrate to the Director of Forensic Science Laboratory. Exs. P.50 and Ex. 51 are the opinions of the Ballistic expert. Ex. P.52 is the requisition for sending the S.B.B.L. gun, a pellet, a 12 bore empty case for the opinion of the Ballistic expert. Ex. P.54 is the report of the Ballistic expert regarding S.B.B.L. gun and pellets. Ex. P.55 is the requisition for sending the blood-stained clothes of P.W. 5 for clerical analysis. Ex. P.56 is the copy of the letter addressed by the Magistrate, to the Chemical Analyst. Ex. P.57 is the report of the Chemical Analyst and Ex. P.58 is the report of the serologist. Ex. P.59 is the requisition for sending the several other material objects for chemical analysis. Ex. P.60 is the copy of the letter of the Magistrate to the Chemical Analyst. Ex. P.61 is the report of the Chemical Analyst. Exs. P.62 and P.63 are the preliminary and final reports of serologist.
26. P.W. 24 is the Assistant Director in the Aris Division of Forensic Science Laboratory who had received the requisition Exs. P.49 and P. 53. He had examined the pistol, two shapeless cartridge Zinc rounds M.O. 72, an empty cartridge, M.O. 74. Ex. P.50 is the report given by him relating to the above items. Similarly, he also examined the cartridge removed from the body of the third deceased namely, M.O. 62 series under the requisition Ex. P.49. Ex. P.51 is the report regarding the same. The opinion is that the pellets could have been fired from a smooth bore gun. Under Ex. P.53 he had examined S.B.B.L. 12 bore gun, shapeless pellets M.O. 64 series removed from the liver of P.W. 5, an empty cartridge, M.O. 79, and Ex. P.54 is his opinion. He was of the opinion that M.O. 79 could have been fired from 12 bore S.B.B.L. gun, M.O. 1.
27. P.W. 17 was the Periyakulam Judicial Magistrate who received, the requisition from Cumbum Inspector of Police on 18-8-1994 for recording a confession from P.W. 1. He sent summons and gave all the necessary warnings and cautions to P.W. 1 before recording the confession. Ex. P.17 is his proceedings containing the confession recorded under Section 164, Cr.P.C. P.W. 19 was the Chief Judicial Magistrate, Madurai, Who received the order of the District and Sessions Judge, Madurai, dated 26-10-1994, for considering the petition seeking pardor filed by P.W. 1. He also gave necessary warnings and cautions to P.W. 1 before recording his statement. His proceedings are contained in Ex. P.20. By an order dated 14-11-1994, he granted pardon as sought for under the usual conditions.
28. On completion of the investigation, P.W. 25, filed a final report under Section 173(2), Cr.P.C., Under Sections 120-B, 302, 307, 347. 397, I.P.C. and under Section 25(1)(a) and (b) of the Arms Act on 11-5-1992.
29. On committal, learned Sessions Judge framed charges as already noticed and on the accused pleading not guilty, he examined twenty five witnesses, marked sixty eight exhibits and listed 106 Material objects. In the meanwhile, he had also directed the application of the fourth accused for pardon to be considered by the Chief Judicial Magistrate, Madurai and after pardon was given to the fourth accused, he was examined as approver. P.W. 1 On the accused being, questioned under Section 313, Cr.P.C. they denied complicity. They examined three defence witnesses and they had marked Exhibits D. 1 to D.16 in support of their defence. After considering the entire evidence, Sessions Judge rendered his finding and convicted accused 1 to 3 for the various offences and imposed punishments as already noticed by us at the beginning of the Judgment.
30. Mr. Gopalakrishna Lakshmana Raju, appearing for the first accused, has taken us through the evidence and has pointed various contradictions and other doubtful circumstances in the prosecution case. His arguments can be reduced to the following important points -
(i) He marks a frontal attack on the proceedings leading to the pardon of the fourth accused and his examination as an approver as P.W. 1. The contention is that after the committal proceedings it is the Sessions Judge and the Sessions Judge alone who can tender pardon to the accused. The grant of pardon by the Chief Judicial Magistrate, P.W. 19, is illegal and not in accordance with law.
(ii) Even assuming that the proceedings are legal it is argued that P.W. 1 was forced to seek pardon taking advantage of his difficult circumstance, and by indirect threats and actions taken against the other accused.
(iii) In any event, it is argued that the evidence of P.W. 1 does not pass the double test of reliability and corroboration in material particulars.
(iv) The prosecution case is not at all, believable because there is no acceptable explanation as to how the accused got entry into the house.
(v) The murder of the first and the second deceased is spoken to only by P.W. 1 and not corroborated by the evidence of P.W. 2. The evidence of P.W. 1 taken along, with P.W. 5 does not prove that it was the first accused who fired a shot from M.O. 1 gun.
(vi) There are material discrepancies between the evidence of P.W. 1 and P.W. 2 on the question of the removal of the jewels not only from the person of P.W. 2 but also from the bureau.
(vii) There are discrepancies between the evidence of P.W. 1 and P.W. 13 regarding the fall of the box M.O. 8 and the spilling of the jewels.
(viii) There are also material discrepancies regarding the availability of light in the house, and degree of visibility at the time of the occurrence.
(ix) Recovery of jewels and other articles in pursuance of the confessional statements of accused 1 to 3 and P.W. 1 are totally unreliable and artificial.
31. We will first deal with the above arguments advanced on behalf of the first accused before taking up the separate arguments advanced by Mr. M. Jagadeesan in appearing for the second accused and Mr. K. R. Thiagarajan, appearing for the third accused. Lastly, we will take up the question of legality of awarding in a the extreme penalty on the first accused.
32. We have already noticed the state and the sequence of events leading to the filing of an application on 20-9-1994 by the fourth accused seeking pardon. The application filed under section 307, Cr.P.C. has been marked as Ex. D.1 and is dated 20-9-1994. The affidavit filed in support of the application is marked as Ex. D.2 and it is seen that the same was sworn to on 8-8-1994. The argument is that Section 300, Cr.P.C. provides for the manner in which the evidence of any person supposed to have been directly or indirectly concerned, could be procured. In respect of the offence mentioned in sub-section (2) of Section 306, Cr.P.C., Power is given to the Chief Judicial Magistrate or a Metropolitan Magistrate and the same can be exercised at any stage of the investigation or inquiry into or the trial of the offence. Sub-section (3) enjoins on the Magistrate to record his reasons and also to record whether the tender was accepted by the person to whom it was made. Sub-section (4) says that every person accepting tender of pardon shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial. Sub-section (5) calls upon the Magistrate to commit the case for trial to the Court of Session or to a Court of Special Judge as the case may be and in any other case, to make over the case to the Chief Judicial Magistrate who shall try the case himself.
33. Section 307, Cr.P.C. says that at any time after commitment of a case but before Judgment is passed, the Court to which the commitment is made may tender a pardon. It is therefore, argued that once a commitment of the case has been made to the Sessions Judge, it is only the Sessions Judge who can grant pardon. Inasmuch as the pardon has been granted by the Chief Judicial Magistrate, the entire proceedings are vitiated. Factually, we find from the original of Ex. D.1 that after receipt of the petition on 20-9-1994 and after giving notice to the Public Prosecutor, the Sessions Judge passed the following order on 26-10-1994 :-
"Forwarded to the Chief Judicial Magistrate for recording statement and further action." It is on the basis of the above direction of the learned District and Sessions Judge that P.W. 19 requisitio the statement of P.W. 1 under Section 164. Cr.P.C. and issued summons to P.W. 1 to appear before him on 11-11-1994. After following the procedure by an order dated 14-11-1994, he granted pardon to P.W. 1. In his final Judgment learned Sessions Judge has referred to this aspect and confirms the grant of pardon and discharges him of the charges levelled against him. The question is whether the above procedure followed by the courts below is in accordance with law. A careful perusal of both Sections 305 and 307, Cr.P.C. indicates that the Chief Judicial Magistrate can grant pardon even during the trial of an offence mentioned in sub-section (2) of S. 306, Cr.P.C. The reference to sub-section (4) does not in any way mitigate against the above interpretation placed on sub-section (1). Sub-section (4)(a) only says, that the person accepting the pardon shall be examined as a witness in the Court of the Magistrate and in the subsequent trial. Therefore, even though under Section 307, Cr.P.C. the Sessions Judge himself has power to grant pardon, the power of the Chief Judicial Magistrate under Section 306, Cr.P.C. is not taken away especially when the Sessions Judge forwards the paper to the Chief Judicial Magistrate. The argument that after the amendment of the Criminal Procedure Code, especially after the amendment of Section 337 and 338, Cr.P.C. and the introduction of Section 307, the power is exclusively given to the Sessions Judge, is not acceptable. We are also supported in the view taken by us, by the judgment of the Patna High Court in Suresh Chandra v. State of Bihar, 1986 Cri LJ 1394.
34. Adopting the principle of harmonious construction and having regard to the words "at any stage of the investigation or enquiry into or the trial of the offence" in sub-section (1) of Section 306 and the words and in the subsequent Trial if any" in sub-Section (4) Section 306 taken along with the director nature of Section 307 by use of the word "may". We are of the opinion that the Chief Judicial Magistrate and the Sessions Judge have concurrent Jurisdiction to grant pardon after the commitment of a case. In this case we have the added advantage of a direction by the Sessions Judge to the Chief Judicial Magistrate.
35. We also find from the records and the proceedings of the Courts below that no objection was taken by any of the appellants to the procedure adopted by the trial Judge and the proceedings initiated by P.W. 19. Even after the completion of the trial, while arguing a case for the defence, there was absolutely no argument relating to the validity of the proceedings under Section 307, Cr.P.C. Looked at from another angle also, we find that absolutely no prejudice was caused to the accused appellants on account of the fact that the Chief Judicial Magistrate granted pardon to P.W. 1. In a criminal trial, one must always see that no prejudice is caused to the accused and the accused have a fair and unbiased trial. To this extent we have no hesitation in holding that the accused/appellants were not at all prejudiced by the proceedings of the Courts below. Learned Public Prosecutor rightly relies on Sections 460 and 464, Cr.P.C. and argues that there has been no failure of justice on account of the Chief Judicial Magistrate granting pardon to the fourth accused. For all the above reasons, we do not accept the arguments advanced on behalf of the defence that the grant of pardon by the Chief Judicial Magistrate, P.W. 19, is vitiated and the evidence of P.W. 1 cannot therefore, he relied upon.
36. We will now consider the allegation whether the application seeking pardon was filed under natural circumstances or P.W. 1 was forced to file such an application on account of the direct and indirect acts of the police authorities. We have already noticed the fact that the case was committed to the Sessions on 27-1-1994 and that P.W. 1 was granted bail on 17-6-1994. There was an application for cancellation of the bail granted to the, second and the third accused on 7-7-1994. In our opinion, this application and the order passed on the cancellation application could not have influenced P.W. 1 in filing an application for the grant of pardon. The cancellation of bail for the second and the third accused was on account of very valid reasons that they did not comply with the conditional order of bail. Orders were passed on the said application for cancellation of bail on 28-7-1994. The application under Section 307, Cr.P.C. was filed on 20-9-1994 and was supported by an affidavit dated 8-8-1994. An argument was advanced that the date of the petition was changed from 8-8-1994 to 20-9-94. There is absolutely no evidence as to who changed the date and whether it has any bearing on the genuineness of the application for grant of bail. We do not accept the defence case that P.W. 1 was indirectly threatened that his hail application would also be cancelled unless he filed an application for the pardon and turned an approver. No such presumption or assumption is possible on the facts and circumstances of the case.
37. One other theory propounded by the defence is that P.W. 1 had contracted a second marriage just about two months prior to the filing of a petition under Section 307, Cr.P.C. The argument is unless the Police had earlier promised to P.W. 1 that he would be granted pardon, P.W. 1 would not have made bold to contract a second marriage. In other words, even at the time of the second marriage P.W. 1 knew as to what was going to happen so far as his future was concerned. Alternatively it was argued that P.W. 1 was afraid of his second wife being harassed if he did not accede to the course suggested by the Police. In our opinion, these are all far-fetched arguments, merely based on surmise. No basis had been created for such an argument in the evidence adduced before the trial Judge. Further, these are days when the members of the fair sex are enamoured about marrying criminals who go about trumpeting as heros, as projected in the film world. The fact that P.W. 1 was on bail at the time when he filed application, is a very strong circumstance to suggest that P.W. 1 had acted independently on his down volition to confess the whole crime and seek pardon.
38. The fact that the bail was granted to P.W. 1 with a condition that he should report to the Gudalur Police Station whereas the other accused were directed to report at Theni Police Station, does not advance the case of the defence. P.W. 25 has categorically denied the suggestion that the bail in respect of accused 1 to 3 was cancelled on false information given by the Police and on the basis of such cancellation P.W. 1 was forced to turn as an approver.
39. We have also seen from the evidence that P.W. 1 is not a strong willed person or a confirmed criminal. By nature he was timid and chicken hearted. He was a victim of circumstances and poverty. He would never have become an associate of the first accused, but for the fact that the first accused had accidentally helped him with Rs. 50/- at the time when P.W. 1 was afflicted with typhoid fever. In more than one place P.W. 1 has given vent to his feelings that his conscience was always pricking him and he wanted to make a clean breast of the whole occurrence. We have, therefore, no hesitation in rejecting the arguments of the defence that P.W. 1 was forced or otherwise influenced to make a confession and seek pardon under Section 307, Cr.P.C.
40. The question whether the evidence of the approver passes the double test of reliability and corroboration can be seen after the discussion of the other evidence. We therefore reserve our opinion on this argument to a later stage. It is however, worthwhile to refer to the provisions of law and see how the evidence of an approver should be appreciated. Section 114(b) of the Indian Evidence Act, 1872, says that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Section 133 of the Indian Evidence Act, 1872 says that an accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accompalice. Even so, Courts have always been insisting on corroboration of evidence of an accomplice in material particulars. As to what are the material particulars on which the Court should look for corroboration is a question which has to be decided on the facts and circumstances of each case. Before adverting to a recent Judgment of the Supreme Court we would like to refer to Section 30 of the Evidence Act relating to the consideration of a proved confession, affecting the person making it and others jointly under trial for the same offence. The evidence of an approver has more sanctity than a mere confession under Section 164, Cr.P.C. because the approver deposed in open Court and he is subject to cross examination by the other accused. We will now refer to a decision of the Supreme Court in Shankar (a) Gouri Shankar v. State of Tamil Nadu. (1994) 2 Crimes, 1 :(1994 AIR SCW 2083). The Supreme Court observed (at p. 2093 of AIR SCW) :
"The corroboration need not be of a kind which proves the offence against and accused and it would be sufficient if it connects the accused with the crime. What is required is that there should be sufficient corroborative evidence to show that the approver is speaking the truth with regard to the accused whom he seeks to implicate. Such corroboration should be on material particulars and qua each accused. But it is not necessary that there should be independent corroboration of every material circumstances and it need not consist of evidence which standing alone would be sufficient to justify the conviction. In other words, there should be additional evidence by way of corroboration rendering the story of an accomplice probably true and that it is reasonably safe to act upon such evidence. The independent corroboration need not also cover the whole of the prosecution story or even whole of the material particulars, for that would amount to render the story of the accomplice itself superfluous".
41. We will now well into the facts of the case in the light of the argument of learned counsel for the defence as well as the learned Public Prosecutor. As we deal and sift the facts, we can also appreciate as to what are the material points with respect to which we should look for corroboration. The broad approach in this case is based on the fact that P.W. 1 the approver was a person who could easily recognise the various overt acts of accused 1 to 3, because he knew them personally for some time. Though the second and the third accused are not associated with him for a long time, he could certainly recognise their individual actions, because atleast 10 days prior to the occurrence, second and the third accused had come to see the first accused, and the second accused had reported about the wealth of P.W. 5 and suggested that they could commit robbery in the said house. It was disclosed that the fifth accused was working for bout 10 years in the house of P.W. 5. He was also aware of the discussion between accused 1 to 3 regarding the topography of P.W, 5's house as pictured by the fifth accused. Not being satisfied, they sent the second accused to inspect the house of P.W. 5. On the date of occurrence, he was also closely associated with the second and the third accused, because they arrived at the house of fifth accused at about 11.00 p.m. and all the three, namely, P.W. 1, second and the third accused had gone together for taking tiffin. It is, therefore, clear that P.W. 1 had stated that the second and third accused had known them for quite some time. He should have understood their voices and should have been able to recognise them by their stature. So far as the first accused is concerned, there is no difficulty, because he was working in his house for nearly 2-1/2 years. Therefore, so far as, identification of the first, second and the third accused and their individual acts on the night of the occurrence is concerned, P.W. 1 was the most competent person, to speak. Turning how to P.W. 2, she was the queen of P.W. 5's house in the sense that she was about to be married and elaborate arrangements were being made for her marriage. She could easily speak to the identification of each and every item in the house of P.W. 5 as well as the identity of the inmates of P.W. 5's House.
42. It is in the peculiar context of the twin evidence of P.Ws. 1 and 2 that accused 1 to 3 have been pictured and photographed by the oral evidence of P.Ws. 1 and 2 and others. Thus the evidence of P.W. 1 and P.W. 2 corroborate each other in material particulars and while P.W. 1 identifies the action of each of the accused, P.W. 2 identifies the article and inmates of P.W. 5's house. It is in this double knot that accused 1 to 3 have been squarely caught.
43. It was sought to be argued that the accused had entered the house through the wastern lamp post marked as "XVII N/33" in the rought sketch Ex. P.65 and referred to in the observation Mahazar Ex. P.21. But a perusal of the rough sketch gives an impression that the lamp post is situate on the far side of the street and therefore, it could not have been possible for the accused to have jumped from the lamp post to the terrace of the house. This is an argument based on pure surmise because the defence did not elicit any answers from any of the witnesses regarding the actual location of the lamp post. The rough sketch is not substantive evidence and it is not even clear from the rough sketch whether the lamp post is on the far side or the near side of the house. On the other hand, it appears to us that the lamp post is planted near the house of P.W. 5 and it is only the top portion containing electric wires that appears to be shown on the far side in the rough sketch. This is clear from the fact that the stem of the lamp post is shown near the house of P.W. 5. The argument based on the rough sketch has to he rejected and is accordingly, rejected. In the cross-examination of P.W. 1, it has been elicited that there are street on all the four sides of P.W. 5's house and that they climed the lamp post on the western side. It has also been elicited that after climbing three-fourth of the lamp post, they jumped over to the terrace. A reference was made to Column No. 9 of the inquest report of the three deceased namely, Exs. P.66, P.67 and P.68, wherein there is a surmise by the Investigation Officer based only on the evidence of P.Ws. 2, 3 and 6 that one of the accused had descended down the chimney and had opened the door for others to enter. It is only after the confession statement of P.W. 1 and after he was examined in Court, it has come to light that all the accused had entered the house only through the chimney. Learned counsel for the appellants seeks to buttress this argument by the fact that one of the doors was open enabling P.W. 2 to rush to the main entrance when the jeep had arrived with the other inmates. It is not for us to surmise as to how the front door was open when the evidence is that they had closed all the door before they retired to hide. It is quite possible that after all the accused had descended into the house, they had opened one of the doors to enable them to escape in the event of any problem arising in the planned robbery. There is the evidence of P.W. 25 about the hanging of a rope in two rows from the top of the chimney down to the kitchen. The slab over the chimney had been removed and kept on the terrace. The evidence of P.W. 1 is categoric as the manner in which and the order in which the accused descended into the kitchen. The evidence of P.W. 1 cannot be rejected on the ground that he had not spoken to the fact as to who opened the door on the southern side. In other words, this is not the material aspect of the case which would falsify the evidence of P.W. 1. The material aspect is the manner in which they entered the house and Proceeded to annihilate the first and the second deceased and proceeded to commit robbery and when confronted by P.W. 5 and D-3, fired at them and escaped.
44. There was a further argument on the lack of evidence regarding the manner in which the gun was taken inside the house. But the unfortunate of the defence is that there was no cross-examination on this aspect of this case. It cannot be argued that the defence would not like to venture on questions which may result in an adverse answer. But criminal trial is not a hide and seek game. If the defence wants to make an argument, they should atleast create the necessary foundation for the same. P.W. 1 has deposed that the barrel portion of the gun was handed over to the third accused and the butt portion of the gun was handed over to the second accused, even before they commenced their journey from the house of the first accused. We find from the cross-examination that there is one question as to whether the first accused handed over the gun to P.W. 1 before descending the stair-case. He had also deposed that he did not remembers as to whether the gun was tied with a rope let down to the kitchen. P.W. 25 has, no doubt, stated that P.W. 1 told him that the gun was let down through the chimney by a rope. But the defence has not taken care to contradict the witness from his statement under Section 164, Cr.P.C. recorded by P.W. 17. On an overall analysis of the situation we are unable to hold that any dent has been caused on the truth of the prosecution case. On the other hand, the evidence of P.W. 1, taken along with the cross-examination, clearly indicates that the gun was taken by letting the same down with a rope. We once again repeat that these are not material questions. For instance, the manner in which they carried, the bag, ropes and the other articles will not affect the prosecution case so long as there is evidence to show that such articles were in fact taken along with the accused and were in fact found in the house of P.W. 5 as seen from the evidence of P.W. 2. The material question is that these articles were in fact taken by the accused to the house of P.W. 5 and there is independent corroboration to show that such articles were in fact utilised by the accused in the house of P.W. 5 at the time of committing robbery and later covered in pursuance of confessions given by the accused.
45. Considerable arguments were advanced on the availability of light in the house of P.W. 5. It has been elicited that the street lights were not burning and it was a New-Moon day. In Ex. P-1, there is no reference to any light available in the house. But in Court P.W. 2 has categorically stated that there was a night lamp burning in the house of P.W. 5. In the cross-examination of P.W. 1 it has been elicited that it was dark in the place where the first deceased was done to death and P.W. 1 had to pull her out towards the light to see whether she was dead or not. There is categorical statement by P.W. 1 that in the place to which he had dragged the first deceased, there was light. It is also stated that in the light when he dropped the hand of the first deceased, it fell without any action suggesting that she was dead. What is more, P.W. 1 has stated that such light was coming from a night lamp. Therefore, there is sufficient evidence to suggest that even though it was dark outside, within the house there was sufficient light provided by the night lamp.
46. It is next argued that so far as twisting of the neck of the first deceased is concerned, P.W. 1 alone is the witness and therefore, it cannot be said that the overt act attributed to the first accused can be said to he established by acceptable evidence. We do not agree with this contention, because once the evidence of P.W. 1 is found to be trustworthy, there is no reason at all, why his evidence regarding the twisting of the neck of the first deceased by the first accused should not be believed. Further, there is medical evidence of the Doctor as to the Injuries found on her body as well as the post-mortem certificate Ex. P.10 and the final report Ex. P.11. Therefore, the evidence of P.W. 1 is certainly corroborated by the medical evidence in the shape of evidence of P.W. 11 and the post-mortem certificate.
47. Similarly, it is argued that even the strangulation of the second deceased was spoken to only by P.W. 1 and it cannot be acceptable. By the same reasoning that we have adopted for the first deceased, we have no hesitation in holding that the first accused was responsible for strangulating the second deceased. Here again, the medical evidence supports the oral evidence of P.W. 1. P.W. 10 is the Doctor who examined the second deceased and found injuries suggesting that there was strangulation and closure of the mouth and the nose resulting in death. Post-mortem certificate is Ex. P.7 and final report is Ex. P.8. The argument of learned counsel for the accused is not quite right on facts, because P.W. 2 has also spoken to the fact that when she got up and saw the second deceased, she found that some persons were pressing her down. Therefore, there is sufficient corroboration of the evidence of P.W. 1 to hold that the first accused was responsible for the death of the second deceased.
48. Regarding the death of Nagarajan, the third deceased, it was argued that the firing of a shot from the gun is no doubt spoken to by P.W. 1, P.W. 2 and P.W. 5, But, neither P.W. 2 nor P.W. 5 has stated that it was the first accused who fired the shot. Here again, once we accept the evidence of P.W. 1, the identification of the person as to who fired the shot can easily be drawn. What is more, it was the first accused who was in possession of the gun and trained in the art of shooting. The very fact that both the third deceased and PW. 5 were injured right on the chest shows that the first accused had taken aim before shooting and there must have been sufficient light to enable the first accused to shoot at the target.
49. We will now take up the question of the manner in which the keys of the bureau were taken, the manner in which the bureaus were opened and how the jewels were removed from the bureaus. There is clear evidence of P.W. 2 that the intruders were trying to remove the jewels on her person and thereupon she offered to remove the jewels by herself and accordingly, handed over M.Os. 13, 14 and 15. The same were collected and stored it a bag. She denied knowledge about the whereabout of the key, but states that only the grand-mothers were having the keys. Thereupon the intruders, removed the key from the small bag or pouch kept by the grand-mother and with the aid of the key they opened one of the bureaus. They were collecting all the jewels and cash and storing the same in a box M.O. 8 belonging to her brother. No doubt, P.W. 1 in his evidence says that when P.W. 2 was asked for the key, she produced the same. He has further stated that she took the key from a place where all the keys were kept hanging from a locker. When she was asked about the keys for the other bureaus, P.W. 2 denied knowledge. It is only then they broke open, the almirah with glass with the help of the crow-bar. There is clear evidence to show that the jewels and cash were removed only from the wooden bureau which was opened with a key. According to P.W. 2, the first steel bureau contained documents, the second bureau contained the jewels and the third bureau contained the belongings of P.W. 5. In cross-examination, she has stated that the bureau in which jewels were kept was broken open. But, earlier in cross-examination, she has stated that it was only from the wooden bureau that the jewels were removed. She has also clarified that the grand-mothers were having a small bag with a device to close the same by pulling the strings. It is argued on behalf of the defence that this discrepancy between the evidence of P.Ws. 1 and 2 is every material and therefore, the prosecution case should be rejected. On the other hand, we do not think that this is a material portion of the prosecution case as to which of the bureaus contained the jewels and which was opened by key and which was broken with a crow-bar. One thing is clear that by opening a bureau with a key, the accused were able to get all the jewels and cash. By the time, they broke open the other bureau with glass, the jeep had arrived. One has to visualise the position of P.W. 2 who was only aged about 18 years when the occurrence took place. She must have been dreaming about her marriage which had been arranged to take place. Therefore, when she was suddenly faced with marked robbers, he must have been in a dazed condition. One can easily visualise the pathetic condition of P.W. 2 when she was accosted by the robbers. We do not therefore, attach too much importance to the fact whether she gave the key or whether the key was taken from the grand-mother and whether the jewels were taken from the wooden bureau or some other bureau. The fact that the jewels and cash were stolen, is clearly proved by the subsequent recoveries and that is the most important thing in the case, about which there is no contradiction between the witnesses.
50. Argument were advanced about the recovery of Macdowell empty brandy bottle from one of the bureaus. Ex. P.22 is the Mahazar for the recovery of the bottle, and M.O. 68 is the bottle. The argument was that in the photographs taken at the instance of the police there was a big bottle seen on the bureau and the same has been suppressed. The trial Court has considered this aspect of the case and has stated that the only bottle that was recovered was M.O. 68 under Ex. P.22 and no significance can he attached to the photographs in the absence of any other evidence. We also feel that the recovery of the brandy bottle and the alleged suppression of another big bottle have no significance to the prosecution case, and these are practically irrelevant matters. They do not affect the prosecution case. The suggestion of the defence is that there were thumb impressions on the brandy bottle and the glass pieces and the prosecution had suppressed the same because they did not tally with the prosecution case. This aspect of the case cannot detain us any further.
51. The next aspect of the case relates to the escape of the accused and the falling of the box. M.O. 8. The evidence of P.W. 1 is that as soon as the, first accused had fired a gun shot the accused collected the jewels and climbed the staircase on the southern side of the kitchen and escaped through the terrace of the neighbour's house. The second accused who was carrying the suitcase M.O. 8 had dropped the same while escaping through the terrace of the neighbour's house, and was engaged in the trantic collection of the jewels and storing them back in the suitcase. P.W. 13 the neighbour opened the door and shouted, but the first accused silenced him by showing his gun. The first accused beat P.W. 1 and asked him to help the second accused in getting up with the suitcase. This aspect of the case is corroborated by the evidence of P.W. 13. He says that at about 3-00 a.m. on the morning of 25-11-1992 he beard the noise of persons running on the terrace of his house. He took a torch-light and opened the door and found the four persons were coming from the east towards west. All of them were wearing masks. One of them fell down in front of the house. He was having a suitcase. P.W. 13 recognised the suit-case as M.O. 8. He also refers to the fact that the person with a gun threatened to shoot him with the gun if he interfered with the second accused struggling with the suitcase. He refers to the fact that one of the persons helped the person who had fallen down and all of them ran away towards west. The second accused had left behind the pistol. M.O. 2 at the place. It is to be remembered that the pistol was recovered by Inspector of Police, P.W. 25. In cross-examination it has been elicited that the terrace of P.W. 5's house, was overlooking empty space on all the four sites. He has also stated that to escape from the house of P.W. 5, one had to jump across the lane. It is further elicited that they jumped across the lane on the western side and reached the neighbour's terrace. They then jumped into Kamatchi Ammal Kovil street and escaped. The distance between two terraces is said to by only two feet. The suit case well down only while going though the neighbour's house. In the cross-examination of P.W. 25 it has been elicited that the house of one Ponram on the north-western corner of P.W. 5's house is abutting the house of P.W. 5 and there is no space between them. It has also been elicited that there is the house of one Gunasekaran on the northern side of the house of P.W. 5 beyond Kurichi Gounden Lane. That Gunasekaran was not examined by P.W. 25 and P.W. 23 is a different Gunasekaran. The argument of the defence is that the taking back of the jewels after the suitcase had fallen down, is not stated in the statement of P.W. 1 recorded under S. 162. Cr.P.C. But, the defence has failed to contradict the witness from his statement under S. 164, Cr.P.C. given before P.W. 17. In any event, these minor discrepancies do not in any way affect the main thrust of the prosecution case. We are clearly of the opinion that the evidence relating to the escape of the accused through the neighbour's house and the failing of the suitcase as spoken to by P.W. 13 are unimpeachable and we have no hesitation is accepting the manner in which the accused had escaped. The evidence of P.W. 1 is fully corroborated on this important aspect of the case.
52. The defence has made much of an alleged earlier statement given to the Police by One Vasakar and contend and that the same has been suppressed by the prosecution. P.W. 5 has spoken to the fact that A. P. K. Vaskar is her uncle while taking the injured P.W. 5 to Cumbum, she says that her brother Palanisamy, Ramamurthy and the servant Venkattu (P.W. 6) were also proceeding in the car. She does not remember whether her uncle A. P. K. Vasakar also accompanied them. She does not also remember whether Vasakar got down at the Gudalur Police Station. Similarly, P.W. 6 has also stated that he does not remember whether Vasakar got down at the Gudalur Police Station while they were taking the injured to Cumbum. A contradiction has been elicited by asking P.W. 25 whether P.W. 6 had stated in his statement under S. 162, Cr.P.C. that Vasakar got down at the Gudalur Police Station. P.W. 25 has agreed that he has stated so. P.W. 25 has admitted that he had examined the said Vasakar also on 27-11-1992 and sent his statement to the Magistrate's Court. He has also admitted that P.W. 4 had given a statement that it was Vasakar who gave the First Information Report to the police. On the above evidence the defence seeks to upset the entire prosecution case. It is no doubt true that the prosecution has not examined the said Vasakar and they are not bound to do so. It was always open to the defence to have examined the said Vasakar, if really he had given any tangible information to the Police. When the defence was careful enough to examine three defence witnesses and marked several documents, they could as well examine the said Vasakar also. On the available evidence, we are not convinced that there was a First Information given by the said Vasakar and that the same had been suppressed by the prosecution.
53. We now come to the last important aspect of the case, namely, recovery of the stolen articles as well as the weapon used at the scene of occurrence. At the outset it was argued that some small items of jewels were found on the body of the deceased 1 and 2. It was therefore, sought to be argued that accused had no intention of committing robbery. We do not accept this case, because those items were in significant when compared to the major items found on the person of P.W. 2 and the jewels kept in the bureau. Secondly, it was pointed out that the list of jewels found missing was given by P.W. 4 only on 27-11-1992 whereas the occurrence had taken place at the early hours of 25-11-1992. We have to remember that P.W. 5 was too seriously injured and he was being taken to Cumbum, Madurai and then to Coimbatore for the removal of the bullet which was lodged near his liver. In fact, he had narrowly escaped death, due to the expert treatment given to him. Therefore, we cannot expect his wife P.W. 5 to be bothered about the items of the jewels stolen from the house and she might have very well taken some time to take a list of the missing Items. We are also fully satisfied with the identification of the jewels by P.W. 3 when the police recovered them after 2-1/2 months. It is not necessary for us to give details about the manner in which P.W. 4 has identified the jewels. She was with remarkable rememrance spoken about the colour of the stones imbedded in the various necklesses and we do not propose to load this judgment with her evidence regarding the identification of jewels which runs to nearly two pages. Similarly, P.W. 2 has identified the jewels which are only three in number. An argument was advanced that such minute details of identification could not have been given by P.W. 4 and she cannot be credited with such expert knowledge as to identify her own jewels. The argument has only to be stated to be rejected. There is a useful and instructive judgment of this Court rendered in Public Prosecutor v. China Lingiah, 1953 Mad WN (Cri) 282 : (1954 Cri LJ 583). The following passage in the said judgment is apposite and answers the points taken by the defence (at p. 586 of Cri LJ) :-
"it would be factitious to discredit such identification on the ground that reasons are not being formulated for them. It is not the case for accused 1 that these properties belong to him. On the other hand he denies all knowledge of producing them and does not claim any acquaintance with the properties. Therefore, when it is found that respectable witnesses have identified their own articles of use merely by their frequently seeing, handling and using them, it is silly to reject their testimony on the ground that identification parades for these articles were not held and that reasons have not been formulated by these witnesses."
54. We have already referred to the manner in which the jewels were recovered in pursuance of the confessional statement of the first accused Ex. P.33. In pursuance of his statement, most of the jewels were recovered under Ex. P.36. The second accused had produced M.O. 29 from his underwear M.O. 83. The same was recovered under Ex. P.35. The third accused and P.W. 1 were arrested near the Ladies' Cloak room of sureli falls in the presence of P.W. 20. The third accused produced from his underwear M.O. 91, the jewels M.Os. 13 to 15 kept concealled in a polythene bag M.O. 92. Similarly, P.W. 1 has produced from his underwear M.O. 11, the jewels M.O. 10 series. An argument was advanced that the second accused, the third accused and P.W. 1 could never have kept the jewels in their underwear pocket, nearly after 2-1/2 months after they were stolen. This argument is again speculative. One does not know as to how the mind of a guilty person who had only taken a secondary part in the commission of robbery, would have reacted and the fear with which they would have been living, when the law was after them. It is quite possible that they did not want to sell or conceal the jewels, but kept it to themselves close to their body, so that no one could discover the same.
55. Coming how to the articles used for the offence, we have already referred to the fact that the pistol M.O. 2 was recovered west of the house of P.W. 5 near P.W. 13's house. This fact has been adequately corroborated by the evidence of P.W. 13 and the recovery made by P.W. 23 under Ex. P.30 in the presence of the witnesses. The pistol M.O. 2 is directly connected to the first accused, by the evidence of P.W. 7, a blacksmith. He has identified the first accused in Court as the son of Ammasi Thever. He used to sharpen the crow-bars, aruval and showels for the first acccused. About two years prior to the occurrence, the first accused had brought the pistol M.O. 2 and asked him to weld the trigger portion of the pistol. He has identified M.O. 2 and the place in which he had made the welding. He was examined by the Police on the very next day of occurrence. All the other items like S.B.B.L. gun, the bag, the suit-case M.O. 8, ropes, crobar, have been recovered by the police on information given by the accused. They were exactly the items which were taken by the accused on the night of 24-11-1992 as clearly spoken to by P.W. 1. Thus on this material aspect of the evidence of P.W. 1, there is adequate corroboration.
56. So far as the use of S.B.B.L. gun is concerned, we have the evidence of the Ballistic expert P.W. 24. In response to the requisition Ex. P.53, he had examined M.O. 1 gun, bullet M.O. 64 recovered from the liver of P.W. 5 and an empty 12 bore cartridge, M.O. 79, recovered from the house of the first accused. He was of the opinion that the gun had been used and there were evidences to prove the same. He was also of the opinion that M.O. 64 zinc round could have been fired from a smooth barrel. He was also of the opinion that M.O. 79 cartridge could have been fired from M.O. 1 gun. In answer to a specific question, he also stated that M.O. 62 zinc round removed from the body of the third deceased, M.O. 64 removed from the injured P.W. 5 and M.O. 72 series zinc rounds found in the house of P.W. 5 and recovered by P.W. 25 could have been fired from the S.B.B.L. gun M.O. 1. While on this aspect, we can as well dispose of a strenuous plea made by the defence that an empty cartridge M.O. 78 recovered by P.W. 25 in the house of P.W. 5 was of the gauge 410 Model. It had been elicited from P.W. 24 that a 410 cartridge cannot be used from the gun M.O. 1. It is therefore, argued that M.O. 1 was not at all used at the scene of occurrence and it must have been a weapon of 410 Model because only a 410 cartridge was recovered from the house of P.W. 5. It has to be remembered that M.O. 79a, 12 bore cartridge was recovered only from the house of the first accused and not at the scene of occurrence. No doubt, the argument is attractive and forceful. It has to be remembered that P.W. 24, Ballistic expert, has characterised M.O. 1 as a country gun. People accustomed with fire arms, at least for sporting purposes and people accustomed with "Nari Kuravars" who are licensed to use such country weapons for their livelihood, could easily understand how the country weapons are filled up with zinc rounds emptied from any regular cartridge ......
A 410 weapon would only have a single or a few rounds whereas in a country weapon people can fill up any number of rounds through the upper opening of the barrel, close it with card-board or paper and fire with gun powder at the trigger end. In this case, the very fact that in a single shot both the third deceased and P.W. 5 were injured shows that the bullets had spread out, unlike a single shot. The mere fact that a 410 cartridge was found in the house of P.W. 5 does not signify or prove that only a 410 musket should have been used at the time of the occurrence. We have enough evidence to prove that the first accused was carrying only an S.B.B.L. gun and he had taken the same to the house of P.W. 5 on the night of 24-11-1992. The recovery of M.O. 73, the paper for covering the zinc rounds found in the house of P.W. 5 adequately establishes this point.
57. What remains is, only to discuss the medical evidence. A careful perusal of the evidence of the Doctors, P.W. 9, P.W. 10 and P.W. 11 shows that the medical evidence completely supports the evidence of P.W. 1 regarding the manner and method in which accused 1 to 3 completed the task of murdering Deceased 1 to 3. So far as the first deceased is concerned, the opinion of P.W. 11 is that the deceased would appear to have died of asphyxia due to suffocation. He had also opined that Injury Nos. 1 and 2 could have been caused by pressing the neck and the mouth with the hands of a person. The nails in the hands of the assailant could have caused such as abrasions. The Doctor had found that the neck had been twisted and at the same time the mouth and nose were closed with a hand. Thus, we see that the evidence of the approver P.W. 1 regarding the peculiar manner in which the first accused had twisted the neck of the first deceased finds corroboration from the Doctor's evidence. Coming to the second deceased, the Doctor P.W. 10 had found that the trachea was found broken just above the sternal nodge. Wind pipe was also found broken and congested with blood. He was of the opinion that the death would have occurred due to the strangulation of the neck and at the same time closing the mouth and the nose. Ex. P.8 the final report shows that the deceased would appear to have died of asphyxia due to suffocation. In the cross-examination, it was only elicited that the cartilage around the wind-pipe was also found broken. Here again the medical evidence fully corroborates the testimony of P.W. 1. So far as the third deceased is concerned, the Doctor P.W. 9 found six oval shaped injuries on the chest with the outer skin turned inside the body. On dissection a bullet was removed from the third injury on the stomach. The other bullets were also removed from the body and they are marked as M.O. 62 in the case. It is needless to point out that from the person of P.W. 5 also a bullet was taken after surgery conducted by P.W. 16. The Doctor P.W. 12 who examined P.W. 5 at Cumbum Government Hospital had found three injuries. The first was on the right chest between the second and third ribs. It was a bullet injury. The second was a bullet injury on the side of the chest. The third was a bullet injury on the right hand finger. The medical evidence as stated above taken along with the evidence of Ballistic expert, P.W. 24, clearly points out to the fact that the injuries were caused on account of a gun shot from M.O. 1 S.B.B.L. gun and therefore, the evidence of P.W. 1 stands fully Corroborated.
58. We have already reserved out opinion on the question whether the evidence of the approver P.W. 1 has been corroborated by the other witnesses and documents. We have also noticed the recer judgment of the apex Court on the above question. To remind ourselves, we have to he satisfied that the evidence of the approver passes the doubts test of reliability and corroboration in material particulars, having discussed the entire evidence, we are fully satisfied that the evidence of P.W. 1 is totally reliable and had not been procured by any undue influence or coercion. We have also noticed that the confession of P.W. 1 is inculpatory and it is not as if he had tried to exculpate him in any manner. It must, however, be remembered that he had to be goaded at every juncture, because basically he was not for the commission of such a crime. But the fact remains that he had taken the other accused to the place of occurrence, had tied the rope from the chimney, had stood guard over the first deceased, had dragged the first deceased to the place where the second deceased was sleeping, had prepared to escape with the jewels when the jeep arrived and had helped the second accused in collecting the jewels when the suit-case had accidentally fallen down at the time of escape. He had also tied the hands of the first deceased and had assisted in removing the jewels from the bureau and putting the same in the suitcase, M.O. 8. He had also assisted in taking the bag when they climbed the lamp post to get entry into the house. On an entire assessment of the evidence of P.W. 1 taken along with the answers elicited in cross-examination, we do feel that P.W. 1 was speaking the truth. In other words, P.W. 1 is a reliable witness even though he had taken part in the abominable crime, meaning that he was particeps criminis. But we do believe that his conscience was pricking and he was at all times thinking of making a confession without the influence of any third party. In fact, we have adverted to the fact that he made the confession while he was on bail and he had applied for pardon while he was on bail. We have also seen from the evidence of the other witnesses that the testimony of P.W. 1 is corroborated in material particulars. In fine, we are prepared to act on the evidence of P.W. 1 taken along with the other corroborating evidence and circumstances.
59. We, therefore, hold that the evidence of P.W. 1 is not only trustworthy, but is fully corroborated in material particulars. We have also referred to the other witnesses as well as the medical evidence which go to support the entire prosecution case. The recovery of the weapons and articles used in the crime as well as the recovery of cash and jewels and especially the evidence of P.W. 15 regarding the discharge of the loan from out of the cash stolen in the house of P.W. 5 amply establish the guilt of the accused appellants. The medical evidence completely tallied with the evidence of the other witnesses relating to the overt acts attributed to the accused/appellants. All the charges framed against the accused are clearly established and the trial Court was perfectly right in convicting the accused of all the charges except the charge under S. 148, IPC.
60. We therefore, find the first accused guilty of the offence of conspiracy under S. 120-B, IPC as well as the offence of murder punishable under S. 302 read with S. 34, IPC in respect of the death of the first and the second deceased. We also find him guilty of the offence of murder of the third deceased and for causing grievous injury to P.W. 5 and find him guilty under Ss. 302 and 326 read with S. 34, IPC. The ingredients of S. 449, IPC are clearly proved on the facts and in the circumstances of the case. The question 'of sentence on him, will be considered separately a little later.
61. We will now deal with the case of the second accused and see how far he is liable under the charges framed against him. Learned counsel for the second accused, Mr. M. Jagadeesan adopts the arguments advanced on behalf of the first accused and disputes the entire prosecution case. In any event, it is pointed out that on the evidence adduced, no case of murder under S. 302 read with S. 34, IPC has been proved beyond reasonable doubt. It has to be remembered that it was the second accused who suggested to the first accused that there were lot of jewels and cash in the house of P.W. 5 and they could commit robbery. When his mother the fifth accused was not able to explain the topography of P.W. 5's house, he went to the house himself as the son of the fifth accused who was working in the house of P.W. 5 for 10 years, and completely studied the details and gave the fool proof plan for entry and escape. He cannot feign ignorance of the intention of the first accused to murder people when the situation demanded the same, because the first accused was carrying an S.B.B.L. gun, a loaded pistol, a knife, a crow-bar, masks, ropes etc. When the first accused was closing the mouth and nose of the second deceased and pressing her down, the second accused was holding the legs of the second deceased. There-fore, the second accused had every intention of doing, away with the-second deceased. He certainly shared the common intention of the first accused in murdering all the inmates who were posing problems for the commission of robbery. It was the second and the third accused who look active part in getting the keys and removing the jewels and cash from the bureau. It was argued that the second accused was only interested in committing robbery and did not intend to murder anybody. Such an argument goes against the teeth of S. 34, IPC. To put it crudely if the second accused did not have such an intention, he should have protested and left the house soon after the first deceased was done to death. On the other hand, he takes an active part in murdering the second deceased. It was pointed out that there are certain discrepancies and contradictions in the evidence of P.W. 1 which raise a doubt as to the presence of the second accused. For instance, P.W. 1 has stated that at the time when lie was examined by the police on 27-11-1982 he had not informed that he knew the second and the third accused also apart from the first accused. We do not place any significance on this aspect of the case, because on 27-11-1992 P.W. 1 had not been fully interrogated as a person involved in the case. It was only on 8-2-1993 that the police had sufficient evidence to proceed against P.W. 1. The other discrepancies pointed out by learned counsel do not at all go to the root of the matter. It was pointed out that P.W. 1 was hiding in the bath-room and therefore, could not have seen the first accused twisting the neck of the first deceased. We have carefully perused the evidence and find that P.W. 1 was only hiding by the side of the bath-room and not inside the bath-room. Having regard to the totality of the evidence and the participation of the second accused in the conspiracy and pre-planning of the entire episode, we have no hesitation in holding that under S. 34, IPC the second accused shared the common intention of the first accused in the murder of the first deceased, second deceased and the third deceased in the gun shot injury on P.W. 5 and in the robbery committed at the house of P.W. 5. Second accused is, therefore, found guilty of the offence of murder under S. 302 read with S. 34, IPC (three counts) and under S. 326 read with S. 34, IPC. He is also found guilty of the offence of conspiracy under S. 120-B IPC and of the offence punishable under S. 449 IPC. The sentence imposed the second accused, namely, life sentence under S. 302, read with S. 34, IPC (three counts), the sentence of 10 years Rigorous Imprisonment under S. 120-B, IPC, 10 years Rigorous Imprisonment under S. 449, IPC and three years Rigorous Imprisonment for the offence under S. 326 read with S. 34, IPC and confirmed.
62. Similar arguments were advanced on behalf of the third accused. It was pointed out that he was not at all involved in the conspiracy or planning. The third accused was present when the second accused suggested robbery of P.W. 5's house. P.W. 1 has spoken to the fact that the accused 1 to 3 went to see the fifth accused to get the topograpphy of the house and accused 1 to 3 were discussing about the topography. Second and the third accused had assembled in the house of the first accused, at 11-00 p.m. and with the money provided by the first accused had tiffin before coming back for implementing the plan. All the reasons we have given for holding the second accused liable under S. 34, IPC will equally apply to the third accused. Further, the third accused had tied the legs of the first deceased with a rope when the first accused twisted the neck of the first deceased. He was willingly taking part in all the subsequent events leading to murder of the second deceased, the robbery and the murder of the third deceased. It was he who took the loaded pistol from the first accused, held it against the forehead of P.W. 2 and threatened P.W. 2 not to make any noise. The third accused is also found guilty of the offence of murder under S. 302 read with S. 34, IPC (three counts) and under S. 326 read with S. 34, IPC. He is also found guilty of the offence of conspiracy under S. 120-B, IPC and of the offence punishable under S. 449, IPC. The sentence imposed on the second accused. namely, life sentence under S. 302 read with S. 34, IPC (three counts), the sentence of 10 years Rigorous Imprisonment under S. 129-B, IPC, 10 years Rigorous Imprisonment under S. 499, IPC and three years Rigorous Imprisonment for the offence under S. 326 read with S. 34, IPC are confirmed. Neither the defence witnesses nor the documents filed on their behalf improve their case or throw doubt or suspicion in the prosecution case as established by the prosecution witnesses and documents.
63. We now come to an important aspect of the case, as to whether the extreme penalty of death sentence imposed on the first accused is justified on the facts and in the circumstances of the case and the legal position prevailing in the country. In a recent judgment rendered by us on 16-10-1995 in R.T. 4. of 1995 we have observed :
"Taking into account his life, as a whole, upto the time of the commission of the offence of murder, there was no antecedent of such a magnitude as to point out that by his being allowed to have a fresh lease of life, after undergoing the incarceration for a period of fourteen years as per S. 433(A) of the Code of Criming procedure, without his being annihilated by the imposition of sentence of death, there would be no risk at all to the societal members at his hand and in that view of the matter, we rather feel that the interests of justice would be best served by commuting his sentence of death into one of imprisonment for life, and accordingly, we sentence him."
64. Could be say the same thing about the first accused in this case having regard to his antecedents and the manner in which he committed the three murders in this case ?. Before examining the circumstances we will also refer to the guidelines prescribed by the apex Court in Shankar (a) Gauri Shankar v. State of Tamil Nadu (1994) 2 Crimes, 1 (1994 AIR SCW 2083) where they give importance to the parameters laid down in Bachan Singh v. State of Punjab, (1980) 2 SCC 684 : (1980 Cri LJ 636) and the weight to be attached to the circumstances of the criminal. We may also add that the impact that is likely to be caused to the societal members or the public by the imposition of a lesser sentence and the moral that is likely to be drawn by the public of Gudalur Town from the triple murder for gain, should be kept in mind before deciding the issue. From the guide-line given by the apex court, we have culled out the following circumstances which should enable us to decide the issue :-
(i) It is a pre-planned roberry, with equipment to commit murder.
(ii) The first accused was particularly aware of encountering some resistance and he was mentally prepared for annihilating anybody who came between him and his avowed object.
(iii) It is not as if he asked the first and the second deceased to keep quiet so that he could peacefully commit robbery and they refused, thus forcing him to resort to violence. On the other-hand, he cleverly made a sound and brought the first deceased into the kitchen and without any provocation he simply twisted the neck of the helpless old lady, the very moment that she entered the kitchen. He had absolutely no regard for human values and his only thought was to commit robbery . In the same way, when he found another old lady sleeping (D. 2), without any provocation he strangled her with the help of the other accused, just to remove any obstacle in his attaining the goal of committing robbery. Again absolutely no regard for the life of a human being. After committing robbery, when he was confronted by the owner of the house and another (D. 3) approaching them, he did not hesitate to fire a shot without any warning at the two approaching persons, killing one of them and injuring another and thus enabling themselves to run away from the scene. We could see nothing but a depraved mind in the first accused who has no respect or regard for human lives. Has such a person any right to live in an organised society ? Would it be safe if he is allowed to come back and live in the town ?
(iv) The ruthless manner in which the first accused had planned to annihilate any one coming in his way of committing robbery is proved by the fact that he took an S.B.B.L. gun and a pistol apart from other lethal weapons.
65. Thus, we are able to see most of the aggravating circumstances adverted to in Bachan Singh's case (1980) 2 SCC 684 : (1980 Cri LJ 636) are present in this case, Coming to mitigating circumstances, we are unable to see any except one relating to the mercy shown on P.W. 2 It was not really mercy because, they ascertained from her that there was nobody else inside the house and they could get the keys only through her. Without her they could not have traced the jewels and cash so easily in the palatial house. There was no other reason as to why she alone was spared.
66. One other circumstance which we are called upon to consider is the probability that the accused can be reformed and rehabilitated. On this aspect, learned public prosecutor relied on certain pending cases against the accused and his attempt to escape once when he was being taken to the Court. These materials are available in a counter memo filed by the State in a Bail application filed in the Lower Courts. We passed an order on 20-10-1995 calling those papers from the Sessions Court. That document is at page 619 of the immaterial papers sent in pursuance of our order. It is dated 12-7-1994 and bears the Court seal on the same date. We extract below the contents of the said memo.
"6. It is submitted that the accused, Deivandran, moved bail before this Honourable Court and the State strongly objected the bail application on several grounds. The accused Deivendran (A.1) is concerned in several case, such as (1) Nadukandam P.C. (Kerala) Cr. No. 216/91, u/s. 397 and 402, IPC, (2) Vandamedu P.S. (Kerala) Cr. No. 119/91 U/s. 379, IPC, (3) Kumuli Lower Camp P.S. (Tamil Nadu) Cr. No. 94/92 u/S. 301, IPC and 25(1)(a) of Indian Arms Act, (4) Kumuli Lower Camp P.S. (Tamil Nadu) Cr. No. 210/85 u/S. 25(1)(a) of Indian Arms Act, (5) Kumuli Lower Camp P.S. Cr. No. 209/86 u/S. 379, 352, 336, IPC and 21(1)(a) of Indian Arms Act, (6) Negamam P.S. (Tamil Nadu) Cr. No. 65/92 u/S. 397, IPC., (7) Gudalur Range O.R. No. 1/85, C.C. No. 214/91 on the file of Judicial Magistrate, Uthamapalayam, u/S. 21(4), 15, 17(1), 45(1) of Animal Protection Act, (8) Gudalur Range W.L.O.R. No. 1/86-87 C.C. No. 215/91 (on the file of Judicial Magistrate, Uthamapalayam, (9) Cumbum Range O.T. No. 181/90-91 in C.C. No. 304/93 on the file of Judicial Magistrate, Uthampalayam. The above cases are still pending trial in different courts due to his non-appearance in Court. The Investigation Officer secured the Accused, Deivendran, with great difficulties. Then, he was detained under Goondas Act (Act 14/82). Accused, Deivandran will definitely abscond. It is a very difficult task for prosecuting agency to secure his presence. Hence, the State objected the bail application on the grounds mentioned supra.
7. The accused, Deivendran, moved his bail application before the High Court of Judicature at Madras, in Cr. M.P. No. 3866/94. His Lordship dismissed the bail application in Cr. M.P. No. 3866/94 only, on 16-6-1994.
8. It is further submitted, when the accused Deivendran was escorted to the Court for attending the hearing, his associates attempted to take him away from Police custody. By the vigilant act, the Police spoiled their attempt. In that connection, a case was registered u/S. 5 of Explosive Substance Act read with S. 9(b) of Indian Explosive Act, on 12-7-1993 in Andipatti P.S. Cr., No. 18/93.
9. It is humbly submitted that the accused, Deivendran, has threatened the witnesses through his henchmen. The prosecution apprehends that the accused Deivendran, will abscond if released on bail."
Besides, there are several representations., filed by the first accused with the sole idea of stalling the proceedings and the very commencement of the trial.
67. The above extract eloquently answers the question whether there is any chance of the first accused's reformation and rehabilitation. No doubt, most of the cases are pending but we cannot ignore the allegations and the style of living of the first accused as spoken to by P.W. 1 and the past records. Having given our anxious consideration to all the relevant circumstances, we are constrained to come to the conclusion that the first accused not only deserves the extreme penalty of death sentence but also does not have a right to live among the organised society of people who always cherish basic human values and human rights. We, therefore, confirm the sentence of death imposed on the first accused by the Sessions Judge. The other sentences under S. 120-B (10 years R.I.), S. 449 (10 years R.I.), S. 326 read with S. 34 (3 years R.I.) and life sentence for the murder of D.1 and D.2 under S. 302 read with S. 34, IPC are confirmed since there are no materials to hold that they are excessive and they shall get merged with the sentence of death.
68. We also accept the judgment of the trial Court that accused 1 to 3 are not liable to be convicted for the offence of S. 148, IPC.
69. One disturbing feature of the case is the failure of the Sessions Judge who framed the charges to frame a charge under S. 25(a) and (b) of the Arms Act, even though the final report of P.W. 25 under S. 173(2), Cr.P.C. did make out a case under the Arms Act and also annexed the sanction obtained from the competent Authority apart from citing the necessary witness to prove the charge. It is a serious lapse on the part of the Sessions Judge who framed the charges. We are told that the particular Sessions Judge is not in service now. Even the Sessions Judge who tried the case could have framed the charge if he had applied his mind. We were ourselves seriously thinking of framing an additional charge but reserved our decision to be taken at the end of the arguments. After hearing both sides and after taking a decision on the main charges, prudence impels us not to undertake the ordeal of bringing the accused from Madurai Jail to Madras and confining them here till the trial under a new charge is over. We also consider that there is some risk of the accused trying to escape in the process, having regard to his past conduct, to which we have made a reference already.
70. In fine, we confirm the convictions of the accused/appellants inrespect of the charges found proved against them and also confirm the sentence of death imposed on the first accused and the other sentences imposed on them to which we have already made a detailed reference. The Reference is answered accordingly and the appeal is dismissed.
Appeal dismissed.
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The State, Petitioner V. Banwari Lal, Respondent.

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DATE : 15-09-1995
1996-(102)-CRLJ -1078 -RAJ
JUDGE(S) :

Prem Chand Jain
V S Kokje
RAJASTHAN HIGH COURT
JUDGMENT
V. S. KOKJE, J. :- The Additional Sessions Judge No. 2, Shri Ganganagar has initiated a reference under Section 366(i) of the Code of Criminal Procedure for confirmation of death sentence imposed by him on accused Banwari Lal son of Nathu Ram of Suratgarh, District - Shri Ganganagar, having found him guilty of an offence under Section 302 of the Indian Penal Code for having caused the death of two of his younger brothers Baboo Lal and Harish Chandra by inflicting gunshot injuries on them. Accused Banwari Lal has also filed D. B. Criminal (Jail) Appeal No. 275/95 against his conviction under Section 302 I.P.C. and the death sentence imposed on him.
2. In view of proviso to Section 368 of the Code of Criminal Procedure, no order of confirmation of death sentence can be made until the appeal against conviction and sentence is disposed of. These two cases are therefore, heard together and are being decided by this common Judgment.
3. Chandra Kala (P.W. 2), widow of deceased Baboo Lal had lodged a First Information Report in Police Station - Suratgarh. The prosecution story as emerges from her statement is that accused Banwari Lal and deceased Baboo Lal and Harish Chandra were brothers. Accused Banwari Lal used to reside separately from them on the upper storey of the same house whereas deceased Baboo Lal and Harish Chandra used to live jointly Deceased Baboo Lal and Harish Chandra also used to live jointly till their agriculture land where accused Banwari Lal had a separate portion of the agriculture land. There was a tube-well in the agriculture land. All the three brothers had agreed to put up a Pump and the Motor on the tube-well jointly and agreed to share the expenses. Accordingly the equipment was purchased but accused Banwari Lal did not pay his agreed share even after a lapse of fifteen days. On August 17, 1991, when deceased Harish Chandra and Baboo Lal were irrigating their field in the evening, accused Banwari Lal declared that he would irrigate his field. Both the deceased brothers objected to his doing so on the ground that he had not paid his share in the amount spent on the equipment. Accused Banwari got enraged on this and fetched a double barrel gun from his house and started towards the field. Harish Chandra and Baboo Lal followed him. Seeing them following him, the accused declared that he will finish them that day and he fired one shot at Harish Chandra which hit him on the left side of the Chest. Deceased Baboo Lal tried to control the accused but the accused fired another shot at him which hit on the right side of the chest. Wives of Harish Chandra and Baboo Lal started crying and shouting. On this the accused ran away from the spot. In the meanwhile Sanjay son of the accused came on the spot and looking to the delicacy of the situation, went to Hardutt Singh Numberdar on Motorcycle. Hardutt Singh came on the spot in a Jeep, Put both the injured persons in the Jeep along with their wives and took them to Government Hospital, Suratgarh but both the injured persons succumbed to the injuries on the way to the Hospital. Accused Banwari surrendered along with his gun on August 20, 1991 and was taken in custody. After investigation, the accused person was tried and convicted and sentenced as aforesaid.
4. The learned Public Prosecutor supported the conviction and sentences and submitted that the death sentence deserves to be confirmed in the case as the accused person has committed a cold blooded murder of two of his younger brothers without any provocation and on a small dispute about payment of his share in the expenses for putting up a Motorpump on the tube-well. According to the learned Public Prosecutor, the manner in which the murders of two of his younger brothers were committed by the accused makes it one of the rarest of the rare cases in which the death penalty deserves to be imposed.
5. Mr. Doongar Singh, learned counsel for the accused Banwari submitted that the prosecution has failed to bring out the whole truth before the Court and it has been suppressed that there was a quarrel and attempt to snatch the gun from the hands of the accused. According to him, the possibility of the two brothers being killed accidently or the accused him-self acting in self defence, cannot be ruled out. The learned counsel submitted that there were five injuries on the body of deceased Baboo Lal apart from gun shot wounds which were lacerations or abrasions caused by blunt weapon. According to the learned counsel these were caused by the butt of the gun or a blunt portion of the gun. It was also submitted that these injuries could be caused in struggle for snatching the gun. According to the learned counsel if that was so as, the gun was being snatched away, a reasonable apprehension would arise in the mind of the person holding the gun that after snatching the gun, it will be used against him and this would give him a right of private defence. According to the learned counsel these injuries also support the theory that gun might have got fired accidently in the scuffle for snatching the gun. The learned counsel further submitted that Vimla and Sanjay, the wife and the son of the accused were eye-witnesses to the incident but were given up by the prosecution. This resulted in presentation of the top sided picture before the Court and the prosecution did not put the whole storey by examining these two witnesses before the Court.
6. Learned counsel for the appellant cited the cases of Dominic Varkey v. The State of Kerala, AIR 1971 SC 1208 : (1971 Cri LJ 1057), Narendra Singh v. State, CR LR (Raj), 1987, 165, Basudev Singh v. Booma Singh, 1966 Cri App R (SC) 322, in support of his contention.
7. The learned Public Prosecutor relied on Laxman Naik v. State of Orissa, AIR 1995 SC 1387, Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484 : (1983 Cri LJ 822) and Mayur Panabhai Shah v. State, AIR 1983 SC 66 : (1982 Cri LJ 1972).
8. The prosecution is mainly based on the testimony of the two widows viz. Pushpa (P.W. 1) and Chandra Kala (P.W. 2). Pushpa (P.W. 1) reiterated the prosecution story. She deposed that as the motor earlier fixed on the tube-well burnt-out, a new motor was brought for which Harish Chandra and Baboo Lal had paid money. They had asked the accused about this and he had said that they should bring the motor and he will give them money afterwards. Harish Chandra and Baboo Lal asked for the contribution towards the expenses from Banwari Lal several times but he kept on avoiding. On the fateful day at about 8.00 - 8.30 p.m. the fields of Harish Chandra and Baboo Lal were being irrigated and at that time Banwari said that he would irrigate and his field. Harish Chandra and Baboo Lal told him to pay one-third of the expenses coming to his share and then get water for irrigating his field. On this Banwari Lal said that he will irrigate the field and challenged the two brothers by saying 'let anyone who wanted to stop him from doing so, try and stop him.' Banwari Lal went upstairs, brought the double barrel gun and went towards the tube-well. Harish Chandra and Baboo Lal followed him and this witness Pushpa wife of Harish Chandra and Chandra Kala wife of Baboo Lal followed them. She further deposed that within their view, Banwari Lal shot Harish Chandra and when Baboo Lal tried to intervene, Banwari shot him also. On receiving the gun shots, both of them fell down there. On the witness and Chandra Kala's raising an alarm, Vimla wife of Banwari and Sanjay son of accused came on the spot. The witness added that they had seen the incident in the light emanating from an electric bulb fitted on the 'dhani'. Sanjay went on a Motorcycle to bring Hardutt Numberdar. Harish Chandra and Baboo Lal were put in the Jeep and they along with this witness and Chandra Kala, were taken to the Government Hospital. Harish Chandra and Baboo Lal succumbed to the injuries on the way to the Hospital. The witness further stated that she went along with Chandra Kala to the Suratgarh Police Station and a report was lodged. The witness also proved certain memoranda which she had signed.
9. In her cross-examination, many questions were asked to her but what is relevant for our purpose is as follows. She stated that Banwari fired at Harish Chandra first, he fell down. Baboo Lal tried to intervene. Banwari hit him on head, ear and mouth by barrel of the gun and wherever he hit with the barrel, lacerations appeared. She was then confronted with her case diary statements but she could not explain the omission in that statement about the injuries inflicted with the barrel of the gun. When confronted with her case diary statement, she could not also explain omission in the statement about herself and Chandra Kala following Harish Chandra and Baboo Lal who were following Banwari. A suggestion was given to her that when Banwari was going for irrigating his field, Baboo Lal and Harish Chandra chased him and said that he should be done away with by snatching the gun he was carrying and Harish Chandra and Baboo Lal caught the gun from the barrel side on which Banwari snatched the gun. Banwari got the gun free and hit Baboo Lal by the butt of the gun in self-defence. Harish Chandra and Baboo Lal still tried to snatch the gun and in this scuffle accidently the gun got fired from both the barrels. One fire hit Baboo Lal and the other fire hit Harish Chandra. She denied the suggestion. She also denied the suggestion that she and Chandra Kala had not seen the occurrence and that Banwari had not fired intentionally at Harish Chandra and Baboo Lal. She has also denied the suggestion that when Harish Chandra and Baboo Lal fell down, Banwari gave them water to drink and sent his son Sanjay for making arrangements of conveyance to carry and injured persons to the Hospital. She also denied the suggestion that Banwari went to the Police Station for lodging First Information Report. She has also stated that Harish Chandra and Baboo Lal did not speak on way to the hospital. She was asked about the distance of the 'dhanis' of Vikram Singh, Succha Singh, Sajna Ram and Buta Singh, she replied that she did not know the distance but admitted that 'dhanis' of these persons are there. She also deposed that Sanjay came with the Jeep about one or one and a half hours after the incident. She has also deposed that after the incident when she and Chandra Kala shouted, Bimla had come on the spot.
10. Chandra Kala (P.W. 2), the other eye-witness who has also lost her husband in the incident repeated the same story with a slight difference in details. She stated that when Banwari Lal went for diverting water to irrigate his field with the gun, Harish Chandra and Baboo Lal followed him and Pushpa and she herself followed them. She stated that before firing at Harish Chandra, Banwari Lal told them that he would kill them at once and then fired at Harish Chandra. He fell down. Baboo Lal tried to intervene. He was also shot at by Banwari Lal. On Pushpa (P.W. 1) and herself raising an alarm Banwari ran away. Bimla and Sanjay came on the spot. The source of light given by her was an electric bulb. She also proved the memoranda which she had signed.
11. In her cross-examination, she was confronted with her case diary statements and omissions were pointed out in respect of Pushpa (P.W. 1) and herself following Banwari Lal, Harish Chandra and Baboo Lal. In the cross-examination, she had admitted that Banwari Lal had hit Baboo Lal with the barrel of the gun also. The story of Harish Chandra and Baboo Lal trying to snatch the gun from Banwari Lal and during the scuffle the gun having went off accidently was also put to her but she denied the suggestion.
12. Dr. Om Prakash Sharma (P.W. 3), was examined as a Medical expert. He proved the post-mortem reports in respect of both the deceased persons. He deposed that injury No. 1 on the body of Baboo Lal was entry wound caused by fire with blackening. Pellets were not spread in the entry and, therefore, according to him the gun shot was fired from a close range. Injuries Nos. 2 and 4 on his body were exit wounds caused from the pellets. The pellets were entered the body through injury No. 1 which was on right side of the chest and went off to the right side of the back. The direction of the pellets was rightward. He further deposed that injuries Nos. 5 to 10 on the body of Baboo Lal were caused by blunt object and if a person was struck with the barrel of the gun using it as a 'Lathi', such injuries could be caused. He has also deposed that the possibilities of accidental fire during the scuffle for snatching the gun, cannot be rule out.
13. As regards injuries on the body of Harish Chandra, the witness stated that injury No. 1 was a single aperture entry wound with blackening. There was no spread of pellets in this injury and the fire was from a close range. Injuries Nos. 2, 3 and 4 on the body of Harish Chandra were exit wound, of the pellets. The pellets had entered his body from the left side of the chest travelled rightwards. All the injuries were caused by one fire alone and a 'dat' has been received from his body. He also stated that the possibilities of accidental fire during scuffle for snatching the gun, cannot be ruled out.
14. Hardutt Singh, (P.W. 5), who was called on the spot by Sanjay, the son of the accused Banwari Lal, has turned hostile to the prosecution. He has tried to support the theory of accidental fire of the gun during scuffle for snatching the gun. He is not an eye-witness but he was the first person contacted after the incident and he tried to take the injured persons to Hospital but they succumbed to the injuries before reaching the Hospital. In his examination-in-Chief itself, he started saying that Sanjay came and told him that during scuffle for snatching the gun between his father and his uncles, uncles received gun shot injuries. When he went to the 'dhani' he saw that Baboo Lal and Harish Chandra were injured having received gun shot wounds and wives of Banwari Lal, Baboo Lal and Harish Chandra and Banwari himself were on the spot. He further stated that the wives of Baboo Lal and Harish Chandra told him that their husbands had received gun shot wounds during scuffle for snatching the gun. He further stated that Banwari was trying to make Baboo Lal and Harish Chandra drinking water through a bottle. He was declared hostile. In his cross-examination, he admitted to have signed several memoranda prepared by the Police. When confronted with his case diary statements, he could not explain properly the contradictions and omissions.
15. Statements of Investigating Officer, Richpal Singh (P.W. 7) were also recorded.
16. When we examine the evidence in totality, we find that the testimonies of Pushpa (P.W. 1) and Chandra Kala (P.W. 2), widows of the deceased persons clearly reliable and, the defence theory of the accidental fire of the gun during scuffle wholly unreliable. It is impossible that both the barrels of a gun would get accidently fired during scuffle in such a manner that two persons said to be snatching the gun would receive simultaneously the injuries of the gun found on the bodies of the deceased persons. The Medical Opinion, cannot be given such an importance in the face of cogent eye-witnesses account. The appellant in his statement under Section 313 of the Code of Criminal Procedure has taken the plea of gun having been fired accidently in the scuffle. We do not find the defence trustworthy in the face of evidence of eye-witnesses whose presence on the spot cannot be denied and who cannot be said to be interested against the appellant to the extent of falsely implicating him. If the gun had got fired accidently, there was no reason why these two widows would see to it that the appellant, the only other adult/male member of the family be involved in a false case. Their relations may not be cordial but could not be said to be inimical also as the widows admit that Bimla and Sanjay had immediately reached the spot and Sanjay was sent to arrange a conveyance.
17. The learned counsel for the appellant laid great stress on the prosecution having given up cited witnesses viz., Bimla and Sanjay, the wife and son of the appellant. According to the learned counsel when the presence of these witnesses was admitted on the spot, there was no reason why prosecution should have given up these witnesses. He also submitted that these two witnesses were actually eye-witnesses of the occurrence and an adverse inference should be drawn against the prosecution for their non-examination.
18. The argument appears on the face of it attractive but does not withstand a closer scrutiny.
19. In Pal Singh v. State of U.P., AIR 1979 SC 1116 : (1979 Cri LJ 917), the Supreme Court has observed that even if some eye-witnesses mentioned in the First Information Report were not examined by the prosecution, an adverse inference cannot be drawn invariably in every such case from the fact of non-examination of such witnesses alone. When the Court had believed two eye-witnesses and had found that their testimony was absolutely credit-worthy and truthful, it could not have rejected the prosecution case merely because some of the eye-witnesses mentioned in the F.I.R. were not examined. It was further observed that in such cases, the question which has to be determined is not whether the absence of the examination of the independent witnesses would vitiate the prosecution case by itself but whether the evidence actually produced is reliable or not. Once the Court gives a finding of fact that the evidence led by the prosecution is reliable and trust-worthy, the infirmities arising out of non-examination of witnesses will not be sufficient to put the prosecution out of Court.
20. In the present case, there is a plausible explanation for the non-examination of the two witnesses cited by the prosecution. Both the witnesses are closely related with the accused being wife and son respectively of the accused. If the prosecution expects these witnesses not to support it and gives them up, the only inference which could be drawn was that if examined these witnesses would not have supported the prosecution. That would not make the position of the prosecution worse than the position in which it would have been put, if the witnesses had been examined and turned hostile. Even in that contingency, the Court could have appreciated the evidence as a whole and could have relied on the testimony of eye-witnesses which supported the prosecution discounting the testimony of the witnesses which did not support the prosecution. An adverse inference to the extent that the prosecution has not put up the whole story before the Court and, therefore, its entire evidence should be discredited cannot be drawn in such circumstances. Moreover, the prosecution never admitted these witnesses to be eye-witnesses. It was only admitted that they had arrived on the spot immediately after the incident. It has also to be kept in mind that these witnesses being near relatives of the accused, it was always open to the accused person to get them examined as defence witnesses or moved for their being examined as Court witnesses. Nothing of the sort has been done by the accused person. In such circumstances of the case, therefore, no adverse inference could be drawn from non-examination of these two witnesses.
21. From the overall assessment of the evidence, therefore, it can be safely concluded that the conviction of the appellant does not deserve to be interfered with.
22. The question now remains to be considered is whether in the circumstances of the case, the Capital sentence passed against the appellant can be confirmed ?
23. In Machhi Singh v. State of Punjab, AIR 1983 SC 957 : (1983 Cri LJ 1457), it was observed that the extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
24. In Earabhadrappa v. State of Karnataka, AIR 1983 SC 446 : (1983 Cri LJ 846), it was observed that death sentence should not be passed except in rarest of the rare cases.
25. In Muniappan v. State of Tamil Nadu, AIR 1981 SC 1220 : (1981 Cri LJ 726), it was observed that special reason must be given for imposing death sentence and the fact of the murder being terrific would not be adequate reason.
26. In Shidagouda Ningappa Ghandavar v. State of Karnataka, AIR 1981 SC 764 : (1981 Cri LJ 324), it was observed that the rule that the normal sentence for the offence of murder is life imprisonment should be observed both in letter and in spirit. The death sentence should be imposed in very extreme cases.
27. The trial Court has founded the death sentence on the circumstances that the accused person killed his two younger brother without any provocation. According to the trial Court, the accused person wanted to take water for irrigation without payment of his share of expenses of fitting a Motor-pump on the tube-well. The trial Court has also observed that demanding for one-third share of expenses was not unreasonable and refusal to accept that demand on the part of the accused person showed that the accused person was greedy and obstinate. The trial Court also observed that the crime was pre-planned, as the accused went for diverting the water to his field with a gun in his hand and when the two brothers followed unarmed, he took it as an insult and taking it against his self-respect, decided to kill them. The trial Court also observed that the way in which the crime was committed was also brutal and deceased Harish Chandra was fired at without any provocation when he was unarmed. When Baboo Lal tried intervene, he was hit by the "butt" of the gun and the accused never thought of running away from the spot or to leave the other brother unharmed. The trial Court also observed that the injuries on the dead bodies speaks of the intentional homicide.
28. It is very difficult to agree with the reasonings of the trial Court. It is true that the accused person had without any grave or sudden provocation caused the death of his two younger brothers that it was done on a petty quarrel about share of expenses of Motor-pump is also clear but to say that it was pre-planned would be too much in the circumstances. It appears that when the accused person took his licenced gun with him and went to divert the water of his field declaring his intention to do so and challenging the two brothers he did not entertain any intention to kill the two brothers ab initio. It appears to be more of a bravado with the intention of intimidation. It appears that the intention to kill was developed at the spur of the moment when the two brothers followed the deceased obviously, with the intention not to allow him to take water unless he paid his share. It appears that the accused person wanted to threaten the two brothers with the gun and expected them to cow-down. The deceased in their turn might not have expected the accused person to fire at them and seem to have taken the bravado of the accused as a mere bluff which they wanted to call by refusing to pay heed to the threats or to take them seriously. When the accused saw that his brothers were not taking the threat seriously, it appears that at the spur of the moment, he felt compelled by the brave stance he had taken to execute his threat and fired at Harish Chandra. This state of mind explains as to why when Baboo Lal tried to intervene, accused person did not directly fire at him but tried to ward him off by hitting him by the side of the barrel of the gun or by the "butt" of the gun. It it had been a pre-planned thing, Baboo Lal would also have been fired at almost immediately after Harish Chandra was fired at. It is very difficult to accept that there was any pre-plan to commit these two murders. Moreover, the trial Court's conclusion about the money being due from the accused person cannot also be accepted. The only thing which prosecution has established is that there was a dispute between the brothers, the deceased demanding one-third share of the expenses of the Motor-pump and the accused denying the liability on the ground of his having spent money on purchase of a part of the Motor. It cannot be concluded from this that the accused was indebted to his brothers and his not paying the amount would show his greedyness or his obstinacy.
29. In the circumstances of the case, therefore, we do not find that there are any special reasons for imposing death sentence on the accused. The sentence deserves to be reduced to life imprisonment with a fine.
30. In Palaniappa Gounder v. The State of Tamil Nadu, AIR 1977 SC 1323 : (1977 Cri LJ 997), it was observed by the Supreme Court that it is not correct to first consider what compensation ought to be awarded to the heirs of the deceased and then impose by way of fine an amount which was higher than the compensation because the compensation has to come out of the amount of fine. If would be putting cart before the horse by leaving the proriety of fine to depend upon the amount of compensation. It was observed that the first concern of the Court after recording an order of conviction, ought to be to determine the proper sentence to pass. The sentence must be proportionate to the nature of the offence and the sentence including the sentence of fine, must not be unduly excessive. It was further observed that in fact the primary object of imposing a fine is not to ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine is realised, which can happen only when the fine is not unduly excessive having regard to all the circumstances of the case including the means of the offender. It was further observed that since by virtue of Section 357(1)(c) of the Code of Criminal Procedure, compensation can only come out of fine, it is always necessary to consider in the first instance whether the sentence of fine is at all called for, particularly when the offender is sentenced to death or life imprisonment. If so, the fine must not be excessive, having regard to all the circumstances of the case like motivation of the offence, the pecuniary gain likely to have been made by the offender by committing the offence and his means to pay the fine.
31. This case was considered in a later Supreme Court decision in Sarwan Singh v. The State of Punjab, AIR 1978 SC 1525 : (1978 Cri LJ 1598), observed in this case that the object of the section is to provide compensation payable to the persons who are entitled to recover damages from the person sentenced even though fine does not form part of the sentence. In awarding compensation it is necessary for the Court to decide whether the case is a fit one in which compensation has to be awarded. If it is found that compensation should be paid, then the capacity of the accused to pay the compensation has to be determined. In directing compensation, the object is to collect the fine and pay it to the person who has suffered the loss. The purpose will not be served if the accused is not able to pay the fine or compensation. Imposing a default sentence for non-payment of fine would not achieve the object. If the accused is in a position to pay the compensation to the injured or his dependents to which they are entitled to, there could be no reason for the Court not directing such compensation. When a person, who caused injury due to negligence or is made vicoariously liable is bound to pay compensation it is only appropriate to direct payment by the accused who is guilty of causing an injury with the necessary Mens Rea to pay compensation to the person who has suffered injury. It was then observed referring to the decision in Palaniappa Gounder v. The State of Tamil Nadu, 1977 Cri LJ 997 (SC) (supra), that the Court should not first consider what compensation ought to be awarded to the heirs of the deceased and then impose a fine which is higher than the compensation. It is the duty of the Court to take into account the nature of the crime, the injury suffered, the justness of the claim for compensation, the capacity of the accused to pay and other relevant circumstances in fixing the amount of fine or compensation.
32. In Guruswamy v. State of Tamil Nadu, AIR 1979 SC 1177 : (1979 Cri LJ 704), compensation was awarded reducing the death penalty to that of life imprisonment. In that case the accused had committed the murder of his father and his brother. The two murders were committed during a family quarrel. The Supreme Court while reducing the sentence of death to that of Life Imprisonment imposed a fine of Rs. 10,000/- and directed payment of amount of fine, when collected to the dependents of the deceased.
33. The circumstances of this case are very much akin to the aforesaid decision.
34. In the present case, though we are of the opinion that the extreme punishment of death sentence is not called for, but while reducing the same to Life Imprisonment, it is necessary to impose in the circumstances of the case, a fine. The appellant is an agriculturist having facilities of irrigation. He had a licensed gun and a share in the house in which he was living, though separately, from his other two brothers. He can be taken to be a middle-class farmer, and would in our opinion be able to pay a fine of Rs. 30,000/-. It has come in the evidence that the deceased besides their wives had four living children each, who were dependent on them. These dependents deserve to be compensated for the loss caused to them. A direction, therefore, deserves to be given for payment of Rs. 15,000/- to the dependants of deceased-Harish Chandra and Rs. 15,000/- to the dependants of deceased-Baboo Lal as compensation out of the fine when recovered.
35. For the aforesaid reasons, the Murder Reference No. 2/95 is answered in the negative and death sentence is not confirmed. D.B. Criminal (Jail) Appeal No. 275/95 is partially allowed. The conviction of the appellant is upheld but the sentence is reduced to Life Imprisonment with a fine of Rs. 30,000/-. When the amount of fine is recovered, a sum of Rs. 15,000/- shall be paid to the dependants of deceased Harish Chandra and the balance of Rs. 15,000/- shall be paid to the dependants of deceased-Baboo Lal.
Order accordingly.
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S. G. Gundegowda Alias Moganna, Appellant V. State By Yealur Police, Hassan District, Respondent.

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DATE : 31-08-1995
1996-(102)-CRLJ -0852 -KAR
JUDGE(S) :

M B Vishwanath
M M Mirdhe
KARNATAKA HIGH COURT
JUDGMENT
MIRDHE, J. :- This appeal (Cr.A. 501/93) is preferred by the appellant, who was the sole accused before the trial court against the judgment dated 2nd November, 1993 passed by the Principal Sessions Judge, Hassan, in S.C. No. 5/92 convicting the appellant - accused for the offence punishable under Section 302 I.P.C. and sentencing him to death. The appellant - accused is also convicted for the offence under Section 3 read with Section 30 of the Arms Act and sentenced to undergo R.I. for three months and the learned trial Judge ordered that the sentence of R.I. for three months awarded to the appellant for the offence under Arms Act shall merge in the death sentence imposed on the appellant-accused.
2. The Principal Sessions Judge, Hassan, has also made a reference under Section 366 Cr.P.C. for confirmation of death sentence awarded by him to the appellant - accused.
3. Since both these matters are connected with each other, we have heard them together and we are passing this common Judgment in both these matters.
4. We have heard Sri Shankarappa, learned counsel for the appellant, and the learned Additional State Public Prosecutor Sri A. B. Patil, for the respondent, fully and perused the records of the case.
5. The case of the prosecution is as follows :
That deceased Mallesha was the elder brother of the appellant and deceased Yogisha was the son of Mallesha. P.W. 1 Gurumurthy is another son of deceased Mallesha. There was a dispute between Mallesha and the appellant in respect of the kharab land situated in between the lands of the appellant and deceased Mallesha and on the date of the incident P.W. 1, deceased Mallesha, and deceased Yogisha had gone to that kharan land and had put up a fence. The appellant is the licence holder of S.B.B.L. gun M.O. 2. On 4-8-91 at about 5 p.m. P.W. 1, Mallesha and Yogisha were returning after putting a fence around the kharab land and on the way the appellant suddenly appeared and fired at Mallesha causing him injuries resulting in his death and he also fired/Yogisha causing him gun shot injury and when Yogisha managed to hide behind a bush to save himself, the appellant picked up a machu fallen down on the ground by the side of Mallesha and dealt blows with it on the head, right shoulder and on the right thigh resulting in his death. P.W. 1 ran for his life and escaped from the place of incident and came to his house and informed about the incident to his mother Rukminiyamma and his uncle Ananda. He also informed the fact of the offence to the S.H.O. on phone. The S.H.O. came over to Kamanahalli after noting down the phone message that he received from P.W. 1 in the station house diary and he visited the scene of offence and saw the dead bodies and P.W. 1 prepared his complaint and he came to the police station and presented his written complaint to the P.S.I. The P.S.I. registered the complaint and after completion of the investigation, the police filed charge-sheet against the appellant-acused.
6. The learned Trial Judge after assessing the evidence led by the prosecution came to the conclusion that the prosecution has been able to prove the guilt of the appellant beyond reasonable doubt and he also held that this is the rarest of rare type of case and a fit case to award death sentence to the appellant and accordingly he has awarded death sentence to him besides the sentence of three months R.I. for violation of the provisions of the Arms Act.
7. The counsel for the appellant submitted as follows :-
That the evidence of the prosecution witnesses does not prove the guilt of the appellant beyond reasonable doubt; the case of the prosecution on motive is improbable and suffers as the relevant witnesses have made improvements changing the survey number in which the kharab land is situate. P.W. 1 is not only an interested witness but also a got up witness. Ex. P-21 - the phone message is also a concocted one. The complaint Ex. P-1 - is hit by Section 162 Cr.P.C. as Ex. P-21 - the phone meassage will be the F.I.R. in this case and the police had moved into action after the phone message. The evidence of P.W. 1 is improbable. P.W. 1 has marked time to give his complaint with a view to concoct a false story involving the appellant. Even the evidence of Ballistic Expert P.W. 26 Prabhakara cannot be relied upon as the evidence discloses that M.O. 2 and the cartridges were sent to him nearly after one month and the possibility of the seals having been tampered with cannot be ruled out in this case and no original seals have been produced either by the I.O. or the panchas. The evidence of the prosecution on extra-judicial confession also suffers on account of the improvements made by the witnesses concerned and also the improbability of making the extra-judicial confession either before P.W. 2 or P.Ws 4 and 13. On the basis of these arguments he submitted that the judgment of the trial court convicting the appellant is not sustainable.
8. In the alternative the counsel for the appellant submitted that if the Court comes to the conclusion that the conviction recorded by the trial court is sustainable in law, still this is not a case of rarest of rare cases to award death sentence to the accused.
9. The learned Additional State Public Prosecutor argued as follows :-
That the evidence of the witnesses proves the guilt of the appellant-accused beyond reasonable doubt. There is clinching evidence of the doctor P.W. 19 who conducted the p.m. examination on the dead bodies of Mallesha and Yogisha and the evidence of P.W. 26, the Ballistic Expert, which proves beyond reasonable doubt that the two deceased died due to the gun shot injuries and Yogisha also suffered injuries caused by machu by the appellant. The prosecution has been able to show from the evidence of the wife of deceased Mallesha and the evidence of Ananda that there was a land dispute regarding the 'kharab' land between the appellant and the deceased Mallesha and on that day P.W. 1 and the two deceased had gone to put up the fence around the kharab land and the appellant met them on the way and caused the death of Mallesha by firing at him with his S.B.B.L. gun and also caused the death of Yogisha with the same S.B.B.L. gun and causing injuries to him with machu - M.O. 1 that Mallesha had carried for putting fence. The evidence of P.W. 1 cannot be disbelieved merely because he is interested. There is no delay as such in filing the complaint. In view of the facts and circumstances of the case, even the delay in the receipt of the F.I.R. by the concerned Magistrate is explained in the prosecution evidence. The extra-judicial confession made by the appellant before P.W. 2 and also P.Ws 4 and 13 is proved by their evidence and there are no improbabilities or inherent defect in their evidence to reject it. The evidence of Ballistic Expert P.W. 26 corroborates the evidence of P.W. 1. For all these reasons the learned Additional State Public Prosecutor prayed for confirming the order of the trial court. He has further submitted that in view of the fact that even after Yogisha was injured and when he tried to hide under a bush, the appellant took the machu that had fallen from the hand of Mallesha and assaulted Yogisha and caused many injuries with machu. This cruelty on the part of the appellant in inflicting further injuries with machu even after Yogisha was on the verge of death shows the streak of a beast in the appellant and because of that this case becomes rarest of rare kind so as to award death sentence to the appellant. On the basis of these arguments he prayed for dismissal of the appeal.
10. The evidence of the prosecution led against the appellant can be classified under the following facts :-
i) The homicidal death of Mallesha and Yogisha due to the gun shot injuries and also injuries caused to Yogisha by machu;
ii) The motive on the part of the accused to cause the death of these two presons in view of the dispute between him and Mallesha in respect of phut kharab situated in between the land of the appellant and Mallesha;
iii) The evidence of P.W. 1, who witnessed the accused shooting at Mallesha with his S.B.B.L. gun M.O. 2 and also shooting at Yogisha and also assaulting Yogisha with machu which Mallesha had carried with him;
iv) The extra judicial confession made by the appellant-accused before P.W. 2 in the presence of P.W. 3 and another extra-judicial confession made by him before P.W. 4 and her husband P.W. 13.
11. Now, we will have to see whether the findings recorded by the trial court after assessing the evidence on record is sustainable in law or not on the homicidal deaths of Mallesha and Yogisha. It is the case of the prosecution that Mallesha and Yogisha died a homicidal death due to the injuries sustained by them by gun shots and also the death of Yogisha was caused by blows inflicted on his head and other parts of the body with a chopper. P.W. 19 doctor Thimmaiah who was working as Medical Officer in the Primary Health Centre in Yeslur in that year conducted p.m. examination of the dead bodies of deceased Mallesha and deceased Yogisha and he has deposed that in response to the requisition received by him from the Sub Inspector of Police, Yeslur police station he went to the spot where the dead bodies of Mallesha and Yogisha were lying in the Government Gomal land in Kamanahally and he conducted p.m. examination over the dead body of Yogisha first between 11.40 a.m. to 2.30 p.m. on 5-8-91 and he noticed as many as 12 external injuries as stated by him in his evidence. He has also stated that there were internal injuries about which he has spoken in detail in his evidence. He has stated that the injuries noted were ante-mortem in nature and the death was due to shock and haemorrhage as a result of gun shot and head injury. His p.m. report Ex. P-18 corroborates his evidence. His further evidence is that the death of Yogisha was between 18 to 24 hours prior to the commencement of his p.m. examination. He has also spoken about the direction and the distance from which shots were fired on the deceased Yogisha. The evidence of the doctor P.W. 19 proves beyond reasonable doubt that the deceased Yogisha died a homicidal death as a result of gun shots from a gun and also as a result of injuries caused on his head with a machu. This witness has further deposed that on the same day he conducted p.m. examination over the dead body of Mallesha between 2.45 p.m. and 5.30 p.m. and he noticed three external injuries which he has described in detail in his evidence and he also noticed internal injuries about which he has spoken in detail in his evidence. He has stated that the death of the deceased Mallesha was due to shock and haemorrhage as a result of injuries to heart, lung and liver which were caused by gun shot. Ex. P-19 is his p.m. report which corroborates his evidence. His further evidence is that injuries to the heart, lung and liver were caused by gun shots. His further evidence is that injuries to the heart liver and lung were fatal injuries and they were sufficient to cause the death and the death of Mallesha could have been caused about 18 to 24 hours prior to the commencement of p.m. examination. Thus, the evidence of P.W. 19 proves beyond reasonable doubt that the deceased Mallesha died a homicidal death due to the injuries caused to him by firing of gun shot and the deceased Yogisha died a homicidal death due to the injuries caused by firing 3 to 4 gun shots and also the injuries caused on his hand and other parts of the body with a chopper.
12. Motive :- The case of the prosecution on motive is that there was a kharab land situated in between the lands of Mallesha and the accused and since deceased Mallesha and Yogisha and P.W. 1 had enclosed the same by putting a fence, the accused committed the murders of Mallesha and Yogisha. The evidence of P.W. 1 Gurumurthy, P.W. 2 Sarojamma, P.W. 8 Rukmini and P.W. 13 Mogannagowda is relied upon by the prosecution to prove its case against the accused on the point of motive. P.W. 1 has stated in his evidence that his father Mallesha paid the T.T. charges for the years from 1979-80 to 1990-91 as per the receipts Ex. P-2 issued by the Village Accountant P.W. 5 Thirumalegowda. He has also deposed that his father was raising crops in the said land. P.W. 5 has supported the prosecution case. He has spoken about the issuing of Ex. P-2 and also the deceased Mallesha raising coffee plantation in the said land. The contention of the appellant's counsel is that if the deceased Mallesha was cultivating the land authorisedly or unauthorisedly for a period of ten years, there was no immediate provocation for the accused to cause the deaths of his brother and his nephew. But the evidence of P.W. 1 discloses that it is only since 2 to 3 years prior to the incident the accused was quarrelling with Mallesha contending that he is entitled to the kharab land. P.W. 1 has also deposed that whenever Mallesha raised any crop in that kharab land, the accused used to let his cattle into the land to graze and destory the crops. The reason for putting up the fence, according to the P.W. 1, was to protect the crops raised by Mallesha in that land and stop the cattle of the accused to stray into the protion of that land. From the evidence of P.W. 1 it is clear that the quarred had started when Mallesha raised the crops 2 or 3 years prior to the incident. P.W. 2 is the sister-in-law of the accused who has corroborated P.W. 1, P.W. 8 is the wife of the deceased Mallesha and her evidence is to the effect that the villagers had advised the accused and her husband Mallesha to settle the matter amicably between themselves. Her evidence disclosed that the accused had objected for the grant of land in favour of Mallesha since they paid the T.T. charges and since he is laying a claim on the land. Mallesha has paid the T.T. charges on 6-5-91 after obtaining permission from the Tahsildar which is corroborated by Ex. P-2. Therefore, from these pieces of evidence the trial court was justified in coming to her conclusion that Mallesha paid the T.T. charges on 6-5-91 after obtaining permission from the Tahsildar P.W. 2's evidence further discloses that the land was not cultivated by Mallesha previously. Therefore, this contention of the learned counsel for the appellant that there was no immediate cause for the accused to commit the murder cannot be believed. The evidence discloses that the deceased cultivated the land only 2 or 3 years prior to the incident after paying the T.T. charge on 6-5-91 under Ex. P-2. P.W. 1's evidence further discloses that the said kharab land which is situated in Sy. No. 49 was converted to wet land at the time of the incident. P.W. 5 has deposed that Mallesha had enclosed 2 acres of kharab survey No. 49 of Manjoor village and he raised coffee plantation in the said land. His evidence also discloses that the matter is pending before the concerned Deputy Commissioner for the grant of land. From these pieces of evidence it is apparent that the accused was also laying claim to that kharab land which was encroached by Mallesha and in respect of which Mallesha paid T.T. charges some 3 or 4 years prior to the incident. The evidence of P.Ws 1 and 8 further discloses that Mallesha and Yogisha had gone to that land to put up a fence and that while they were returning the incident happened. The accused was laying claim to the kharab land as can be seen from the evidence of these prosecution witnesses and there was dispute between Mallesha and the accused in respect of that land. The cultivation of that land by Mallesha seems to have enraged the accused, who letting his cattle into the crops raised by Mallesha into that land and getting it destroyed by his cattle. This act of the accused made Mallesha to put a fence around that kharab land. This incident added further fuel to the anger of the accused against Mallesha and his sons. It is contended by the learned counsel for the appellant that the case of the prosecution that there was a kharab land in respect of which there was a dispute between the accused and the deceased is false as no kharab land is to be found in Sy. No. 50. Ex. D-2 is the extract of survey No. 50 and it discloses that there is no kharab land in that survey number. On the basis of Ex. D-2 this argument is advanced. The perusal of Ex. D-2 shows that there is no kharab land in Sy. No. 50. But, this point is clarified by P.W. 1 in his evidence wherein he has stated that the kharab land is situated in Sy. No. 49 and not in Sy. No. 50 and it is situtated just adjacent to Sy. No. 50 where his father and the accused got their wet lands adjacent to the Kharab land. His evidence is also to the effect that on the application made by his father Mallesha the said kharab land was granted to his father. Ex. P-5 is the survey sketch which discloses that there is a kharab land in Sy. No. 49. It is also disclosed from that survey sketch that the kharab land in Sy. No. 49 adjoins the Sy. No. 50. Ex. P-4 is the acknowledgment given to P.W. 8 Rukmini in respect of her application given for the grant of 2 acres 20 guntas of kharab land in Sy. No. 49. The evidence of P.W. 1 that the disputed land is situated in Sy. No. 49 and this kharab land is in Sy. No. 49 which adjoins Sy. No. 50 where Mallesha and the accused got their lands. Therefore, the trial court was justified in not rejecting the prosecution case on the ground that there is no kharab land in Sy. No. 50 but the kharab land exists in Sy. No. 49.
13. Another contention of the defence is that in the documents Exs. P-2 to P-2 to P-5 there is no mention that the disputed land is in Kamanahalli village on the other hand, it is in Manjoor village. P.W. 5 has stated that the distance between Manjoor village and Kamanahalli is only four furlongs. In view of this clarification this discrepancy also does not amount to a material discrepancy. Paying of T.T. charges by Mallesha, the survey sketch Ex. P-5 and the acknowledgment Ex. P-4 on the application of P.W. 4 for the grant of said land unmistakably goes to show that the disputed kharab land is situated in Sy. No. 49 of Kamanahalli village. The prosecution has been able to prove beyond reasonable doubt that there was a dispute between the accused and Mallesha in respect of kharab land situated in Sy. No. 49 of Kamanahalli village and that kharab land was just adjacent to Sy. No. 50 where Mallesha and the accused were having their wet lands.
14. When the case of the prosecution is based on the evidence of eye witnesses, the existence or non-existence of motive, sufficiency, or insufficienty of motive will not play such a major role as in the case which is based on merely circumstantial evidence. If the prosecution is able to prove its case on motive it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive, that will not be a ground to throw overhead the prosecution case because in a case where there are eye witnesses the prosecution case will have to be decided on the basis of the merits of the evidence of such witnesses. In 1993 SCC (Crl) 869 : (1993 Cri LJ 1656). (Jarnail Singh v. State of Haryana), it has been held by the Hon'ble Supreme Court that failure to establish motive would not affect prosecution case. The case of the prosecution will have to be decided on the basis of the positive evidence of the eye witnesses. In this case the prosecution has been able to prove from the evidence of P.W. 1 Gurmurthy, P.W. 2 Sarojamma, P.W. 8 Rukmini and P.W. 13 Mogannagowda that on account of the dispute in respect of the kharab land situated in Sy. No. 49 and deceased Mallesha having cultivated the said kharab land the accused was nursing enmity against his brother. The learned counsel for the appellant submitted that these witnesses have made improvements by not stating before the police that the dispute was in respect of Sy. No. 49. It is to be noted that all these witnesses have stated before the police that there was a dispute between Mallesha and the accused in respect of the kharab land. But they have not given the details of the situation of that kharab land and they seem to have given a wrong survey number also. But their evidence which is corroborated by the documentary evidence referred above, this mistake committed by the prosecution witnesses that the kharab land is situated in Sy. No. 45 cannot be a ground for the Court to suspect the prosecution evidence. It was also suggested to P.W. 1 that he was cultivating the land in the name of his father on payment of T.T. charges. The trial court was justified in relying on the evidence of P.Ws. 1, 2, 8 and 13 to come to the conclusion that there was a dispute between Mallesha and the accused in respect of that kharab land situated in between the lands of Mallesha and the accused and Mallesha was cultivating it and on that day he and his sons put up a fence around the kharab land which led the accused to the commission of the murders of the said two persons. It is contended on behalf of the appellant that there was a dispute between Seetamma and Mallesha in respect of Sy. No. 47/7 for which Seetamma had filed a suit against Mallesha and as accused did not support the deceased Mallesha was bearing illwill against him. From the evidence of the prosecution it appears that Mallesha had already sold that land to Rajegowda and one Seetamma had filed a suit in respect of that land in the Court of the Civil Judge at Hassan. The evidence does not show that either the accused or Mallesha had anything to do with the said land and there was any reason for Mallesha to develop any illwill towards the accused on that count. Moreover, no such material is placed before the Court in spite of some suggestions made to the prosecution witnesses that the deceased Mallesha and his family members were bearing illwill against the accused as he was not supporting Mallesha in the land dispute between Rajegowda and sons of Seetamma. The trial Court has rightly assessed the evidence of the prosecution witnesses on the point of motive and has come to the correct conclusion that the prosecution has been able to prove beyond reasonable doubt that on account of the dispute between Mallesha and the accused regarding the kharab land in Sy. No. 49 the accused has a motive to commit the murders of Mallesha and his son Yogisha.
15. The next piece of evidence relied upon by the prosecution is the evidence of P.W. 1 Guru Murthy who is the solitary eye-witness in this case. P.W. 1 is the son of Mallesha, and the younger brother of deceased Yogisha. He has deposed that on the date of the incident at about 11 a.m. he, his father Mallesha and his elder brother Yogisha had gone to their land taking food with them for putting up a fence to the kharab land situated adjacent to the wet lands of his father and the accused. In his evidence he has made it clear that they were cultivating the said land by paying T.T. charges and that there was a dispute between his father Mallehsa and the appellant in respect of that land for the past 2-3 years. He has further deposed that his father had taken a machu with him for the purpose of fencing. He has deposed that after putting up the fence, they were returning at about 4.45 p.m. by a path way passing through the gomal land and when they were so returning at about 5. p.m., the appellant who was hiding near a bush suddenly got up and fired a gun shot which hit his father on the right side of his chest and the shot was fired from a distance of 70' to 80' and his father fell down after turning to a side with his face facing upwards, and the machu fell by his side. It is further the evidence of P.W. 1 that after seeing the incident he and his elder brother Yogisha started shouting and they tried to hide themselves behind a bush and at that time from a distance of 20' the appellant fired another shot at his brother Yogesha which hit him on his left leg and then P.W. 1 ran away from that place and hid himself by the side of another bush at a distance of 20' from that place and P.W. 1 has further stated that his brother Yogisha after receiving the gun shot on his left leg managed to get up from that place and he went to another bush by dragging his left leg and on seeing him accused fired another 3-4 shots at his brother from a distance of 20' towards all sides of the bush where his brother was hiding. P.W. 1 has stated that the shots hit the left side of the chest, left leg and the back of Yogisha. It is further the evidence of P.W. 1 that the appellant did not leave his brother Yogisha at that stage, but he took up chopper which was lying by the side of Mallesha and with that chopper he gave blows on the head, right shoulder and right thigh of Yogisha and that, thereafter, the accused chased P.W. 1 but he ran towards the side of gomal land and managed to escape. P.W. 1 has further stated that the appellant left the machu on the place of incident and went towards his house with his gun and at that stage he noticed Moganna Gowda and his wife Dayamma coming from the side of their house. P.W. 1 has further stated that after seeing the incident, he ran to his house which is situated at a distance of 2 kms. from the place of incident and reached there at 6 p.m. and told about this incident to P.W. 8 Rukminiyamma his mother and also Anand his another uncle P.W. 9, and that, thereafter, he went and informed about this incident to his uncle Krishnegowda who was standing near the provision store at a distance of 50' from his house and then he went and telephoned to P.W. 14 Shankaregowda requesting him to bring his jeep and come along with Lokeshagowda P.W. 18. his mother's sister's husband informing them that his father and elder brother were murdered. It is further his evidence that he, his uncle Krishnagowda, his uncle Ananda went to the place of incident and saw the dead bodies of Mallesha and Yogisha on the spot. It is also his evidence that after returning from the place of the incident after seeing the dead bodies of his father and brother he contacted Yeslur Police on phone by booking a trunk call from his telephone No. 47 of Changanhalli Exchange and passed on this information to Yeslur Police at about 7.30 p.m. It is his further evidence that after the police came, he took the police to the place of incident and showed the bodies of his father Mallesha and brother Yogisha and thereafter, he got a complaint written by P.W. 14 Krishnagowda and then went in the jeep to the police station and gave his complaint Ex. P-1 to the P.W. 24 in the Yeslur Police Station.
16. The evidence of this witness is attacked by the defence on the ground that he is an interested witness, that it is not safe to rely on his evidence. Merely a witness is interested or related cannot be a ground for the Court to discard his evidence. In short, the defence wants the evidence of P.W. 1 to be rejected on the ground that he is the son of Mallesha and the brother of Yogisha. In AIR 1973 SC 2443 : (1973 Cri LJ 1596), Bishan Singh v. The State of Punjab, the Supreme Court has held as follows :
"In a trial for murder, the mere fact, that the witness is the father of the deceased is not sufficient to discredit his testimony. Normally a close relative of the deceased would be most reluctant to spare the real assailants and falsely mention the names of other persons as those responsible for causing injuries to the deceased."
In AIR 1981 SC 1390 : (1981 Cri LJ 1012), State of Rajasthan v. Smt. Kalki, the Supreme Court has shown the distinction between 'related' and 'interested'. It has held as follows : (Para, 5A)
"'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'."
In the case dealt with by the Supreme Court in that Ruling, the widow of the deceased was only eye-witness who saw the incident. But the Supreme Court has held that she cannot be called as an interested witness merely on the ground that she is related to the deceased. The Supreme Court has held that such a witness has no interest in protecting the real culprit and falsely implicate the accused. In AIR 1977 SC 472 : (1977 Cri LJ 273), Mst. Dalbir Kaur v. State of Punjab, the Supreme Court while dealing with the evidence of a close relative has held as follows : (Para 13)
"A close relative, who is a very natural witness in the circumstances of case, cannot be regarded as an 'interested witness.' The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or for some other reason."
The law in this regard is well settled that a witness cannot be merely disbelieved on the ground that he is related to the deceased. The evidence of such related witness will have to be assessed carefully and after careful assessment of the evidence, if it is found to be acceptable, the Court will be justified in acting on the evidence of such witnesses. We do not find that the P.W. 1 can be called as an interested witness though he may be related to the deceased as he had no reasons to save the real culprit of his father and brother and involve in place of real culprit, the appellant falsely in this case.
17. The appellant's counsel further submitted that this witness P.W. 1 has acted in an unnatural manner as he did not try to save his own father and brother from the fatal attack made by the appellant on them and that he did not also disclose about the incident to P.Ws. 4 and 13 whom he met on the way and also did not inform his uncles or their wives whose houses were situated on the way to his house. In AIR 1983 SC 680 : (1983 Cri LJ 1272), Rana Partap v. State of Haryana, the Supreme Court has held that evidence of a witness cannot be discarded on the ground that they did not react in a particular manner. The Supreme Court has held as follows : (para 6)
"Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of witnesses on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way."
In the light of this Ruling of the Supreme Court the evidence of P.W. 1 cannot be rejected on the ground that he has not acted in a particular manner by not going to the rescue of this father and brother or by not telling Mogannagowda and Dyayamma or by not going to the houses of his uncles and aunts whose houses were situated on the way.
18. Another attack levelled by the appellant's counsel against the prosecution is that the incident took place at 5.00 p.m. and the complaint Ex. P-1 is given to the police on the same day at 10.30 p.m. The defence contends that there is an inordinate delay in filing the complaint and Ex. P-1 cannot be the complaint in view of the phone message Ex. P-21 alleged to have been given by P.W. 1 It is also contended on behalf of the accused that even the receipt of FIR by the Magistrate is late as it was delivered to the jurisdictional Magistrate on the next day at 8 a.m. From these circumstances, the defence argues that the Ex. P-1 is a concoction and P.W. 1 is a liar. From the evidence of P.W. 1 and P.W. 22 it is proved that soon after the incident and informing his mother and others about the incident. P.W. 1 has given a telephone message to P.W. 22 and that telephone message is recorded at Ex. P-21, Ex. P-21 read as follows :
It is the contention of the defence that in view of Ex. P-21 and the fact that S.H.O. had left the police station and came over to the place of incident and saw the dead bodies. Ex. P-1 is hit by Section 162, Cr.P.C. as it has been recorded by the police after FIR Ex. P-21 and after the starting of the investigation in this case. Section 154 of Cr.P.C. lays down that every information relating to the commission of a cognizable offence if given orally to an officer-in-charge of a Police Station shall be reduced to writing under his direction and shall be read over to the informant and shall be signed by the person giving it and the substance thereof shall be entered in a book in such form as the State Government directs. Now the question is whether this telephonic message which is recorded at Ex. P-21 by P.W. 22 can be held to be the FIR in this case. The contention of the learned Addl. S.P.P. is that this cannot be an FIR because all other particulars are not mentioned in Ex. P-21 and it is not signed as required by Section 54, Cr.P.C. by P.W. 1. The question is now whether an information relating to the commission of congnizable offence received by the S.H.O. through a telephonic message can be an FIR. In 1977 Cri LJ 107, Raberi san Cova v. The State of Gujarat, the Supreme Court (sic) has held as follows :
"The first information is the earliest report made to the police officer with a view to his taking action in the matter. If the receipt of the information of an incident by the police requires the police to take an action in the matter or to investigate into it, then certainly it becomes the information of a cognizable offence."
Their Lordships of the Supreme Court (sic) dealing with the facts in that case have observed as follows :
"The officer-in-charge of the police station received a telephonic message from a head constable P that a quarrel had taken place betwen some persons in a village in which one person had received grievous injuries and had become unconscious. He did not record the message in the telephonic register of the police station but issued order in writing to Head Constable to proceed to that village and directed him to do the needful. Subsequently a complaint about the incident was filed with the police.
Held that the information which was given by P was an information of a cognizable offence, and, therefore the first information within the meaning of Section 154 which led to action being taken by the police. It was after this information was received that the complaint was recorded by the police. Since the incident was reported to the police earlier than the complaint was recorded and since the police had taken action in the matter any other information received by the police subsequently would be hit by Section 162. Since it was hit by Section 162 it was inadmissible in evidence."
Similarly in 1979 SCC (Cri) 910 : (1979 Cri LJ 1358). Somappa Vamanappa Madar and Shankarappa Ravanappa Kaddi v. State of Mysore the Supreme Court has held that where the investigation commenced on receipt of telephonic information about the crime, statements given subsequently furnishing detailed particulars of the accused is hit by Section 162, Cr.P.C. But our High Court in the Ruling reported in (1961) 39 Mys LJ 823. Boya Thiappaiah v. State of Mysore, has held that the phone message which was not signed by the medical officer in that case did not fall within Section 154, Cr.P.C. as no investigation was actually started after the receipt of the phone message. Similarly our High Court has held in the Ruling reported in (1965) (2) Mys LJ 646, Pascal D'Souza v. State of Mysore, a telephone message cannot be considered as first information contemplated under Section 154, Cr.P.C. In view of the law laid down by the Supreme Court (sic) in 1977 Cri LJ 107, referred to supra, the law laid down by our High Court in these two Rulings holding that telephonic message cannot amount to FIR under Section 154. Cr.P.C. cannot be said to be good law any more.
19. But the learned Public Prosecutor relied on AIR 1970 SC 1566 : (1970 Cri LJ 1415), Tapinder Singh v. State of Punjab, wherein the Supreme Court has held that an anonymous telephone message at police station that firing had taken place at taxi stand does not amount to FIR. But the point to be noted in this Ruling is that the telephone message was anonymous and therefore their Lordships of the Supreme Court had held that such an anonymous telephone message will not amount to an FIR under Section 154, Cr.P.C. The learned Public Prosecutor also relied on (1969) 3 SCC 730 : (AIR 1969 NSC 85), Sakharam v. State of Maharashtra, wherein the Supreme Court has held that a telephonic message that a person was lying injured without indicating that any offence was committed will not amount to FIR. Again the point to be noted in this Ruling is that the message was only to the effect that a person was lying injured. The message did not disclose that any offence was committed, muchless, cognizable offence. In view of these facts of the case. Their Lordships of the Supreme Court have held that it will not amount to an FIR in the case. The learned Public Prosecutor also brought to our notice the Ruling in AIR 1975 SC 1453 : (1975 Cri LJ 1201), Some Bhai v. State of Gujarat, therein the Supreme Court has held that the first information report is the earliest report made to the police officer with a view to taking his action in the matter. In that case the Supreme Court held that a cryptic telephonic message will not constitute an FIR. After perusing the Supreme Court Rulings stated above it is clear that a telephonic message also can be a FIR provided it discloses the particulars required by Section 154, Cr.P.C. about the commission of cognizable offence. The contention of the learned Addl. P.P. that the telephonic message cannot be an FIR as it does not bear the signature of the informant is also not acceptable in view of the fact that the conditions laid down by Section 154 regarding the reducing into writing the oral complaint and the signing of the complaint is merely procedural. If there is information relating to the commission of a cognizable offence, the mere fact that the police officer did not reduce it in writing which is in fact the first information, will not make it any less a first information. In this case, Ex. P-21 discloses the name of the informant, the phone number from which he sent the message and the names of the two deceased persons, names of the accused and also the death of the two persons named therein due to gun shots fired by the accused. Ex. P-21 discloses the commission of a cognizable offence by the accused and the name of the informant. Merely because it is not signed by P.W. 1 will not make it a less first information report. We think that Ex. P-21 is an FIR. more so when after P.W. 22's coming over to Kamanahalli, P.W. 1 has confirmed about his having sent the telephonic message to the police. After recording the telephonic message in the Station House Diary, P.W. 22 came to the place of the incident and P.W. 1 confirmed about his having sent the phone message. The phone message was not a hoax in this case. It was a real phone message which has been confirmed by P.W. 1 and which discloses all the ingredients of a commission of a cognizable offence by the appellant. In view of these factors, we think that Ex. P-21 is the FIR, in this case. P.W. 22 has stated in his evidence that if a mere information is given over phone he will not register a case. This answer of P.W. 22 only discloses that he does not know the position of law correctly and no fault can be found with P.W. 22 as the question whether telephonic message can be an FIR under Section 15, Cr.P.C. was still a deabtable point till the law was laid down by the Supreme Court in the Rulings referred to by us above. In view of the fact that Ex. P-21 amounts to an FIR, under Section 154, Cr.P.C. and P.W. 22 had come to the place of incident and seen the dead bodies, which is an indication that the investigation had already started on that information, Ex. P-1 the complaint will be hit by Section 162, Cr.P.C. Though the trial Court has held that Ex. P-1 is the complaint Ex. P-21 is not the FIR., it has also considered in the alternative a to how the prosecution case will stand in case Ex. P-21 is held to be the FIR in this case. Even after holding that Ex. P-21 is the FIR in this case, the case of the prosecution remains unaffected. In this case the evidence of P.W. 1 stands corroborated by the averments in Ex. P-21 in respect of the death of Mallesha and Yogisha by gun shot injuries by appellant. But, there is no mention in Ex. P-21 about there being any assault by the accused on Yogisha with a machu. The complaint is not the encyclopedia of the prosecution case. P.W. 1 had seen his own father and brother being murdered burtally and thereafter, he ran home to save his life. He was a boy of 18 years then. He informed his mother, uncle and others about the incident and passed on this information, on telephone to the police. When a person passes on any information on the telephone, it is but natural that he will be precise and concise in his statement. He may not be able to give as many details as he can when he is face to face with a person than when he is speaking on the phone. Moreover, the medical evidence discloses that the deceased Yogisha had also injuries on his head, shoulders which can be caused by a machu. Mere non-mentioning of the fact that Yogisha was also assaulted by machu by the accused is not a ground for us to disbelieve the evidence of P.W. 1 because he has given all the particulars of the offence and particulars given by him relating to the assault by machu is corroborated by medical evidence.
20. The learned counsel for the appellant submitted that this evidence of P.W. 1 does not inspire confidence for the reason that the police have not drawn up any mahazar of the Kharab land which was alleged to have been fenced on that day. It is a fact that the police have not drawn up any mahazar regarding the fencing of the kharab land by Mallesha, Yogisha and Gurumurthy, P.W. 1 But that will not affect the veracity of the prosecution case becuase the offence has not taken place on that kharab land. The offence has taken place at some distance away from that kharab land. It would have been better if a mahazar was drawn of that fence on that kharab land to corroborate P.W. 1 But the mistake of the Investigating Officer in not drawing up the mahzar of that kharab land cannot be a ground for the Court to disbelieve the evidence of P.W. 1 which is found to be acceptable and trustworthy.
21. Another contention of the counsel for the appellant is that it will not be safe to rely on the solitary evidence of P.W. 1. Section 134 of the Evidence Act lays down that no particular number of witnesses shall in any case be required for the proof of any fact. Law does not require that there should be any particular number of witnesses for proving the case of the prosecution. The counsel for the appellant relied on a decision in the case of Mahendra Singh v. State of Rajasthan, AIR 1989 SC 982 : (1989 Cri LJ 886), wherein the Supreme Court has held that it was not safe to rely on the testimony of the sole eye-witness in that case. No law is laid down in this ruling that the testimony of a solitary witness cannot be relied upon. On the facts of the case in that ruling, Their Lordships have held that the testimony of the sole eye-witness in that case was unreliable and unacceptable and, therefore, it was not safe to rely on the sole testimony of the eye-witness in that case. But, in the case of Vadivelu Thevar v. The State of Madras, AIR 1957 SC 614 : (1957 Cri LJ 1000), the Supreme Court has held that the conviction can be based on the evidence of a solitary eye-witness and referring to Section 134 of the Evidence Act, it has observed that the well recognised maxim "Evidence has to be weighed and not counted" is enshrined in the said section. The Supreme Court has held as follows :
"The contention that in a murder case, the Court should insist upon plurality of witnesses, is much too broadly stated. The Indian Legislature has not insisted on laying down any such exceptions to the genral rule recognised in Section 134, which by laying down that "no particular number of witnesses shall, in any case, be required for the proof of any fact" has enshrined the well recognised maxim that 'Evidence has to be weighed and not counted." It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whole testimony has to be either accepted or rejected. If such a testimony is found by the Court to be entirely reliable, there is no impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution.
Generally speaking oral testimony in this context may be classified into three categories, namely (1) wholly reliable (2) wholly unreliable and (3) neither wholly reliable and wholly unreliable. In the first category of proof, the Court should have no difficulty in coming to its conclusion either way it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or sub-ornation. In the second category, the Court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The Court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the Court to convict, if it is satisfied that the testimony of a single witness is entirely reliable."
Therefore, the Court will not be justified in insisting upon the plurality of witnesses to prove certain fact of the prosecution case when the evidence of one witness is satisfactory and acceptable and free from infirmity for the conviction of the accused.
22. The evidence of P.W. 26 also corroborates the evidence of P.W. 1. It is the case of the prosecution that 7 empty cartridges were seized from the place of incident and M.O. 2-gun was also seized from the accused and the pellets recovered from the two dead bodies were sent in sealed bottles by the medical officer to P.W. 26. P.W. 26 has deposed that the S.B.B.L. gun, M.O. 2, bears the signs of discharge and the empty cartridges sent to him have been fired from that gun M.O. 2 and the pellets sent to him by the medical officer have been fired from the sam S.B.B.L. gun. He has issued the certificate exhibit P-26 and his report exhibit P-26(a). P.W. 26 examined the shirt, banian and lungi of Mallesha, marked as M.Os. 14, 13 and 12, removed from his dead body, and the banain, shirt, lungi and drawer of Yogisha, marked as M.Os. 4, 3, 5 and 6, removed from his dead boy, and sent to him for his opinion and he has opined that the holes in the said clothes are caused due to the passage of the said pellets which were fired from the S.B.B.L. gun, M.O. 2. In his report exhibit P-27(a), he has given the details and the methodology of his examination and reasons for his opinion. He has deposed that he compared the firing pin marks on the empty cartridges M.O. 15 sent to him which were recovered from the place of incident with the test cartridges fired from the same gun M.O. 2 and found that the individual characteristic marks of firing pin on M.O. 15 are identical with that of test cartridges marked as T1 to T5 which were fired from M.O. 2-S. B.B.L. gun. His evidence discloses that he tested M.O. 2. and found that it was in working condition and he also examined the pellets sent to him in the sealed bottles by the medical officer, which were recovered from the dead bodies of the deceased, and the two bottles have been marked as M.O. 23 and M.O. 24. On the basis of the holes noticed by him in the clothes of deceased Mallesha and Yogisha, he has estimated the range of firing of the gun shots. P.W. 26 has stated that there will be 80 to 100 pellets in a cartridge. In view of this answer of P.W. 16, it is contended on behalf of the defence that all the 7 empty cartridges were not recovered from the place of the incident in this case. P.W. 25 has admitted in his cross-examination that he did not find any pellets lying on the ground near the place of incident though he searched for them. P.W. 26 has stated that unless there are exit wounds on the dead bodies, all the pellets will be inside the body and if the firing range is more, there are chances of some of the pellets falling on the ground. It is also elicited in the evidence of P.W. 26 that some of the pellets may fall down after making holes in the shirt of the victim before entering the body of the victim. But, this witness has further clarified in his evidence that if the pellets fell on the ground are mixed up with muddy soil due to heavy rain, it will not be possible to trace them. P.W. 18 has deposed that there was heavy rain on the night of the incident and it was raining throughout the night. The evidence of P.W. 1 makes it clear that the incident took place in the gomal land. So, it is quite possible that the pellets might have fallen on the ground and they might have mixed up in the soil and could not have been traced by the investigating officer P.W. 25. If P.W. 25 was not able to recover some pellets from the scene of offence, it may be a lapse on the part of the investigating officer, but that cannot be a ground for the Court to disbelieve the prosecution case in view of the fact that some cartridges and blood-stained machu M.O. 1 were recovered from the place of the incident. It has been contended by the counsel for the appellant that P.W. 12, mahazardar, has deposed that only four empty cartridges were recovered from the place of incident and they were seized under exhibit P-10 and, therefore, the case of the prosecution that 7 cartridges were recovered from the place of incident cannot be true. P.W. 12 has stated that only 4 cartridges were recovered from the scene of offence. But, exhibit P-10 discloses that in fact 7 cartridges were found from the place of incident. Therefore, the evidence of P.W. 12 that only 4 cartridges were recovered is a mistake on his part and this mistake seems to have occurred on account of the fact that he had deposed some time after the recovery of the cartridges from the scene of incident. Exhibit P-10 discloses the exact place where the empty cartridges were found. In fact, the distance from the dead bodies at where the empty cartridges were lying has been given. It is also mentioned in exhibit P-10 that the 7 cartridges recovered from the place of incident and M.O. 1-machu were separately packed and sealed with the seal of the letters "B.A." P.W. 25 has deposed to that effect. P.W. 26 has deposed that the said seal was found in tact when he received and tallied with the sample seal sent by the I.O. Therefore, the contention of the defence that the case of the prosecution that 7 cartridges were recovered from the place of incident is a concoction cannot be accepted. P.W. 19, the medical officer, has deposed that 12 pellets were recovered from the dead body of Yogisha and 11 pellets were recovered from the dead body of Mallesha and they were kept by him in two bottles and the bottles were sealed by him. In his evidence, he has identified, those bottles as M.Os. 23 and 24, P.W. 25 has deposed that he received the said sealed bottles from P.W. 19 on 3-9-1991 and he immediately sent them along with the seven empty cartridges M.O. 15 to the ballistic expert, P.W. 26 also testifies that the seals on the articles he received were found to be in tact. Therefore, it is difficult to accept the contention of the counsel for the defence that M.O. 15 and the pellets in the two bottles were planted for the purpose of this case. According to the evidence of P.W. 1, one shot was fired at Mallesha on the rightside of his chest which killed him instantaneously at the spot. The contention of the defence is that this evidence is not supported by the medical evidence of P.W. 19 and the evidence of ballistic expert P.W. 26.
23. P.W. 19 has deposed that he found 46 punctured wounds over the lateral wall of right chest scattered from right axilla upto the superior border of the right hip bone in an area of 22 inches x 5 inches, that 21 punctured situated over the ventral aspect of right upper arm scattered from the upper part of the right hand arm, upto the lower part of fore-arm, and that another 15 punctured wounds situated over the right scapulor region, scattered from superior region of the scapula upto the lower part of the scapula. According to the defence, in view of the location of the injuries on the dead body of Mallesha, 3 different shots must have been fired at Mallesha and not one shot as deposed by P.W. 1 But, P.W. 19 has clarified in his evidence that with one shot, all the injuries could be caused. According to P.W. 19, the range of the shot could be from a distance of 50 to 65 feet from Mallesha. Even P.W. 26 has clarified this position that all the three injuries could have been caused by one shot. P.W. 26 has also clarified that there need not be corresponding injuries on the body to the holes formed in the shirt showing the entry of multiple pellets in the body as some of the pellets may fall down after making a hole in the shirt, and that the injuries found on Mallesha could have been caused by 2 or 3 pellets entering body at the same time. P.W. 26 has clarified in his evidence that if 2 or 3 pellets enter the body at the same place of injury. 1 1/2 size of the injury could be caused and if a person is standing with his hands down and if the shot is fired from a side with a little angle and if he moves to a side, it may cause injury even on the ventral side of the hand. He has also stated that whenever a shot is fired to the right side of the body from right angle on the dorsel side of the right arm, the wound formed will be circular in shape and unless there is an exit wound to that injury, there will be no injury on the ventral side of the right hand. He has also stated that if the arm is lifted, it may cause corresponding injury on the side of the chest and it depends upon the range and the posture of the body, on the basis of these answers of P.W. 26, it is argued by the prosecution that the injuries on the person of Mallesha could have been caused with one shot. In view of the evidence of P.Ws. 19 and 26, causing of 3 injuries on the body of Mallesha with one shot cannot be said to be an improbability because these injuries could be caused by a sudden reflex action on the part of deceased Mallesha by lifting his right hand to some extent with the pellets entering on the side of his chest. We find support for this inference in the ruling of the Supreme Court in the case of Mohd. Aslam alias Kuyian v. State of U.P, 1993 SCC (Cri) 577 : (1993 AIR SCW 1382). In that case, one of the deceased sustained gun shot injuries at the back. There was interval between the two shots and though it was very short. Their Lordships have help that it was not unlikely or highly improbable that because of inherent reflex, the deceased had turned his side and received the injuries at the back.
24. It is contended by the counsel for the appellant that there is discrepancy with regard to the actual number of shots fired at the time of the incident in the evidence of P.W. 1, in his complaint exhibit P-1, and in the evidence of P.Ws. 2, 3, 4 and 13. No doubt, there is some discrepancy in respect of the number of shots fired as spoken to in the evidence of P.W. 1, as mentioned in exhibit P-1 by him, and in the evidence of P.Ws. 2, 3, 4 and 13. But, the witnesses cannot be expected to count the number of shots fired correctly, more so P.W. 1, when he was seeing the ghastly murders of his elder brother and father before his own eyes. At that time the mental condition of a person witnessing the murders of his father and brother will not be so as to make him aware to count the number of shots. These witnesses are rustic persons and when an incident of this magnitude had occurred, it is but natural that there will be some discrepancy in their evidence regarding the number of shots fired at the time of the incident. But, one thing is certain that minimum seven shots must have been fired at the place of the incident. P.W. 19 has deposed that Yogisha might have been hit by five or six shots. It is the specific evidence of P.W. 1 that one shot was fired at Mallesha. Then, the remaining five shots must have been fired at Yogisha and this inference is corroborated by the recovery of seven empty cartridges from the place of the incident. Expecting P.W. 1 to count the number of shots fired when he was witnessing the ghastly murders of his father and brother and when his life itself was in danger of being extinguished at the hands of the accused is to expect something unnatural and improbable from a person who is placed in such a situation. P.W. 26 has explained that with reference to the shirt of Mallesha in Article No. 1, one shot must have been fired at Mallesha and in respect of Article 4, shirt four shots must have been fired at him, and with reference to the lungi of Yogish, two shots must have been fired at him. The evidence of P.W. 26 discloses that seven shots could have been fired at the place of the incident. He has further opined that with reference to lungi in Article No. 6, two shots must have been fired from the back-side of the victim. He has given his opinion on the basis of injuries Nos. 10 and 11 found from the post-mortem report pertaining to Yogisha. He has stated with reference to the shirt in Article No. 1 of Mallesha that the approximate range of firing was 60' from the muzzle end of the gun and with reference to the shirt of Yogisha in Article No. 4, the approximate range was 45' from the muzzle end of the gun. He has deposed that there were three separate gun shot holes formed in the shirt of Yogesh and with reference to hole No. 2 on that shirt, the range of firing was beyond 9' and within 12' from the muzzle end of the gun and with reference to holes Nos. 3 and 4 on that shirt, the firing range was beyond 9' and within 12'. It is also his evidence that in all these clothes, the presence of lead was detected around the edges of the holes. The evidence of P.W. 19 discloses that one shot must have been fired at Mallesha. He has opined that the death of Yogesha was due to shock and haemorrhage as a result of gun shot and head injury sustained with machu. P.W. 26, in his evidence, has stated as to how the injuries have been caused to deceased Mallesha and Yogisha by firing gun shots at the abovesaid ranges. Therefore, the evidence of P.W. 19 and P.W. 26 supports the evidence of eye-witness P.W. 1.
25. The counsel for the appellant submitted that the evidence of P.W. 26 will not be safe to be relied upon, because there is nothing in the evidence to show that the articles were kept in safe custody before they were sent to the expert, P.W. 26. It is also contended by him that the mahazardar has not produced the samples sent and the evidence of P.W. 21 shows that the articles were returned to him by the F.S.L., Bangalore, as they were not properly packed and sealed. He relied on a decision in the case of Modan Singh v. State of Rajasthan, 1979 SCC (Cri) 56 : (1978 Cri LJ 1531), wherein the Supreme Court has held that the prosecution must lead evidence to show that the articles seized were kept safely till they were sent to the expert. These observations were made by the Supreme Court in that case in the light of the facts of that case that the prosecution was silent as to in whose custody the objects were till they were sent to the expert. It is also contended by the counsel for the appellant that the gun M.O. 2 and the empty pellets M.O. 15 were sent to the expert only after a delay of nearly one month. P.W. 24 has deposed that on 5-8-1991 at about 3.00 or 3.30 p.m. he went to Yeslur Police Station along with the C.P.I. and at about 4.00 p.m., the accused appeared before him and produced one gun i.e., M.O. 2, which was seized by the C.P.I. under a mahazar in the presence of the mahazardars and the mahazar is exhibit P-17. P.W. 17 Mallegowda has deposed that on that day at about 4.00 p.m. when he got down from a bus at Yeslur coming from Hassan, near Yeslur Police Station he was called to the Police Station by the police, and that the accused was in the police station holding a gun and the police seized the gun in his presence after drawing the mahazar under exhibit P-17, and it was packed and sealed. Though P.Ws. 17 and 24 have been cross-examined by the defence, we do not find any such material in their cross-examination to lead to the inference that the case of the prosecution regarding the accused himself producing M.O. 2 is concoction. Further, the evidence of P.Ws. 12 and 25 discloses that M.O. 15, 7 empty cartridges, have been recovered from the place of the incident under exhibit P-10. P.W. 25 has deposed that on 5-9-1991 the seized gun was sent by him to the ballistic expert and on 3-9-1991, he received the pellets in sealed bottles from the medical officer and he sent them along with the 7 empty cartridges, M.O. 15, to the ballistic expert. No sample seal is produced by the mahazardar in this, case. The defence has also not questioned as to the reasons for the non-production of the sample seal by the mahazardar.
26. It has been contended by the counsel for the appellant that the articles were sent back by the F.S.L., Banglore, as they were not properly sealed, and therefore, the case of the prosecution that the articles were properly sealed and sent to P.W. 26 does not deserve to to be accepted. The evidence of P.W. 21 has to be seen in this regard. He has deposed that he took the property seized in this case to the F.S.L., Bangalore, and handed over them in that office, but the cloth packets were returned to him in the said office saying that they were to be packed separately and so he immediately returned to the C.P.I. office at Hassan. The evidence of P.W. 21 is that the cloth packets were returned to him by the office of the F.S.L. not on the ground that they were not properly sealed, but on the ground that they were required to be packed separately. He has further deposed that on 9-9-91, he again took all the properties in sealed packets and handed over them to the F.S.L., Bangalore, and the clothes, machu and four mud-pots were returned to him saying that separate letters were to be addressed for giving opinion in respect of them. It is made clear by P.W. 21 in paragraph-4 of his deposition wherein he has stated as follows :
"4. Seven packets of clothes, one machu, four mud-pots were handed over to C.P.I. office and reported compliance. The gun, empty seven cartridges and the pellets sealed in two bottles were retained in F.S.L. to send them to Ballistic expert."
The evidence of P.W. 21 is very clear on the point that the packets were returned as they were required to be packed separately and the clothes, machu and mud-pots were returned as separate letters were required to be addressed for giving opinion after examination. But, his evidence is very clear that the gun, 7 empty cartridges and the pellets sealed in two bottles were retained in the F.S.L. to send them to the ballistic expert. In view of this clear evidence of P.W. 21, it is difficult to accept the contention of the counsel for the appellant that these articles were not properly sealed. Non-production of the sample seals by the panchayathdar is an irregularity. But, that irregularity will not go to the root of this case, because we find the evidence of P.Ws. 12, 17, 21, 24, 25, 19 and 26 acceptable and safe to be relied upon that the articles were sealed when they were seized by the police under different mahazars and the seals were in tact when they were sent to P.W. 26. P.W. 25 has also deposed specifically in his evidence that the seals were in tact when he received the packets for examination of its contents. The contention of the counsel of the appellant is that the evidence of P.W. 26 does not deserve to be accepted because the prosecution has not shown into whose custody those properties were given. There is no scope to raise such an inference in this case in view of the evidence of P.Ws. 19, 12, 17, 21, 24, 25 and 26 that all the articles were properly packed and sealed and the seals were in fact when the articles were sent to P.W. 26 who examined the seals and found them to be intact. There is no such material elicited in the cross-examination of P.W. 26 to lead to the inference that there is any motive on his part to depose falsely that the seals on those articles were intact.
27. The other argument that is advanced by the counsel for the appellant is that the medical evidence contradicts the evidence of P.W. 1. This argument is based on the evidence of P.W. 19 who has stated in his cross-examination that both the deceased could have died within 1 1/2 hours to 2 hours after taking their last meal, since semi-digested food was found in their stomachs. It is also contended by the counsel for the appellant that P.Ws. 1 and 8 have made improvements in their evidence that P.W. 1, Mallesha and Yogisha had taken their food for lunch when they left their house at 11.00 a.m. P.Ws. 1 and 8 have not stated in their statement before the police that the afternoon lunch was taken in a carrier by Mallesha, Yogisha and P.W. 1 when they left their house at 11.00 a.m. on that day. According to the evidence of P.Ws. 1 and 8, Mallesha, Yogisha and P.W. 1, had taken their food in a tiffin carrier with them when they had left the house at 11.00 a.m. on that day. Naturally they could not have taken their lunch because it was not lunch time. After putting up the fence for the karab land, these persons were required to take their afternnon food, and it is not uncommon with the agriculturists to carry lunch with them to the fields where they work. It may not be unreasonable to infer that these two deceased and P.W. 1 might have taken their lunch 2 or 3 hours after they left the house and if some semi-digested was found in the stomachs of the deceased, that stands explained by the evidence of P.Ws. 1 and 8 who have deposed that these persons had carried their lunch when they left their house at 11.00 a.m. Non-mentioning of this fact by P.Ws. 1 and 8 before the police is not such an omission so as to go to the root of the matter. Moreover, the evidence of P.W. 19 regarding the time of death after their last meal by the two deceased persons is an opinion evidence. When the direct evidence of P.W. 1 is satisfactory, it cannot be rejected merely on the basis of the opinion evidence of P.W. 19 as to the time of death after the last meal of the two deceased persons. In the case of Punjab Singh v. State of Haryana, AIR 1984 SC 1233 : (1984 Cri LJ 921), the Supreme Court has held that where direct evidence is satisfactory and reliable, the same cannot be rejected on hypothetical medical evidence.
28. Another contention of the counsel for the appellant is that there is a delay of one month in sending the gun and M.O. 15 to P.W. 26 and, therefore, the opinion of P.W. 26 will not be safe to be relied upon. But, P.W. 26, the ballistic expert, has deposed that the seals on the articles sent to him were found in fact. In view of this unbiased evidence of P.W. 26 that the seals were found in fact by him when he received those articles, there cannot be any doubt for us to hold that there was no foul play with these articles before they were sent by the investigating agency to P.W. 26.
29. The evidence of P.W. 26 is also attacked by the defence on the ground that he has not taken the microscopic photographs of the pin marks of the cartridges and furnished the other date of the micro-scopic findings shown by the diagrams to satisfy the Court that the characteristic pin marks of the cartridges M.O. 15 recovered in this case are found to be identical with that of the test fired cartridges. In the case of Ramanathan v. State of Tamilnadu, 1978 Cri LR (SC) 318 : (1978 Cri LJ 1137), it is held by the Supreme Court as follows :
"It is true that there has been considerable difference of opinion amongst the investigators regarding the use of photographs in a Court for the purpose of illustrating the matching of the markings and while it may be that microscopic photograph, when taken with due care and in the best of conditions, may enable the evidence to be placed on the record in a visible form, it cannot be denied that a Court would not be justified in rejecting the opinion of an expert who has examined the markings under the comparison microscope simply for the reason that he has not thought it necessary to take the photographs."
In view of this law laid down by the Supreme Court, the evidence of P.W. 26 cannot be rejected merely on the ground that he has not taken the photographs of the cartridges concerned. He has also explained that he could not take the photographs for the want of films.
30. It is also contended that the evidence of P.W. 18 that the gun was seized at about 8.00 p.m. on 5-8-1991 in the police station from the accused does not appear to be correct. The trial Court has agreed with this contention. But, it has held that this will not go to the root of the matter as the accused himself has admitted that M.O. 2 was taken from him when he was taken from his house on the next day of the incident at 6.00 a.m.
31. P.W. 1's evidence is corroborated by the evidence of P.W. 8, his mother, P.W. 9 Gundappagowda and P.W. 15 Krishnegowda P.W. 1 has stated that after running for his life after seeing the incident, he came home and informed his mother P.W. 8, his uncle P.W. 9 - Ananda and P.W. 15 - Krishanegowda. All these witnesses have corroborated P.W. 1 by stating that they came to know about the incident from P.W. 1. P.W. 15 has deposed that on the date of the incident, when he was standing near a grocery shop at about 6.00 p.m., P.W. 1 came and informed about the incident. The evidence of these 3 witnesses corroborates the evidence of P.W. 1 that the he came and informed them about the incident.
32. The counsel for the appellant further submitted that the evidence of P.W. 1 is not natural and believable because if really the accused was the assailant armed with machu and a gun and P.W. 1 were to be present there, his life would not have been spared by the accused as there was no hindrance for the accused to commit the murder of P.W. 1 after murdering his father and brother. The evidence of P.W. 1 is to the effect that the accused first shot at his father Mallesha and thereafter he shot at his brother Yogisha and when Yogisha limped towards a bush nearby and was trying to hide there, he again fired at him and even he picked up the machu and assaulted him with that machu. P.W. 1 has stated that the he saw all these from a bush nearby from a distance of 20' and that thereafter on seeing him witnessing the incident, the accused came chasing him and he ran away and managed to save himself. When P.W. 1 ran, naturally he was coming nearer to the place where the houses of his uncles were situated. That could be the reason for the accused not to have chased him further as he would expose himself to the residents of those houses. The trial Court has also rightly held that due to the killing of these two persons, the possibility of the accused becoming exhausted and not having sufficient stamina to pursue P.W. 1 who was running for his life cannot be ruled out and this finding cannot be said to be incorrect or perverse. P.W. 1's evidence is that the accused shot more than once at his father and brother. The licence of the gun M.O. 2 in favour of the accused is exhibit P-7 dated 31-12-1984. The offence had taken place in the year 1991. That means, the accused had the experience of using the gun for nearly 7 years at the time of his commission of the offence. In view of this background his firing number of shots by replacing the cartridges immediately cannot be said to be an improbability in the prosecution case. The evidence of P.W. 1 which we have discussed above and which is corroborated by the evidence of P.Ws. 8, 9, 15, 19, and 26, has been rightly accepted by the trial Court.
33. The next piece of evidence relied upon by the prosecution is that the accused made extra-judicial confession before P.Ws. 2 and 3 and also before P.Ws. 4 and 13. P.W. 4, has deposed that she told P.W. 13, her husband, that she saw the accused going with a gun towards the gomala land, on hearing some sound of gun shots, and then she and her husband went to that place and found the accused standing there, and when questioned, the accused is said to have confessed to his having committed the murders of Mallesha and Yogisha. P.W. 13 has corroborated the evidence of P.W. 4. This evidence has been accepted by the trial Court. But, after going through the evidence of P.Ws. 4 and 13, we think that it looks improbable and unnatural that the accused could have made extra-judicial confession before these two persons standing at the same spot there. Because, the evidence of P.W. 1 is that after shooting at Mallesha and also shooting at Yogisha and causing injuries to him with machu, he chased P.W. 1 to some distance. If he had chased P.W. 1 to some distance, there was no reason for the accused to go back to the same place where the dead bodies of Mallesha and Yogisha were lying. It looks highly improbable that the accused should be standing with the gun still by the time these witnesses go there. The house of these witnesses is situated at some distance away from the place of the incident. They would naturally require some time to go to that place and the evidence of P.W. 1 is that the accused chased him. In view of these facts, it looks highly unnatural and improbable that the accused should be standing holding his gun at the same place of incident. P.W. 13 has given a damaging statement in his cross-examination by stating that he came to know about the incident only from P.W. 1. From the evidence of P.W. 1, we do not find that he disclosed about the incident to P.Ws. 4 and 13 when they met him while he was returning home. The answer given by P.W. 13 that he came to know about the incident from P.W. 1 leads to the inference that the accused could not have made extra-judicial confession before P.Ws. 4 and 13. Because, if the accused had made extra-judicial confession before them, there was no point in his stating that he came to know about the incident from P.W. 1. Therefore, we are of the opinion that the trial Court was not justified in relying on the evidence of these two witnesses. But, the evidence of P.Ws. 2 and 3 regarding the extra-judicial confession made by the accused before them is natural and believable. The evidence discloses that the houses of P.Ws. 2 and 3 are situated adjacent to each other and they are situated on the way to gomal land where the incident took place. P.W. 2 has deposed that on that day when she was inside her house at about 5.00 p.m., she heard the sound of gun shots from the side of gomal land and that she came out of her house to see what it was, that she saw the accused coming returning with gun in his hand, that she asked him as to what had happened and that then he confessed to have murdered Mallesha and Yogisha. It is also her evidence that he asked P.W. 3, Prema for water and she gave him water. The accused must have felt exhausted and thirsty after the harrowing experience of murdering two persons who were so closely related to him. Therefore, his asking P.W. 3 Prema for water is quite natural. There is nothing unnatural in the accused confessing about he having committed the murders of Mallesha and Yogisha with P.W. 2, who is none else than the sister-in-law of the accused, when she asked him as to what had happened when she had seen him with the gun. This evidence of P.Ws. 2 and 3 was sought to be attacked on the ground that these two witnesses had not disclosed about the alleged extra-judicial confession immediately to the police when the police had come to village, were conducing the inquest proceedings, etc. It is also attacked on the ground that P.W. 2 has not stated the names of the deceased in her statement before the police. Merely non-stating the names of the deceased cannot amount to material improvement in view of the fact that the deceased are none else than the close relatives of P.W. 2 and the accused. We do not think that it is a material improvement. Regarding the non-stating about the extra-judicial confession before the police immediately, we have to take into consideration that these witnesses are the rustic women who are not acquainted with the procedural aspects of law. They cannot be imputed with the knowledge that it was required of them to apprise the police immediately as to what had happened there. When the police were conducting the proceedings, it is but natural for these two women not to interefere with those proceedings, by coming forward and telling about the extra-judicial confession. It is only when the statements of these witnesses were recorded, they have come forward with the version which cannot be said to be false or concocted.
34. The counsel for the appellant tried to find fault with the statements of the witnesses on the ground that there is a delay in recording the statements of some of the witnesses. We do not find that there is any such inordinate delay in recording the statements of those witnesses. Further, mere delay in recording the statements of the witnesses cannot be a ground to reject the prosecution evidence. There are instances where the Supreme Court has disbelieved the evidence of a witness where there was a delay of few days in recording the statement of the witness. There is also a case where the Supreme Court has believed the evidence of a witness where there was a delay of 52 days in recording the statement of that witness. That means, whether the delay in recording the statement of a witness can be a drawback or set back to the prosecution case will depend on the facts and circumstances of each case. After assessing the evidence of the prosecution in its totality, we find that there is no such inordinate delay in recording the statements of the prosecution witnesses.
35. Another submission made by the counsel for the appellant is that there was a delay in receipt of the FIR by the Magistrate concerned. Mere delay in receiving of the FIR by the Magistrate cannot be a ground for the Court to reject the prosecution case, if the prosecution case is found otherwise acceptable, and safe to be relied upon. In the evidence of P.W. 21, he has also explained as to how the delay has occurred in the receipt of FIR by the jurisdictional Magistrate. Hence, this cannot be a ground for the Court to reject the prosecution case.
36. The trial Court, though was not justified in relying on the evidence of P.Ws. 4 and 13, was justified in relying on the evidence of P.Ws. 2 and 3 to come to the conclusion that the accused made extra-judicial confession before them. We are aware of the law that extra-judicial confession is a weak type of evidence and it requires to be corroborated in its material particulars before it is accepted. Though extra-judicial confession may be a weak type of evidence, but still it amounts to evidence and if it is found corroborated in its material particulars, there is no prohibition for the Court to act upon it. In this case, the evidence of P.Ws. 2 and 3 finds material corroboration from the evidence of P.Ws. 19, 7, and 26, the ballistic expert, and P.W. 1, the eye-witness. Besides this extra-judicial confession, there is also direct evidence of P.W. 1. Therefore, we think that it is not risky to rely upon the evidence of P.Ws. 2 and 3 to come to the conclusion that the accused had also made extra-judicial confession before P.Ws. 2 and 3. The evidence that we have discussed so far proves beyond reasonable doubt that it is the accused who caused the death of Mallesha by firing at him with his gun M.O. 2 and also caused the death of Yogisha by firing with his gun M.O. 2 and causing injuries to him with machu M.O. 1. Therefore, the trial Court is justified in convicting the appellant-accused for the offence punishable under Section 302 I.P.C.
37. The trial Court has also convicted the appellant for the offence punishable under Section 3 read with Section 30 of the Arms Act, 1959. It is not disputed in this case that the appellant-accused is the owner of M.O. 2 as it is evident from his licence exhibit P-7. The evidence also discloses and it is also not disputed by the accused that he produced the gun before the police at the time when he appeared before the police on the next day of the incident. The evidence of P.W. 26 discloses that M.O. 2 bore the signs of discharge and M.O. 15 were fired through M.O. 2. In view of these circumstances, the trial Court is justified in convicting the accused for the offence punishable under Section 3 read with Section 30 of the Arms Act. We do not see any reasons to interfere with the judgment of the trial Court convicting the appellant-accused for the offence punishable under Section 302 and also for the offence punishable under Section 3 read with Section 30 of the Arms Act, 1959.
38. The trial Court has also sentenced the appellant-accused to R.I. for three months for the offence punishable under Section 3 read with Section 30 of the Arms Act. Looking to the facts and circumstances of the case, we think that the punishment awarded to the appellant-accused for this offence is not harsh or unjust. But, the trial Court has sentenced the appellant-accused to death and ordered that he be hanged by his neck till he is dead for the offence punishable under Section 302 I.P.C., The learned Addl. S.P.P. submitted that the way the appellant had committed the murder of Yogisha demands for a penalty not less than the death penalty in this case, because there is a streak of beastly behaviour in the accused chasing injured Yogisha and firing again at him and not being satisfied with that, again assaulting with a machu which was lying nearby. But, the counsel for the appellant submitted that this is not a rarest of rare cases so as to call for the death sentence.
39. In the case of Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466), the Supreme Court has held that in the face of the statutory provision in clause (3) of Section 354 of Cr.P.C. requiring giving of special reasons while imposing death penalty which is consistent with Art. 21 of the Constitution which enjoins that the personal liberty or life of an individual shall not be taken except according to the procedure established by law, extreme plea of death in no case cannot be countenanced and the death penalty cannot be said to be violative of Art. 21. In the same ruling, the Supreme Court has further observed that in order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should be reserved for 'the rarest of rare' cases which are of an exceptional nature. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only.
40. In the case of Neti Sreeramulu v. State of Andhra Pradesh, AIR 1973 SC 2551 : (1973 Cri LJ 1775), the Supreme Court has held that long lapse of time since the imposition of the capital sentence by the trial Court and the consideration of the question of sentence by the Supreme Court constitutes a relevant ground for reducing the sentence to life imprisonment.
41. In the case of Anshad v. State of Karnataka, 1994 SCC (Cri) 1204, the Supreme Court has held as follows :
"Courts are expected to exhibit sensitiveness in the matter of award of sentence particularly, the sentence of death because life one lost cannot be brought back. For determining the proper sentence while the Court should take into account the aggravating circumstances it should not overlook or ignore the mitigating circumstances. The manner in which the crime was committed, the weapons used and the brutality or the lack of it are some of the considerations which must be present to the mind of the Court. Of course, the High Court has the power and jurisdiction to enhance the sentence of life imprisonment to death but that power has to be sparingly exercised, in "rarest of the rare cases' for 'Special reasons' to be recorded. The Courts must be alive to the legislative changes introduced in 1973 through Section 354(3) Cr.P.C. Death sentence, being an exception to the general rule, should be awarded in the "rarest of the rare cases" for "special reasons" to be recorded after balancing the aggravating and the mitigating circumstances, in the facts and circumstances of a given case. The number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of "rarest of rare cases". The Courts must keep in view the nature of the crime, the brutality with which it was executed, the antecedents of the criminal, the weapons used etc. It is neither possible nor desirable to catalogue all such factors and they depend upon case to case."
42. In the case of Shiekh Ishaque v. State of Bihar, 1995 Cri LJ 2682 : (1995 AIR SCW 2001), the Supreme Court has held as follows :
"The number of persons who had lost their lives at the hands of the assailants by burning and the motive for the commission of crime are not the only considerations which have to be kept in view for imposing death penalty. It was not known as to which of the accused had actually sprinkled the kerosene oil inside the shop. There was also no material on the record to show as to which of the accused along with "some others" actually set the shop on fire. After it was concluded that the accused along with "some others" had set the shop on fire, it was not proper for the Court to have ignored that factor, which was a mitigating circumstances, while considering the question of sentence. Though the accused or at least some of them, were alleged to be armed with bombs and fire-arms, they had not used those weapons against their victims. This factor also deserved notice while considering whether the extreme penalty of death was called for in the case or not. That the accused intended that the person inside the shop should be burnt alive was established beyond doubt but there was no material to show that the accused knew or had reason to believe that there were three persons inside the shop at the relevant time. Therefore, the number of victims alone would not make the case, "rarest of the rare". Therefore, sentence of death imposed on accused commuted to sentence of life imprisonment.
Decision of Patna High Court, Reversed."
43. A persual of the law on this point discloses that death sentence is an extreme penalty and it should be imposed by the Court only in the rarest of rare kind and special reasons also be recorded for awarding this extreme penalty of death to an accused. From the Supreme Court rulings which we have referred to above, it is clear that mere number of deceased cannot be a ground to hold that a particular case is case of rarest of rare kind. In this case, two persons are murdered by the accused. The Court should take consideration not only aggravating circumstances, but also mitigating circumstances while considering as to whether the accused should be awarded the extreme penalty of death in law. The accused in this case is not a criminal. There are no antecedents to show that he had committed any crimes in his life prior to the date of the incident. Though he was the owner of M.O. 2 gun for nearly 7 years prior to the date of the incident, there are no incidents of his using M.O. 2 for any criminal purpose. The motive, as proved in this case, is the dispute regarding the kharab land adjoining the wet lands of the accused and Mallesha and that dispute was existing between the two brothers Mallesha and the accused for nearly two years prior to the date of the incident. The sparking point of causing the death of his brother and his son is that they fenced the kharab land. The accused seems to have become infuriated at Mallesha, Yogisha and P.W. 1 as he found that they were trying into close his claim to that kharab land by fencing it off. Therefore, there was some provocation for the accused to move into the action though he was not justified in going to the extreme limit of killing his brother and his son. The accused cannot be said to be a menace to the Society. He has not caused the death of any persons who are not concerned with the dispute existing between him and his brother. Taking into consideration these factors, his hitting Yogisha with machu after firing at him is an act of a man who had lost the control over himself due to his anger against his brother and his sons. Taking into consideration all these factors, we think that this is not a case of rarest of rare kind so as to award death sentence to the accused. The trial Court was not justified in awarding death sentence to the appellant-accused.
44. Hence, we proceed to pass the following order :
The reference made by the Sessions Judge, Hassan, under Section 374 Cr.P.C. for confirmation is rejected.
The appeal is allowed in part. The judgment of the trial Court convicting the appellant for the offence punishable under Section 302 I.P.C. and for the offence punishable under Section 3 read with Section 30 of the Indian Arms Act, 1959, is confirmed. Even the sentence of three months of R.I. awarded for the offence punishable under Section 3 read with Section 30 of the Arms Act, is also confirmed. But, the sentence of death awarded to the appellant for the offence punishable under Section 302 I.P.C. is set aside and the appellant-accused is sentenced to undergo rigorous imprisonment for life for the offence punishable under Section 302 I.P.C. and both the sentences are ordered to run concurrently.
Order accordingly.
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Smt. Chandrawati And Etc., Appellants V. The State, Respondent.

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DATE : 26-05-1995
1996-(102)-CRLJ -0975 -DEL
JUDGE(S) :

Arun B Saharya
M S A Siddiqui
DELHI HIGH COURT
Thakur Ram Prakash, for Appellants.
JUDGMENT
M. S. A. SIDDIQUI, J. :- The appellant Mst. Chandrawati was convicted by the learned Additional Sessions Judge; Delhi under Section 302 IPC and was sentenced to death together with a fine of Rs. 10,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of one year. She was also convicted under Section 498-A/34 IPC and sentenced to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. Appellants Kishan Lal and Harkesh were convicted u/S. 498-A/34 IPC and sentenced to undergo rigorous imprisonment for three years together with a fine of Rs. 5,000/- each and in default of payment of fine to undergo rigorous imprisonment for a period of six months. Appellants have appealed against their convictions and sentences. The record is also before us for confirmation of the death sentence. The appeal and death reference a being disposed of by this common judgment.
2. Deceased Krishna, who died of burn injuries on 14-11-88 was married to the appellant Kishan Lal on 18-4-1987. The married life of the deceased Krishna and Kishan Lal, according to the prosecution, lacked connubial felicity and was marked by constant bickerings and quarrels, the cause of this discord being the dowry demands of the appellants. It is the prosecution case that the deceased was being subjected even to maltreatment. Deceased Krishna complained to her father Harichand (P.W. 9) and sister Neeru (P.W. 1) about the cruel treatment meted out to her by the appellants. The immediate provocation for the appellants stepping up their ill treatment of the deceased was their demand for a motor cycle and also half share of the sale proceeds of the house belonging to her father.
3. According to the prosecution on 13-11-1988, the deceased was beaten by her husband as a result whereof she had sustained a bleeding injury over her left arm. Thereafter, on the same day at about 8.30 to 8.45 p.m. the appellant Mst. Chandrawati and the deceased had a quarrel during the course of which the appellant Mst. Chandrawati dragged the deceased inside the bed room, threw kerosene on her and set her on fire. In the meantime at about 9.05 p.m., somebody informed the Fire Station, Shanker Road over phone about the fire at the appellants house, which brought leading Fireman Raj Kumar (P.W. 16) at the spot, and who took the deceased to the Ram Manohar Lohiya Hospital, New Delhi. The deceased was admitted in the Emergency Ward of the said hospital at about 9.40 p.m. where she was examined by Dr. S. Kumar, who found her to have Krishna, Dr. D. Gupta (P.W. 6) recorded her dying declaration (Ex. P.W. 6/A).
4. At about 9.10 p.m. a telephonic message was received at the Police Station, Patel Nager from S. I. Suraj Bhan of Police Control Room about the alleged incident. Pursuant to this information, S. I. Inder Singh (P.W. 24) requested the S. D. M. Shri V. K. S. Chauhan (P.W. 13) to record the dying declaration of the deceased. Immediately thereafter, S. D. M. Shri Chauhan (P.W. 13) rushed to the hospital but he could not record the dying declaration as the deceased was unfit to make the statement. On 14-11-1988 at 10.30 a.m. the deceased succumbed to her burn injuries. S. D. M. Shri Chauhan (P.W. 13) prepared the inquest report (Ex. P.W. 13/A) and sent the dead body for post mortem examination.
5. On 13-11-1988, the investigating officer S. I. Inder Singh (P.W. 24) seized one half burnt GADDA and pillow, one small cane containing kerosene oil, one match box and two burnt match sticks from the bedroom vide seizure memo (Ex. P.W. 19/A).
6. Dr. L. T. Ramani (P.W. 3) performed the post mortem examination on the dead body of Smt. Krishna on 15-11-1988 at about 4.30 p.m. and observed as under :
"There are 3rd degree burns all over the body involving 100% body surface (upper part of face and forehead however shows 2nd degree burns). Scalp hair partially burnt, smell of kerosene oil is present in scalp hair. There is evidence of vesication on right side of forehead and eyelids."
Dr. L. T. Ramani (P.W. 3) opined that the deceased's death was caused on account of shock resulting from the burn injuries vide report Ex. P.W. 3/A. After the completion of the investigation, the three appellants were sent for trial.
7. At the trial in the Court of Session, the appellants abjured their guilt and alleged that a false case has been foisted on them. They have not adduced any evidence in support of their defence.
8. In order to prove the charges against the accused, the prosecution examined as many as 24 witnesses. The learned Additional Sessions Judge on a consideration of the evidence adduced by the prosecution found that the charges under Sections 302 and 498-A/34, IPC were fully brought home to the accused Mst. Chandrawati. He also found that a charge under Section 498-A/34, IPC has been proved against the accused Kishanlal and Harkesh. That being the case, the learned Additional Sessions Judge held that the appellant Mst. Chandrawati deserved to be awarded the highest sentence laid down u/S. 302, IPC, Consequently, he convicted and sentenced the appellant Mst. Chandrawati to be hanged. In addition to this, the appellant Mst. Chandrawati was convicted under S. 498-A/34, IPC and sentenced to pay a fine of Rs. 5,000/- or in default to suffer imprisonment for six months. The learned Additional Sessions Judge also convicted and sentenced the appellants Kishan Lal and Harkesh under Section 498-A/34, IPC to undergo rigorous imprisonment for three years together with a fine of Rs. 5,000/- each or in default of payment of fine to undergo further rigorous imprisonment for six months.
9. The case of prosecution rests mainly on three categories of evidence : (1) Evidence of Smt. Neeru (P.W. 1). Smt. Sheela (P.W. 5) and Harichand (P.W. 9); (2) the dying declaration (Ex. P.W. 6/A) made by the deceased Smt. Krishna; and (3) evidence of Dr. L. T. Ramani (P.W. 3) and the Investigation Officer, Inder Singh (P.W. 24). Evidence was also produced to show the alleged torture of Krishna for some time proceeding the occurrence over demands for a motor cycle and also half share of sale proceeds of the house belonging to her father.
10. It is beyond the pale of controversy that deceased Krishna, who died of burn injuries on 14-11-1988, was married to the appellant Kishan Lal on 18-4-1987; that the appellant Mst. Chandrawati is 1996 Cri. L.J./62 III the mother and the appellant Harkesh is the father of the appellant Kishan Lal. It is also evident from the evidence of Smt. Neeru (P.W. 1). Smt. Sheela (P.W. 5), Hari Chand (P.W. 9), Dr. D. Gupta (P.W. 6), Dr. L. T. Ramani (P.W. 3), Shri V. K. S. Chauhan (P.W. 13) and S. I. Inder Singh (P.W. 24) that on 14-11-1988 the deceased Krishna died of burn injuries. There could be three alternatives for her being burnt - (a) suicide; (b) accidental fire; and (c) being put on fire. The plea of accidental fire has not been advanced either by the prosecution or by the defence. That apart, the theory of accidental death had to be brushed aside in view of presence of kerosene on the scalp of the deceased. Deceased Krishna suffered burn injuries in a bed room of the appellant's house. Accidental fire as the reason of death has, therefore, rightly not been pressed into service leaving the two other alternatives of suicide and the intentional killing by burning her, for consideration. As stated earlier, there is no eye-witness to testify to the act of setting fire to Krishna which is the prosecution case. It must be remembered that since such crimes are generally committed in the privacy of residential house and in secrecy, independent and direct evidence is not easy to get. The Apex Court observed in the case of Om Prakash v. State of Punjab, 1992 Cri LJ 3935 : (AIR 1993 SC 138) (Para 11) :
"..... It is the duty of the Court, in a case of death because of torture and demand of dowry, to examine the circumstances of each case and evidence adduced on behalf of the parties, for recording a finding on the question as to how the death has taken place. While judging the evidence and circumstances of the case, the Court has to be conscious of the fact that a death connected with dowry takes place inside the house, where outsiders who can be said to be independent witnesses in the traditional sense, are not expected to be present. The finding of guilt on the charge of murder has to be recorded on the basis of circumstances of each case and the evidence adduced before the Court....."
11. The prosecution has examined Smt. Neeru (P.W. 1) and Smt. Sheela (P.W. 5) to prove that at the relevant time, the appellant Mst. Chandrawati having belaboured Krishna, dragged her inside the room and immediately thereafter they heard shrieks and alarm raised by Krishna and when they looked up they noticed smoke and fire in the house while Krishna was shouting for help. Before we refer to the oral evidence of these witnesses, it is appropriate to deal with the dying declaration (Ex. P.W. 6/A) made by the deceased. The learned Additional Sessions Judge has placed strong reliance on the said dying declaration in holding the appellant Mst. Chandrawati guilty of murder. Learned counsel appearing for the appellant Mst. Chandrawati submitted that the dying declaration (Ex. P.W. 6/A) is a fabrication and must, therefore, be discarded. He further submitted that having regard to the nature and severity of the burn injuries. Krishna could not reasonably be expected to have been in a position to make the dying declaration attributed to her.
12. It is well settled that the conviction could be based upon the dying declaration even if there is no other corroborating evidence on the record. (Tarachand Damu Sutar v. State of Maharashtra, AIR 1962 SC 130 : (1962 (1) Cri LJ 196) : Maniappan v. State of Madras, AIR 1962 SC 1252 : (1962 (2) Cri LJ 404); Khushal Rao v. State of Bombay, AIR 1958 SC 22 : (1958 Cri LJ 106). It is true that the last word of a dying man has a sanctity to which due weight must be given and the same can't be just brushed aside. A dying declaration enjoys almost a sacrosanct status as a piece of evidence as it comes from the mouth of a person who is about to die and at that stage he is not likely to make a false statement. The Apex Court pointed out in Khushal Rao (supra) that a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence. In Lallubhai Devchand Shah v. State of Gujarat, AIR 1972 SC 1776 : (1972 Cri LJ 828), dealing with a dying declaration, the Apex Court laid down (Para 9) :
"The law with regard to dying declarations is very clear. A dying declaration must be closely scrutinized as to its truthfulness like any other important piece of evidence in the light of the surrounding facts and circumstances of the case, 'bearing in mind on the one hand, that the statement is by a person who has not been examined in Court on oath and, on the other hand, that the dying man is not likely to implicate innocent person falsely."
13. It has been judicially evolved as to how and what test should be employed for placing reliance on a dying declaration. By and large, inter alia, the following tests can be devised in order to answer the question whether dying declaration is true :
i) Whether the declarant had sufficient opportunity to observe and identify his assailant;
ii) Whether the capacity of the declarant to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances beyond his control either due to nature of the injuries or for any other cause;
iii) Whether the statement has been consistent throughout if the declarant had several opportunities of making a dying declaration apart from the official record of it;
(iv) Whether the statement had been made at the earliest opportunity and was not the result of the tutoring by interested parties;
(v) Whether the statement made by the declarant is intrinsically sound and accord with probabilities ?
(vi) Whether any material part of the statement is proved to be false by other reliable evidence.
14. In the instant case, the prosecution relied very strongly on the dying declaration (Ex. P.W. 6/A) recorded by Dr. D. Gupta (P.W. 6). The learned Additional Sessions Judge relying upon the testimony of Dr. D. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) came to the conclusion that notwithstanding the exclusive burns, Krishna was in a fit state of mind and able to speak at the time when she made the dying declaration (Ex. P.W. 6/A) before Dr. Gupta (P.W. 6).
15. In Suresh v. State of M.P., (1987) 2 SCC 32 : (1987 Cri LJ 775). The Apex Court was required to deal with a more or less similar situation. In that case, the victim had sustained 100% burns of 2nd degree and her dying declaration was recorded by Dr. Bhargava in the hospital. Dr. Bhargava had deposed that the victim was in a fit state of health. The evidence, however, disclosed that when Dr. Bhargava was recording her statement the victim had started going into coma. Yet the Apex Court accepted the dying declaration made by the victim to Dr. Bhargava. Therefore, the mere fact that Krishna suffered 100% burns and her general condition was poor is no reason to discard the evidence of Dr. D. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) when they say that she was in a fit state of mind and was able to make the dying declaration." (See also Padmaben Shamalbhai Patel v. State of Gujarat, (1991) 1 JT (SC) 205 : (1991 AIR SCW 464).
16. The truthfulness of a dying declaration has to be tested with reference to the circumstances and other relevant facts of each case. It is, therefore, necessary to examine closely the circumstances attendant upon the dying declaration (Ex. P.W. 6/A). It is true that the dying declaration (Ex. P.W. 6/A) has not been recorded in the form of question and answer. It is not necessary that dying declaration must be always recorded in the from of question and answer. It would be desirable to do so, but if that is not done, by itself it is not a circumstance which would justify rejecting the dying declaration. The law in this behalf has been clarified by the Supreme Court in the case of Ganpat Mahadeo Mane v. State of Maharashtra, 1993 Cri LJ 298 : (AIR 1993 SC 1180) (Para 4) :
"..... Learned counsel for the appellant submitted that since the executive Magistrate did not record the statement by way of questions and answers, the recording is defective and, therefore, it should not be acted upon. We see no force in the submission. The form by itself is not important. The statement is clear. Because of the mere fact that the entire thing is not recorded by way of separate questions, and answers, the value of the dying declaration is not detracted."
17. Dr. D. Gupta (P.W. 6) testified that on 13-11-1988, he was posted as Senior Resident Surgeon in the Surgical Emergency Ward of the Ram Manohar Lohia Hospital. He further testified that on that day at about 9.50 p.m. Dr. S. Kumar had referred Krishna to his ward and he had recorded her dying declaration (Ex. P.W. 6/A) in the presence of Dr. Sandeep Chopra (P.W. 7). Dr. Sandeep Chopra (P.W. 7) also swears to the same effect. At the outset, we must make it clear that the evidence of a doctor has got to be appreciated like the evidence of any other witness and there is no irrebuttable presumption that a doctor is always a witness of truth. (Mayur Panabhai Shah v. State of Gujarat, AIR 1983 SC 66 : (1982 Cri LJ 1972). The dying declaration (Ex. P.W. 6/A) shows that the deceased Krishna had made the following statement before Dr. Gupta (P.W. 6) :
"13-11-1988
9.50 p.m."
My name is Krishna r/o 258, A Block, Ranjit Nagar, Near Satyam Cinema, Delhi. I was locked in a room by my mother-in-law Smt. Chandrawati in the evening and she put kerosene on me and burnt me. My sisters-in-law Geeta, Pushpa and Mamta were present in the house at the time of incident but were out of the room. My husband Kishan was sent to another room by my mother-in-law and he was present in the house but out of the room at time of incident. Also my husband does not do any work and drinks alcohol and beats me up regularly.
Sd/-13-11-1988"
18. Dr. D. Gupta (P.W. 6) deposed that the deceased-Krishna was mentally fit and coherent when she had made her statement (Ex. P.W. 6/A) before him and she had not been given any sedavite before she was transferred to his ward. Dr. Sandeep Chopra (P.W. 7) also swears to the same effect. At this juncture, learned counsel for the appellant Mst. Chandrawati has invited our attention to the evidence of leading fireman Raj Kumar (P.W. 16), and Dr. L. T. Ramani (P.W. 3) and the M.L.C. report (Ex. P.W. 2/A and Ex. P.W. 10/A) in support of his submission that the deceased was not in a fit mental and physical condition to make a volitional statement after she had reached the hospital. Larding fireman Raj Kumar (P.W. 16) testified that on 13-11-1988 at about 9.05 p.m., a call was received at the fire station about a fire at the house of the appellants, and pursuant to this call he rushed to the spot; that on reaching there he found the deceased Krishna lying burnt in the house and that he took Krishna to R.M.L. Hospital. He further added that at that time. Krishna was unconscious and she did not make any statement before him. According to the prosecution. Raj Kumar (P.W. 16) was the first person before whom Krishna had made an oral dying declaration. Since this witness has not supported the prosecution version on the said point, he has been declared hostile by the prosecution. During cross-examination, his attention was invited to his case diary statement portion marked A to A in Ex. P.W. 16/A, but he had disowned the said statement. It is pertinent to note here that the aforesaid contradiction has not been proved by the statement of the Investigating Officer Index Singh (P.W. 24). S. I. Inder Singh (P.W. 24) has nowhere stated in his evidence a that Raj Kumar (P.W. 16) had made the statement portion marked A to A in Ex. P.W. 16/A before him during investigation.
19. Section 145 of the Evidence Act mandates that if any contradiction in the evidence of any witness, from his previous statement reduced to writing, is intended to be used in the case, the attention of the witness must be called to that particular part of his previous statement. If he admits the previous statement, it is unnecessary to prove it. If he denies the previous statement, such statement has to be proved in an appropriate manner. If this is not done, the evidence of the witness cannot be assailed in respect of those statements. (Somnath v. Union of India, AIR 1971 SC 1910 : (1971 Cri LJ 1422); Tehsildar Singh v. State of U.P., AIR 1959 SC 1012 : (1959 Cri LJ 1231). In this view of the matter, we have no hesitation in holding that the aforesaid contradiction portion marked A to A in Ex. P.W. 16/A has not been proved in accordance with law. The mere fact that Raj Kumar (P.W. 16) has been declared hostile by the prosecution and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. (Rabindra Kumar Dey. v. State of Orissa, AIR 1977 SC 170 : (1977 Cri LJ 173).
20. The prosecution has produced the M.L.C. (Ex. P.W. 2/A and Ex. P.W. 10/A), which shows that Krishna was admitted in Emergency Ward of the Hospital on 13-11-1988 at about 9.40 p.m. It also contains an endorsement made by the Examining Medical Officer Dr. S. Kumar that "Patient states that her mother-in-law threw oil on her and put fire to her by burnt match stick." Surprisingly, the prosecution has not examined Dr. S. Kumar to prove the said dying declaration of the deceased-Krishna. However, the M.L.C. (Ex. P. 2/A and Ex. P.W. 10/A) clearly shows that at 9.40 p.m., when Krishna was admitted in the hospital, she was mentally fit to make any volitional statement. This document has lent material corroboration to the testimony of Dr. D. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) that Krishna was in a fit mental and physical condition to make a dying declaration. Dr. D. Gupta (P.W. 6), who recorded the dying declaration, was the best person to opine about the fitness of the deceased to make the statement. (See A. M. A. Rehman v. State of Gujarat, AIR 1976 SC 1782 : (1976 Cri LJ 1382)). There is absolutely no basis of doubting the integrity and veracity of Dr. D. Gupta (P.W. 6), and Dr. Sandeep Chopra (P.W. 7). Nothing has been elicited in the cross-examination of both the doctors to show that they were biased in favour of the prosecution or ill-disposed towards the appellant Mst. Chandrawati. Thus the negative testimony of Raj Kumar (P.W. 16) is not strong enough to wipe out the positive evidence of the said doctors about fitness of the deceased to make the statement.
21. Learned counsel for the appellant has also assailed the dying declaration (Ex. P.W. 6/A) on the ground that the evidence of Dr. Gupta (P.W. 6) shows that after examining the deceased he ordered resuscitation proceedings to be initiated and in the meantime he recorded the dying declaration (Ex. P.W. 6/A). Relying upon the dictionary meaning of the word resuscitation as "revival after apparent death" contained in the "Taber's Cyclopedic Medical Dictionary", learned counsel further submitted that an attempt was made by the attending doctors to revive krishna before recording her dying declaration (Ex. P.W. 6/A) and that would wholly improbabilise, if not render altogether, false the said dying declaration. We do not find any merit in the said submission. Dr. Gupta (P.W. 6) has nowhere stated that Krishna was clinically dead at the time of recording her dying declaration. It is undisputed that Krishna expired on 14-11-1988. The tenor of the aforesaid statement of Dr. Gupta (P.W. 6) clearly shows that he found that the life was ebbing fast in the patient. In such a situation, he was justified indeed - he was duty bound to record the dying declaration of the deceased. Both the medical men namely, Dr. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) were conscious about her condition and, therefore, they would not have attached any importance to her statement if they had any doubt about her mental capacity. One important thing to notice in connection with the cross-examination of Dr. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) is that there is not even a whisper of a suggestion in their cross-examination to show that they were motivated in giving false evidence.
22. It is significant to note that the evidence of fireman Raj Kumar (P.W. 16) shows that none of the accused persons accompanied him when Krishna was being taken to the hospital. They chose to remain in the house. The M.L.C. (Ex. P. 2/A and Ex. P.W. 10/A) shows that Krishna was brought to the hospital by Raj Kumar (P.W. 16) The evidence of Dr. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) shows that none of the deceased's relatives was present in the hospital at the time of recording her dying declaration (Ex. P.W. 6/A). The evidence of Neeru (P.W. 1), Mst. Sheela (P.W. 5) and Hari Chand (P.W. 9) shows that they reached the hospital at about 12.30 a.m. the dying declaration (Ex. P.W. 6/A) was completed at 9.55 p.m. Even no police officer was present at that time. According to the Investigating Officer S. I. Inder Singh (P.W. 24), he reached the hospital at 10 a.m. In a frantic effort to undo the effect of the dying declaration (Ex. P.W. 6/A), a suggestion was put to Dr. Gupta (P.W. 6) that he had recorded the dying declaration at the instance of the police. This suggestion has been denied by Dr. Gupta (P.W. 6). There is no substance in the suggestion because Dr. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) are independent witnesses and they have no axe to grind against the appellant Mst. Chandrawati. The deceased-Krishna was quite near to her creator at 9.50 p.m. dangerously so indeed, and we may accept that her mind was then free from failings which afflict the generality of human beings, like involving enemies in false charges. Had there being tutoring there would have been no difficulty for Krishna in implicating her husband and father-in-law also. This by itself shows that the deceased had no tendency to implicate innocent persons. The evidence of Dr. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) leaves no room for doubt that no relation of the deceased was present at the time of recording of dying declaration (Ex. P.W. 6/A) and the deceased had made the statement without any influence or rancour. The occurrence had taken place inside the house. It cannot be said that there was mistaken identity of the assailant or that the deceased had no opportunity to see the assailant. Moreover, the defence has nowhere suggested that the deceased would have no opportunity to observe and identify the assailant.
23. The dying declaration (Ex. P.W. 6/A) finds ample corroboration from the case history (Ex. P.W. 6/A) recorded by Dr. Sandeep Chopra (P.W. 7) at 9.50 p.m. He is an attesting witness of the dying declaration (Ex. P.W. 6/A). The case history (Ex. P.W. 6/C) clearly shows that the statement had been made to Dr. Sandeep Chopra's hearing and had been recorded in his presence. The dying declaration (Ex. P.W. 6/A) and the case history (Ex. P.W. 6/C) are contemporaneous documents which go to show that the deceased had made the statement before the medical men. There is a consistency in the statements of the deceased Krishna as recorded in the M.L.C. (Ex. P.W. 2 and Ex. P.W. 10/A) the case history (Ex. P.W. 6/C) and the dying declaration (Ex. P.W. 6/A). Thus, the corroboration provided by the said documents invested the dying declaration (Ex. P.W. 6/A) with a stamp of truth, which went a long way towards inculpating the appellant Mst. Chandrawati.
24. Learned counsel further contended that the dying declaration (Ex. P.W. 6/A) is rendered doubtful in the manner in which the last two lines of the deceased's alleged statement had subsequently been added. The case history (Ex. P.W. 6/C) is almost a replica of the dying declaration (Ex. P.W. 6/A), but the last two lines containing the statement (Ex. P.W. 6/A) of the deceased to the effect that "Also my husband does not do any work and drinks alcohol and beats me up regularly" do not find place in the case history (Ex. P.W. 6/C). Learned counsel has also invited our attention to the placement of the deceased's thumb impression at point 'B' in the dying declaration Ex. P.W. 6/A. We have ourselves examined placement of the deceased's thumb impression at point 'B' with the help of magnifying glass and find that the said last lines were added after obtaining the thumb impression on the dying declaration (Ex. P.W. 6/A). It is significant to note that the aforequoted part of the deceased's statement does not inculpate any person in the alleging incident. That apart, the said part of the dying declaration is not so indissolubly linked with the other part of the dying declaration that it is not possible to sever the two parts. The two parts of the dying declaration are severable and the correctness of one part does not depend upon the correctness of the other part. Consequently, the subsequent addition of the last two lines in question in the dying declaration (Ex. P.W. 6/A) does not vitiate the whole to it. In the dying declaration (Ex. P.W. 6/A) before us, the statement so far as they went to implicate the appellant Mst. Chandrawati in the affair were quite categoric in character and they definitely indicated that it was the appellant Mst. Chandrawati who had set the deceased-Krishna on fire.
25. Learned counsel for the appellant Mst. Chandrawati has also invited our attention to the statement of Dr. L. T. Ramani (P.W. 3), who testified that on post-mortem examination, he found that there were third degree deep burns present all over the body of the deceased involving 100% body surface and even nails were burnt. According to Taber's Cyclopedic Medical Dictionary, third degree burns means burns in which both epidermis and dermis are destroyed with damage extending to underlying tissues. Taking his cue from the said definition, he forcefully contended that the deceased's palm and fingers including thumbs must have been burnt completely and in such a situation it is difficult to believe that impression of her thumbs was available to be taken on the dying declaration (Ex. P.W. 6/A). In our opinion, the said arguments though attractive cannot be accepted. It has come in the evidence of Dr. L. T. Ramani (P.W. 3) that upper part of the deceased's face and forehead showed 2nd degree burns and her scalp hairs were partially burnt. He has nowhere stated in his statement that nails of the deceased's thumbs were burnt. Dr. D. Gupta, (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) have unequivocally stated in their statements that the deceased had affixed her thumb impression on the dying declaration. In view of the positive evidence of Dr. Gupta (P.W. 6) and Dr. Sandeep Chopra, (P.W. 7) we are not inclined to hold that the deceased's hand thumbs had been so affected that a full impression was not available to be taken.
26. As stated earlier, the evidence of Dr. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7) clearly shows that at the relevant time, the deceased was mentally fit to make a dying declaration. Dr. L. T. Ramani (P.W. 3) testified that no internal examination, he found that scalp bones were intact, scalp tissues, neck tissues and brain were normal. Thus the testimony of Dr. L. T. Ramani (P.W. 3) has lent material corroboration to the testimony of Dr. Gupta (P.W. 6) and Dr. Chopra (P.W. 7) regarding mental fitness of the deceased to make dying declaration. Consequently, we find that the capacity of the deceased-Krishna to remember the facts stated in her dying declaration (Ex. P.W. 6/A) had not been impaired at the time she was making the statement.
27. Lastly, learned counsel for the appellant Mst. Chandrawati, with some ingenuity has attempted to break the grain of the story as contained in the dying declaration (Ex. P.W. 6/A). According to the learned counsel there are telling circumstances which would go to show that it is a case of suicide. One of the circumstances relied upon is that if it is a case of homicide namely that the appellant Mst. Chandrawati forcibly sprinkled kerosene oil and set the deceased on fire, the deceased must have raised hue and cry and many people would have heard and that there is no evidence of any one in the locality having heard such cries and absence of any such cries would support the theory of suicide. At this juncture, the learned counsel for the State has strenuously urged that it has come in evidence of Mst. Neeru (P.W. 1) and Mst. Sheela (P.W. 5) that at the time of the alleged incident they were present at the house of the appellants; that they saw the appellant Mst. Chandrawati catching hold of Krishna and dragging her inside the room and when they went towards the back side of the appellant's house they noticed fire and smoke billowing out and heard Krishna crying "Mausi Mujhe Bachao".
28. At the outset, it is relevant to recall what was said by the Apex Court in State of Kerala v. M. M. Mathew, AIR 1978 SC 1571 : (1978 Cri LJ 1690 Para 3) though in a somewhat different context (at page 1573) :
"..... It is true that Courts of law have to judge the evidence before them by applying the well recognized test of basic human probabilities.....".
Admittedly, Mst. Neeru (P.W. 1) is the real sister the deceased and Mst. Sheela (P.W. 5) is a neighbour of Mst. Neeru (P.W. 1). Consequently, the evidence of both these witnesses require a careful, independent assessment and evaluation of their credibility. Their evidence has to be tested for its inherent consistency an the inherent probability of the story; consistency with the attending circumstances of the case.
29. Let us consider if the testimony of Mst. Neeru (P.W. 1) and Mst. Sheela (P.W. 2) pertaining to the facts mentioned above can be accepted as true and reliable. Mst. Neeru (P.W. 1) testified that on 13-11-1988 at about 6/6.30 p.m., appellant Kishan's younger brother along with another person came to the house of her father (P.W. 9) and told her that Kishan had met with an accident and her father (P.W. 9) had been called to the appellant's house. Thereupon, she along with Mst. Sheela (P.W. 5) proceeded to the appellant's house at Ranjit Nagar. When they reached Ranjit Nagar, appellant Kishan's brother and the person accompanying them left them at the bus stand Ranjit Nager and disappeared. According to Mst. Neeru (P.W. 1) somehow she managed to reach the appellant's house. On reaching the house, the appellant Mst. Chandrawati informed her that no such accident had taken place and she had summoned her father. Mst. Neeru (P.W. 1) deposed that thereafter, the appellant Mst. Chandrawati started making several complaints and levelling allegations against the deceased Krishna upon which she expressed her desire to leave and no this Krishna also expressed her desire to accompany her.
30. Mst. Neeru (P.W. 1) further added that she requested the appellant-Chandrawati to allow Krishna to accompany her but she declined her request and thereupon Krishna started weeping. At that time, Krishana's left arm was bleeding. On enquiry, Krishna told her that she was beaten up by her husband with a cricket bat. She then protested to the appellant-Kishan but he denied having beaten Krishna whereas Krishna maintained that she was being given beatings regularly for the previous four days. Thereupon, she again requested the appellant-Mst. Chandrawati to send Krishna to her father's house but she refused and threatened that only her dead body would go from the matrimonial house. She insisted to take the deceased with her and was proceeding towards the room of Krishna she was caught by hair by the appellant-Chandrawati who dragged her back and the brother of the appellant-Kishan, who had gone to call them, slapped her on face. Appellant Kishan's sister and one fat lady pushed her and Sheela (P.W. 5) out of the house. At the same time, Satish, son-in-law of the appellant-Chandrawati started beating Krishna and dragged her inside. When she and Sheela (P.W. 5) went to the back side of the appellant's house, they heard shrieks and alarm raised by Krishna. As they looked up, they noticed fire and smoke billowing out and heard Krishna crying; "Mausi Mujhe Bachao." Thereupon, they raised an alarm which attracted several people and they requested them to save Krishna who had been set on fire, but none of them came to Krishna's rescue.
31. Mst. Neeru (P.W. 1) also deposed that she along with Mst. Sheela (P.W. 5) rushed to the police station in a three wheeler and reported to the police that Krishna was being burnt alive at her matrimonial home. Police then accompanied them to the appellant's house. Fire brigade had already arrived at the appellant's house and she saw Krishna being brought downstairs by the firemen. She also saw the appellant-Mst. Chandrawati weeping and at that time Mst. Chandrawati told the police that she (P.W. 1) and Mst. Sheela (P.W. 5) had set her daughter-in-law on fire. When Krishna was being taken out of the house, she and Sheela (P.W. 5) returned home. On reaching home, she informed her father about the alleged incident. According to Mst. Neeru (P.W. 1), she along with her father (P.W. 9) and Mst. Sheela (P.W. 5) reached the hospital at about 12.30 a.m. Mst. Sheela (P.W. 5) also swears to the same effect.
32. One important feature which must be duly taken note of at this stage is that the incident as narrated by Mst. Neeru (P.W. 1) and Mst. Sheela (P.W. 5) does not find place in the dying declaration (Ex. P.W. 6/A). Krishna has nowhere stated in the dying declaration (Ex. P.W. 6/A) that on the day in question her husband had assaulted her with a cricket bat as a result whereof she had sustained a bleeding injury on her left arm. Even the M.L.C. (Ex. P-2/A) and other contemporaneous medical documents (Ex. P.W. 6/C, Ex. P.W. 6/D, Ex. P.W. 6/E, Ex. P.W. 6/F) and the post-mortem report (Ex. P.W. 3/A) are conspicuous by absence of any such injury on the deceased's left arm. She has nowhere stated in her dying declaration about the presence of both the witnesses at the time of the alleged incident. It has come in the evidence of Neeru (P.W. 1) and Mst. Sheela (P.W. 5) that immediately after the alleged incident they had gone to the police station and Mst. Neeru (P.W. 1) had reported to the police that her sister was being burnt alive at her matrimonial house and further in same police officer had accompanied them to the appellant's house. Strangely enough, no such police report has been produced in the Court to substantiate the statements made by both the witnesses. Even, none of the police personnel who accompanied these witnesses to the appellant's house has been produced in the witness box.
33. It is also significant to note here that after arrival of the police, they did not go upstairs and did not ask the police that they wanted to go upstairs to see what had happened inside the house. Although they saw that Krishna was being removed to the R.M.L. Hospital, they did not go to the hospital directly from the place of occurrence and went thereafter visiting their house and reached the hospital at about 12 midnight or 1 a.m. Such a strange conduct of these witnesses assails their version and renders it doubtful.
34. Deceased's father Hari Chand (P.W. 9) testified that at about 11 p.m. her daughter Neeru (P.W. 1), informed him about the alleged incident and immediately thereafter he along with Mst. Neeru (P.W. 1) went to the police station, Jhangirpuri, where he was informed by the police officer that the deceased had been admitted in Willingdon Hospital) (R.M.L. Hospital). They then went to R.M.L. Hospital and found the deceased in a poor condition with severe burns all over her body. Surprisingly, neither Hari Chand (P.W. 9) nor Mst. Neeru (P.W. 1) had lodged any report at the Police Station, Jhangirpuri about the alleged incident. What prevented them from lodging a report of the alleged incident at the police station is shrouded in mystery. Moreover, evidence of Mst. Neeru (P.W. 1) shows that she knew that Krishna had been removed to the R.M.L. Hospital and in such a situation there was no necessity for them to go to the P.S., Jhangirpuri to locate the deceased. The fact that Mst. Neeru (P.W. 1), Mst. Sheela (P.W. 5) and Hari Chand (P.W. 9) went to P.S., Jhangirpuri to locate the hospital where the deceased was admitted for medical treatment clearly indicates that their version about their visits to the appellant's house prior to and after the alleged incident is an afterthought or an embellishment introduced in their evidence so to add credence to the prosecution story.
35. As demonstrated earlier, both the witnesses namely Mst. Neeru (P.W. 1) and Mst. Sheela (P.W. 5) want us to believe that they were present in the appellant's house at the time when Krishna was in flames. But they made no attempt to save her. Although they deposed that they had raised an alarm and shouted for help but nobody came forward to save Krishna. It is significant to note that the prosecution did not examine any resident of that locality who could have corroborated the testimony of the said witnesses regarding the alarm alleged to have been raised by them. The normal ordinary human conduct would be that when Krishna was in flames, they would have made every endeavour to save her life and call the people to come to their rescue to save her life. The circumstances pointed out earlier clearly indicate that Krishna did not lodge any report at the police station regarding the alleged incident. Both the witnesses did not accompany the deceased when she was being removed to the hospital. At least, Mst. Neeru (P.W. 1) should have accompanied the deceased to the hospital and should have expressly or by her behaviour disclosed her feelings about the well being of her real sister. The said strange conduct of both the witnesses militates against the veracity of the core of their testimony as the same is not in conformity to probability in the substantial fabric of their testimony. Consequently, we are not inclined to accept their testimony relating to their presence in the appellant's house at the time where Krishna was in flames.
36. It has to be borne in mind that the whole occurrence had taken place inside the room and it is quite possible that the cries if any raised by the deceased could not have been heard by the neighbours.
37. The next circumstance relied upon by the learned counsel is that there were no marks of violence found on the dead body and according to him some force must have been used by the appellant before setting her on fire which should have left some marks of violence. According to the medical opinion, the deceased had suffered 100% burns and if there were any marks of violence, they would have disappeared.
38. Yet another circumstance relied upon by the learned counsel in the context is that the door was bolted from inside. At the outset, we must make it clear that none of the prosecution witnesses deposed that the door of the room in question was bolted from inside. Site plan (Ex. P.W. 15/A) prepared by the Investigating Officer Devendar Singh (P.W. 15) shows that the room in question has one door. Constable Narendra Kumar (P.W. 22) had taken the photograph (Ex. P.W. 22/2) of the door, which was in broken condition. There is not an iota of evidence on record to show as to who had broken open the door. According to the learned counsel the fact that the door was broken open, speaks for itself and it was inferable from these circumstances that the deceased had committed suicide by setting herself on fire after bolting the door from inside. He further submitted that inter alia, bolting the door from inside was a pointer towards such a possibility.
39. It is pertinent to note that nothing has been elicited in the cross-examination of Mst. Neeru (P.W. 1), Mst. Sheela (P.W. 5) and Hari Chand (P.W. 9) to show or suggest that the deceased Krishna was in the frame of mind to commit suicide. There was no question of her being broken hearted and frustrated so as to resolve to commit suicide. There was no cause or occasion to make her suddenly opt for suicide on the fateful day. Putting all these pieces together, there appears to be no possibility of the deceased having made up her mind to end her life either due to frustration or desperation or to take revenge on her husband or in-laws for ill-treating her day-in and day-out.
40. It is also pertinent to mention that the deceased sustained burn injuries inside the appellant's, house. Admittedly, the appellants including the appellant Mst. Chandrawati were inside the house at the time of the occurrence. No explanation whatsoever has come forth from the appellants as to how the deceased received burn injuries inside the house. They have not offered any explanation as to how the door of the room was broken and who did it. The appellants instead of giving any explanation feighne ignorance about the alleged occurrence. The normal ordinary human conduct would be that when one of their inmates was in flames, they would have made every endeavour to save her life, if it were a case of suicide, and call the people to come to their rescue to save her life. No such attempt was made nor even attempted. The evidence on record established that the deceased was burnt by pouring kerosene oil on her body. The appellants were present in the house when the incident took place but none of them attempted to save her life, which showed their indifference and hard hearted conduct. The appellants did not inform the parents of the deceased, nor they made any report regarding the occurrence to the police. The appellants or any of their family members did not take injured Krishna to the hospital. In appreciating the dying declaration, these circumstances become highly relevant. It is a settled law that the conduct of an accused in an offence previous and subsequent to the crime are relevant facts. These are the most telling and crucial facts apart from repulsive inhuman conduct of the appellants. Moreover, there is no evidence to show that the deceased had bolted the door of the room from inside. Fireman Raj Kumar (P.W. 16) who almost reached the scene of occurrence immediately found that the deceased was lying with burns and he took the deceased immediately to the R.M.L. Hospital. Taking an overall view of the circumstances out-lined hereinbefore, we are satisfied beyond reasonable doubt that the death of Krishna was not suicidal but homicidal. We, therefore, have no hesitation in coming to the conclusion that the dying declaration (Ex. P.W. 6/A) is intrinsically sound and in accord with probabilities.
41. Learned counsel further submitted that the S. D. M. Shri Chauhan (P.W. 13) has specifically mentioned in his inquest report (Ex. P.W. 13/F) that "since Krishna died without her statement recorded, a very valuable piece of evidence i.e. dying declaration could not be adduced in evidence" and this circumstance throws doubt on the dying declaration (Ex. P.W. 6/A). It has come in the evidence of Shri Chauhan (P.W. 13) that on 13-11-1988, he reached the hospital within one hour after receiving request from the investigating officer but the deceased's dying declaration could not be recorded as she was found unfit to make any dying declaration. It is pertinent to mention that there are two inquest reports on the record and both were prepared by Shri Chauhan (P.W. 13). His first inquest report (Ex. P.W. 13/A) is dated 15-11-1988 and the second inquest report (Ex. P.W. 13/F) is dated 21-2-1990. The inquest report (Ex. P.W. 13/F) was not filed before the Court along with the charge-sheet. Trial Court's order sheet dated 13-12-1989 shows that on its motion, this report (Ex. P.W. 13/F) was requisitioned by the trial Court. Subsequent order sheets recorded by the trial Court go to show that after repeated directions, an incomplete report was produced before the Court on 22-2-1990 and on that day the Court directed the S.D.M. to appear personally and pursuant to that direction this report (Ex. P.W. 13/F) was filed before the Court on 2-3-90. Shri Chauhan (P.W. 13) has not given any explanation whatsoever regarding the inordinate delay in preparing this report (Ex. P.W. 13/F). Since the inquest report (Ex. P.W. 13/A) prepared by S.D.M. (Ex. P.W. 13) is already on record, the report (Ex. P.W. 13/F) can't be treated as an inquest report. What actually prompted the S.D.M. to prepare this report (Ex. P.W. 13/F) is shrouded in mystery. The manner and the circumstances in which this report (Ex. P.W. 13/F) was brought into existence have completely robbed its efficacy. At any rate, this report (Ex. P.W. 13/F) is not strong enough to wipe out the positive evidence of Dr. Gupta (P.W. 6) and Dr. Sandeep Chopra (P.W. 7).
42. After giving our anxious consideration, we are satisfied that the dying declaration (Ex. P.W. 6/A) duly recorded by Dr. D. Gupta (P.W. 6) and attested by Dr. Sandeep Chopra (P.W. 7) fully implicates the appellants-Mst. Chandrawati. Having subjected the dying declaration (Ex. P.W. 6/A) to a close scrutiny, we are satisfied that it does not suffer from any infirmity. The deceased had no motive to falsely implicate the appellant and to screen the real offender who had set her on fire. On the contrary the appellant had motive for committing this ghastly offence on account of greed and avarice for dowry. The root cause for killing young bride is avarice and greed and all tender feelings which alone make the humanity noble disappear from the heart as has been observed by their Lordships of the Supreme Court Smt. Paniben v. State, 1992 Cri LJ 2919 : (AIR 1992 SC 1817). Therefore, we see no ground to disagree with the finding recorded by the learned trial Court that the appellant Mst. Chandrawati had caused the death of the deceased-Krishna. Consequently, we find the appellant Mst. Chandrawati guilty of the offence punishable under Section 302 I.P.C. and accordingly confirm the appellant-Mst. Chandrawati's conviction thereunder.
43. Learned counsel for the appellants have also assailed their conviction under Section 498-A read with Section 34, I.P.C. Prosecution witness who deposed about the harassment of the deceased-Krishna are Mst. Neeru (P.W. 1) Mst. Sheela (P.W. 5) and Hari Chand (P.W. 9) Relying upon the testimony of the said witnesses, the learned Additional Sessions Judge has convicted the appellants under Section 498-A/34, I.P.C. Deceased's father Harichand (P.W. 9) deposed that after the deceased's marriage, he suffered a heart attack and was hospitalized for one month and during that period, his elder son-in-law Rakesh (husband of Neeru P.W. 1) served him well in the hospital. According to him, after his discharge from the hospital, He purchased a scooter and gifted it to Rakesh. After about a month of his discharge from the hospital, Krishna was sent to his house after giving beatings. She told him that she was being harassed by her husband and parents-in-law and asked that he (P.W. 9) should give a three wheeler and half sale proceeds of his house. He then went to the appellant's house who had repeated the said demands. One important thing to notice in connection with the cross-examination of this witness is that it was not even suggested to him that the deceased was never subjected to maltreatment or harassment by the appellants and further that no such demand as alleged by him was ever made by the appellants. Thus, the said testimony of Harichand (P.W. 9) has been left unchallenged by the appellants.
44. It is also evident from the evidence of Mst. Neeru (P.W. 1) that her father (P.W. 9) had gifted a scooter to her husband as her husband had served her father well during his illness and on that account the appellant Kishanlal used to demand a scooter from Krishna. She testified that the deceased-Krishna had told him that the appellants-Mst. Chandrawati and Kishanlal had demanded half share in her father's house. She further testified that whenever Krishna used to visit her, she always used to complain about the maltreatment or harassment by the appellants. She also added that Krishna had come to her parental house and stayed about three months prior to Diwali, 1988, when she was beaten up by her in-laws. It is significant to note here that her aforesaid testimony has been left unchallenged by the appellants. In addition to this, Mst. Sheela (P.W. 5) deposed that the deceased-Krishna had complained to her about the demand of a scooter made by the accused-Kishan Lal. According to us, these statements made by Krishna regarding harassment by the appellants on account of the aforesaid demands are admissible under Clause (1) of Section 32 of the Evidence Act. The cause of Krishna's death is in question in this case. The only question that remains to be answered is as to whether it can be said that the statements are "as to any of the circumstances of the transaction which resulted in Krishna's death." Similar question also arose before the Apex Court in Sharad Birdhichand Sarda v. State of maharashtra, AIR 1984 SC 1622 : (1984 Cri LJ 1738), which was answered in affirmative.
45. In that case it was pointed out that "the law in India does not make the admissibility of a dying declaration dependent upon the person's having a consciousness of the approach of death. Even if the person did not apprehend that he would die, a statement made by him about the circumstances of his death would be admissible under Section 32, Evidence Act." It was further observed that :
"..... The test of proximity cannot be too literally construed and practically reduced to a cut-and-dried forumla of universal application so as to be confined in a strait jacket. Distance of time would depend or vary with the circumstances of each case. For instance, where death is a logical culmination of a continuous drama long in process and is, as it were, a finale of the story, the statement regarding each step directly connected with the end of the drama would be admissible because the entire statement would have to be read as an organic whole and not torn from the context. Sometimes statements relevant to or furnishing an immediate motive may also be admissible as being a part of the transaction of death. It is manifest that all these statements come to light only after the death of the deceased who speaks from death. For instance, where the death takes place within a very short time of the marriage or the distance of time is not spread over more than 3 months the statement may be admissible under Section 32."
46. In Wazirchand v. State of Haryana, AIR 1989 SC 378 : (1989 Cri LJ 809), the victim was one Veena. Veena and the accused Kanwar Singh were married on 16-10-1983. On the morning of 10-6-1984 Veena died of burn injuries. There was no eye-witness to say whether the fire to her clothes was accidental from the kerosene stove or whether the Veena committed suicide. The prosecution case was that the accused harassed Veena on account of demands of dowry and, therefore, she committed suicide. There the statements of Veena which she made after her marriage and right upto the time when she died, that the she and her parents were being harassed by the accused for various dowry articles, were considered in evidence by the Apex Court. In this case. Krishna's statements go to establish harassment. They are thus admissible under Clause (1) of Section 32 of the Evidence Act. Clause (b) of the Explanation to Section 498-A. I.P.C. shows that the harassment of the woman, where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for property or valuable security or is on account of the failure by her or any person related to her to meet such demand would amount to cruelty for the purpose of Section 498-A. I.P.C. In the present case, as pointed out by the learned Additional Sessions Judge the evidence of Mst. Neeru (P.W. 1) and Mst. Sheela (P.W. 5), Harichand (P.W. 9) clearly proves that repeated demands were made by the appellants on Krishna for a scooter and value of her half share in her parental house. Learned Additional Sessions Judge who had advantage of watching the demeanour of these witnesses believed them on the point that the appellants subjected the deceased-krishna to cruelty and harassment and we are not inclined to take a different view.
47. In view of the above discussion, we find that the offence under Section 498-A/34, I.P.C. against the appellants has been proved beyond and shadow of reasonable doubt.
48. This brings us to the question of sentence to be awarded to the appellant-Mst. Chandrawati. The trial Court imposed a sentence of death on the appellant. She was also sentenced to pay a fine of Rs. 10,000/- or in default to suffer imprisonment for one year. In Smt. Paniben v. State of Gujarat, (1992 Cri LJ 2919) (supra) it has been observed by their Lordships that "Every time a case relating to dowry death comes up, it causes ripples in the pool of conscience of this Court. Nothing could be more barbarous, nothing could be more heinous than this sort of crime." At the same time, it has to be borne in my mind that normal sentence for murder is now imprisonment for life and not sentence of death and the Court must give special reasons for awarding death sentence. It has been held in Lichhamdevi v. State of Rajasthan, AIR 1988 SC 1785 : (1988 Cri LJ 1812), that special reasons mean special facts and circumstances obtained in the case justifying the extreme penalty. In Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636), and later in Macchi Singh v. State of Punjab, AIR 1983 SC 957 : (1983 Cri LJ 1457), the Apex Court indicated certain guidelines to be applied to the facts of each case for imposing the extreme penalty of death.
49. No doubt, it is a case of bride burning. The Apex Court in State v. Lakshman Kumar, AIR 1986 SC 250 : (1986 Cri LJ 155), has observed that in the case of bride burning, death sentence may not be improper. But in the present case, we do not find special facts and circumstances to bring this case within the category of rarest of rare cases justifying imposition of the extreme penalty. In our opinion, having regard to all the facts and circumstances of the case, this is not a fit case for awarding death sentence. We, therefore, set aside the death sentence awarded to the appellant-Mst. Chandrawati, and instead sentence her to imprisonment for life."
50. Learned Additional Sessions Judge imposed in the instant case a fine of Rs. 10,000/- on the appellant-Mst. Chandrawati. In Palaniappa Gounder v. State of T.N., (1977) 2 SCC 634 : (1977 Cri LJ 992), it has been observed that the common trend of sentencing is that even a sentence of life imprisonment is seldom combined with a heavy fine of sentence. The primary object of imposing a fine is not to ensure that the offender will undergo the sentence in default of payment of fine but to see that the fine is realized, which can happen only when the fine is not unduly excessive having regard to all the circumstances of the case including the pecuniary gain likely to have been made by the offender by committing the offence and his means to pay the fine. In the instant case, there is nothing on the record to show that the appellant-Mst. Chandrawati has made or is likely to have made any pecuniary gain by committing the alleged offence. Learned Additional Sessions Judge did not even attempt to consider whether the appellant has means to pay such a heavy fine imposed on her. In the circumstances there was no justification for imposition of sentence of fine of Rs. 10,000/- over and above the sentence of death. Hence we set aside the sentence of fine of Rs. 10,000/- imposed on the appellant-Mst. Chandrawati. If the fine has been paid it will be refunded to the appellant-Mst. Chandrawati. Except to the limited extent of modification in the sentence, appellant-Mst. Chandrawati's appeal shall stand dismissed. The reference made by the learned Additional Sessions Judge under Section 366, Cr.P.C. for confirmation of death sentences is hereby rejected.
51. The appeal of the appellants Kishan Lal and Harkesh are dismissed and their convictions and sentences under Sec. 498-A read with Section 34, I.P.C. are confirmed.
52. Before we part with the case, we would like to place on record our appreciation for the valuable assistance rendered by Shri K. B. Andley, Advocate, who has appeared as Amicus Curiae in this case.
Order accordingly.
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State (Delhi Admn), Petitioner V. Chander Pal, Respondent.

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DATE : 03-05-1995
1995-(101)-CRLJ -2951 -DEL
JUDGE(S) :

P K Bahri
S D Pandit
DELHI HIGH COURT
JUDGMENT
S. D. PANDIT, J. :- An Additional Sessions Judge of Delhi has found Chander Pal son of Siria guilty of the offence punishable under Section 302 of Indian Penal Code and has sentenced him to death. He has, therefore, made the present reference to confirm the death sentence awarded by him under Section 366 of the Criminal Procedure Code. Convict Chander Pal has preferred Criminal Appeal No. 38 of 1995 against the said order of conviction and sentence passed by the Additional Sessions Judge of Delhi. Therefore, both these matters have been heard together and are being disposed of by this common judgment.
2. Ramesh son of PW4 Gopal Singh resident of Inder Colony, Budan Road, District Muzaffarnagar, U.P. and his wife Suman are the victims in this case. Kela, wife of appellant Chander Pal, is the real sister of Suman. PW7 Jagdiri widow of Late Prakash is the mother of said Suman and Kela. Appellant Chander Pal and Kela had in all three issues two male issues and one female issue. But all of them did not survive for long. Kela is suffering from T.B. After losing their three children they took the male child of Kela's brother in adoption but the said child also died within a few months after it was taken in adoption by appellant Chander Pal and Kela, Ramesh and Suman have got two issues, a daughter and a son. Appellant Chander Pal and his wife Kela wanted to take the said male child in adoption and, therefore, about one and a half to two months prior to 15-9-92. Chander Pal had gone to the village of Ramesh and Suman and he brought both Ramesh and Suman to Delhi. Ramesh and Suman were residing in the house of Chander Pal which is situated in the Harijan Colony, Tilak Nagar, New Delhi. Ramesh had no permanent occupation or business and he was promised by appellant Chander Pal to get some job for him in Delhi when he had brought both of them, i.e. Ramesh and Suman along with their male child to his house but as a matter of fact till the date of incident Ramesh had no job or any occupation or source of income in Delhi. As Ramesh had no job or occupation there used to be quarrels and frictions between Ramesh and Suman.
3. PW3 Niranjan son of Shiv Lal is residing in house No. 345 WZ, Harijan Colony, Tilak Nagar, New Delhi, His house is near the house of appellant Chander Pal. Appellant Chander Pal's house is bearing No. 382 WZ, Harijan Colony, Tilak Vihar, Tilak Nagar, New Delhi. PW3 Niranjan Singh is the Chairman of the said Harijan Society. The house of Niranjan Singh is a two storeyed building whereas the house of Chander Pal is of single storey but it consists of two rooms with open space-cum-chowk between the two. The said house of Chander Pal is visible from the First Floor of the house of PW3 Niranjan Singh. From the First Floor of the house of Niranjan Singh one can see the two rooms as well as the open chowk between the two rooms. PW3 Niranjan Singh is in the habit of early rising. He gets up early in the morning between 4.30/5.00 A.M. On the morning of 15-9-92 Niranjan Singh PW3 awoke at about 5.00 A.M. At about 5.30 A.M. he heard the noise of quarrel taking place in the house of Chander Pal. When he looked towards the same he found that Ramesh and his wife were quarrelling. After the said quarrel took place Ramesh pushed his wife inside the room which was occupied by him. Thereafter even Ramesh was pushed into that room by appellant Chander Pal and then Chander Pal went to his room whereas PW3 Niranjan Singh went to the latrine. After a few minutes when he was in the latrine he heard shrieks raised by Suman. On bearing the said shrieks he felt some thing serious. He then hurriedly eased himself, washed his hands and came out. When he came out he found appellant Chander Pal wearing almond coloured Kurta and Pyjama and proceeding towards the Nalla. He called out appellant Chander Pal and questioned him as to what had happened. But Chander Pal did not give any reply and he hurriedly went towards the Nalla. Thereafter, Niranjan Singh came down. He went to PW8 Ram Singh, the Secretary of the said Harijan Housing Society and then both of them went to the house of appellant Chander Pal. When they went there they found that both Suman and Ramesh were lying in a pool of blood with cuts on their throats. Thereafter both PW3 Niranjan Singh and PW8 Ram Singh asked one Avtaar Singh, Havaldaar, a retired military man, who had come there, to rush to the Tilak Vihar Police Post to lodge the report. Accordingly, the said Avtaar Singh, Havaldar went to Tilak Vihar police post and informed the police. On the strength of his information DD No. 36 was registered at 6.35 A.M. and intimation was given to Tilak Nagar Police Station. On receiving the said intimation Police Station Officer Shri S. S. Rathi came to the spot.
4. Before the arrival of PW18 Shri S. S. Rathi, appellant Chander Pal had returned to his house with an empty tin which indicated that he had gone to answer the call of nature. When he returned to his house PW3 Niranjan Singh; PW8 Ram Singh and other neighbours were present there. After he returned home he had shown surprise. Thereupon PW8 Ram Singh had advised him to go to police and lodge a complaint. He had changed his almond coloured Kurta and put on another shirt and by that time PW18 S. S. Rathi had come there.
5. PW18 SHO S. S. Rathi recorded a detailed statement of PW3 Niranjan Singh and treated the same as first information report at CR. No. 534/92. After recording the first information report of PW3 Niranjan Singh, PW18 S. S. Rathi had called a private photographer. PW1 Surindar Singh and got the dead bodies and place of incident photographed. He there after arrested the present appellant Chander Pal. He recorded the statement of Ram Singh and then he took appellant Chander Pal to the police station. According to the prosecution appellant Chander Pal made a statement leading to the recovery of his kurta and a towel. The said towel and kurta had blood stains. Similarly, there were blood stains also on his pyjama and underwear. Therefore, all those clothes were attached under a memorandum. He then recorded the statements of the parents of Ramesh, PW4 Chohal Singh and PW5 Chandrawati. He also recorded the statement of Suman's mother PW7 Jagbiri. Before recording these statements he had prepared the inquest panchanama and had forwarded the bodies to the Medical Officer for post-mortem. The post mortem on the said bodies was carried by PW11 Dr. L. T. Ramani. The clothes which were on the person of Ramesh and Suman were forwarded to the Chemical Analyser and after getting the report of the Chemical Analyser and completing the invesitgation charge-sheet was sent up against the present appellant for the offence punishable under Section 302 but as the offence punishable under Section 302 is exclusively triable by a Court of Session appellant was committed to the Court of Session on 16-4-93.
6. Charge was framed against the appellant on 16-9-93 under Section 302. The appellant has pleaded not guilty to the charge. His defence is of total denial and false implication.
7. In order to prove its case against the appellant prosecution examined in all 18 witnesses whereas the appellant had examined two witnesses in his defence.
8. Shri Kapoor, learned counsel for the appellant has vehemently urged before us that in view of the material on record the learned Additional Sessions Judge was not at all justified in holding appellant Chander Pal responsible for causing the murders of deceased Ramesh and Suman. He has also alternatively submitted that in view of the material on record it is not possible to hold that appellant Chander Pal had caused the murder of Suman and the trial Court was not justified in coming to the conclusion that the case was rarest of the rare so as to award the extreme penalty of death. As against this the learned Standing Counsel for the State, Shri P. S. Sharma contended that there is sufficient material on record to uphold the order of conviction and sentence passed by the trial Court and according to him the sentence ordered by the trial Court was also justified in view of the circumstances of the case.
9. At the cost of repetition it must be stated that the prosecution has examined 18 witnesses in all in this case but none of these witnesses is a direct eye-witness to the incident in question. The prosecution case is a case of circumstantial evidence. It is the settled law that in case of circumstantial evidence the circumstances from which the conclusion is to be drawn are not only to be fully established but also that all the circumstances so established should be of conclusive nature and consistent only with the hypothesis of guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis excepting the guilt of the accused and the chain of evidence must be so complete so as not to leave any reasonable ground for being consistent with the innocence of the accused. It needs no reminder that legally established circumstances and not mere indignation of the Court can form the basis of conviction and the more serious the crime the greater should be the care taken to scrutinise evidence lest suspicion takes the place of proof.
10. In the instant case prosecution is relying on the following circumstances in order to prove its case against the present appellant :-
1. The appellant and the deceased were last seen together;
2. Motive;
3. Conduct of the appellant;
4. Discovery of the kurta of the appellant at the instance of the appellant, which was having blood stains of deceased Suman's blood group; and
5. Both Ramesh and Suman have met homicidal death.
We will consider the material and evidence on record in detail in order to find out as to whether all these five circumstances alleged by the prosecution against the appellant are proved beyond reasonable doubt and whether they lead to the only hypothesis of the guilt of the appellant or not.
Appellant and Deceased were last seen together :
11. The main witness in this case is PW3 Niranjan Singh son of Shiv Lal, residing at house No. WZ 345, Harijan Colony, Tilak Vihar, Tilak Nagar. It is quite clear from his evidence as well as from the material on record that his house is at a distance of 60 feet from the house of the appellant. His house consists of two storey building. The upper storey consists of a sanitary block as well as one bedroom. The house of the appellant consists of two rooms and in between those two rooms there is one open Court yard. This open Court yard as well as those two rooms are easily visible from the first floor or upper storey of the house of PW3 Niranjan Singh.
12. From the evidence of PW3 Niranjan Singh as well as of PW4 Chohal Singh and PW5 Chandrawati it is quite clear that deceased Ramesh and Suman had come to reside at the house of the appellant about one and a half months prior to the incident in question. PW4 Chohal Singh and PW5 Chandrawati are father and mother respectively of deceased Ramesh. From the evidence of these three witnesses as well as from the evidence of PW7 Jagbiri, who is the mother of Suman, it is quite clear that deceased Ramesh and Suman were living in the house of the appellant prior to about one and a half months from the date of incident in question which took place in the early hours of 15-9-1992. Evidence of PW3 Niranjan Singh further shows that on 15-9-92 at about 5.00 A.M. he got up and at that time he saw that deceased Ramesh and Suman were quarrelling and they were abusing each other and the appellant was also present. His evidence further shows that after the said quarrel deceased Suman was pushed inside the room which was occupied by Ramesh and Suman and after Ramesh had pushed suman inside the room Ramesh was also pushed by the appellant in the same room and then appellant went away to his room and PW3 Niranjan Singh went to latrine to answer the call of nature. When PW3 Niranjan Singh was easing himself he heard the shrieks of Suman and, therefore, he cleaned himself and washed his hand and came out of the sanitary block. Whe he came out of the sanitary block he found that appellant, wearing an almond colour kurta and pyjama, was proceeding hurredly towards the nulla. On seeing the same he asked him as to what had happened but the appellant did not give any reply and he went away towards the nalla. Therefore he got down from his house and he went to the house of another neighbour, PW8 Ram Singh. Along with Ram Singh he went to the house of the appellant and at that time they found that both Ramesh and Suman were lying in pools of blood with cut injuries on their throats and a dagger-cum-knife lying by their side. It has also further come in their evidence that at time Kela, wife of appellant, was standing there with the child of Ramesh and Suman in her arms, saying "main loot gayee - main loot gayee".
13. We do not find any reason to discard the evidence of these witnesses, viz PW3 Niranjan Singh and PW8 Ram Singh. From the evidence of PW3 Niranjan Singh it would be quite clear that in wee hours of 15-9-92 the deceased and appellant were lastly seen together in the same house in which the dead bodies of Ramesh and Suman were found with cut injuries on their necks. But, as per the evidence of PW4 and PW5 Ramesh and Suman had come to reside with the present appellant in his house about one and a half months prior to that date. Therefore, the presence of the appellant in the house and his presence near Suman and Ramesh when they were quarrelling in the early hours of 15-9-92 could not be said to be unnatural or improbable. What has been deposed by Niranjan Singh, PW3 is that he had seen that deceased Ramesh and Suman were quarrelling with each other and they were also abusing. Appellant Chander Pal, is the elder co-brother of deceased Ramesh and he was the elderly person in the house at that time. Therefore, in the circumstances if he comes out of his room on hearing the quarrel between his sister-in-law and her husband then that conduct of his could not be said to be unnatural or improbable. According to PW3 Niranjan Singh, Ramesh had pushed Suman inside the room and thereafter Ramesh was also pushed in the same room by appellant Chander Pal and then he went to his room. That conduct of the appellant could not be said to be unnatural or improbable in the circumstances and situation. Thus, in view of the circumstances of the case and the situation in which the appellant and deceased were last seen together in the early hours of 15-9-92 do not allow us to draw an inference to connect the appellant with the offence alleged against him.
Motive :
14. It is the case of the prosecution that appellant wanted to take the male child of Suman and Ramesh in adoption and for that purpose he had brought Ramesh and Suman to his house and this desire to take their child in adoption has, according to the learned counsel for the State, Mr. P. S. Sharma, motivated the appellant to commit the murders of both of them. It was clearly come on record that appellant and his wife Kela had three children including two male children and they had lost all of them. Thereafter appellant and his wife Kela had adopted a son of his sister but they had also lost the same. Thereafter, he intended to take the male child of both the deceased in adoption. From the evidence of PW4 Chohal Singh and PW5 Chandrawati it is clear that appellant had brought Ramesh and Suman to Delhi from their native village as he intended to take their child in adoption. But it is very pertinent to note that neither PW4 Chohal Singh nor PW5 Chandrawati nor any other prosecution witness has said that either Ramesh or Suman were opposed to the idea of their male child being taken in adoption by the appellant. There is absolutely no material on record to infer or hold that neither Ramesh nor Suman was ready to give the child in adoption to the present appellant. It must be also mentioned here that neither PW4 Chohal Singh nor PW5 Chandrawati is claiming that they did not want to give their grand-child in adoption to the appellant or that they had opposed appellant's move to take their grand-child in adoption. Therefore, in the circumstances it is quite clear that as the evidence stands there was no opposition to appellant's idea of taking the male child of the deceased in adoption by either the deceased themselves or their parents. Thus, in these circumstances it is very difficult to hold that appellant's desire to take the male child of the deceased in adoption has motivated him to kill both the deceased. It must also be further mentioned that by killing the parents of the child who has got his parental grand-parents and other relations how the appellant could get the child in adoption. Therefore, we are unable to accept the contention or the claim of the prosecution that the desire of the appellant to take the child of the deceased in adoption has motivated him to commit the murders in question.
Conduct of accused-appellant :
15. The third circumstance on which the prosecution is relying to prove its case against the present appellant is the conduct of the appellant. According to the prosecution after PW3 Niranjan Singh had heard the shrieks of Suman he came out of his latrine and at that time he found the appellant proceeding hurriedly towards the nalla. On seeing the same he had called out the appellant and had asked him as to what had happened but he did not reply to the same and went towards the nalla.
16. From the evidence of PW3 it is quite clear that PW3 had heard the shrieks of Suman when he was easing and on hearing the same he cleaned himself and his hands and came out and at that time he saw the appellant proceeding hurriedly towards the nalla and though he had asked him as to what had happened appellant had not given any reply and he proceeded towards the nalla. Learned counsel for the appellant had urged before us that the claim of PW3 Niranjan Singh that he had heard the shrieks of Suman should not be accepted as he had not given any reason as to how he found that those were shrieks of Suman and how he had identified her voice. If the cross-examination of PW3 Niranjan Singh is seen it would be quite clear that Niranjan Singh was not at all questioned regarding his identification of the voice of Suman. He was claiming that those were the shrieks of Suman. When the evidence of the witness was not challenged before the trial Court the said submissions made by learned counsel for the appellant could not be accepted or considered. Thus, we are in least hesitation to accept the evidence of PW3 Niranjan Singh that he had heard shrieks of Suman when he was easing and when he came out he had found the appellant proceeding towards the 'nalla' and though he had asked the appellant as to what had happened appellant had not given any reply to him.
17. Though we have accepted that part of the evidence of PW/3 Niranjan Singh, we are unable to hold that evidence is in any way helping the prosecution in order to bring home the guilt to the appellant. From the evidence on record it would be quite clear that it is not the claim of the prosecution that there was any sanitary block in the house of the appellant. From the material on record it is also quite clear that the people in the vicinity were making the use of the 'nalla' for easing out. If the evidence of PW/3 Niranjan Singh and PW/8m Ram Singh is seen then it would be quite clear that after they had reached the house of the appellant the appellant had returned to his house within a short time with an empty tin in his hands. The empty tin was taken by him for the purpose of taking water when he had gone for easing out. Therefore, in view of the evidence of both of them it is quite obvious that appellant had gone towards the 'nalla' for the purpose of easing. Had he hurriedly wanted to withdraw from the place of incident then he would not have returned to the place of incident after a few minutes, as deposed by PW/3 Niranjan Singh. Similarly, his conduct in not giving any reply could not be taken into consideration as speaking in volumes against him because when he was going to answer the pressing call of nature his conduct in not giving reply to PW/3 and not wasting time is quite natural in the situation and circumstances in which he was. When there is a urgent call of nature in the early hours of morning a person remains under tension and he is not in a position to waste time and to give replies to the queries made to him. On the contrary, his conduct in returning to his house immediately after answering the call of nature speaks about his innocence than his guilt because generally in cases of committing offences the offender tries to withdraw himself from the place of occurrence and tries to run away from the place of occurrence.
18. The next conduct on which the prosecution is relying is appellant's failure to go to the police to give a report about the deaths of Ramesh and Suman in his house. It is an admitted fact that appellant himself had not gone to the police and appellant had not given information about the deaths of Ramesh and Suman in his house. But the evidence on record shows that after appellant had hurriedly gone to answer the call of nature PW/3 Niranjan Singh, PW/8 Ram Singh and other neighbours of appellant had gathered at his house and they were present there when he had returned to his house after answering the call of nature. It has further come in evidence that PW/3 Niranjan Singh and PW/8m Ram Singh had deputed one of the neighbours to inform the police before his return to his house. Therefore, when one of the neighbours, Shri Avtar Singh, had gone to inform the police and as per the claim of the appellant he came to know about the deaths after he returned to his house then that conduct of appellant could not be said to be unnatural or is such as to hold that it speaks about his guilty mind.
19. No doubt as per the evidence of PW/3 Niranjan Singh he had heard the shrieks of Suman when he was easing but it is very pertinent to note that it is not the claim of PW/3 Niranjan Singh that after the early quarrel between Ramesh and Suman was brought to an end and both of them had gone to their room they had continued to quarrel with each other. In view of the evidence of PW/3 Niranjan Singh it is also quite probable as well as natural that shrieks of Suman must have also been heard by the present appellant before he went to answer the call of nature. But we have to remember that appellant as well as deceased were coming from the lower strata of the society. They are coming from the backward and uneducated community. Evidence of PW/7 Jagbiri, mother of Suman also clearly shows that Suman always used to quarrel with her husband Ramesh as Ramesh was not earning anything. Even the evidence of father of Ramesh PW/4 Chohal Singh shows that Ramesh had come to Delhi in order to get some employment and to earn. Even on that fateful day of 15-9-92 Ramesh and Suman were quarrelling with each other and they were giving filthy abuses to each other. Therefore, in these circumstances if appellant happened to hear shrieks coming from the room of Suman and his not going to see as to what had happened there and instead going to answer the call of nature could not be said to be unreasonable or unnatural. Thus, we hold that the conduct of the appellant is not of such a nature so as to infer that he conducted himself in a manner which is indicative of his guilty mind.
20. Discovery of appellant's Kurta at his instance with blood stains of deceased Suman's blood.
Prosecution is relying on the evidence of PW/14 S. I. Jagdish Prasad and PW/9 HC Shri Kishan in order to show that the accused had produced a kurta and towel which were having the blood stains of the blood group of deceased Suman. It is very surprising that in carrying out the investigation in such a serious and heinous offence the Investigating Officer has not taken the necessary precautions in collecting the evidence against the person whom the prosecution is claiming to be responsible for two murders. It is settled law that whenever a panchnama or memorandum is to be prepared then the Investigating Officer must take the assistance of independent and respectable persons. In case of circumstantial evidence the discoveries under S. 27 of the Evidence Act are most important pieces of evidence. Therefore, when such discoveries are to be proved before the Court and are to be effected, the Investigating Officer must take necessary precautions to see that the memorandum of discoveries is prepared with the help of respectable and independent witnesses but the witness for discovery in this case is none else than the police Head Constable working under the Investigating Officer. Therefore, that conduct of the Investigating Officer of taking only his subordinates for the discovery panchnama speaks in volumes about his bona fides and proper investigation. He was asked in the cross-examination as to whether he had taken any independent witness for the alleged discovery but he replied that he had not taken any independent witness. He has not given any explanation as to why he had not taken any independent witnesses for the said discovery.
21. Apart from the above conduct of the Investigating Officer in conducting the alleged discovery panchnama the material on record does not allow us to believe and accept the claim of the prosecution that there was discovery of the blood stained kurta of the appellant at the instance of the appellant. PW/3 Niranjan Singh has deposed in his cross-examination as under :
"I had not observed anything on the clothes of Chander Pal. Kurta of Chander Pal was badami colour of terrycot."
Then in the last para of his cross-examination he has deposed as under :-
"Chander Pal himself was present in the court-yard when he was changing his clothes. He removed his kurta-pyjama and wore his shirt."
If the above evidence of PW/3 Niranjan Singh is seen that it would be quite clear that appellant had changed his clothes in the presence of many persons openly in the court yard of his house and at that time this witness Niranjan Singh had not seen any blood stains on the clothes of the appellant. PW/8 Ram Singh has deposed in his cross-examination as under :
"I do not recollect whether accused was wearing kurta or shirt when he came back from toilet. I did not notice any blood on the clothes of the accused when he came from the toilet."
Thus both the witnesses who are examined by the prosecution to prove about the return of the accused after answering the call of nature have stated that they had not seen any blood stains on the kurta of the apppellant. It is very pertinent to note that as per the evidence of PW/3 Niranjan Singh he had heard the shrieks of Suman. He had asked the appellant as to what had happened and appellant had gone away without giving any reply to him. When he had come to the house of the appellant he had found that both Suman and Ramesh were lying in pools of blood with their necks cut off. Therefore, in the circumstances, when the appellant had returned to his house he would naturally observe and see his clothes in order to find out as to whether there were any blood stains on the same so as to connect him with the said deaths. But he is very clear and frank in saying that there were no blood stains on the kurta of appellant when he returned after answering the call of nature. It is very pertinent to note that no independent witness is coming forth to say that when the appellant had returned to his house after answering the call of nature there were blood stains on the kurta of the appellant. Then the memorandum prepared by PW/14 Inspector Jagdish Prasad regarding the alleged discovery shows that the kurta and towel were kept hidden beneath the rubbish and they were recovered at the instance of the appellant. Though it is the memorandum prepared by the Investigating Officer, PW/9 H.C. Shree Krishna says that the kurta was recovered from the house of the appellant and even PW/14 Inspector Jagdish Prasad has deposed that the kurta was recovered from the cupboard in the house of the accused. Thus the oral evidence of the two police men is contradictory to the memorandum prepared by them for the alleged recovery.
22. It must be also mentioned here that as per the evidence of PW/3 Niranjan Singh he was all along present right from the early morning till about 11-00 am. Appellant was also present there in the court-yard of his house and had changed his kurta openly in the presence of many of his neighbours and, thus, the changing of kurta and keeping the same in the house was known to all others and if at all the same was to be attached the same could have been attached at the time of arrest of the appellant in his house and there is no question of it being discovered at the instance of the appellant. It has been suggested at the instance of the appellant that there were no blood stains on his kurta initially and those blood stains were subsequently put up by the police. Therefore, in view of the above discussion the claim of the prosecution that appellant's kurta was attached at his instance and the same was having blood stains of the blood group of deceased Suman could not be accepted without any hesitation of mind.
Homicidal death of both Ramesh and Suman :
23. PW/11, Dr. L. T. Ramani had performed post-mortem of the dead bodies of both Suman and Ramesh. Dr. Ramani has found following external injuries on the body of Suman :
"1. Cut throat incised wound on the middle part front of the neck of the size of 2 1/2" with 2" gapping. All soft structures were completely divided of the cut throat injuries was placed below the label of thyroid cartilege. Two deep cuts was seen on the body of forth cervical vertebra. Skin margins were regular except the other right end which showed three separate cuts on the left side 4 distinct ends were seen.
2. Incised wound 1/2" x skin deep on the palmer aspect of left thumb (defence cut).
3. Incised wound 1 1/2" long x skin deep between the left thumb and index finger.
4. Incised wound half inch x skin deep on the right thumb."
He has further deposed that those injuries were anti-mortem. Similarly, he had found the following external injuries on the dead body of Ramesh :
"Cut throat incised wound on the upper part of the neck placed transversely, extending from right strno-mastoin muscles to the left side lateral aspect of the neck passing just above the thyroid cartilege size 5 1/2" x 2 1/2" x ?.
2. Incised wound 3 cm. x 1.5 cm. x ? Vertically placed on the Epigastric region of abdomen 2 cm. to the left of mid line. Upper end of injury was acutely cut.
3. An incised wound 3 cm. x 1 cm. on the epigastric vertically placed. 1 cm. to the right of mid line and 2.5 cm. away from injury No. 2. Upper end of the injury was actually cut."
He has also opined that the said external injuries found on the dead body of Ramesh were also anti mortem. He has deposed that the external injuries found on the dead body of Suman and Ramesh were possible by sharp cutting instruments and he has also opined that they are possible by the dagger-chura which was found in the room where the dead bodies were found. He has also deposed that the injuries which were found on the necks of both of them were in the ordinary course of nature sufficient to cause the death. He has also said that the two other injuries found on the abdomen of Ramesh were also individually sufficient to cause the death in the ordinary course of nature. The above evidence of Dr. L. T. Ramani has gone unchallenged. Therefore, in view of the said evidence of Dr. Ramani it is quite clear that the deaths of both Suman and Ramesh are not natural deaths and they have met with unnatural deaths.
24. The crucial question which calls for decision is as to whether it could be said without any hesitation of mind that the said deaths are homicidal deaths or not. It is necessary to mention here that admittedly a dagger-chura was found just near the dead body of Ramesh. Though the said Chura had a wooden handle, the Investigation Officer for the reasons best known to him had not made any attempt to find out as to whether there were any finger prints on the said wooden handle of the said chura. It is not the case of the investigating agency that it had tried to trace out the finger prints on the said weapon but they were not in a position to take the same. But what has been done in the present case is that no attempt was made to find out as to whether any finger prints could be found on the said weapon. The investigating officer who has entered the witness box has not given any explanation as to why no attempt was made to trace the finger prints on the said weapon. Apart from this the said weapon was having blood on its blade. We have also pointed out that Dr. Ramani had opined that the injuries found on the person of both Ramesh and Suman are possible by the said weapon. The said weapon was forwarded to the chemical analyser along with blood stained clothes of both the victims as well as other articles containing the blood. The report of the Chemical Analyser at Exhibit 'PB' shows that the blood stained clothes on the person of Suman were of blood group 'AB' whereas the blood stained clothes of Ramesh were having the blood group 'A'. From the said report is also quite clear that the blood group of Suman was 'AB' and that of Ramesh was group 'A'. The weapon found at the spot of having the blood of blood group 'A' only. No blood of blood group 'AB' was detected on the said weapon. Therefore, it is quite obvious that the said weapon was used initially for causing injuries on Suman and subsequently, it was used for causing the injuries on Ramesh.
25. If the injuries described by Dr. Ramani found on the person of Suman are considered it would be quite clear that the injuries found on her palm indicate that they were injuries sustained by her in defence and she had tried to defend herself. Along with the said injuries on her palms evidence of PW3 Niranjan Singh will have to be considered. Niranjan Singh has deposed that he had heard shrieks of only Suman. He had not heard any shrieks or cries of Ramesh or of any other lady or a male person. If at all Suman was attacked and injuries on her were caused by the appellant, as the prosecution is claiming, then in that case Suman's husband Ramesh would have deficinitely raised hue and cry and he would have also tried to protect his wife from the appellant causing injuries to her and in that case he would have sustained defensive injuries on his person and he would have also tried to inflict and cause some injuries on the person of the appellant. It is very pertinent to note that no injuries were found on the person of the appellant when he was arrested. Ramesh would have also raised hue and cry and sought help on seeing appellant attacking his wife Suman. But nobody has said that he had heard any hue and cry.
26. There is another circumstances deposed to by PW3 Niranjan Singh. Niranjan Singh has deposed that when he got up early in the morning on that day he had heard quarrel going on between Suman and Ramesh. He has deposed that both Suman and Ramesh were abusing each other and they were exchanging filthy abuses. He has further deposed that at that time appellant was present there. He has further deposed that Ramesh had pushed his wife Suman inside the other room and Ramesh himself was pushed inside that room by the appellant. He does not say that appellant had also gone into that room. PW7, Jagbiri, mother of Suman, has also deposed that as Ramesh was not earning anything there always used to be quarrels between the two. It is very pertinent to note that it is not the claim of either PW3 Niranjan Singh or PW8 Ram Singh or any other prosecution witness that there were any quarrels or disputes between the appellant on the one side and Ramesh and Suman on the other side. Even on that morning according to PW3 Niranjan Singh the quarrel was only between Ramesh and his wife Suman and since they were quarrelling Ramesh had pushed his wife inside the room and then Ramesh was also pushed inside the room by the appellant and about five minutes thereafter he heard shrieks of Suman. If this evidence of PW3 Niranjan Singh along with the fact that there always used to be quarrels between the husband and wife and the weapon is not having any blood stains of blood group of Suman, is taken together then it seems to be more probable that Ramesh had killed his wife by using the weapon in question and, thereafter, he had committed suicide by using the same weapon.
27. If the description of the injuries Nos. 2 and 3 on the person of Ramesh, given by Dr. Ramani, is read, it would be quite clear that the two injuries on the abdomen found by him are vertically placed. This position of the injuries of being vertically placed are suggesting that they are more likely to have been self-inflicted than being caused by any other person. Dr. Modi in his book on "Medical Jurisprudence and Toxicology" 21st edition on page No. 288 has observed as under :-
"The suicidal wounds are usually on the front or on the sides of the body, and affect the vital organs. They are usually incised, punctured or gunshot wounds. Suicidal incised wounds are generally situated on the front of the body in easily accessible positions, especially, on the throat, chest or wrist."
Then on page 294 he observes as under :
"Suicide is generally suspected if a weapon is found lying near the body."
He has further observed that absence of the weapon in the vicinity is suggestive of homicide.
28. Thus, the material on record clearly shows that the appellant could have no motive to do away with both Suman and Ramesh. There was no immediate or proximate cause, for him to kill both of them. On the contrary, the material on record suggests that as there used to be frequent quarrels between Suman and Ramesh and even in the early hours of 15-9-92 they had a quarrel and exchange of filthy abuses just a few minutes before shrieks of Suman were heard by neighbours. Therefore, the possibility and probability of Ramesh killing his wife in fit of anger and then ending his own life by committing suicide is more probable and likely. There are no circumstances to rule out the possibility of Ramesh's death being suicidal and to hold that his death being suicidal is an improbability.
29. Therefore, in view of the above considerations and discussion we are of the view that deceased Suman has met with homicidal death at the hands of her husband while the death of Ramesh is a case of suicide.
30. Thus, Prosecution has failed to prove any chain of circumstances so as to bring home the guilt to the appellant beyond reasonable doubt. We, therefore, hold that reference made by the learned Additional Sessions Judge, viz No. 1/95 for confirmation of the sentence of death awarded by him to the appellant will have to be rejected and the appeal filed by the appellant, viz. Cr.A. 38/95 will have to be allowed. We order accordingly.
31. The appeal filed by appellant Chander Pal is allowed. The orders of conviction passed against him under Section 302 and the sentence of death awarded to him are set aside. Appellant Chander Pal be set at liberty forth with if not required in any other case.
Appeal allowed.
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Debendra Pradhan And Others, Appellants V. State Of Orissa, Respondent.

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DATE : 27-03-1995
1996-(102)-CRLJ -0326 -ORI
JUDGE(S) :

R K Patra
Susanta Chatterji
ORISSA HIGH COURT
JUDGMENT
S. CHATTERJI, J. :- The above Death Reference No. 1 of 1994 under Section 366 of the Code of Criminal Procedure along with Jail Criminal Appeal Nos. 434, 435 and 436 of 1994 was taken up together and all the cases are disposed of by this common judgment, Mr. S. K. Sahoo, learned advocate appointed in terms of the procedure as laid down in the Rules of the High Court of Orissa to defend the accused in the Death Reference also appears for the accused in the aforesaid Jail Criminal Appeals. The reference under Section 366 CrPC has been made by the learned Additional Sessions Judge, Sambalpur for favour of confirmation of the death sentence in Sessions Trial No. 28/7 of 1994. Rule 15 of the Rules of the Orissa High Court indicates the procedure to be adopted in a reference in case of capital sentence and rule 22 enjoins that in a reference made to this Court for confirmation of death sentence, the Registrar shall immediately on arrival of the records lay the same when necessary before the Hon'ble the Chief Justice for appointment of an advocate. It appears that the Hon'ble the Chief Justice appointed Shri S. K. Sahoo, Advocate since 20th of January, 1995. The condemned prisoners, namely, Rabindra Pradhan and Sanatan Pradhan, have preferred appeals from jail which are numbered as Jail Criminal Appeals 435 of 1994 and 436 of 1994 respectively. Besides the condemned prisoners, accused Debendra Pradhan has also preferred appeal from jail numbered as Jail Criminal Appeal No. 434 of 1994. All the prisoners have submitted their Vakalatnama duly signed by them and have also signed the legal aid forms for engagement of an advocate to defend them at the time of hearing of their appeals. The required number of paper books have also been filed.
2. Mr. D. K. Misra, Additional Standing Counsel, appears for the State. The prosecution case is that Sanatan Pradhan, s/o Kamal Lochan Pradhan, aged 58 years. Upendra Pradhan, s/o Sanatan Pradhan, aged about 18 years, Debendra Pradhan aged about 20 years, s/o Sanatan Pradhan, Jemadei Pradhan, wife of Sanatan Pradhan, aged 48 years and Rabindra Pradhan, s/o Sanatan Pradhan, aged 24 years, all residents of village Basiapada, P.S. Jujumura, District-Sambalpur stood charged with offences under Sections 307 and 302 read with Section 34 of Indian Penal Code for having attempted to commit murder of one Brundaban Pradhan (P.W. 7) and murder of his two sons and one daughter, namely, Sanjib. Rajib and Pravasini aged about 11 years, 3 years and 7 years respectively, in furtherance of their common intention. Sanatan and Brundaban Pradhan are two brothers having title deeds of their lands standing in their names jointly. They were however separate in mess and properties by an amicable partition. Before 27-8-93 accused Sanatan asked Brundaban for the Patta of their lands to procure a loan. The Patta having been with his mother, Brundaban refused to give the same to him. Accused Sanatan was annoyed and declared to cut the members of his family into pieces and ruin his progeny. Brundaban for fear of life, left his ancestral house and stayed in the house of one Keshab Pradhan of his village till 29-8-93. Panchayat meetings were held to decide the dispute between them on 27-8-93 and 29-8-93 and the second day's meeting settled the dispute on compromise in view of the undertaking given by Brundaban to supply a Patta to Sanatan within ten days. At about 8 p.m. of 29-8-93 Brundaban returned to his house with his wife and the three children, the husband and wife holding lanterns, since the apprehension and fear were removed from their mind after the compromise. At their sight, accused Sanatan was flared up and both Sanatan and his wife accused Jamadei Pradhan called out their sons, the other accused, namely, Upendra, Debendra and Rabindra, to cut the family members of Brundaban into pieces and to end his family. No sooner than Brundaban entered his house and asked his children to follow, accused Rabindra, Debendra and Upendra came to him with axes and lathi. Accused Rabindra dealt two blows with his axe on the neck and head of Brundaban and Debendra dealt a blow with his axe on the head of Brundaban. With profuse bleeding wounds on his person, Brundaben grovelled into the nearby house of one Kulamani Budhia and there became senseless. Accused Upendra and Debendra then caught deceased Sanjib, Rajib and Pravasini and accused Rabindra gave axe blows on their necks and other parts of their body. The mother of the said children, P.W. 1, stood at the sight being dumb. She screamed aloud and the villagers came there to see the dead bodies of the children. The Sarpanch of the Gram Panchayat getting this alarming news called the police from Jujumura Police Station, P.W. 1 lodged oral report with police on which investigation ensued. After chargesheet and commitment of the case to the Court of Session, trial of the accused was held.
The defence case is however denial of the charges. There is a suggestion that due to long sustained dispute between their respective families they have been falsely implicated.
3. Prosecution has examined fifteen witnesses. P.W. 1 is the wife of Brundaban. P.W. 2 is the local Sarpanch. P.Ws. 3 to 5 are the doctors. P.W. 6 is a local person, P.Ws. 10 and 13 are the police constables. P.Ws. 11 and 12 are also local persons. P.W. 14 is the investigating officer and P.W. 15 is the Judicial Magistrate, First Class.
4. Prosecution introduced the motive for commission of the offence. This learned Sessions Judge found that the title deeds of P.W. 7 and accused Sanatan were standing jointly in their names. Brundaban, P.W. 7, refused to supply the Patta to Sanatan which he wanted to procure a loan. There were panchayat meetings on 27-8-93 and 29-8-93. P.Ws. 2, 9 and 11 were independent persons who have stated about such meetings. There was constant threat to the life of Brundaban and that of the members of his family by accused Sanatan. The threat was to the extent of wiping out the family of P.Ws. 1 and 7 and Exts. 6 and 7 prove the fact of Panchayat meetings being held as also the dispute between P.W. 7 and accused Sanatan having been compromised. Accused Sanatan was also a signatory to the said documents. Admittedly for fear of life, Brundaban had to leave his ancestral house with his wife and children and stay for some time in the house of a villager named Keshab Pradhan. While returning home on 29-8-93 at about 8 p.m., P.Ws. 1 and 7 with their children faced the wrath of accused Sanatan who gave direction to his sons, the other male accused, to cut the family members of Brundaban into pieces. His feverish frenzy still continued, the malignity of which culminated in the ghastly murders. His dangerous design was translated into action by his sons, accused Rabindra, Debendra and Upendra. This evil motive gave rise to their criminal action by way of common intention. The medical evidence has established the cause of death of the deceased children, as per the opinion of the doctor P.W. 5, being cutting of the necks, spinal cords, muscles, cervical vertebra, etc. This is with reference to the post-mortem examination of deceased Pravasini and Rajib covered under the post-mortem reports, Exts. 9 and 10. The post-mortem report of Sanjib has been admitted into evidence by waiver of formal proof as per Ext. 15. The time of the murderous assault on the deceased tallied with the time factor as categorically stated by P.W. 5. The deaths were instantaneous. The medical evidence of P.W. 5 admitted of no doubt that the deaths of the deceased were homicidal on account of the fatal cuts on their necks. His further opinion vide Ext. 11 was that infliction of the injuries on the deceased was possible with the axe, M.O.I. Blood and hair were sticking to the axe as deposed by P.W. 2 and the above medical expert.
5. It is found from the materials on record that P.W. 1 the mother of the deceased children, following her husband and the children saw the accused persons entering her house immediately being directed by accused Sanatan and his wife Jamadai Pradhan. In her presence accused Rabindra gave blows with his axe on the head and neck of her husband, Brundaban, P.W. 7, P.W. 7 with bleeding wounds grovelled to the nearby house of Kulamani and at this critical moment accused Debendra and Upendra caught deceased Sanjib and accused Rabindra dealt blows on his neck with his axe. Accused Debendra then dragged deceased Pravasini and accused Rabindra dealt blows with, the axe on her neck. Accused Upendra then caught deceased Rajib and accused Rabindra dealt axe blow on his neck. All the innocent children died instantaneously. Their heads were almost dangling. The incident was witnessed by P.W. 6 who had stated in unequivocal terms. These facts were reported to the investigating officer. P.W. 6 corroborated the evidence of P.W. 1 regarding assaults and the manner of assaults on the deceased as well as on P.W. 7. The dead bodies of the deceased were found by P.Ws 2, 6, 8 and 12.
6. The recovery of M.O.I. the axe, and the disclosure statement made by accused Rabindra to police and other witnesses while in custody indicate that the axe, M.O.I. had been kept hidden inside the straw of the thatch of his goat-shed. P.W. 15, the Judicial Magistrate, First Class recorded the confession of accused Rabindra after time was given to him for cool reflection. He has recorded the confession that he had killed two of his younger brothers and one younger sister and had also assaulted his paternal uncle who was saved by luck. His confession was found by the learned Sessions Judge as voluntary and that was correctly recorded by P.W. 15 who had ascertained the details is from accused Rabindra as per Ext. 23.
7. The learned additional Sessions Judge found corroboration in the evidence of P.Ws. 1, 6, 7, 9, 11 and 12 with regard to presence of P.W. 1 at the spot, and threats being given by accused Sanatan and direction given by him to the other accused to finish and ruin the family of P.W. 7. By analysing the evidence of the prosecution witnesses, the learned Additional Sessions Judge has found that the dastardly acts of the male accused in attemmpting to commit murder of P.W. 7 and murder of his children have been convincingly proved without leaving any room for doubt. The vendetta of the accused to obliterate the family of P.Ws 1 and 7 was materialised by their acts. The injuries on P.W. 7 though not proved by the medical personnel, have been otherwise proved by his hospitalisation at the V.S.S. Medical College-Hospital, Buria through P.W. 3. The axe and the wearing apparels seized were found to have contained human blood stains on chemical examination as per the report Ext. 20. The defence examined one witness as P.W. 1 who has stated accused Sanatan not being present at the place of occurrence as both D.W. 1 and accused Sanatan had been to village Phuljharan where Panchayat meeting was being held that day and from 8 p.m. to 10 p.m. accused Sanatan was with him. His evidence supports the prosecution case as regards death of the deceased children and injuries on P.W. 7 when he was brought to the hospital. On the date of the occurrence the Panchayat meeting was over by 5 p.m. There was therefore no need for accused Sanatan to stay at Phuljharan till 7 p.m. to 9 p.m. without returning home. Evidence of D.W. 1 was not found to be trustworthy. By ultimate analysis of the facts, the learned Additional Sessions Judge came to the conclusion of guilt of the three male accused persons. The female accused had been implicated in the case, as found by the Court below, on the exaggerated version of P.W. 1, not supported by any independent corroboration. The evidence of P.W. 12 while preparing Biri on the verandah of Kulamani Budhia as to not finding accused Upendra at the place of occurrence has not been explained by the prosecution. The statement of P.Ws. 1 and 6 showing the part played by Upendra in catching deceased Pravasini were found not in conformity with each other. The learned Additional Sessions Judge had the doubt about involvement of accused Upendra in the crime. The benefit of doubt has been given to accused Jemadel Pradhan and Upendra Pradhan and they were found not guilty under Sections 307 and 302 rend with Section 34 IPC. The learned Sessions Judge has however found accused Sanatan, Rabindra and Debendra guilty under Sections 307 and 302 read with Section 34 IPC. The unfortunate occurrence was found to be the outcome of the pre-plan of the accused, Sanatan being the director and instigator. Their diabolic acts were found in negation of all human traits. After hearing the convicts on the question of sentence and considering the grave agency of an injured father like P.W. 7 and sobbing pathos of a sterilised mother like P.W. 1, their children having been killed in their presence, the children having the possibility of rising in their life and further considering that this was one of the rarest of rare cases that had ever happened, the convicts having put slur in the name of humanity and nothing could be crueller and more devilish than to kill the young innocent children in presence of their helpless parents, sentenced accused Sanatan and Rabindra to capital punishment under Section 302/34 IPC subject to confirmation of their death sentence by this Court and imprisonment for life under Section 307/34 IPC. He has sentenced accused Debendra to imprisonment for life for offences under Sections 307 and 302/34 IPC.
8. Mr. Sahoo, learned advocate appearing for the accused-appellants, has argued that there was no fair trial of the accused in the trial Court. The ordersheets of the learned trial Court indicate that on 15-7-94 the accused expressed their inability to engage any lawyer to defend them in the trial. That day an advocate was appointed as the State Defence Counsel and the case was adjourned to 20-7-94 for consideration of charges. On 20-7-94 another advocate was appointed as the State Defence Counsel and the charges were framed against the accused the next day, i.e. 21-7-94. On that day the trial was fixed to 7-9-94 and 8-9-94. On 7-9-94 when the trial commenced, another advocate was also appointed as the State Defence Counsel and the same day P.Ws. 1 and 2 were examined, cross-examined and discharged. Though there is no specific mention in the ordersheets as to which accused were defended by which counsel, the cross-examination of the witnesses shows that accused Sanatan and Jemadei were defended by one counsel and the other three accused were defended by another counsel. Mr. Sahoo has highlighted that law is well settled that the Sessions Judge should appoint competent counsel to defend the accused during trial and sufficient time should be given to the advocate so appointed for preparation of the defence and taking effective steps to defend the accused. There cannot be a proper and fair trial unless this principle is strictly followed. In support of his contention, he has referred to a decision reported in (1971) 1 Cut WR 636 (Kamala Domen v. State). The ratio of that decision is that the duty of the Sessions Judge in appointing State Defence Counsel is to give sufficient time to the counsel for preparing the defence and supply him all the relevant papers, otherwise there cannot be a proper and fair trial. In an appropriate case, there should be a remand for fresh trial. He has also cited another decision reported in (1971) 2 Cut WR 422 (Mangulu Behera v. State). In that case a State Defence Counsel had been appointed when the Court began its sitting for taking evidence in a sessions trial and no time could have been there for the counsel to be acquainted with the facts of the case and to find out what defence to be taken. It was held that there was no scope for the counsel to get instruction for cross-examination of the prosecution witnesses and the trial was therefore vitiated and retrial was ordered.
9. On perusal of the materials on record, we have considered this point with all seriousness as it deserves. It transpires from the ordersheet that Shri Girindra Panda, Advocate and Shri Nilambar Saraf, Advocate were appointed as State Defence Counsel long before the trial began. Shri B. K. Nayak was appointed thereafter for all the accused. They had made no grievance against their engagement with out being supplied with any paper to defend the case. Rather, the said learned advocates duly participated in the proceeding and made lengthy cross-examination of P.Ws. 1 and 2 without any grievance whatsoever. The facts of every case are to be considered in proper perspective. On scrutiny we do not find that there was any irregularity which might have vitiated the trial in any manner as suggested by the learned advocate for the appellants. This preliminary points appears to have no merit and is overruled.
10. Mr. Sahoo has tried to defend the appellants one by one separately and singularly. In dealing with the case of Sanatan he has argued that since there was a compromise fully arrived on 29-8-93, there was no occasion for any grudge by appellant Sanatan. He was not named before the police immediately after the incident by P.W. 1, mother of the deceased children. Instead, P.W. 1 had specifically named Jemadai, wife of Sanatan. Her deposition before the Sessions Court should not have been believed. Sanatan was found to be absent from the place of occurrence in terms of the evidence of D.W. 1. The finding of the learned trial Court that Sanatan was guilty cannot be sustained.
He has developed his argument further that since Debendra was also found to be not present, implication of Debendra by the prosecution should also be ruled out.
In case of appellant Rabindra, the prosecution evidence is highly improbable. His confessional statement recorded is not in conformity with the provisions under Section 164(2) CrPC. He has also developed his submission by drawing attention of the Court that Sanatan has been convicted under Section 307 and 302 read with Section 34 IPC, but the only allegation against him is that he had instigated his sons for commission of the offences. The only witnesses who have stated regarding presence of the accused persons is P.W. 1, the informant, and P.W. 7 her husband. There is no such allegation against Sanatan in the FIR lodged by P.W. 1. The other witness who implicated accused Sanatan is P.W. 7. The statement of P.W. 7 is contradictory and even if the statement of P.W. 1 is accepted, it is not appreciated as to why Brundaban P.W. 7 while returning to his residential house with his, family members, accused Sanatan would instigate his sons to commit the offence as there was already a compromise before the Panchayat.
11. We have tried to appreciate the argument of Mr. Sahoo patiently and diligently. We do not however, appreciate the way he has analysed the evidence. We have looked to the FIR and the deposition of P.Ws 1 and 7. The deposition of P.Ws. 1 and 7 and other materials on record as also the deposition of P.Ws. 6, 8 and 12 are to be read together, P.W. 7, his wife and children were about to enter into the house while accused Sanatan and his wife accused Jemadei instigated the other accused persons to ruin the family of P.W. 7. While P.W. 7 entered inside his house with the children, he was assaulted by the accused persons. It is true that although accused Jemadei had been named by P.W. 1, her statement was not corroborated. But the presence of Sanatan has well been proved by P.Ws. 1 and 7 as also other relevant prosecution witnesses and the findings of the learned Additional Sessions Judge in this regard appear to be consistent with the materials on record.
12. Regarding appellant Debendra Pradhan, it is argued that this accused has been convicted under Sections 307 and 302 read with Section 34 IPC and sentenced to undergo imprisonment for life on both the counts though the prosecution case is that this accused assaulted P.W. 7 on his head and after P.W. 7 escaped to the house of Kulamani Budhia, he along with accused Rabindra Pradhan and Upendra Pradhan entered inside that room. There is no allegation that appellant Debendra assisted in any manner while accused Rabindra dealt blows on Pravasini. This appellant did not play any role in the commission of murder of the youngest child Rajib. Mr. Sahoo has argued that no injury report as regards P.W. 7 has been proved. He has however conceded before us that the evidence on record proves the involvement of appellant Debendra in committing the offence under Section 307 IPC only. According to him, there is no proper evidence or materials as to his committing offence under Section 302 IPC. He has tried to analyse the evidence of P.W. 7. He has read the evidence of P.W. 6 and submits that this witness has simply stated that accused Rabindra dealt a blow with his axe on the neck of Brundaban who entered inside the house of Kulamani Budhia. She did not implicate accused Debendra in the assault on P.W. 7. Similarly, P.W. 12 had stated that appellant Rabindra assaulted P.W. 7 with an axe on his neck and head. He has not named Debendra for assault on P.W. 7. The only witness who implicated appellant Debendra is P.W. 7 the injured himself who has stated that after he was assaulted by appellant Rabindra with an axe, appellant Debendra dealt a blow with axe on his head. In view of the fact that P.Ws. 1, 6 and 12 did not implicate appellant Debendra, the solitary evidence of P.W. 7 should not be accepted for convicting him under Section 307 read with Section 34 IPC However, by looking to the evidence of the relevant prosecution witnesses, the learned trial court has come to its finding. By reading the depositions again and again with the help of the learned advocate for the appellants and the learned Addl. Standing Counsel, we do not find that the evidence is contradictory or there is any discrepancy for which the finding of the learned trial Court should not be sustained. The assessment of evidence by the learned trial Court in this regard is found to be proper. There is no room to interfere with the findings of the learned trial Court in the manner as suggested by the learned advocate for the appellants.
13. With regard to the case against appellant Rabindra, he has been convicted under Sections 307 and 302 read with Section 34 IPC and while he has been sentenced to imprisonment for life under Section 307/34 IPC, has been sentenced to death under Section 302/34 IPC. So far as his conviction under Section 307/34 IPC, i.e. attempting to commit murder of P.W. 7 is concerned, the depositions of P.Ws. 1, 6 and 12 should be properly considered. Even though there are ample materials in the evidence for a finding that Rabindra had assaulted P.W. 7 with an axe, his conviction under Section 307/34 IPC cannot be sustained in the absence of medical evidence to come to a finding that there was an attempt to commit murder of P.W. 7 and it is argued that at best he can be convicted under Section 324 IPC and not under Section 307/34 IPC. So far as his offence of assaulting the three children is concerned, prosecution relied upon the evidence of P.W. 1, the judicial confession of the accused himself and recovery of the blood-stained axe from his goat-shed. It is argued that while considering the prosecution case, the appreciation of evidence of P.W. 1 should be very much crucial as the prosecution entirely rests its case on the solitary evidence of this interested witness.
According to Mr. Sahoo, Law is well settled that the evidence of a solitary witness must be absolutely reliable, cogent and trustworthy. He has argued with much emphasis that P.W. 1 is the solitary witness who deposed about the incident from beginning to end, i.e. from the entrance of her husband and children inside the house till the children were killed. P.W. 1 is not a witness of that category on the basis of whose solitary evidence Court can unhesitatingly find the accused persons guilty. Since P.W. 1 is the mother of the deceased children, she was highly interested. The evidence of P.W. 1 has not been accepted by the learned trial Court to implicate accused Jemadei Pradhan and Upendra Pradhan in the alleged crime. The presence of P.W. 1 at the spot at the time of the occurrence is to be tested with great caution which is an important aspect. According to P.W. 1, the children were assaulted in the entrance room and she saw the incident by means of lantern light. Though during the trial P.W. 1 stated that she was holding a lantern and there was another lantern also burning inside that room, the existence of two lanterns at the spot was very much doubtful as the police had seized only one. P.W. 7 has stated that just when he was placing his youngest child Rajib on the cot in a leaning position, he was assaulted. In his statement P.W. 7 has further stated that at the relevant time his children were going to sleep on their cots inside the room. In view of such statement of P.W. 7 it is more probable that the victims must have been assaulted inside the bed room and not in the entrance room. Besides the evidence of P.W. 1, prosecution has also relied on the judicial confession of accused Rabindra Pradhan. The manner in which the confessional statement of accused Rabindra has been recorded, such reliance should not be placed on that. The ordersheets of the learned S.D.J.M. indicate that the accused was produced in Court on 31-8-93 and the investigating officer prayed for recording his confessional statement under Section 164 CrPC. Though the other three accused declined to confess, accused Rabindra alone wanted to confess his guilt and he was sent to jail custody for his cool reflection. It was desirable that when an accused was given time for cool reflection, the learned Magistrate should have cautioned him about the consequences of his confession informing him that he was not bound to make any confession, so that before the accused decided to confess his guilt he would have thought over the matter and taken a decision during the period allowed to him for cool reflection whether he would confess or not. In the present case, on 31-8-93 the learned Magistrate, Mr. Sahoo submits, did not caution him as above. The confessional statement Ex. 22 indicates that the most important caution after disclosing his identity that the accused was not bound to make confession and the confession if made would be utilised as evidence against him during the trial had been given to the accused after he had confessed his guilt. In that view of the matter, it cannot be said that the recording of the confessional statement of the accused was proper and to be acted upon. In support of his contention, Mr. Sahoo has referred to a decision reported in AIR 1936 PC 253(2) (Nazir Ahmed v. King Emperor) which has dealt with recording of S. 164 statement of accused by Magistrate. It was held therein that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all, the other methods of performance being necessarily forbidden and the oral evidence of the Magistrate being not admissible. He has further referred to another decision reported in AIR 1977 SC 1579 : (Paras 50 and 51 at page 1590) : (1977 Cri LJ 1206) (Dagdu v. State of Maharashtra) and has specifically drawn the attention of the Court that there should be a strict and faithful compliance with Section 164 CrPC and failure to observe the safeguards prescribed therein are in practice calculated to impair the evidentiary value of the confessional Statement. There is further reference to a case reported in (1995) 1 Crimes 138 : (1995 AIR SCW 956) (Shivappa v. State of Karnataka) to the effect that in a case where statement under Section 164 CrPC was recorded the Magistrate did not disclose to the accused that he was a Magistrate, no inquiry was made to find out whether the accused had been influenced by anyone, the Magistrate did not lend assurance to the accused that he would not be sent back to police custody in case he did not make confessional statement and the accused was not questioned as to why he wanted to make confession, the same could not be said to be voluntary and it was not prudent to act upon the said confessional statement.
14. We have tried to appreciate this aspect of the argument of Mr. Sahoo. By looking to the confessional statement itself and the entire records of the trial court as also the ordersheets of the learned Magistrate before whom the confession was made, we find that while the accused expressed his mind to make confessional statement, he was given sufficient caution by the learned Magistrate and the matter was referred to another Magistrate. From the ordersheets it appears that after giving sufficient caution, the confessional statement had been recorded. We have considered the argument of Mr. Sahoo in this regard by verifying the entire records of the case from the very beginning. We do not find that the recording of the confessional statement suffers from any infirmity or irregularity as after recording the statement it was disclosed to the accused that such statement made before the Magistrate would be used in the case against him. We do not find any merit in the submission of Mr. Sahoo in this regard. A confessional statement can at best be considered as a piece of evidence. The learned Additional Sessions Judge has not solely depended on the confessional statement to find Rabindra guilty of the offences so committed by him. This confessional statement made by Rabindra has been treated as a piece of evidence. This piece of evidence has been considered along with the other evidence on record. The learned Additional Sessions Judge has considered the topography and the deposition of the prosecution witnesses and has found that there are trustworthy evidences as regards commission of the offence by accused Rabindra. The entire deposition of the prosecution witnesses and the materials on record together with the confessional statement of Rabindra have been considered in the proper perspective. With great anxiety we have considered the depth and details of the prosecution evidence and top of it the confessional statement of Rabindra being treated as an important piece of evidence. The finding of the learned trial Court being put to the strictest proof of law does not show anything wrong therein for holding appellant Rabindra guilty of the offence. We have not been able to persuade ourselves to differ from the conclusions reached by the learned Additional Sessions Judge in any manner whatsoever.
15. Regard being had to the materials on record, the learned advocate for the appellants has also argued with regard to the scope of punishment. Attention of the Court was drawn to the principles as laid down in AIR 1980 SC 898 : (1980 Cri LJ 636) (Bachan Singh v. State of Punjab). It has been observed in that decision at page 944 in para-204 that the mitigating circumstances have to be taken into account by the Court while considering the sentence of death. Our attention has also been drawn to the decision reported in AIR 1989 SC 1466 : (1989 Cri LJ 1466) (Allauddin Mian v. State of Bihar). In that case, two girls of seven years and seven months of age were killed where the motive for crime was obscure. The killings were not for gain and mere fact that infants were killed, without more, was not sufficient to bring the case within the category of rarest of rare cases. Another decision was cited which is reported in (1991) 4 OCR 619 : (1992 Cri LJ 3503) (State v. Setalu Sudan Reddy). In that case, a young girl of six years was lifted from the village road and brutally killed. There was death sentence but the same was converted to imprisonment for life. The reasons indicated there in were that there was emotion and mental disturbance. Similarly, in the case reported in (1994) 7 OCR 56 (State of Orissa v. Subhas Joshi) where a boy of seven years was kidnapped and killed, the sentence of death was converted to life imprisonment. Our attention has also been drawn to the decision reported in AIR 1978 SC 274 : (1978 Cri LJ 136) (Sri Rangan v. State of Tamil Nadu) which was a case of triple murder. The accused was found to be young in age and in a state of frenzy the offence had been committed. Death sentence in that case was reduced to life imprisonment. We find also in the case reported in AIR 1971 SC 1388 : (1971 Cri LJ 1109) (Om Prakash v. State of Haryana) that the imposition of death sentence was held to be excessive when two co-accused who wore alleged to have instigated the accused to fire at the deceased were given benefit of doubt. In another case, 1994 SCC (Cri) 823 (Balraj v. State of U.P.), there were murders of a brother, his two children and their friend and the offence was committed under influence of extreme mental and emotional disturbance. Innocents were killed and the murders were found not cold blooded. The accused was found to have acted in a frenzied manner and the sentence of death in that case was reduced to imprisonment for life. (1994) 3 Crimes 619 : (1994 Cri LJ 3372) (Kant) (M. S. Sheshappa v. State of Karnataka) was a case where the accused was alleged to have killed his parents, brother and sister-in-law and was aged about 32 years. There was no evidence that he had pre-planned the series of murders. He appeared to have been obsessed with some ideas. It was held to be a case of extreme mental and emotional disturbance and the death sentence was converted to imprisonment for life. Similarly, in 1994 SCC (Cri) 629 (Vithal v. State of Maharashtra) the accused had committed murder of his brother's wife, inflicted injury to his father and brother and also killed a seven years' old boy. Participation of the accused in the crime was proved but the motive was not clearly established by the prosecution. Death sentence in that case was found not justified and was reduced to imprisonment for life.
16. On the converse, the learned Additional Standing Counsel has referred to the cases reported in AIR 1987 SC 1721 : (1987 Cri LJ 1885) (Asharfi Lal and Sons v. State of U.P.), AIR 1991 SC 1463 : (1991 Cri LJ 1845) (Sevaka Perumal v. State of Tamil Nadu), AIR 1991 SC 1468 : (1991 Cri LJ 1833) (Bollavram Pedda Narsi Reddy v. State of AP). AIR 1981 SC 1572 : (1981 Cri LJ 1045) (Kuljeet Singh v. Union of India), AIR 1978 SC 1248 : (1978 Cri LJ 1251) (Shankaria v. State of Rajasthan) and (1990) 3 OCR 417 (State v. Jaharlal Das).
17. We have gone through the materials on record very minutely and have tried to feel the gravity of the same. True it is that there was a great tragedy happened in the life of a helpless father and crying mother. In their very presence their three young children were brutally murdered. Since they had the apprehension for life, they had to leave their residential house and take shelter at the house of a villager named Keshab Pradhan. Only the compromise had convinced them that they could come back to their own house. Unfortunately, Sanatan's anger did not extinguish. He flared up at the sight of P.W. 7 returning with P.W. 1 and the children. It is proved that Sanatan being the eldest member of the family instigated his three young sons to commit the crime. Being instigated by their father his sons forcibly made their entry into the house of P.W. 7, assaulted their uncle and killed the three innocent children like hungry wolf. The part played by Sanatan is beyond comprehension, but it appears that he has acted under an emotional outburst. Without understanding the consequences, he instigated his young three sons, but did not realise the consequences of the heinous offence going to take place. The instigation was sufficient enough to excite the accused sons to commit the crime. Appellant Rabindra being very young in age was found to have been more emotionally excited and he hit all the three children by his axe causing their death. All these actions have been committed under grave emotional disturbance and in great frenzy. The crucial moments of tragedy have taken place. The Supreme Court in one of its judgments reported in AIR 1980 SC 898 : (1980 Cri LJ 636) (supra) has held certain salient features to be considered in inflicting death sentence. The Supreme Court has held that the provision of death penalty as an alternative punishment for murder in Section 302 IPC is not unreasonable and it is in the public interest. It can be held that the provision in Section 302 violates neither the letter or the ethos of Article 19 of the Constitution, but certain mitigating circumstances have got to be considered. In para 204 at page 944 of the decision, the Supreme Court has quoted certain suggestions made by Dr. Chitaley as mitigating factors :-
"Mitigating circumstances :- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances :-
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person; and
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
The Supreme Court has unequivocally observed that nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood-thirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
18. Judging from this angle of vision, although we deprecate the offence committed by the accused, yet there is a great saying that to lose faith in humanity is a sin. It must be appreciated that there is still life in life sentence and only death in death sentence. There is a great saying also that it must be human endeavour to hate the sin and not the sinner. Relying on the ratio of the decisions of the apex Court as discussed above, we find that the ends of justice will be met in the present case if instead of confirming the death sentence, it is reduced to imprisonment for life.
19. The Criminal Appeals are allowed in part. So far as death sentence of appellants Sanatan and Rabindra is concerned, the same is reduced to imprisonment for life. The conviction of all the appellants as also their other sentence remain unaltered. With the reduction of sentence, the Death Reference is disposed of.
20. Before parting with this case, we observe that we shall fail in our duty if we do not place on record the note of appreciation as to how we have really been assisted by the learned advocate for the appellants, namely, Shri Sangan Kumar Sahoo. He has very wisely assisted the Bench in adjudicating this case. He appears to be young and in fact he has acted like an astute lawyer fulfilling the expectation of the Bench from the Bar. He has not only tried to do justice to his clients to the best of his ability, has also performed the role of a real amicus curiae.
R. K. PATRA, J. :- 21. I agree.
Appeal partly allowed.
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Rabindra Parida Alias Rabindra Pariza Alias Aurn And Others, Appellants V. State Of West Bengal, Respondent.

DATE : 03-02-1995
1995-(101)-CRLJ -2256 -CAL
JUDGE(S) :

G R Bhattacharjee
Vidyanand
CALCUTTA HIGH COURT
JUDGMENT
GITESH RANJAN BHATTACHARJEE, J. :- This judgment deals with and disposes of the reference made under Section 366, Cr.P.C. by the learned Additional Sessions Judge, 11h Court, Alipore, seeking confirmation of death sentence imposed by him on the accused persons in S.T. 3(9) 92/S.C. 13(2) 92 and the appeal preferred by the appellants/accused persons against the order of conviction and sentences including the death sentence passed by the learned Additional Sessions Judge in the said case.
2. The informant Rabindra Jhunjhunwala was residing at the relevant time in the 3rd floor flat at P-51, C.I.T. Scheme VII-M, Maniktala, Calcutta with his wife Sunita Jhunjhunwala and three minnor children. At the relevant time two servants were also working in his house. The appellants/accused persons have been convicted and sentenced by the learned trial Judge for committing murder of the said Sunita Jhunjhunwala in the said flat on the 18th September, 1991 and also for committing robbery in that flat at that time. Each of the three accused has several names and in evidence reference to each accused has been made on different occasions by referring to any of such names. To obviate the possibility of any confusion regarding the identity of each accused while appreciating the evidence, it is considered necessary to note here the several names of the accused persons which has transpired in evidence. The accused Rabindra Paridha is also known as Rabindra Parija as well as Arun. The accused Babula Jana is also known as Bishal. The accused Jagat Kr. Jana is also known as Jagadish.
3. From the evidence of P.W. 2 Rabindra Jhunjhunwala we get that the accused jagadish was engaged by him in his house as demestic servant 18/19 days before the date of occurrence and the accused Bishal was employed in his house as domostic servant 3/4 days after the accused Jagadish was employed. The accused Arun, as we get from P.W. 2, also worked in the house as domestic servant only for three days before the above named other two accused were engaged as demostic servant. P.W. 2 however says that Arun sometimes used to come to their house to meet Jagadish. From P.W. 2 we also get the time of departure of different members of the family every day. Jagadish used to escert Megha and Swati, the two dautghters of Rabindra Jhunjhunwala, to the bus step at about 6.30 a.m. so that the said two daughters could board the school but there. The evidence of P.W. 2 is that as usual between 8.30 a.m. and 9 a.m. he left house for his Dall Mill Factory, situated at 2, Canal East Read, Ultadanga and while he left for that Dall mill on the date of acccurrence, namely, 18th September, 1991 there remained his wife and his youngest child Prince and the two servants Jagadish and Bishal in the house. Jagadish had by that time returned from the bus stop where he had gone with the two daughters of Rabindra Jhumjhunwala so that they could board the school bus. The youngest child Prince was a boy and a student of Julien Day School and he used to leave the flat for going to school at about 9.30 a.m. From P.W. 2 Rabindra Jhunjhunwala we also get that he usually used to return for lunch between 2.30 and 3 p.m. On that day also he returned at 3 p.m. The age of the eldest daughter of Rabindra Jhunjhunwala, that is, Megha was about eight years and that of the second daughter, Swati was about six years while the age of the son Prince on the date of eccurrence was about four and half years.
4. P.W. 14 Ram Prasad Jhunjhunwala, the father of Rabindra Jhunjhunwala lives at 8, Madan Chatterjee Lane (Sitala Gali). He lives there with his wife P.W. 8 Shanti Devi and their youngest son P.W. 9 Rajendra and his wife P.W. 13 Kusum. Megha Jhunjhunwala, the eldest daughter of Rabindra Jhunjhunwala was examiend as P.W. 4. Since she was aged about nine years at the time of her examination in Court she was tested by the learned trial judge about her competnece to depose by putting certain questions and each was administered to the witness enly after the trial Judge was satisfied that the witness was quite intelligent and was also giving right answers to questions put by him. She testifies to the fact that on the date of occurrence, namely, on 18th September, 1991 which was Wednesday she left her residence for school at about 6.30 a.m. with her sister and they were escorted up to the bus stop by the accused Jagadish. She also says that her younger brother Prince used to leave for this school at about 9.30 a.m. On that day she and her sister Swati returned to their flat from their school at about 1-30/2 p.m. and they found that the entrance door of the flat was open and after going inside the flat they found the almirah open in the room and found neither their mother nor the servants. They shouted and searched for their mother and then found that their mother Sunita Devi was lying in the bathroom and blood was coming out of her mouth and her lips are covered with cloth which has been described as patti. Megha removed that patti and tried to raise her mother but she did not respond. Then Megha rang up the wife of her maternal uncle at Salt Lake. She also rang up her aunt at Sitala Gali and informed them about the state of affairs in the flat. From her cross-examination we get that after going back (from the school) and on seeing all that she has described, she tried to ring up her father but could not contact. She also says that the patti which she found on the lips of her mother was of red colour. On receipt of Megha's telephone P.W. 6 Shrimati Sarada Devi, the wife of the deceased Sunita's brother came to the flat of Rabindra Jhunjhunwala along with her son P.W. 7 Sanjay Bhaniramka alias Pinku. P.Ws. 6 and 7 corroborate the deposition of Megha about the telephonic information conveyed to them by her at about 2 p.m. They came to the flat of Rabindra Jhunjhunwala with 20/25 minutes thereafter. P.W. 6 Sarda Devi says that on going to the flat she was led by Megha to the place where the body of her mother had been lying and Megha told that she untied the cloth from her mouth. She says that she found that the almirah was open and the key was placed in the hole of the almirah and that the articles were found to be at sixes and sevens in the house. She also did not find the V.C.R. at the place where it used to remain. According to her evidence, about ten minutes after she reached the flat Megha's grand-father, grand-mother, uncle and uncle's wife Kusum and Dilip Jhunjhunwala arrived at the flat. She also says that she knows (the accused) Bishal and Jagadish who used to work at that time in the flat of Rabindra Jhunjhunwala and before them Arun also worked for few days in their house. She further says that she knows Arun as he worked in her house also for 2/3 days. She identifies all of them but she says that when she went to the flat after receiving Megha's call she did not find the accused Bishal and Jagadish in the flat. She says that Sunita was scheduled to come to their residence at about 4 p.m. on that day and as such at 12-30 p.m. she rang up (Sunita) but there was no response though the telephone rang.
5. The second batch of comers to the flat of Rabindra Jhunjhunwala on receipt of Megha's telephone are P.W. 13 Kusum Jhunjhunwala, P.W. 14 Ram Prasad Jhunjhunwala, P.W. 8 Shanti Devi Jhunjhunwala, P.W. 9 Rajendra Jhunjhunwala and P.W. 5 Dilip Jhunjhunwala. P.W. 13 Kusum Jhunjhunwala is the wife of Rajendra Jhunjhunwala who is the brother of Rabindra Jhunjhunwala. They reside at 8, Madan Chatterjee Lane. She corroborates the evidence of Megha and says that at about 2 p.m. Megha rang her up and reported that her mother had been lying in the bathroom and that her mouth was tied by cloth which was united and the almirah of the flat was open, and she asked her to come sharp. She next says that just after attending the call when she was about to go out she saw that her husband had returned from the mill and she told him and her parents-in-law what she heard from Megha and then they started for Megha's house. On reaching the Kankurgachhi flat (of Rabindra Jhunjhunwala) she found that the two sisters Megha and Swati were weeping and found Sarda Devi and Pinku (Sarda's son) consoling them. She further says that on going to the bathroom she found that the major portion of the body (of Sunita) was inside the bathroom and only legs were outside the bathroom. She also found the red cloth, some other clothings, some broken bangles, specticles etc. near the dead body and also blood on the floor and on the mouth. She identifies all the three accused and says that the accused Jagadish and Bishal were working in the house of Rabindra Jhunjhunwala for 10/15 days and before that Arun worked in that house for 3/4 days. In her cross-examination she says that she did not do anything positive but her husband asked Dilip to inform police.
6. P.W. 8 Shanti Devi is the mother of Rabindra Jhunjhunwala, She resides at 8, Madan Chatterjee Lane with her husband and her one son Rajendra and Rajendra's wife. According to her evidence on the concerned date at about 2 p.m. Kusum, the wife of her youngest son reported to her weeping that she had come to know from Megha over phone that Megha's mother had been lying in the bathroom and not responding to any call and asked them to go sharp. On hearing this Shanti Devi, her husband Ram Prasad, her son Rajendra and his wife Kusum and Dilip, son of the elder brother of Shanti Devi's husband came to Kankurgachhi flat and found that the two daughters Megha and Swati were weeping and also found that Megha's Mammi Sarda and her son Pinku were present there and Sarda was trying to console Megha and Swati. She also testifies that Sunita Devi's body was inside the bathroom and legs outside. She deposes that she found the almirah open and found the key placed in the key hole of the almirah and the articles were lying at sixes and sevens and also did not find the V.C.R. She identifies the ornaments given to Sunita Devi at the time of marriage. It may be mentioned here that these ornaments were found missing from the flat after the occurrnece and the subsequent recovery of the same implicates the accused persons. P.W. 9 Rajendra Jhunjhunwala is the son of the P.W. 8 Shanti Devi and the brother of Rabindra Jhunjhunwala. He resides with his parents as 8, Madan Chatterjee Lane, Sitala Gali. According to his evidence on the relevant date he returned home (8, Madan Chatterjee Lane, Sitala Gali) from their Dall mill at about 2 p.m. and then his wife reported to him about the telephone call from the Megha and thereafter he along with his wife, mother, father and Dilip Jhunjhunwala went to the Kankurgachhi flat. They reached there at the Kankurgachhi flat at about 2.30 p.m. At that time Megha and her sister Swati and their Mammi Sarada and her son Pinku were only present in the flat. But they did not find the servants there. He also testifies to the fact that Sunita Devi's body was lying inside the bathroom and legs outside. He says that some clothings, some broken glass bangles were found scattered around the body and a red cloth was found there by the side of the body. He found a key lying on the floor in the passage, and in the bedroom he found the almirah open and the key placed on the key hole of the almirah. The learned Advocate for the appellants/accused submitted that while some witnesses said that the key was lying on the passage some said that the key was in the key hole of the almirah and therefore there is a vital contradiction which would cast a serious doubt about the prosecution version of the occurrence. Firstly, I would like to say that even any seeming contradiction in the evidence of some witnesses as to where the key was found lying after the occurrence would not by itself be a sufficient ground for discrediting the entire prosecution case or the vital part of the same. Secendly, from a reading of the entire evidence it would appear, and this is also made clear by the evidence of P.W. 9 Rajendra Jhunjhunwala that in fact two sets of keys were found, one lying on the floor of the passage and the other in the key hole of the almirah in the bedroom from which the articles had been removed. Therefore, there is no contradiction in the prosecution evidence about the keys found in the flat by the witnesses who arrived that soon after the occurrence. P.W. 9 Rajendra Jhunjhunwala also says that they found the articles inside the almirah ransacked and did not find the golden ornaments. They also did not find the V.C.R. He also testifies to the fact that the accused Jagadish and Bishal were two servants who used to work in the house of Sunita Devi at the relevant time. From him we also get that their dall mill is run on partnership between his father and the latter's friend Ram Krishan Sarath. He looks after the Dall mill on behalf of his father. He says that on his request Dilip had first tried to connect the P.S. over phone and having failed they went to the P.S. to report the matter. In his cross-examination he says that no neighbour was found present when he reached there nor does he remember if any neighbour or outsiders subsequently came at that flat. It has been commented upon by the learned Advocate for the accused appellants that the absence of neighbours is somewhat unusual. Even if it is accepted that no neighbours came there after the incident when the relatives of the deceased reached there, that by itself does not falsify the death or for that matter, murder of Sunita Devi in that flat regarding which there is overwhelming evidence. In his cross-examination it has also been taken that there is another house to the north of the flat of Sunita. There is also another house to the east of that flat about 5/6 cubits away. Such topographical descriptions are of no consequence in a case like this where a gruesome murder of a helpless house-wife has been committed inside the bathroom ot her flat by her own servants staying in the flat and who must have, taking advantage of the confidence and faith reposed in them by their master, taken all pre-arranged and precautionary measures to commit the murder inside the flat in secrecy without drawing the attention of the passers-by and neighbours and without giving sufficient opportunity to the victim to raise cries to be heard by neighbours and passers-by. As we have seen from Megha's evidence when she first saw the dead body of her mother in the bathroom her mouth was tied by a red cloth. Obviously, that was done by the miscreants for giving no opportunity to the victim to raise cries for attracting attention of neighbours and passers-by. For servants who are supposed to be faithful and staying in the flat it is not at all difficult to seize an opportunity to suddenly overpower the mistress of the house while she was alone with them in the flat by taking a surprise move to shut her mouth thereby preventing her from raising any cries loud enough to attract the attention of others who might or might not have been there in the neighbourhood outside the flat. P.W. 9 Rajendra says that besides the Dall mill business his father does business in share by applying for it. It has been suggested to him in his cross-examination on behalf of the accused persons that he, his father Rabindra and Ramesh (another brother of Rabindra) in the absence of the children went in their tempo van driven by Ramji Chowdhury to the flat of Rabindra and used the duster of the vehicle for tying it on the neek of Sunita and by pressing the same caused her death. It is further suggested to him in cross-examination that they murdered Sunita on her refusal to sign blank cheque on demand and then manufactured the story. It is also suggested to him in cross-examination that by a premeditated plan they discharged their faithful servant only 10/20 days before two unknown persons were engaged as their servants and that to cover up their crime they drove away the two servants just on reaching and they directed the driver to go away after they drove the vehicle up to the flat. It is needless to mention that all these defence suggestions were denied not only by this witness but by other witnesses to whom also such suggestions were given. Suffice it to say that such suggestions, - far from being substantiated by evidence - are desperately crude and devoid of any plausibility capable of generating even a semblance of acceptability from any angle of view.
7. P.W. 5 Dilip Jhunjhunwala, as we have seen, is the sen of the brother of the father of Rabindra Jhunjhunwala. He has an electronic shop at 5, Dwarka Nath Tagore Lane. His evidence is that on 18th September, 1991 at about 2 p.m. when he was returning from his shop his uncle Rajendra Jhunjhunwala met him and informed that a telephone call from Megha came to Kusum and Megha informed about the condition of her mother etc. in the flat and requested to come sharp. He says that then they went to the Kankurgachhi flat. His evidence as to what he saw after reaching the Kankurgachhi flat of Rabindra Jhunjhunwala is rather consistent with what the other witnesses have said which I have already discussed. He says that for 2/3 minutes he tried to contact the police station over telephone, but having failed he went to the Maniktala P.S. and lodged a general diary there at about 3 p.m. Exhibit 9 is that general diary entry wherein it is recorded that one Dilip Jhunjhunwala came to the P.S. and stated that his aunty Smt. Sunita Devi Jhunjhunwala was lying dead inside her flat at P-51, C.I.T. Scheme VII-M. It is argued by the learned Advocate for the appellants accused that this G.D. entry being the first information to the police regarding the commission of the offence the same should have been treated as F.I.R. and that, the formal F.I.R. recorded on the basis of subsequent statement of Rabindra Jhunjhunwala cannot be taken into conideration in the case as the same cannot be treated as F.I.R. in this case. This contention, I must say, is devoid of merit. As we have seen the concerned G.D. entry is only a cryptic information that Sunita Devi was lying dead inside her flat and nothing more. There it is not even stated that she was murdered or any offence was committed. Such a cryptic information was lodged and recorded only for the purpose of inviting police attention to the matter. A bald statement that a particular person was lying dead, for obvious reason, cannot constitute the first information report regarding the commission of an offence and therefore there is no reason to ignore the first information report which was recorded subsequently on the basis of the statement of Rabindra Jhunjhunwala.
8. P.W. 14 Ram Prasad Jhunjhunwala is the father-in-law of the deceased Sunita Devi. He also came to the Kankurgachhi flat on the date of occurrence along with the other persons, namely, his wife Shanti Devi Jhunjhunwala, Kusum, Rajendra and Dilip after getting message from Megha. He says that on that day, that is, 18-9-1991 in the morning he telephoned from his house to the mill to send his tempo driver to him. It may be mentioned here that P.W. 15 Ramji Chowdhury is that tempo/van driver. P.W. 14 Ram Prasad Jhunjhunwala says that at about 9/9.30 a.m. he handed over one cheque and share application form to his tempo driver (Ramji) and asked him to get signature of Sunita thereon. His further evidence is that after returning from Sunita's house Ramji reported to him that Bahuji (meaning, Sunita Devi) was not in the flat and that she would be back at 3 p.m. He also says that on 19th September, 1991, that is, on the next day in the morning Ramji came to his house at about 9 a.m. and reported that on the previous day when he had been returning from Kankurgachhi flat he saw that the three servants Arun. Jagadish and Bishal were going towards Maniktala Main Road with a green bag and further told that while he came to the flat at Kankurgachhi Jagadish and Bishal opened the door and reported to him that Bahuji had left for her relatives house and would return at about 3 p.m. The learned Advocate for the appellants/accused criticised as to why Ramji did not tell Ram Prasad on 18th September, 1991 that he had seen the three servants Arun, Jagadish and Bishal go through Maniktala Main Road and that while he came to the flat of Rabindra Jagadish and Bishal opened the door and reported to him that Sunita had left for her relative's house. In this connection P.W. 15 Ramji Chowdhury says that he reached the Kankurgachhi flat at about 10-30 a.m. with the share application form and cheque given to him by Ram Prasad Babu and when he rang the door bell of the Kankurgachhi flat the servants Jagadish and Bishal opened the door and told that Bahuji was absent and on his query further told that she had gone to her relative's house and would come back by 3 p.m. He also says that when he had been waiting (thereafter) at 3A Bus Stand he found that Jagadish, Bishal and Arun were proceeding through Maniktala Main Road and also found a green coloured (Hara) bag in the hand of Jagadish. Returning to the house of Ram Prosad, according to his evidence, he reported to him about the absence of Bahuji and her expected return at about 3 p.m. and he was then directed by Ram Prosad to go to the mill. P.W. 15 further says that on the next day, that is, on the 19th September, 1991 he told Ram Prosad Babu that on the previeous day he found that the three servants were proceeding through Maniktala Main Road with a green bag and that Bishal and Jagadish on the previous day opened the door and told him that Sunita had gone to her relative's house and would be back by 3 p.m. These statements of Ramji Chowdhury that the accused Jagadish and Bishal opened the door of the Kankurgachhi flat on the previous day when he went there and that the three servants including Arun were seen by him thereafter, while he was waiting at the bus stand, to proceed along the Maniktala Main Road with a green coloured bag in the hand of Jagadish were not of any significance on the 18th September, 1991 to Ramji because he was not yet aware when he came back to Ram Prosad on 18th that Sunita Devi had been murdered. In the circumstances it is quite understandable why he did not report these facts to Ram Prosad on 18th when he came back to him from the Kankurgachhi flat. By next day however obviously the fact of murder of Sunita Devi became known to everybody and that is why Ramji might have, quite appropriately, considered it fit and proper to report that on the previous day when he went to the Kankurgachhi flat the two servants opened the door and reported that Sunita was not in the flat, and also that later while he was waiting at the bus stand he saw that the three servants were going along the Maniktala Main Road togehter with a green coloured bag in the hand of one of them. These facts necessarily are vital clues regarding the involvement of the accused persons in the commission of the crime and understandably, that is why Ramji reported the same to Ram Prosad next day although on the earlier day these facts were not reported as the same did not, at that time, appear to be of any significance to Ramji for being reported to Ram Prosad. It is submitted by the learned Advocate for the appellants/accused that it is improbable that the two accused Jagadish and Bishal would come together to open the door and tell that Sunita Devi was not in the flat and had gone out, if really they had committed the murder of the said lady. I do not find any improbability in the matter.
9. P.W. 2 Rabindra Jhunjhunwala is the husband of the deceased Sunita Devi. On the date of the occurrence he left his flat between 8.30 and 9 a.m. and returned at 3 p.m. By that time his other relatives had already arrived at his flat on receipt of Megha's message over phone. He testifies to the fact that by the side of the dead body of his wife, lunghi, half pant, shirt of Jagadish and Bishal and one ashan and one Do-pattaya were lying and the almirah where the golden ornaments used to be kept-was found open and the ornaments and one V.C.R. were found missing. He found that his wife was lying in a pool of blood and blood was coming out of her mouth. Police Officers arrived at the flat at about 3.30/3.15 p.m. and recorded his statement on the basis of which formal F.I.R. was drawn up later at the P.S.
10. P.W. 2 Rabindra Jhunjhunwala is also a witness to the arrest of the two accused Bishal and Arun at the Howrah Station on 27th September, 1991. His evidence is that he accompanied the police officer on the basis of information at about 11 a.m. and the said two accused Bishal and Arun were found there at platform No. 13. He also says that police interrogated both of them and being led by them they went along with the police officer at Kailash Building, Chowranghee. Road wherefrom accused Jagadish was arrested. He further says that from each of the accused some articles were recovered and seized by the police. From the evidence of the I.O. it would however appear that the accused Bishal and Arun were taken to Lalbazar (police headquarters) for interrogation by the police after their arrest at Howrah Station and from there persuant to their statement they went to the Kailash Building on Chowranghee Road on being led by the said accused persons and from there the accused Jagadish was arrested and certain articles were recovered. It has been argued by the learned Advocate for the appellants/accused that while the I.O. says that the accused Bishal and Arun were taken to Lalbazar from the Howrah Station and later they were taken to Kailash Building, Chowranghee Road, P.W. 2 Rabindra Jhunjhunwala does not say that the accused Bishal and Arun were taken to Lalbazar from the Howrah Station after their arrest. In my opinion, this is really no contradiction as Rabindra Jhunjhunwala while deposing on the aspect of arrest and recovery from the accused persons were confining himself only to the salient aspects of the arrest and recovery and that is why his statement does not include the Lalbazar part of the events relating to the accused Bishal and Arun. He identifies the articles recovered and seized from his house including the lunghi, shirt and pant of the accused found near the dead body of his wife. He also identifies the bunch of keys which his wife used to keep with her always and which was seized by the police from his flat and marked as exhibit-I as well as the key which was seized and marked as exhibit-IV. He also identifies the various other articles recovered from the different accused persons. In the F.I.R. which was lodged by this witness P.W. 2 Rabindra Jhunjhunwala he stated that checking the almirah he could remember that gold and jewellery worth Rs. 2 lacks including diamond sets etc. were missing and that the details of the missing ornaments would be supplied later on. It was also stated in the F.I.R. that their national V.C.R. was also taken away by the miscreants. The learned Advocate for the appellants/accused submitted that in the F.I.R. the petitioner could not give the details of the ornaments and articles taken away by the miscreants and this shows that the informant kept the door of concection open. This, in my opinion, is not a justified criticism. Immediately after the occurrence the mental condition of the husband of the deceased must have been in a very disturbed state and at that time it was naturally not expected that he would be able to give a detailed list of all the articles missing from his house, more so where, as in this case, the number of missing articles and ornaments are rather numerous.
11. P.W. 26 D. Baidya, Sub-Inspector of Police is the first investigating Officer (I.O.) of the case. At the relevant time he was attached to Maniktala P.S. On receipt of information about the death of Sunita Devi from Dilip Jhunjhunwala he recorded the same in the General Diary and then went to the spot with the officer-in-charge of the Maniktala P. S. Manas Banerjee, S.I. Subrata Basak and force and reached the flat at about 3.15 p.m. He directed S.I. Subrata Basak to call a doctor after finding that the dead body was lying there in the bathroom of the flat, a portion of the body being outside the bathroom. It may be mentioned here that P.W. 10 Dr. Santosh Kr. Das who is a practioner of that locality was called in by the police to that flat at about 4 p.m. and then the doctor on examination found that Sunita was dead and accordingly he issued a death certificate which has been marked exhibit 12. From the evidence of P.W. 26 S.I. D. Baidya we also find that at about 3.15 p.m. the officers of the Detective Department, Lalbazar also arrived at the flat. S.I. D. Baidya recorded the statement of Rabindra Jhunjhunwala and on being directed by the O.C. he took up the investigation of the case. He prepared the inquest report exhibit 10/2. He says that P.W. 24 S.I. Amulya Ratam Dey made seizure of the articles found scattered on the floor of the flat. He examined the witnesses Dilip Jhunjhunwala, Megha Jhunjhunwala, Swati Jhunjhunwala, Sohanlal Sharma, Prince and Sarda Devi Jhunjhunwala under Section 161, Cr.P.C. At about 9 p.m. he returned to the P.S. and filled up the formal F.I.R. on the basis of the recorded statement of Rabindra Jhunjhunwala. The formal F.I.R. has been marked exhibit 2/6. At the P.S. on that date he examined and recorded the statements of Shanti Devi Jhunjhuwala, Kusum Jhunjhunwala and Rajendra Jhunjhuawala. On the next day that is on 19-9-1991 he recorded the statements of P.W. 14 Ram Prosad Jhunjhunwala and P.W. 15 Ramji Chowdhury. The learned Advocate for the appellants/accused submitted that the I.O. did not examine Ram Prosad Jhunjhunwala and Ramji Chowdhury on 18-9-1991 for the purpose of facilitating concoction of the case. I do not think that there is any substance in this suggestion. As we have seen, Ramji Chowdhury came to the Kankurgachhi Flat on 18-9-1991 when the death of Sunita Devi in that flat did not yet come to light. At that time he was told by the two servants that Sunita Devi had gone out and would return at about 3 p.m. Ramji Chowdhury accordingly left the place and went to Ram Prosad Jhunjhunwals and reported that Sunita Devi was not in the flat and would return by 3 p.m. and thereafter he had gone to the mill. Therefore Ramji Chowdhury was not available readily on 18-9-1991 for examination by the I.O. because he did not go to the Kankurgachhi flat second time on 18-9-1991. But he as well as Ram Prosad Jhunjhunwala was examined on the very next day by the I.O. P.W. 18 Ramesh Jhunjhunwala is another brother of Rabindra Jhunjhunwala and son of Ram Prosad Jhunjhunwala. He says that on 18-9-1991 at about 8.15/8.30 p.m. when he came to his father's residence at 8, Madan Chatterjee Lane from his factory he heard the incident of death of Sunita from his father. His evidence therefore shows that his father Ram Prosad Jhunjhunwala who had earlier on receipt of information about the death of Sunita Devi gone with the other members of the family present in the house to the Kankurgachhi flat, had returned to his Madan Chatterjee Lane house before 8.15/8.30 p.m. That is why Ramesh on coming to his father's residence at 8, Madan Chatterjee Lane on that evening at about 8.15/8.30 p.m. came to know from his father (Ram Prosad Jhunjhunwala) about the incident of death of Sunita Devi. Since both Ram Prosad Jhunjhunwala and Ramji Chowdhury were not present in the Kankurgachhi flat in the evening on 18-9-1991, the I.O. had no opportunity to examine those two witnesses in that evening either at the flat or at the P.S. when he examined the other witnesses who were present there. Accordingly it cannot be said that the non-examination of Ram Prosad Jhunjhunwala and Ramji Chowdhury on 18-9-1991 stands un-explained. They were examined on the every next day and I do not find that there was anything wrong in it. P.W. 26 D. Baidya, the I.O. says that on 20-9-1991 he took further statement of the complainant Rabindra Jhunjhunwala who gave the details of the articles lost. He also there is nothing wrong in it. We have already seen that in the F.I.R. recorded on the very date of occurrence Rabindra Jhunjhunwala had stated that he would give the list of missing articles later and I have already discussed that there was no improbability in it. It may be mentioned here that on 20-9-1991 the Detective Department took up the investigation of the case pursuant to the order of the Commissioner of Police and accordingly Shri D. Baidya handed over the case diary and the anamats (seized articles) to Amitava Lahiri S.I. of Detective Department, Lalbazar. D. Baidya says that during his tenure of investigation despite search he failed to apprehend the accused persons.
12. P.W. 27 A. Lahiri is an S.I. of Police attached to the Detective Department, Lalbazar. As I ahve already mentioned he took charge of the Investigation from the first I.O. D. Baidya. His evidence is that on 27-9-1991 on the basis of information he along with Rabindra Jhunjhunwala went to Howrah Station and there at about 10-20 a.m. arrested the accused Rabindra Parida alias Arun and accused Bishal on the identification of the complainant. He also speaks about recovery of seizure from these two accused there in presence of two witnesses. He further says that the two arrested accused persons were then taken to Lalbazar and were interrogated and their statements were recorded. On the basis of such statements and on being led by the two accused persons they went to Kailash building on that very date at about 5.45/6 p.m. and two witnesses were called there and in their presence a servant's quarter at the 16th floor of that building which was occupied by one Baikunta Beara was searhced and on the identification of the complainant and the accompaning two accused persons, the accused Jagadish was arrested from inside the said room. There one green colurned bag with national V.C.R. and certain other articles were recovered from the possession of the accused Jagadish and seizure list was prepared in presence of witnesses. On 28-9-1991, that is, on the very next day the three accused were produced before the learned Magistrate and police custody of the accused persons was prayed for. The I.O. Shri Amitava Lahiri says that on 7-10-1991 while in police custody the accused Arun made further statement on interrogation and led the I.O. to premises No. 19, Chetlahat Road, Alipore where the I.O. interrogated Dilip Pal in presence of another witness Jalal. Dilip Pal was pointed out by the accused Arun alias Rabindra Parida. The evidence of the I.O. of A. Lahiri is that on being asked by the accused Rabindra alias Arun said Dilip Pal produced one cloth putli (Bundle) which, on opening, was found to contain some ornaments and a wrist watch and those articles were seized under proper seizure list in presence of witnesses. He also identifies the articles seized by him. I may mention here that at Howrah Station railway tickets from Howrah to Balasore were seized from the two accused persons arrested there along with the other articles.
13. P.W. 16 Lalu Das and P.W. 21 Babu Srivastava are the two witnesses in whese presence the arrest of the two accused Arun and Bishal were made on the platform No. 13 of the Howrah Railway Station and recovery and seizure were made from the possession of these two accused. P.W. 16 Lalu Das says that on 27-9-1991 at about 10.30 a.m. he was standing on platform No. 13 of the Howrah Railway Station and his friend Babu was with him and in their presence police caught hold of and arrested the two accused persons. He also identifies the articles recovered in his presence. In his cross-examination he says that one Bablu whose title he does not know requested him to stand at platform No. 13 of the Howrah Station forgoing to Rishra and they were so waiting. He says that Bablu was to purchase their railway tickets but no specific train was mentioned by Bablu. He further says that they had no meeting with Bablu on that date. He says that they were standing at about the middle point of the platform and many persons were present near them and police caught hold of the two accused persons in front of them. P.W. 21 Babua Srivastab also says that on 27-9-1991 he met Lalu Das at Howrah Station and he and Lalu Das together were waiting on platform No. 13 as one of their friends had to take them to Rishra. It was about 10.30 a.m. at that time and on the said platform No. 13 police caught hold of two accused persons. He also speaks of seizure. He says that they were standing at a place whereform No. 13 starts. It has been submitted by the learned Advocate for the appellants/accused that while P.W. 16 Lalu Das says that they were standing at about the middle point of the platform P.W. 21 Babua says that they were standing at a place wherefrom platform No. 13 starts. The learned Advocate for the appellants/accused therefore finds contradiction in the evidence of these two witnesses as to actually where they were standing. It is needless to say that in respect of a crowded platform the description regarding the place where one might have been standing on a particular occasion need not be taken to project a geometrical accuracy. Their evidence is consistent about the fact that the two accused were arrested from platform No. 13 when these two witnesses were standing there. They were waiting for another person for going to Rishra. It has been argued by the learned Advocate for the appellants/accused that the Court may take judicial notice of the fact that Rishra-bound trains do not start from platform No. 13 and that platform No. 13 is meant for South Eastern Railway trains. It may be mentioned here that the two accused persons were found waiting on plantform No. 13 when they were arrested. They had tickets with them for travelling to Balasore. Balasore being a place in the Sought Eastern Railway the presence of the accused persons on platform No. 13 with tickets for Balasore is not an unexpected event. It may be mentioned that Rishra-bound trains do not ordinarily start from platform No. 13 but for that reason the presence of the two witnesses Lalu and Babua on that platform at the relevant time need not be doubted. The witnesses have said that they were waiting for another person who had to purchase ticket for them for travelling to Rishra. Obviously, therefore they were waiting there not for exactly boarding a train from that platform but awaiting the arrival of another person in connection with their proposed visit to Rishra. The reason as to why the witnesses were standing on platform No. 13 could have been asked on behalf of the accused persons in their cross-examination but that does not seem to have been done. In the circumstances, it will not be justified to disbelieve the evidence of these two witnesses. It may be mentioned here that it has been suggested to these two witnesses during their cross-examination that they were not going to Rishra but were going to Balasore which however they have denied. Such suggestion also lends support to the presence of the two witnesses on the platform at the relevant time.
14. Regarding the arrest of and recovery from the accused Jagadish the prosecution have examined P.W. 17 Bhanu Prosad Sharma besides the I.O. and the complainant, etc. In 1991 he used to go for work as security guard at Kailash building. According to his evidence on 27th he was on security duty in the evening at Kailash building when police came there with the two accused persons. The police told that they would go to the 16th floor of the building and then P.W. 17 Bhanu Prosad Sharma (Security Guard) and B. D. Yadav, another security guard with police and three men who also went there with the police went to the 16th floor and police nocked one servants room in that floor and then Baikunta opened the door. His evidence corroborates the prosecution case that the police arrested the accused Jagadish from that room and also recovered one V.C.R. and certain other articles there from a greenbag. From him we get that Baikunta was a servant of one Mr. Bansari. The other security guard of Kailliash building who was present at the relevant time is P.W. 11 Bishnu Deo Yadav. He also correborates the evidence of P.W. 17 Bhanu Prosad Sharma regarding arrest of the accused Jagadish from the room of Baikunta on 27-9-1991 at about 6/6.30 p.m. and recovery of green coloured bag and its contents including V.C.R. and ornaments etc. on production of the same by the said accused Jagadish.
15. Regarding further recovery of incriminating articles from Alipore Road by the police on 7-10-1991 as a sequel to the statement and guidance of the accused Rabindra Parida alias Arun P.W. 19 Dilip Pal who is a resident of 19, Alipore Road which is just beside Chetlahat Road says that police came to their house with the accused at about 3.30 p.m. and the accused asked him to bring out the materials that he (the accused) had kept in his custody (i.e., the custody of the witnesses). He says that the said accused kept those articles in his custody stating that there had been disturbance in his family at his country home and by selling these articles he would raise money and distribute the same among the family members. The witness Dilip Pal returned the articles to police. Some such articles were one gold chain, two pieces of gold balas, one piece of Titan lady's wrist watch, etc. He further says that one Jalal who resides in that para also came to him at that time. In his cross-examination he says that he picked up acquaintance with the said accused in a tea shop in their para in 1990. The place where the witness resides is a basti bari where many people reside. He further says that about 15/20 days before the articles were recovered the same were kept in his custody and during this period he did not inform the police. He further says that even earlier, about six months before, the said accused kept chain with him and subsequently took the same away. P.W. 20 Mohammed Jalal who is also another witness to the seizure made on production of articles by P.W. 19 Dilip Pal, was only tendered by the prosecution. In his cross-examination he however says that he signed on a blank paper at their para but he identifies his signature and says that Dilip Pal signed before him. P.W. 27 Amitava Lahiri, the I.O. says that he did not arrest Dilip Pal since Dilip Pal valuntarily produced the articles. He says that if stolen articles are recovered from any person the question whether such person should be arrested or not depends on the circumstances. As regards Baikunta Beara from whose room at Kailash Building the accused Jagadish was arrested and recovery was made the I.O. Shri Amitava Lahiri says that he did not arrest him (Baikunta) as his complicity was not found. The learned Advocate for the appellants/accused submitted that it was somewhat unusual that the police did not arrest Baikunta although one accused, namely, Jagadish was arrested from Baikunta's room and revevery of the stolen articles were also allegedly made from that room of baikunta. Similarly, it has been aruged by him that in spite of alleged production of the stolen articles by Dilip Pal he was not arrested by police. As we have seen such criticism is answered in the deposition of the I.O. Amitava Lahiri from which it is clear that the police did not arrest Baikunta and Dilip Pal in spite of recovery of stolen articles from their rooms because police did nto find their complicity in spite of the fact that recovery was made from their rooms. Now, even if they had any complicity in the matter in the sense that they had knowledge or reason to believe that the concerned articles were stolen properties that would not have exenorated the accused persons in respect of their liability for participation in the commission of the crime.
16. P.W. 12 Dr. Rabindra Basu is the autopsy surgeon who held post mortem examination on the dead body of Sunita Devi Jhunjhunwala. He is a Professer and head of the Department of Forensic and State Medicine and Vice-Principal, N.R.S. Medical College and Hospital. He held the post mortem examination on 19-9-1991 at 1.45 p.m. He describes the injuries found by him on the dead body as well as the internal injuries. He says that all the injuries found by him were fresh and showed evidence of ante-mortem reaction. On the basis of his findings the autopsy dector is of the opinion that death was caused due to the effects of strangulation associated with smothering, ante-mortem and homicidal in nature. The doctor was also of the opinion that death of Sunita Devi took place sometime between 24 to 30 hours from the time of his holding the post mortem examination on 19-9-1991 at 1.45 p.m. The evidence of the autopsy surgeen thus establishes that the Sunita Devi was murdered by strangulation with smothering and such murder was committed on 18-9-1991 sometime between 7.45 a.m. and 1.45 p.m. This rather convincingly fits in with the prosecution case about the manner of Sunita Devi's murder and the probable time of commission thereof.
17. The defence plea, as can be gathered from the tenor of cross-examination of the prosecution witnesses as well as from the statements made by the accused persons while examined under Section 313, Cr.P.C., seems to be a plea of alibi inasmuch as it is the plea of the accused persons that they were not present there. It is also the defence case as suggested to the prosecution witnesses in cross-examination that the murder was committed not by the accused persons but by the husband of the deceased and his other relations conjointly. The accused Rabindra alias Arun however admitted in his examination under Section 313, Cr.P.C. that he had worked in the flat of P.W. 2 Rabindra Jhunjhunwala at Kankurgachhi for about three days. He however says that then he had come home. He also admits in his examination under Section 313 Cr.P.C. that Prince used to go out (for school) at about 9.30 from his house and that Rabindra Jhunjhunwala used to go out between 8.30 a.m. and 9 a.m. for going to their Dall mill factory at East Canal Road, Ultadanga. He further admits that Megha and Swati used to return from school at about 1.30/2 p.m. and that on that day at 8.30/9 a.m. when P.W. 2 Rabindra had started for the dall mill his wife Sunita Devi, son Prince, accused Jagadish and accused Bishal were the only persons present in the flat. He says that police had brought him from Orissa and assaulted him and made him sign on a blank paper and put him in jail. Similar statement also has been made by the accused Bishal under Section 313 Cr.P.C. to the effect that he was held and brought from Orissa. The accused Jagadish has acknowledged under Section 313, Cr.P.C. that Megha and Swati are Rabindra Kumar Babu's daughters and they used to return from school at about 1.30/2 p.m. He however says that he was in his village at the relevant time. In answer to the question that Megha had identified him and the two accused in the Court as being domestic helps/servants in their house, the accused Jagadish says that he had worked before, 5/6 months previously. He however says that at the relevant time and on the date of occurrence he was in his village at Orissa. He says that police have held and brought him from Orissa although he says that he has done work and gone to his village about 5/6 months ago.
18. Now let us look to the seizures made in the case. The seizure list exhibit 3 is dated 18-9-1991. The seizure under the said seizure list was made between 5 and 6 p.m. on 18-9-1991 in the flat of Rabindra Jhunjhunwala. The articles seized under said seizure list include two lunghis, one full sleeved shirt having blood stains, one short pant, one cotton sari, one red cloth piece with blood stains, one ashan, broken pieces of plastic churies, one pair or specticles, one key and also one bunch of keys. It appears from the seizure list that the key was found lying at the time of seizure on the floor of the passage near the main entrance gate of the flat. It also appears that the bunch of keys was found at the time of seizure in the door of the almirah in the room. The other articles were found to be lying at or in the neighbouring place where the dead body was found lying. It also appears that at the time of seizure the items at serial Nos. 1 and 5, namely, lunghi and short pant were identified by Rabindra Jhunjhunwala as the articles which belonged to Bishal and the articles at serial Nos. 3 and 6, namely, the shirt and lunghi were identified by him as article belonging to Jagadish. Exhibit 4/6 is the seizure list dated 27-9-1991. That seizure list was prepared between 11.30 a.m. and 12.30 p.m. on that date at Howrah station on platform No. 13. on recovery of the articles seized thereunder from the accused Babula Jana who is also known as Bishal. That seizure list in respect of seizures made from the said accused Bishal includes, besides one railway ticket from Howarah to Balasore, several items of gold and silver ornaments such as gold bangles fitted with small pearls, gold bala fitted with read stone, gold hair pin, gold ear jhumka, gold button, gold ring fitted with diamond, neck chain fitted with locket with diamond stones, silver payal etc. Exhibit 5/6 is the seizure list dated 27-9-1991 prepared between 10.35 a.m. and 11.25 a.m. The articles seized under that seizure list was receivered from the accused Rabindra Parida on platform No. 13 of the Howrah Railway Station. The articles seized thereunder include gold Ambriti Bala, gold bala fitted with red stones, four pieces of gold bangles fitted with small pearls, gold bangle fitted with pearls, gold neckless, gold tiklis, gold hair pin, two pairs of gold cuflings, gold locket, broken neckless fitted with diamond, perl chain, ticklee fitted with small diamonds, having a locket, button set, silver payel, finger ring fitted with diamond, ear-ring, silver key ring, railway ticket from Howrah to Balasore, etc. Exhibit 6/5 is another seizure list propared on 27-9-1991 between 6 and 6.30 p.m. in respect of recovery made from the servant's room occupied by Baikunta Beara on the 16th floor of Kailash building, 35/1, Chowranghee Road. That seizure was made at the pointing out of the accused Jagadish. The articles seized under the said seizure list include one large olive green canvas bag containing one national V.C.R. gold necklace, gold churi, gold dhunichi, silver dot pen, silver finger ring, loose pearls, etc. Exhibit 14/2 is yet another seizure list prepared on 7-10-1991 between 3.45 and 4.30 p.m. on production of articles by Dilip Pal. This seizure list include a pair of gold bangles fitted with red coloured stones, paid of gold wrist-let, gold chain with locket, gold noses kamta, one Titan Quartz wrist watch. We have seen that pursuant to the statement of accused Rabindra Parida and on being led by him the police went to the witness Dilip Pal at Chetlahat and there these articles were produced by Dilip Pal. The evidence of Dilip Pal shows that those articles were given to him by accused Rabindra Parida for keeping the same in his custody. The articles seized under the said seizure lists 4/6, 5/6, 6/5 and 14/2 have been identified by P.W. 2 Rabindra Jhunjhunwala and his mother P.W. 8 Shanti Devi Jhunjhunwala as the articles belonging to Rabindra Jhunjhunwala and his deceased wife Sunita Devi. The I.O. P.W. 27 A. Lahiri identifies exhibit XXII as the live green canvas bag which he seized from the accused Jagat Kr. Jana alias Jagadish. Identifying the said bag exhibit XXII P.W. 15 Ramji Chowdhury says that this type of bag was found by him in the hand of Jagadish. We may recollect that in his evidence Ramji Chowdhury stated that on being told by the accused Jagadish and Bishal that Sunita Devi was not in the flat and would return at 3 while Ramji Chowdhury was coming back and was waiting at the 3-A bus stand, he saw that three accused were proceeding along Maniktala Main Road with a green bag in the hand of the accused Jagadish. As regards the recovery and identification of the seized ernaments and wrist watch it has been argued by the learned Advocate for the appellants/accused that the articles were not placed in the T. I. Parade and as a result of which no reliance should be placed on the deposition of P.W. 2 Rabindra Jhunjhunwala and her mother about the identification of the articles and ornaments. This submission, in my opinion is not of any moment in a case like this where the members of the family who used the articles or who have seen the articles being used by some members of the family identified the articles as such. It is of common experience that persons using articles are capable of identifying the same even if there are no special identifying marks on the same. He therefore, find no reason to discard the evidence of the P.W. 2 Rabindra Jhunjhunwala and his mother regarding the identity of the articles recovered from the accused persons.
19. We have discussed above the relevant evidence and the picture that emerges is this. On 18-9-1991 in the forenoon when the deceased Sunita Devi was in her Kankurgachhi flat, her husband and the three children having gone out of the flat by that time for going to their respective places of work and study, there were only the two servants, namely, the accused Bishal and the accused Jagadish in that flat besides Sunita Devi. Thereafter, at about 2 p.m. when her two daughters Megha and Swati returned to the flat from the school they found that the door of the flat was open from inside and after entering the flat they found the dead body of their mother lying in the bathroom with a portion of the body lying outside the bathroom and the mouth was tied by a red cloth. Megha then informed her relations over telephone. They also soon came there Megha however could not contact her father although she tried. Megha's father Rabindra Jhunjhunwala also returned to the flat there at about 3 p.m. Police was informed, Police came and a doctor was brought who examined and found Sunita Devi dead. The Autopsy Surgeon who held the post mortem examination expressed the clear opinion that the death of Sunita Devi was caused by ante-mortem and homicidal strangulation. When Megha returned from the school and found the dead body of her mother lying in the bathroom the two servants the accused Jagadish and Bishal were not present in the house and a huge number of articles including ornaments, wrist watch etc. were found missing from the house and the almirah and the articles were found ransacked and things were lying at sixs and sevens in the flat. On that day at about 12.30 p.m. P.W. 6 Sarda Devi rang up Sunita but there was no response. This is an indication that Sunita was murdered before 12.30 p.m. and indeed after 9.30 a.m. when she was alone in the flat and when the two servants Bishal and Jagadish were supposed to be present in the flat with Sunita, P.W. 15 Ramji Chowdhury reached the flat at about 10.30 a.m. and when he rang the door bell the accused Jagadish and Bishal who were the two servants of the house opened the door and told that Sunita Devi was absent and had gone to her relative's house and would be back by 3 p.m. Soon thereafter when Ramji was waiting at the 3-A bus stand for returning to Ram Prosad Jhunjhunwala who had sent him to the flat he found that both the servants accused Jagadish and Bishal along with the former servant accused Arun were proceeding along the Maniktala Main Road with a green coloured bag in the hand of the accused Jagadish. This indicates that it was the accused persons who had committed the murder of Sunita when she was alone in the flat and that was done sometime between 9.30 a.m. and 10.30 a.m. or thereabout. The time of murder as indicated is corroborated by the evidence of the Autopsy Surgeon. Subsequently on 27-9-1991 the two accused Bishal and Arun were arrested on a platform of the Howrah Station with booty taken away from the flat of Rabindra Jhunjhunwala after committing the murder of Sunita. These two accused were also found to have railway tickets for Balasore with them at the time their arrest. Pursuant to their statement and being led by them police went to Kailash building at Chowranghee Road on that very date and there from a servants room of a flat on the 16th floor the police arrested the accused Jagadish and recovered on his showing the green coloured bag and a part of the booty including the missing V.C.R. Subsequently again, pursuant to the statement of the accused Rabindra Parida alias Arun and on being led by him the police recovered a part of the booty from the room of P.W. 19 Dilip Pal with whom the same had been kept by the accused Rabindra Parida alias Arun. That the deceased Sunita was murdered by strangulation in her flat on 18-9-1991 is an easy conclusion in view of the evidence of the autopsy surgeon. That the three accused were seen by Ramji Chowdhury after 10.30 a.m. proceeding along with Maniktala Main Road with a green bag in the hand of the accused Jagadish a little while after Ramji was told by the accused Jagadish and Bishal that Sunita had gone to her relative's house and was expected to return by 3 p.m. is a clear circumstantial indication that would lead to the unavoidable conclusion that the murder of Sunita must have been committed by the three accused persons conjointly. It is in evidence that the accused Arun used to go to Jagadish in the flat of Rabindra Jhunjhunwala. They were therefore known to each other from before the date of murder. The green bag which was found by Ramji in the hand of Jagadish was subsequently recovered from Jagadish with part of booty including the V.C.R. therein. Parts of booty were also recovered from the possession of the accused Arun and the accused Bishal immediately on their arrest at Howrah Station on 27-9-1991. All these facts and circumstances when considered together lead to the only inevitable conclusion that the murder was committed by the three accused persons under a common intention and a concerted design and these three accused persons also at that time committed robbery in the flat of Rabindra Jhunjhunwala. It is argued by the learned Advocate for the appellants/accused that since the recovery of the booty, if at all, from the accused persons were made quite some days after the date of occurrence, such recovery does not lead to the conclusion that the murder of Sunita was committed by the accused persons or that the robbery was committed by them. It is argued that at best the accused persons, in view of the delayed recovery, could be convicted under Section 411, I.P.C. and nothing more than that. I am sorry, I find it difficult to subscibe to this view. It is not that recovery of the booty is the only factor for which the accused are liable to be convicted under Section 302 I.P.C. for murder. Recovery is only a supporting factor. But even apart from the recovery there are other unerring circumstances indicating the involvement of the petitioners in the commission of murder and robbery in the flat of Rabindra Jhunjhunwala on the relevant date. The abandoned wearing apperals of some of the accused persons were found lying near the dead body of Sunita. The conduct of the two accused Rabindra and Bishal in falsely telling to Ramji at about 10.30 a.m. that Sunita Devi was not in the flat and had gone to the relative's house and would return by 3 p.m. speaks volume. they were going away along Maniktala Main Road soon thereafter with the accused Arun and with the green bag in the hand of the accused Jagadish. The absence of the two accused servants since then till their arrest a few days later projects incriminating abscondence on the part of the servants. All these facts and circumstances when considered with the recovery of booty from each accused as well as recovery at their instance including recovery of the green bag from the accused Jagadish containing booty lead to the only conclusion beyond reasonable doubt that the three accused persons conjointly and in a concerted way with common intention committed the murder of Sunita Devi and also robbery at that time in the flat of the Rabindra Jhunjhunwala. Conviction of each of the accused persons under Section 302/34 I.P.C. for murder of Sunita is therefore irresistible. The accused persons are also found liable to conviction under Section 394 I.P.C. which reads thus :-
"394. If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which any extend to 10 years, and shall also be liable to fine."
In this case since hurt was caused to Sunita Devi and indeed she was murdered even in committing robbery, the accused are liable to conviction under Section 394 I.P.C. The learned Court below however convicted the accused persons under Section 392 I.P.C. apart from Ss. 302/34 I.P.C. The charge framed by the learned trial Court under Section 392 I.P.C. however contains allegation of facts which would constitute the offence under Section 394 I.P.C. and not simply under Section 392 I.P.C. The relevant charges framed by the learned trial Court is that the accused persons committed robbery of the property of Rabindra Jhunjhunwala family and at the time of committing the said robbery voluntarily caused hurt to Sunita Devi Jhunjhunwala and thereby committed an offence punishable under Section 392 I.P.C. Since the fact which are the ingreidents of the offence punishable under Section 394 I.P.C. have been clearly stated in the charge and evidence also have been led to prove such facts consistently with the charge there is absolutely no bar for converting in this appeal to conviction of the trial Court under section 392 I.P.C. into conviction under Section 394 I.P.C. For this Court sitting in appeal this is permissible under Section 386(b)(ii) or even Section 386(b)(iii) Cr.P.C. In the circumstances, the appellants/accused are found liable to be convicted under Section 302/34 I.P.C. as well as under Section 394 I.P.C. Accordingly the conviction of the appellants/accused persons under section 302/34 I.P.C. is hereby upheld and confirmed, and their conviction by the trial Court under Section 392, I.P.C. is hereby altered to conviction under Section 394, I.P.C.
20. Now coming to the question of sentence the first question that has to be considered is whether this is a fit case for imposing the extreme penalty of death sentence on all the appellants/accused for their conviction under Section 302/34, I.P.C. The learned trial Judge imposed death sentence on all the three accused in consideration of the fact that the murder was of inhuman and 'inequitous' nature and that it was comitted by those who were, being servants, expected to protect the house-wife deceased Sunita from any probable outside danger but instead of that taking advantage of the absence of the other inmates of the house they pounced upon and murdered her by strangulation and smothering and committed robbery. The learned trial Court also considered, in awarding the capital sentence that it was a calculated, cold blooded, gruesome, pre-planned murder. In Jagmohan Singh v. State of U.P., AIR 1973 SC 947 : (1973 Cri LJ 370) one of the propositions laid down is that the discretion in the matter of sentence is to be exercised by the Judiciary after balancing all the aggravating and mitigating circumstances of the crime. In Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636) the Supreme Court after considering the said proposition as well as other propositions laid down therein held that the soundness or the application of the propositions and the premises on which they rest were not affected in any way by the legislative changes since effected. The Supreme Court further observed that the legislative changes since Jagmohan do not have the effect of abrogating or nullifying those principles and that the only effect is that the application of those principles is now to be guided by the paramount consideration of legislative policy discernible from Sections 354(3) and 235(2) Cr.P.C., namely, (1) the extreme penalty can be inflicted only in gravest cases of extreme culpability; and (2) in making choice of the sentence, in addition to the circumstances of the offence, due regard must be paid to the circumstnaces of the offender also. In Jagmohan Singh's case (supra) it was reiterated that if a murder is diabolically conceived and cruelly executed it will justify the imposition of the death penalty on the murder. In Bachan Singh's case (supra), it has been observed inter alia in para 199 that in a sense, to kill is to be cruel and therefore all murders are cruel, but such cruelty may vary in its degree of culpability and it is only when the culpability assumes the proportion of extreme depravity that 'special reasons' can legitimately be said to exist. In the said decision in para 207 it has been observed that a real and abiding concern for the dignity of human life postulates resistance to taking a life through laws instrumentality and that ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed. In Jagmohan Singh's case (supra) the Supreme Court observed that if the Court finds, but not otherwise, that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, the Court may impose the death sentence. In the recent decision of Shankar v. State of T.N., 1994 Cri LJ 3071 the Supreme Court observed thus in paragraph 45 :-
"45. It can therefore be seen that the choice as to which one of the two punishments provided for murder is the proper one in a given case will depend upon the particular circumstancess of that case and the Court has to exercise its discretion judicially and on well-recognised principles after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about crime which renders sentence of imprisonment of life inadequate and calls for death sentence. The nature of the crime and the circumstances of the offender should be so revealing that the criminal is a menance to the society and the sentences of imprisonment for life would be inadequate. The sentence of death should be reserved for the rarest of rare cases after a due consideration of both mitigating and aggravating circumstances. *** *** **** **** Therefore what circumstances bring a particular case under the category of rarest of rare cases very from case to case depending upon the nature of the crime, weapons used and the manner in which it is perpetrated, etc."
21. It is needless to mention that in the matter of sentencing, even when the grave and depraved nature of the crime has been established, the case of each accused may have to be considered separately. In the case of Sankar v. State of T.N. (1994 Cri LJ 3071) (SC) (supra) the trial court sentenced the accused nos. 1-3 (A-1 to A-3) to death and A-4 to A 8 to imprisonment for life in respect of murder charges. The High Court on appeal acquitted A-7 and A-8 of all the charges and confirmed the convictions and sentences of the appellants. So far as A-1 and A-3 are concerned, both the courts, namely, the high Court and Trial Court concurrently held that this was one of the rarest of rare cases where the sentence of death alone would meet the ends of justice. A-1 was said to be the leader of the gang consisting of other accused. There were allegations of murders of as many as six persons. The Supreme Court found that A-1 indulged in these crimes in an organised manner. His own confession, though retracted, which was found to be true and voluntary gives the details of the diabolical and cruel manner in which he participated in killing the deceased 1 to 3 (D-1 to D-3) as well as D-4 to D-6. The Supreme Court observed that the crime was gruesome, cold blooded, heinous, atrocious and cruel, and A-1 was proved to be an ardent criminal and thus a menace to the society and that it was an exceptional case where the crime committed by him was so gruesome, diabolical and revolting that it shocked the collective conscience of the community and there could not be any doubt that his case was one of the rarest of rare cases fully warranting the imposition of the death sentence (vide, para 52 ibid). In paragraph 53 of the said decision in Sankar v. State of T.N. (supra) the Supreme Court observed that A-2 throughout had been actively associated with A-1 and participated in every crime and that so far as murders of D-1 to D-3 were concerned A-2 played an active role in most cruel and diabolical manner as was found from his own retracted confession. It was further observed therein that as a close associate of A-1 in every unlawful business activity, A-2 went on participating with him in these organised crimes and the reasons given in respect of A-1 for awarding the death sentence equally applied to the case of A-2 also. The Supreme Court also took into consideration that apart from their own retracted confession the evidence of P.W. 1 (approver) as corroborated by the other evidence also independently established the active participation of A-1 and A-2 in the murder of D-2 to D-6. So far as A-3 is concerned, the Supreme Court observed that he was not related to A-1 and that the quality of the evidence relied upon for holding A-3 guilty of murder charge also had to be taken into account in awarding death sentence. It was submitted before the Supreme Court on behalf of the appellants that so far as individual participation of A - 3 in the murders of D-2 and D-3 was concerned, there was only the evidence of P.W. 1 and in respect of all the three, that is, D-1 to D-3 the retracted confession of A-1 and A-2 were there but one could not be used for corroborating other mutually and therefore the quality of evidence was not of such a high degree in respect of the nature of participation by A-3 on which the court can give that high value to impose death sentence. The Supreme Court in paragraph 54 of the said decision in Sankar found force in the above submission regarding the quality of evidence in respect of the nature of participation by A-3. Apart from the discrepant evidence of P.W. 1 regarding the nature of participation of A-3 in the commission of the crimes there was no other evidence to the actual nature of participation of A-3. In the murders of D-2 and D-3 although there was enough corroborative evidence in general for the purpose of finding common intention in respect of the offence punishable under sections 302/34 IPC, the Supreme Court in paragraph 54 (ibid) recorded the view that the retracted confession of co-accused (A-1 and A-2) cannot be taken into consideration for assessing the nature of participation of A-3 for the purpose of deciding whether his case was one of the rarest of rare cases. The Supreme Court therefore did not confirm the death sentence of A-3 and reduced the death sentence of A-3 to imprisonment for life. It is therefore evident that there may be cases where the evidence unerringly proves participation of all the accused persons where the number of such persons is more than one, in the commission of the offence, yet the evidence may fail to indicate the quality of individual participation in respect of some or all of the accused persons. If the evidence establishes beyond reasonable doubt participation of all the accused persons in the commission of offence with the requisite intention all the accused persons would be found guilty of such offence in view of section 34 of the Indian Penal Code and all the accused persons will be liable to conviction for the offence in which they participated irrespective of the question of the degree or quality of their individual participation. But then judging of the evidence for the purpose of being satisfied beyond reasonable doubt about the participation of the accused persons in the commission of an offence for the purpose of conviction of such accused is something distinctly different from the question of judging the evidence for ascertaining the degree or qulity of individual participation of the particular accused in the commission of the offence for the purpose of determining the sentence to be imposed upon the particular accused, and this is so even in a case where the nature of the crime is revoltingly diabolical, notoriously depraved and heinously gruesome. Even in such a case of exceptional nature the qulity or the degree of individual participation in the commission of the crime would be a matter for separate consideration for the purpose of determining the nature of the sentence to be imposed on the particular accused. Unfortunately, in our present case there is no evidence or circumstantial indication about the degree or quality of individual participation of the appellants/accused persons in the commission of the murder from which it could be visualised that the degree of participation of each accused or any one or more of the accused persons at the individual level was such that the diabolical nature of such participation of the particular accused would warrant and justify a death sentence in the individual case. It is not unlikely that while only one or two of the accused persons took the leading and diabolically gruesome role in executing the murder, the role of other or others were of much lesser diabolical degree as would not have warranted a sentence of death for him or them. In the circumstances, there is a likeli-hood that sentence of death, by aggregation, for each and every accused may lead to miscarriage of justice in the matter of sentencing, and therefore such a possibility should be avoided. There is also no evidence or any circumstantial indication that the role of any particular accused individually was such as would justify a sentence of death on such accused alone. In the circustances, to avoid any possible error in sentencing, it is proper to impose life sentence instead of death sentence on each accused.
22. Accordingly, we uphold and confirm the conviction of the appellants/accused persons under section 302/34 IPC but we reduce the death sentence to imprisonment for life in respect of each of the accused appellants. We also alter the conviction under ssection 392 IPC to one under section 394 IPC for reasons already discussed but we maintain the sentence awarded for the said conviction by the learned court below. We also maintain the sentence of fine imposed by the learned court below for conviction under section 302/34 IPC. In the result each of the appellants/accused persons is convicted under section 302/34 IPC as well as under section 394 IPC. For their conviction under section 302/34 IPC each of the appellants/accused persons is sentenced to imprisonment for life and also to a fine of Rs. 5,000/-, in default, to rigorous imprisonment for one year each. For their conviction under section 394 IPC each of the appellants/accused persons is sentenced to rigorous imprisonment for 10 years and also to a fine of Rs. 5,000/-, in default, to further R.I. for one year each. Both the substantive sentences shall run concurrently. The death reference case as well as the appeal under consideration stands disposed of accordingly.
VIDYANAND, J. :- 23. I agree
Order accordingly.

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