JUDGMENT Palok Basu, J.
1. The two appeals have been filed by two brothers Gopal Chand Srivastava and Jagdish Srivastava, sons of Harish Chandra Srivastava against the judgment and order dated 20-6-1991 in Sessions Trial No. 256 of 1988 convicting the appellants under Section 302/34, I.P.C. and sentencing both of them to death thereunder and further convicting and sentencing them under Section 201, I.P.C. to three years' R.I. The aforesaid reference has been made by the Sessions Judge for confirmation of the sentence of death awarded by him to the two appellants.
2. The charge against the two appellants and co-accused Sabha Shanker who stands acquitted was that on 27-9-1988 at about 10.30 p.m. they along with another miscreant committed five murders concerning Bindbasini Prasad Bageshwari Prasad, Surendra Kumar, Kamlesh Kumar and Sushil Kumar, punishable under Section 302/34, I.P.C. and further they concealed the weapons of assault, blood-stained Banka (sharp edged weapon) at the well which was no more in use, punishable under Section 201, I.P.C.
3. According to the prosecution case, the two appellants are collaterals of the deceased. Their houses are situate in close proximity with the house of the deceased and that all hail from common ancestor. A long standing dispute persisted between these two branches of the same family regarding mango crop and dis-satisfaction persisted with the accused's side inspite of partition of the property. According to the prosecution case, on 27-9-1988 Smt. Dropdi, PW 1 wife of Bageshwari Prasad (deceased) was sleeping with her grand-son Pinku in the outer Osra (outer-shed) while her daughters Priti and Sushma were sleeping in the eastern-Osra, and, her Nanad Smt. Keola, niece Km. Neelam and nephew Surendra Kumar (deceased) were sleeping in the southern Osra while her daughter-in-law Pushpa and another nephew Kamlesh (deceased) were sleeping in the room situated on the southern portion of Verandah (Dalan). At that time Bindbasini Lal (deceased) and Sushil Kumar (deceased) were sleeping on the cot and wooden cot (Charpai and Takht) while Bindbasini Lal (deceased) was sleeping in the Osra of the outer room (Baithak) at the sudden hue and cry of Sushil Kumar around 10.30 p.m., Smt. Dropdi, Sushma, Priti, Neelam, Smt. Keola, Pushpa, (PW 2), Surendra Kumar, Kamlesh and Bindbasini got up and came out. There was full moon-light and light of the lantern available in which they saw that the two appellants and two others who could be recognised by face armed with shining Bankas in their hands were saying that on that day they had to liquidate the entire family and no one was to be spared and attacked Bageshwari Lal and Sushil Kumar. When Bindbasini Lal, Surendra and Kamlesh went to save them they attacked those three with those weapons who fell down on the ground and died soon. At the hue and cry raised by remaining members of the family, the accused ran away with the weapons towards north side. Several members of the village had collected. PW 1 Smt. Dropdi Devi dictated a F.I.R. to Km. Priti and being accompanied by Mahendra Kujpar, Pradhan, went to the Police Station Nevariya and lodged the F.I.R. at 11.50 p.m.
4. The aforesaid written F.I.R. lodged by PW 1 Smt. Dropdi Devi has been proved as Ext.ka-1 and the registration of the case was done vide General Diary Entry No. 29 by PW 4, Parasu Ram Rai who was Head-Moharrir at the Police Station Nevariya. PW 7, Aftab Ahmad Khan, Sub-Inspector was present at the police station who was entrusted with the investigation and took up the same at once. He reached the place of occurrence in the same night and performed Panchayat on the dead-bodies of Bindbasini Lal, Bageshwari Lal, Sushil Kumar, Surendra Kumar and Kamlesh and remained busy till 7.50 a.m. All the five dead-bodies were entrusted to the constable PW 3, Ram Briksh Misra and other constables for getting post mortem done at the head-quarters. PW 7, Aftam Ahmad Khan then recorded the statements of Km. Neelam, Smt. Sushma Devi, Smt. Keola, Km. Priti, Smt. Pushpa and others whereafter at the pointing out of Smt. Dropdi he inspected the entire site and prepared site-plan proved as Ext.ka-48. He took blood-stained Ban (jute tucked over the planks of the cot) as also plain and bloodstained earth near that cot where Bageshwari Lal's dead body was found. Similarly, he took thereafter the plain and blood-stained earth from the place where the dead-bodies of Bindbasini Lal, Kamlesh alias Bhaiya Lal, Sushil Kumar alias Bachchey Lal and Surendra Kumar were found. Relevant memorandum were prepared for all these recoveries as also for the lantern said to have been, burning which was subsequently handed over in the Suprudgi of Smt. Dropdi Devi, PW 1. These have been marked as Exts ka-10 to ka-16.
5. On 28-9-1988 the Investigaing Officer raised the house of the two appellants who were not available. At memorandum was prepared, marked Ext|ka-17. PW 3 Ram Briksh Misra, constable has proved that he had taken the dead-body to the mortuary and got them handed over to the doctor for postmortem examination.
PW 5, Dr. Ram Awadh Yadav conducted the post-mortem examination of :-
1. Bageshwari Lal, aged about 50 years on 28-9-88 at 3 p.m. and found three incised wounds and a lacerated wound.
2. Bindbasini Lal, aged about 65 years on 28-9-88 at 4.20 p.m. and found seven incised wounds.
3. Kamlesh, aged about 30 years on 28-9-88 at about 5.20 p.m. and found four incised wounds.
4. Sushil Kumar, aged about 28 years on 28-9-88 at about 6.15 p.m. and found four incised wounds.
5. Surendra Kumar, aged about 26 years on 28-9-88 at about 6.45 p.m. and found six incised wounds.
6. The analysis of the aforesaid facts, therefore, indicates that Bageshwari Lal, deceased is the husband of Smt. Dropdi Devi, PW 1, the informant. The three other deceased, namely, Kamlesh Kumar, Sushil Kumar and Surendra Kumar are the sons of Bageshwari Lal, deceased while Bindbasini Lal, deceased is the brother of Bageshwari Lal, deceased. Smt. Pushpa, PW 2 is the widow of Kamlesh Kumar, deceased. The two accused appellants Gopal and Jagdish are from the common ancestor of the deceased and are, therefore, collaterals.
7. The Investigating Officer had gone to the house of Smt. Milan alias Urmila in search of the appellants who told him that they had come along with co-accused Sabha Shanker at about 11 a.m. on 29-8-1988, had left for Allahabad to take shelter in the house of their sister Shail Kumar in the locality known as Mohalla-Allahpur. It is Said that on 2-8-1988 at about 11.45 p.m. the Investigating Officer, PW 7, Aftab Ahmad Khan arrested the appellant Gopal along with! co-accused Sabha Shanker. Thereafter these two accused were taken in the custody and they said that they can point out where they have kept the weapons of assault. Therefore, the Investigating Officer came to the Police Station Rampur and arranged a diver and on reaching the village Adipur the appellant Gopal and co-accused Sabha Shanker indicated that they had thrown the weapons of assault inside the well belonging to one Mata Prasad of that village. Then PW 6, Tilak Dhari and Mahendra Kumar had also arrived and the divers were sent down the well and they took out material Exhibits 16, 17 and 18, i.e., Barka of Gandasi shape, Banka of Tangari shape and Banka of Pharsa shape. A memorandum was prepared which has been proved as Ext.ka-9. Thereafter the Investigating Officer proceeded to the Police Station Nevariya along with the recovered articles. The clothes of the two appellants were also taken into custody vide entries in the memorandum Ext. ka-19. He recorded the statements of divers and other constables regarding the recovery of the arms under Section 17 of the Indian Evidence Act. He executed coersive process of auctioning the house and belongings of Jagdish on 1-10-1988. He could not get the other (i.e. the faurth) accused in spite of search and consequently filed charge-sheet on 3-10-1988 against the appellants and co-accused Sabha Shanker under Section 302/34, I.P.C, and Section 201, I.P.C.
8. During the trial the prosecution examined in all seven witnesses out of whom Smt. Dropdi Devi, PW 1 and Smt. Pushpa, PW 2 are the eye-witnesses while out of them Smt. Dropdi is the informant. Reference about other five witnesses has already been made above and if and when necessary their evidence may be discussed later on.
9. Both the appellants have denied their participation in the incident and have attributed their false implication due to enmity. They have not examined any defence evidence nor have filed any document. They had, however, filed written argument before the trial Judge which has been duly considered by him and has also been noticed in this appeal.
10. The trial Judge having placed implicit reliance on the testimony of the two eyewitnesses believed the participation of the appellants Gopal and Jagdish proved beyond all reasonable doubts. The co-accused Sabha Shanker has been extended the benefit of doubt while admittedly the Investigating Officer could not trace out the fourth miscreant.
11. The case of the appellants has been ably pleaded by Smt. Poonam Srivastava assisted by Sri Shyamal Srivastava while the State's interest was watched and argued by the Govt. Advocate Sri S.P. Singh assisted by Sri D.N. Yadav, learned A.G.A. The entire record and all the original documents have been thoroughly scrutinised.
12. The trial Judge has placed implicit reliance on the testimony of two eye-witnesses and has found the prosecution case fully proved. It is true that as regards the evidence of discovery of arms under Section 27 of the Evidence Act at the behest of the appellant Gopal and co-accused Sabha Shanker the finding of the trial Judge is half-hearted. It may be said at the out set that from the statement of PW 6 Tilak Dhari it appears that as if the accused were not present when he was shown the three weapons as having been recovered from the well. But if according to the prosecution the said recovery is after three days of the incident and though Tilak Dhari has made the aforesaid statement he was not declared hostile by the prosecution, therefore, it cannot be said that the said statement of Tilak Dhari may be used for corroborating the statement of the Investigating Officer about the recovery of the three weapons at the pointing out of two arrested accused. In fact to be fair to the learned counsel for the appellants it must be said that her main argument rested with the criticism against two eye-witnesses and their presence at the time of the incident. It was rightly pointed out by the learned Government Advocate that if conviction of the appellants under Section 302, I.P.C. may not be sustainable only on the strength of the eye-witness account, evidence regarding discovery of the weapons may be usable to lend some further strength to the eye-witness account. But using of discovery evidence would be unnecessary if the eye-witness account is believed particularly because admittedly the discovery of the arms was made after about three days. It has to be held on the facts of this case that the eye-witness account has to be tested on its own merits and will not fall or stand for any infirmity or improbability in the alleged discovery of the
13. It may not be pertinent to point out here that Safari suit which the appellant Gopal was wearing at the time of his arrest marked material Ext. 30 and the shirt / pant of the co-accused Sabha Shanker materials Exts. 31 and 32 were sent to the Chemical Examiner and he has reported that bloodstains were existing on those clothes.
14. As noted above, the entire incident is narrated by two women of the house, namely, PW 1 Smt. Dropdi Devi and PW 2 Smt. Pushpa. Both of them have lost their husbands in the incident and also three of their closest relatives.
15. The learned counsel for the appellants has argued five points in order to discredit the prosecution version and show the eye-witness account furnished by the two eye-witnesses Smt. Dropdi Devi and Smt. Pushpa is not reliable and convincing and, therefore, the prosecution case is not proved beyond doubt as against these two appellants also.
16. First Point : Absence of motive-
In the F.I.R. it has been stated that the incident was perpetrated due to the existing property dispute and the mango-trees existing over it. In the statement PW 1, Smt. Dropdi has stated that between the two families, i.e., one of Bindbasini Lal and Bageshwari Lal and the other of Gopal and Jagdish appellants, a trouble had ensued regarding the mango crop. Enmity was persisting regarding the partition of the grove land. It is apparent that the common ancestral of both the families was one at an earlier point of time. It has been admitted that the residence of the appellants is completely separate from the prosecution side. The house of the appellant is situate about 10 arms length from the house of PW 1, Smt. Dropdi. It is true that no report was lodged with the police regarding this dispute but there is no material to indicate that the aforesaid statement of the prosecution witness is false or incorrect. The argument that this type of motive may not have been sufficient for terminating the lives of five persons, it may be stated here that initially the accused could have thought of killing only those two who were sleeping outside but because subsequently the three came to save them, they were also simultaneously attacked and killed. It has been repeatedly said by the witnesses that whenever the mango crop used to be distributed, quarrel used to ensue. From the statement of these two witnesses it further appears that the partition had taken place even before they had come into the family as wives, therefore, it is obvious that while Bindbasini Lal and Bageshwari Lal] treated the partition as an accomplished fact, the accused-appellants used to raise disputes about mango-crop whenever such property-dispute arose. The lust for more money is difficult to satisfy, the thirst for wealth is impossible to quench and craze for property is insatiable in human beings. Therefore, the statement of both the prosecution witnesses prove beyond doubt that there was ample motive available with the appellants to commit the crime. In any case, the absence of motive is of no consequence where direct eyewitness account is available about the participated of the accused. Consequently the aforesaid argument of the learned counsel for the appellants is rejected. '
17. Second Point : Injuries do not fit in with the eye-witness account-
The learned counsel for the appellants emphasised in order to elaborate this point that the injuries sustained by the five deceased appears to have been caused while they were sleeping; may be that dacoits had entered the house and committed the murders and looted the property. She vehemently argued that the location of the injuries may not be possible if the manner of the assault as described by PW 1, Smt. Dropdi and PW 2, Smt. Pushpa is accepted.
18. Before discussing this point in detail the actual injuries sustained by five deceased and some of the internal condition noted in the post-mortem report may be beneficially extracted here:-
1. Bindbasini Lal Srivastava, aged about 65 years.
Ante Mortem Injuries:
(1) Incised wound measuring 8 cm x 2.5 cm. x pintonal cavity deep on the left side of abdomen 11 cm. below left nipple part of omentum coming out through this wound.
(2) Incised wound measuring 9 cm. x 2 cm. x chest cavity deep on the left side of chest 7 cm. abdomen left nipple 2nd and 3rd, 4th ribs are cut.
(3) Incised wound 8 cm. x 5 cm. bone deep on the left shoulder part of humerus bone is cut on the head of Humerus.
(4) Incised wound 3 cm. x 1 cm. x bone deep 1 cm. below injury No. (3).
(5) Incised wound measuring 10 cm. x 5 cm. x bone deep in front of left side of neck placed horizontally, at the level of C5 and C4 cervical vertibrae, trachia, oesophegus, spinal cord carotic artiry are cut at this level and spinal-cord is cut through and through.
(6) Incised wound measuring 11 cm. x 4 cm. x brain cavity deep and right side of skull 5 cm. above right pinna. Right parietal bone is cut and brain material coming out.
(7) Incised wound (paper torn) deep on the skull (paper torn) injury No. (6).
3: Abdomen:
(6) Contents : Punctured under injury No. (1). Food matter present in cavity.
(7) Small intestines : NAD.
(8) Large Intestine : Punctured at one place under injury No. (1).
(9) Liver, gall bladder, liver lacerated, gall Bladder lacerated under injury No. (1).
2. Bhaiya Lal alias Kamlesh Kilmar Srivastava, aged about 30 years.
Ante Mortem Injuries:
(1) Incised wound measuring 7 cm. x 0.5 cm. x brain cavity deep on the top of skull. Brain matter coming out through the wound.
(2) Incised wound 8 cm. x 4 cm. x brain cavity deep on the left side of skull 3.5 cm. above left ear.
(3) Incised wound 6 cm. x 1 cm. x brain cavity deep 0.5 cm. below and ahead to injury No. (2).
(4) Incised wound measuring 6 cm. x 4 cm. x mouth cavity deep on left side of face 4.5 cm. below left lower eye-lid. Maxilla and horizontal panus of left mandible bone are fractured.
(2) Abdomen :
(6) Contents : NAD. Contains food material.
(7) Small intestines : NAD. Contains faecal.
(8) Large intestines : NAD. Contains faecal.
3. Bachchey Lal alias Sushil Kumar, aged about 28 years.
Ante Mortem Injuries :
(1) Incised wound 7.5 cm. x 1 cm. x brain cavity deep on the right back side of skull 6 cm. below to right ear occipital bone is fractured.
(2) Incised wound 9 cm. x 0.5 cm. x brain cavity deep on the back of skull occipital bone is cut and brain material coming out.
(3) Incised wound 13 cm. x 1 cm. x brain cavity deep on the left side of skull 4 cm. above left ear. Left parietal bone is fractured. Brains matter is coming out.
(4) Incised wound 8 cm. x 0.5 cm. x bone deep on right angle of mouth upper lip is out and separated.
3. Abdomen :
(6) Contents : NAD. Contains food rice and dals mixed bread.
(7) Small intestines : NAD. Contains faecal.
(8) Large intestines : NAD. Contains faecal.
4. Surendra Kumar Srivastava, aged about 26 years.
Ante Mortem Injuries :
(1) Incised wound 7.5 cm. x 1 cm. x bone deep on the face on left angle of mouth extending to neck horizontly. Left mandible is fractured at the angle.
(2) Incised wound 6 cm. x 0.5 cm. x bone deep on the left side of neck 2 crn. below and back to injury No. (1).
(3) Incised wound 3 cm. x 0.5 cm. x bone deep on the left eye brow.
(4) Incised wound 3 cm. x 1 cm. x brain cavity deep on the left side of forehead 3.5 cm. above left eye. Frontal bone is fractured.
(5) Incised wound measuring 2 cm. x 1 cm. x bone deep on the forehead 1 cm. left to injury No. (4).
(6) Incised wound 7 cm. x 2 cm. x brain cavity deep on the right side of skull 4 cm. above right eye, frontal bone is fractured.
3. Abdomen :
(6A) Contents : NAD. Contain rashlike food rice and dal.
(7) Small intestines : NAD. Contains faecal.
(8) Large intestines : NAD. Contains faecal.
19. The consistent opinion of Dr. Ram Awadh Yadav, PW 5 is that all the injuries could have been caused by the type of the three weapons which were exhibited during the trial as materials Exts. 16, 17 and 18. In other words his consistent view is that these injuries could be caused by a sharp-edged cutting weapon like Banka. He further opined that the injuries sustained by the deceased were sufficient in the ordinary course of nature to cause their death.
20. From the testimony of PW 1 Smt. Dropdi it appears that she has seen co-accused Sabha Shanker coming to the house of two accused-appellants quite often but she could not name him in the F.I.R. as she failed to recollect his name before preparation of the F.I.R. and filing of it with the police. She has described the topography of the place of occurrence saying that there were seven rooms in the house and in the centre a courtyard which is covered by Osara on all the four sides. The houses of the appellants Gopal and Jagdish are situated only about 10 arms length from the gate of the house of the eastern side. Relating to the incident she says that Bindbasini Lal was lying under the Osara in front of the western sitting-room while her husband Bageshwari Lal and Sushil Kumar were lying at the main-gate. Kamlesh alias Bhaiyalal was sleeping along with his wife, Smt. Pushpa, PW 2 inside the southern room. Surendra Kumar was lying in the southern Osara. She herself was lying in Osara in front of the main gate along with her grandson Pinku. Similarly, Smt. Keola was lying near Surendra Kumar on the southern Osara. Similarly, Km. Nilam, Sushama and Priti were lying in the eastern Osara. Moon-light was well spread and a lantern was burning near Bindbasini Lal. At about 10.30 p.m. she got up at the noise of Sushil Kumar and the said noise had awakened all others in the house. She saw that the appellants Gopal and Jagdish and the co-accused Sabha Shanker were beating Bageshwari Lal and Sushil Kumar. Jagdish was armed with Pharsa type weapon while Gopal was armed with Gandasa type weapon and Sabha Shanker was armed with Tangari type weapon. There was a fourth man also whom she did not know. Her statement further is that as soon as Kamlesh ran to save them he was also mercilessly cut. Similarly when Surendra Kumar and Bindbasini Lal ran to save them they were also attacked in the identical manner. All the five started jumping and bleeding with the result that they were drenched with blood and died within five-six minutes. Everyone of them started shouting which attracted the village people. The appellant Jagdish was saying that "SAB SALON KO MAAR DALO PARIVAR MEIN KOI BACHNE NA PAYE". The accused then ran away. Mahendra Singh, Pradhan and other villagers had collected within 10-15 minutes. She then dictated the F.I.R. to Km. Priti and took it alone with Pradhan to the police station which lay at a distance of about two miles only. Identical is the statement of PW 2, Smt. Pushpa. From her statement it further appears that the appellant Jagdish and Sabha Shanker took to drink about 10-15 days ago and there were some altercations between those two. She knew Sabha Shanker from before.
21. The injuries sustained by all the five deceased have been noted above. There are very serious injuries on the head of every one of them-strike of which should have at once fallen them on the ground. No difficulty would then remain for any one to lend the second blow on neck, chest or stomach region so as to bring about an instantaneous death. The head injury is deep enough to rule out the possibility of even a minute's struggle or running because in all likelihood the brain must have been instantaneously incapacitated. While four accused were armed with sharp-edged cutting weapon and initially the attack was only on two of them, there was no difficulty in beginning with the attack. As and when other persons came in, blows were easily aimed so as to land on their heads. Therefore, there is no inconsistency whatsoever in the eye-witness account and the injuries sustained. Recovery of the blood on the cot as also on the earth by the Investigating Officer proved beyond all doubts the place of the incident which is the court-yard of the house of the informant. Consequently, the presence of the women folk is also natural. Their coming out on the hue and cry is just and probable. From the almanac it appears that it was the second day of the 'Purnima' and, therefore, fully spread moon light was available at the time of the incident. Lantern was also burning. There could have been absolutely no difficulty in recognising a known man doing the crime. Noticing the collaterals living only at a distance of 10-15 yards would be all the more vivid.
22. In this connection it may be stated here that in the cross-examination of PW 1, Smt. Dropdi it has been elicited that on the night of the incident the male members had taken dinner at about 7.30-8 p.m. From the stomach contents of the deceased the aforesaid statement stands fully corroborated which will again go to support the eye-witness account. Incidentally, this answers an alternative argument that may be a dacoity had been committed in the late night when nobody had seen the incident. In this very connection another aspect to be noticed is how and why is it that only male members have been tried to be eliminated. It is only when somebody had planned from before hand to exterminate the male folk that such a concerted action was taken fully anticipating the course of events which would bring the male members out into open as soon as one or two sleeping in the court-yard was attacked. It is exactly that what had happened, and before the deceased could run to save one, and another could know what has happened, they were attacked and killed.
23. The trial court has dealt with this aspect in a much greater detail and there is no reason to take any different view from the one he has chosen. Consequently there is no force in the second point which is also hereby rejected.
24. Third Point : F.I.R. is ante-time-
According to the statement of the informant the F.I.R. was lodged at the police station at 10.30 p.m. on 27-9-1988. She has said that the F.I.R. was written within about 15 minutes time and being accompanied by Mahendra-Pradhan, she went to the police station to lodge the same. This fact is fully corroborated by PW 4, Parasu Ram Rai, Head Moharrir who registered the case vide general diary Entry No. 29. He has said in the cross-examination that the special report was forwarded at about 5 a.m. the next morning by constable and entry was made in the despatch register. The constable who had taken the said special report had come back on 28-9-1988 at 6.45 a.m. The alleged endorsement of the office of Circle Officer bearing the date 3-10-1988 as being the date on which the report was forwarded to the court does not go to indicate that the special report was not forwarded as stated by this witness, and duly corroborated by two general diary entries. Further argument to suggest that the F.I.R. was not lodged at the time and manner as alleged was the statement of PW 1 Smt. Dropdi in the cross-examination. Translated into English which would read thus - I had told the entire incident to Darogaji and then the Darogaji dictated and got written the F.I.R. This sentence would indicate the correctness of that part where in the Investigating Officer had perhaps dictated the chick report to the Head-Moharrir, PW 4, Parasu Ram Rai who registered the case. The consistent version of PW 1, Smt. Dropdi is that she carried the written report Ext.ka-1 along with Mahendra Pradhan to the Police Station Neveriya in the same night which was taken there and on its basis a case was registered. Therefore, the portion of the statement quoted above would refer to the registration of the case on the basis of the written report lodged by her. The attempt on the part of the learned counsel to interpret this statement to mean as if the written F.I.R. was prepared at the police station under the dictation of the Investigating Officer is wholly misconceived. One further thing to be noted is that the written F.l.R. is not the outcome of the handwriting of PW 1, Smt. Dropdi. Admittedly this was a report dictated to her daughter Km. Priti at the residence. Priti was not available at the police station and she had gone with mother and the Pradhan Mahendra. Consequently, the very basis of the alleged argument stands demolished and this point also fails to beget any positive result for the appellants. The F.l.R. is an authentic document on the basis of which a case was duly registered and, therefore, the Investigating Officer had proceeded to the site immediately after registering his case.
25. Fourth Point: Discovery of the arms under Section 27 of the Evidence Act, at the pointing out of appellant Gopal and co-accused Sabha Shanker should be discarded.
The prosecution case in this regard is that PW 7 Aftab Ahmad Khan on getting information about the presence of the appellant Gopal and co-accused Sabha Shanker came to Allahabad on 29-8-1988 and arrested them in Mohalla-Allahpur. Therefrom they took the Investigating Officer to Adipur and from an unused well, three weapons of assault were recovered. The statement of the said PW 7, A. A. Khan, the Investigating Officer is that at the time of recovery PW 6 Tilak Dhari and some others had also appeared who witnessed the actual discovery of the arms from inside the well by the divers. He has said that he prepared a memorandum and got the signature of the recovery witnesses appended thereupon.
26. The trial Judge had not recorded any categorical finding about discovery of weapons under Section 27 of the Evidence Act. It is true that in the statement of Tilak Dhari, PW 6 it has clearly come that when the weapons (those allegedly recovered) were shown to this witness, the accused were not present. If this is so, it is not understandable as to how can PW 6 be a recovery witness. In the next breath this witness admits that whatever articles in the memorandum prepared by PW 7, A. A. Khan, Investigating Officer, they appeared correct and he had signed them taking them to be correct but then on the safe side it is better to exclude the evidence of Section 27, Evidence Act from consideration of guilt or otherwise of the appellant. It may be mentioned here that even if the recovery under Section 27 of the Evidence Act is believed, it will go only against the appellant Gopal while it will not be available for use with regard to appellant Jagdish because admittedly Jagdish remained an absconder and was arrested several weeks later. It will, therefore, not be safe to act upon the evidence under Section 27 of Evidence Act for any purpose whatsoever. This will all the more be necessary because the co-accused who was the coauthor of the discovery along with appellant Gopal, stands acquitted. On the facts of this case, the joint discovery has to be believed for both the accused or not at all. Therefore, for the purpose of this case the existence of evidence of discovery under Section 27 of the Indian Evidence Act available as against the appellant Gopal only is being completely excluded.
27. Fifth Point : Co-accused Sabha Shanker's acquittal should beget acquittal of all appellants as he was not mentioned in the F.l.R. In the cross-examination Smt. Dropdi, PW 1 admitted that she knew Sabha Shanker from before but has not named him in F.l.R. but the consistent case of the prosecution is that Sabha Shanker had been named by all other eye-witnesses in the statement under Section 161, Cr.P.C when the Investigating Officer had reached the place of occurrence including PW 2 Smt. Pushpa who had mentioned the name of Sabha Shanker as one of the accused apart from Gopal and Jagdish. The further statement of Smt. Dropdi was that she had not disclosed to the Investigating Officer the special features of Sabha Shanker who according to her was so-called friend of Gopal and Jagdish appellant. She admits that she had seen Sabha Shanker going to the house of Gopal on several occasions (Pachason Bar) i.e. 50 occasions. Her explanation is that since she was disturbed and mentally perturbed she forgot to indicate the special features of Sabha Shanker. The naming of Sabha Shanker by Smt. Pushpa, PW 2 during her statement under Section 161, Cr.P.C. as also in the court lends more than ample proof of his participation in the crime. On the facts of the present case it must be held that the evidence of two witnesses was sufficient as against Sabha Shanker also but the order of acquittal passed by the trial Judge against Sabha Shanker may amount to extending benefit of doubt to him on too freak grounds. The informant had already mustered up enough courage to get the F.I.R. prepared and lodged it. But if for some reasons she did not mention the description of Sabha Shanker in the F.I.R. and did recollect to name him later on which part was fully corroborated by the eyewitness account of PW 2, Smt. Pushpa there was no reason why Sabha Shanker's participation could not be held proved beyond all reasonable doubt. However, since there is no Government appeal against the order of acquittal and the State of U.P. had acquiesced to the said order, the said acquittal cannot be interfered with.
28. However, since the trial court has taken an extremely technical view of the law and has extended the benefit of doubt to Sabha Shanker, no advantage of the said fact can be taken by the appellant Gopal and Jagdish both of whom are named in the F.LR. and are nominated as principal accused by the two eye-witnesses.
29. Before concluding the discussion about participation of the appellants, two additional factors have to be noted here. Firstly, there is no reason why Smt. Dropdi and Smt. Pushpa who are also distantly related to the two appellants would nonainate them as accused in killing the five male members of the family including the husbands of both these witnesses. Nothing has been suggested during the cross-examination except the bald suggestion of a dacoity having been committed, so as to indicate why the appellants should be falsely implicated. Secondly, it has come in the evidence of these two witnesses that all other family members of the appellants had been removed by them from their house a day prior to the occurrence. There is absolutely no cross-examination on this positive statement of the two witnesses. This part of the prosecution case, therefore, remains unchallenged. The trial court has rightly reiterated that this will be a circumstance which may indicate the criminal mind of the appellants. A direct question was put to both the appellants under Section 313, Cr.P.C. They have only preferred to deny this. No foundation has been laid for disbelieving this part of the statement of the two prosecution witnesses. Therefore, it also indicates that these two appellants had planned from before to commit the crime in an organised manner and the said plan stands well executed.
30. In view of the aforesaid discussion all the points argued by Smt. Poonam Srivastava are negatived and the participation of the appellants Gopal and Jagdish are proved beyond all reasonable doubts except that a charge under Section 201, I.P.C. as regards the concealment and subsequent discovery of the weapons used in the assault it held not proved but the conviction under Section 202, I.P.C. has to be and is hereby sustained.
31. Smt. Poonam Srivastava made two more arguments, both of which will touch the question of sentence. She argued that so far as Gopal appellant is concerned his case was covered within the provisions of Juvenile Justice Act, 1986 and, therefore, even if it is held that he has committed the offence punishable under Section 302, I.P.C. he cannot be sentenced to death or any other sentence of imprisonment.
32. The entire edifice of the argument is built on the foundation that the age given by Gopal in his statement under Section 313, Cr.P.C. recorded on 8-3-1991 by the trial court is 15 / 16 years.
33. The trial Judge is not. agreed with the self-proclaimed age of Gopal but has noted as follows:-
But appears not less than 18 years".
34. In the charge-sheet the age of Gopal appellant has been noted as 22 years by the Investigating Officer. The general diary entry showing the arrest and putting into custody of appellant Gopal shows that therein also his age was shown as 22 years.
35. The entire record shows that the appellant was never granted bail during the trial. Juvenile Justice Act would have ward off the trial if the appellant had raised the question of minority specifically. Even bail application does not appear to have been moved on the ground of minority. At least the record does not show any such application or any such claim of the appellant Gopal. The role attributed to the appellant in the incident is of mercilessly attacking five persons by sharp-edged cutting weapons just as was done by three other co-accused. Under the circumstances, it is impossible to conceive that if the appellant was a minor or for that matter aged about 16 years or else that plea could never have been left. In such serious cases the accused could have been too happy to ward off the sentence which in all likelihood should be capital one.
36. Learned counsel has placed reliance on the decision of this Court reported in Kamil v. State of U.P., 1993 JIC 217, which is on the applicability of Juvenile Justice Act. Learned single Judge has held therein that on the given facts of a case Section 20 of the Juvenile Justice Act may be attracted only where a juvenile having been charged with an offence appears and is produced before a Juvenile Court. Section 32 of the said Act is attracted when it appears to a Juvenile Court or other competent authority that a person brought before it is a juvenile. At that stage the said court shall proceed to make an enquiry as to the age of that person. It could thus appear that Section 20/32 of the said Act comes into play at the initial stage when any person charged with an offence appears or is brought and the said person is apparently a juvenile.
37. Learned counsel also cited another decision of this Court reported in Mahendra Pratap Singh v. State of U.P., 1986 All Cri C 202. It was held that if the accused was below 16 years on the date of the incident, benefit of Section 22 of U.P. Children Act would be available to him even if the said benefit was claimed for the first time in appeal before the High Court after conviction by the trial court.
38. The last case cited is that of the Supreme Court in Gopi Nath Ghosh v. State of West Bengal, . The Hon'ble Supreme Court has in that case entertained the plea of one of the accused that he was minor on the day of commission of offence and, therefore, entitled to the benevolent provision under the West Bengal Children Act. The Supreme Court had called for a report from the Sessions Judge concerned and then finding that he was a minor on the day of the incident, remanded the case back to the Magistrate's Court for orders in accordance with law after setting aside the conviction and sentence of the appellant under Section 302, I.P.C.
39. As noted above, the appellant was aged about 22 years according to the general diary entry made by the Investigating Officer his arrest and also shown in the charge-sheet as aged about 22 years. The Sessions Judge has also disagreed with self-assessment of the appellant Gopal about his age and has remarked that the appellant Gopal did not appear less than 18 years. In view of the afore said materials existing on the record it is impossible to conclude that the appellant was below 16 years on the day of the incident. Therefore, the question of applicability of Juvenile Justice Act is ruled out. Consequently, the application dated 15-4-1993 moved on behalf of both the appellants by "their counsel is rejected.
40. The appellant Jagdish, the brother of Gopal appellant is aged about 22 years. The learned trial Judge has not made any adverse comment to that self-assessment of Jagdish appellant about his own age. The second argument was that the two appellants' youth-fulness should not beget capital punishment.
41. Gruesomeness of a crime may be one of the factors requiring infliction of severest sentence but tenderness of age has always been accepted to be a mitigating factor to save an adolescent neck from being lengthened by the noose of rope. On the facts of the present case if nothing then at least immaturity of action and thought can safely be attributed to both these appellants. Much though a judicial intellect may, looking to the extreme vandalism involved in the instant crime, force to uphold the death penalty to the two appellants, the reformative social principles behind indictment and the raw youth of the appellants do prompt them to award lesser sentence lest it be not projected by history that the act of law was as lawless as the lawless offences of the accused. The appellants have succeeded in snatching to the extent that law would not prefer to have two lives for five. Therefore the appellants need not be sent to gallows and the capital punishment awarded to them is hereby set aside and substituted by imprisonment of life. Consequently, the Reference by the Sessions Judge for confirmation of the death penalty has to be rejected.
42. The appeal is consequently partly allowed. The conviction of the appellants Gopal Chand Srivastava and Jagdish Srivastava, both sons of Harish Chandra Srivastava, under Sections 302/34 IPC is maintained but the death sentence awarded to them by the trial Judge directing them to be hanged by neck till death is set aside and instead they are sentenced to imprisonment for life thereunder. The reference by the trial Judge for confirmation of death sentence is rejected.
43. The conviction and sentence of both the appellants under Section 201 IPC to three years' R.I. each are set aside.
44. Both the appellants are in jail and they will serve out the sentences awarded to them by this Court.