JUDGMENT R.P. Yadav, J.
1. The aforesaid criminal appeals have been preferred against the judgment of conviction dated 6.7.2004 and der imposing sentences dated 7.7.2004 passed in Session Trial No. 210 of 2003 by the Additional Sessions Judge, Fast Tract Court No. 4, Deoria convicting the appellants Mangaroo, Yadupati Chauhan under sections 396/397 IPC, Bhanwar Pal, Deepak alias Chanda under sections 396, 397, 412 IPC and Smt. Arti Devi under section 412 IPC. and sentencing appellant Mangaroo with extreme penalty of death under section 396 IPC and 7 years rigours imprisonment under section 397 IPC. Appellant Yadupati Chauhan, Bhanwar Pal, Deepak alias Chanda have been sentenced to imprisonment for life and fine of Rs, 10,000/- for the offence under section 396 IPC and 7 years R.I. under section 397 IPC. In default of payment of fine, the appellants have been directed to undergo rigorous imprisonment for one year each. Appellants Bhanwar Pal, Deepak alias Chanda and Smt. Arti Devi have been sentenced to 10 years R.I. and a fine of Rs. 5,000/-under section 412 I.P.C. each and in default of payment of fine, they have been directed to undergo rigorous imprisonment for six months.
2. Learned Sessions Judge has made a reference under section 366 of Criminal Procedure Code, which has been registered as Crl. Reference No. 7 of 2004.
3. Common questions of facts and law are involved in all these appeals, therefore, we propose to dispose them of together by this common judgment.
4. Hridayanand Shukla, P.W. 6 who was employed as Meter Examiner in the Electricity Department, Deoria was original resident of village Guddijore. He had built a house in Deoria city in Mohalla Shastri Nagar, Bhikhampur Road, Ram Ghulam Tola, within Police station-Kotwali, Deoria. He had four sons, namely, Rajesh Kumar Shukla, P.W.1 (35 years), Sanjay Shukla (32 years), Rakesh Shukla and Vijay Shukla (24 years), Smt. Pyari Devi (80 years) was his mother. Out of his four sons, namely Rajesh Kumar Shukla, P.W. 1 was married to Ranjana Shukla (P.W. 4) and Sanjay Shukla was married to Vljay Laxmi (P.W.3). Rajesh Kumar Shukla. P.W.1 and Ranjana Shukla (P.W.4) have one son namely, Rikki alias Ankit (13 years) P.W.5.
5. It appears that the said Shukla family was well to do and prosperous. Besides Hridayanand Shukla, who has been in service, one of his sons has been looking after the medical store which was in a rented shop, the other son was plying Maxy Cab, the third one Rakesh Kumar Shukla, who was living at Allahabad was preparing for competitive examinations. The entire family was living jointly in a peaceful manner in the city house. On 6.2.2003 there was engagement ceremony of his third son Rakesh Kumar Shukla which was solemnized from his village house Guddijore, where the other members of the family had also gone to participate in the said ceremony. They returned on 7.2.2003 to their house in the city but complainant and his wife stayed there and they returned to city only after receiving the information of the incident in question.
6. In the night of 7/8.2.2003, Rajesh Kumar Shukla, P.W.1 has been working on his Computer in his residential office till 2.00 a.m. His wife and son were sleeping in the bed room and other members of the family were sleeping in the other rooms as usual. P.W. 1 Rajesh Kumar Shukla retired to bed around 2.00 a.m. leaving the electric bulbs lighted in the court yard and Verandah. Shortly after, he retired to bed, he heard some cries outside his bed room, time being around 2.30 a.m. His wife Smt. Ranjana Shukla (P.W.4) also feeling some disturbance in the house came out of the bed room. Before she could realise that miscreants had entered her$ house and were subjecting the other members to assault, she was assaulted with an Iron rod on her head by one of the miscreants. She tumbled down and became unconscious. When he (Rajesh Kumar Shukla, P.W, 1) saw his wife Smt. Ranjana Shukla, P.W.4 being assaulted by the miscreants with iron rod, he also came out of his room and reached near his wife and noticed that two miscreants were scuffling with his brother Sanjay Shukla. He also noticed that one miscreant having country made pistol in his hands was there and the other one was standing with some weapon near Wash basin in the Varandah. Rajesh Kumar Shukla, P.W.1 was also assaulted with an iron rod by one of the miscreants. When he tried to stop the blow on his fore-arm, he was given another blow with iron rod on his mouth, with the result, his jaw was broken. Thereafter he fell down and became unconscious. Miscreants also hit his brother Shri Vijay Shukla with iron rod who cried for help from his brother, On his cry, Smt, Vijay Lakshmi Shukla, P.W. 3 and her husband, Sanjay Kumar Shukla made attempt to come out from their room, but the miscreants pushed the door and entered their room and they subjected them also to assault with the result Smt. Vijay Lakshmi, P.W. 3 and Shri Sanjay Shukla sustained injuries on their heads. Three or four miscreants entered their room and gave blows over them with iron rods. Shri Sanjay Shukla who suffered fatal injuries, died on the spot. His mother Smt. Pyari Devi and a child namely Ankit alias Rikki (13 Years) were also hurt. They also sustained grievous injuries. Teeth of Ankit alias Rikki were broken. The miscreants ransacked the house and carried away all their belongings including Cash, ornaments, clothes and other articles whatever could be available to them in the house leaving all the family members seriously injured including one Sanjay Shukla dead.
7. It appears that Shri Yogendra Shahi, P.W. 2 a neighbour noticed some untoward incident in Shukla's house. He immediately informed the police on his telephone and his message was recorded by C.P. Shyam Rao, P.W. 7 in G.D. (Ext. Ka-2) at 4.00 a.m. on 8.2.2003, on the basis of which, F.I.R.(Ext. Ka-3) was registered. He had informed the police that some miscreants have beaten Sanjay Kumar Shukla and his family members and all of them are lying in pool of blood. The belongings of the house were lying scattered and Sanjay Kumar Shukla was most probably dead. Three miscreants were seen fleeing away from the house.
8. It appears that soon after the occurrence, some neighbours reached the spot and took the injured persons to the hospital. Sanjay Kumar Shukla was also shitted to the hospital but he was declared brought dead. The other Injured, namely Rajesh Kumar Shukla, P.W.1, Vljay Kumar Shukla alias Guddu, Smt. Pyari Devi and child Ankit alias Rikki. P.W. 5 and Rakesh Kumar Shukla were medically examined at District Hospital Deoria by Dr. A.P.Yadav P.W. 8 between 5 .00 a.m. to 5.30 a.m. on 8.2.2003. He found the following injuries on their person, which were noted in the reports Ext.Ka-5 to Ka-S prepared by him:-
1. Shri Rajesh Kumar Shukla (36 Years)
(i) Contused swelling 3 cm. X 2 cm. On the whole of upper eye lid. Kept under observation, Advised X-Ray skull AP/lateral and ophthalmogical opinion. (ii) Lacerated wound 1 cm x 1 cm x muscle deep on the chin.
2. Shri Vijay Shukla alias Guddu (23 years)
(i)Traumatic contused swelling 5 cm x 3 cm on the left side of face in front of ear.
Bleeding from nose and left ear present. Adv. X-Ray skull. A.P./ lateral.
(ii)Contused swelling 2 cm x 2 cm on the left eye lids.
(iii)Lacerated wound 5 cm x .5 cm x scalp deep on the head 5 cm above root of nose.
(iv) traumatic contused swelling 3 cm x 2 cm on the head on the occipital region.
G.C. very low, puls 102/p.m., B.P. 110/70, mm Hg unconscious.
(3)Name unknown woman aged 70 years (Smt. Pyarl Devi).
(I) Traumatic contused swelling on the left side of face 15 cm x 10 cm. In the mandibular region.
(ii)Contused swelling on the left temporal region size 3 cm. X 3 cm. on the head 5 cm. above left year. Adv. X-Ray skull AP/Lateral G.C. low, unconscious pulse, 104.p.m., B.P. 112/70 mm Hg.
(4) Ankit alias Rikki Shukla (5 years) son of Rajesh Shukla.
(i) Contused swelling 8 cm x 6 cm on left side of head 7 cm above left ear, bleeding from nose present .Adv. X-Ray skull, A.P./Lateral.
(ii)Contused swelling 8 cm x 5 cm on the right side of face and mandible. Adv. X-Ray mandible AP/Lateral.
(iii)Lacerated wound .5 cm x .5 cm on the middle of upper lip. G.C. low, unconscious. Pulse 120/pm.
9. In the opinion of the Doctor ail the aforesaid injuries were caused by blunt objects and were fresh in nature.
10. Injured persons when brought to the hospital were In precarious condition. Therefore, they were immediately referred to the Medical College, Gorakhpur for proper treatment and an information to this effect including the information of death of Shri Sanjay Shukla was conveyed to police of P.S. Kotwali at 7 .00 a.m. in the morning through report Ext. Ka-10 by Shri J.P. Upadhyaya, Pharmacist, P,W. 10 under the direction of Dr. A.P. Yadav, P.W. 8.
11. It appears that the condition of Shri Vijay Shukla was extremely critical. Therefore, he without any medical examination at District Hospital was immediately referred to Medical College, Gorakhpur from where he was referred to S.G.P.G.I., Lucknow. He was continuing under treatment even when the evidence in the trial was being recorded as deposed by P.W.6..
12. Inquest on dead body of Shri Sanjay Shukla was held by Shri Shyam Narain Singh. SO., P.W. 21 between 5.00 a.m. to 7.00 a.m. on 8.2.2003 after appointing Punches. He prepared inquest report Ext. Ka-9.
13. Shri Rahul Singh, P.W. 12 was one of Panches, who signed the inquest. The dead body of Sanjay Kumar Shukla was brought to mortuary for postmortem by Constable Bharat Chaudhary (P.W. 11) and Constable Rajesh.
14. Post-mortem on the dead body of Sanjay Kumar Shukla was conducted at 4.50 P.M. on 8.2.2003 by Dr. Ajay Kumar P.W. 9, who found the following ante mortem injuries on his dead body. :-
1. Lacerated wound 2.5x 1.5 cm x bone deep on left side head 3 cm above to the left ear.
2. Lacerated wound 2.5 cm x 1.5 cm x bone deep upon back side left part of head.
15. According to the opinion of the said doctor the death had taken place due to shock and haemorrhage as a result of anti mortem injuries. He had prepared post-mortem report (ext.Ka-9).
16. Shri Vijay Shukla, who was referred to medical college Gorakhpur died on 9.2.2003. The inquest on the dead body of Vijay Shukla was held by S.O. Bhognipur in presence of Constable 878 Anurag Kamal Srivastava, P.W. 16 and Constable Laxman Yadav, who carried the dead body for post-mortem, which was conducted by Dr. Ghanshyam Singh P.W. 18 at 2.00 p.m. on 9.2.2003, who found the following anti mortem injuries on his dead body:-
1. One stitched wound 6 cm (4 stitches present) present over fore head horizontally 6 cm above the root of nose.
2. One contusion 10 cm x 8 cm with central lacerated wound of 1 cm x 1 cm x scalp deep present on left side of skull. On opening underneath haematoma present, temporal bone, left frontal bone fractured, haematoma present meninges and brain tissue in large amount.
3. Blackening of both eyes with oedema of both eye lid present.
4. Contusion of 6 cm x 4 cm present on left side of face . On opening underneath maxila bone fractured .
5. One contusion of 15 cm x 10 cm present on front of neck extend upto upper chest wall on left side.
Cause of death was coma as a result of anti mortem head injury.
Dr. Ghanshyam Singh, P.W, 18 prepared post-mortem report (Ext. Ka-13).
17. Smt Pyari Devi died on 14.2.2003 in the medical college, Gorakhpur. Inquest on her dead body was held by S.O. Gulariha in presence of Panches including Prahalad Pandey, P.W. 14. Constable Ram Naresh Prasad, P.W. 15 and Constable Anurag Kamal Srivastava carried her dead body to the mortuary for autopsy, which was conducted by Dr. S. Keserwani, P.W. 17 at 3.00 p.m. on 14.2.2003, who found the following anti mortem injuries on her dead body:-
1. Multiple contusion all over the face and both eyes. On opening right mandibular bone fractured.
2. Contusion 4 cm x 32 cm on the left side shoulder.
3. Abraded contusion 4 cm x 2 cm on the upper part of back.
4. Contusion 6 cm x 2 cm on the back of head on opening underneath haematoma present.
In the opinion of doctor Kesharwani (P.W. 17) the death had taken place due to coma as a result of head injury.
18. Initially, the investigation of the case was commenced by Shri Shyam Narain Singh, S.O., P.W. 21, who had reached the spot immediately after receiving information of the incident, where the other higher authorities of the police had also reached. He had taken in custody blood stained clothes, pillow cover, sweater and two saries and prepared recovery memo (Ext. Ka-15) on the spot. Under the orders of the Superintendent of Police, Deorla dated 8.2.2003, the investigation of the case was transferred to Shri Sudisht Singh Yadav, S.O. (P.W. 22), who was then posted at P,S. Bhaluwani. Shri Yadav (P.W. 22) made necessary entries in the case diary about the information received from Yogendra Shahi,P.W.2 and incorporated in the G.D. Ext. Ka-2 and on receiving memo of death of Sanjay Kumar Shukla made entries about the same In the case diary. He came to know through report Ext. Ka-10 that the other injured have been referred to the Medical College, Gorakhpur. He interrogated Yogendra Shahi (P.W. 2) and inspected the spot in his presence. He found that box, Suit-case, Almirah in the house were broken open and some of the articles were scattered in the room. The quilt, pillow, clothes, Saries were also scattered . No member of the family was present in the house. He prepared site plan (Ext. Ka- 14). He interrogated one Babu Ram Yadav and other formal witnesses. On 19.2.2003, he interrogated Shri Hirdyanand Shukla, P.W. 6, Rajesh Kumar Shukla, P.W. 1, Smt. Ranjana Shukla, P;W. 4, Smt. Vijay Laxmi Shukla, P.W. 3 and Ankit Shukla atlas Rlkkl, P.W. 5. No accused was named in the FIR nor any clue about any accused could be available till then. However, in their second statement on 5.3.2003 the witnesses Rakesh Kumar Shukla, P.W. 1 and Hridayanand Shukla, P.W. 6 expressed apprehension about the conspiracy of appellant Mangaroo in this crime because few days before of the present incident, appellant Mangaroo had attempted to tease or outrage the modesty of a girl of the Mohalla, whereupon Sanjay Shukla (deceased) alongwith some other lads of the Mohalla had beaten appellant Mangaroo. He suspected that this dacoity might have been planned by appellant Mangaroo. During the course of investigation, Shri Sudisht Singh Yadav, S.O. (P.W. 22) was informed by the police informant that the conspiracy was hatched by appellants Mangaroo and Yadupati in presence of witnesses Prabhu Yadav and Krishna Murari, who had over heard their conversations on a tea stall. On further investigation the Investigating Officer found the case of conspiracy against the said two appellants. On 11.3.2003, the Investigating Officar Shri Sudisht Singh Yadav P.W. 22 was informed that some dacoits, who had committed this dacoity were present at railway station Bhatni alongwith stolen articles and they were likely to eaten some train for fleeing away. On receiving this information, Shyam Narain Singh, P.W. 21 the then S.O. Kotwali and Mohd.Kasim All, S.O., P.S. Lor and two lady constables Smt. Suman Lata Tripathi, P.W. 21 and Constable Maya (P.W.20) were summoned by Sudisht Singh Yadav, Investigating Officer (P.W. 22) at the said place and in their presence, the appellants Bhanwar Pal, his wife Smt. Arti and Deepak alias Chanda were arrested at the railway station Bhatni. On search three suit-cases were recovered from their possession (one from each of them). On opening the said suit-cases stolen articles like cash, ornaments, clothes, one Camera (Yashlka) and other articles were also found. Shri Hrldayanand Shukla, P.W. 6, who had reached there, when the recovery was made identified the same as the articles looted from his house during the course of the commission of dacoity. The recovery memo (Ext. Ka-1 ) was prepared on the spot. Three appellants were made Baparda and taken to Police station from where they were produced before the Chief Judicial Magistrate, Deoria for remand. Appellant Mangaroo could also be apprehended on 11.3.2003; whereas appellant Yadupati was arrested on 17.3.2003. After due investigation charge-sheet was submitted against the appellants Mangaroo and Yadupati Chauhan under section 120B IPC for having hatched the conspiracy for dacoity and against other appellants Bhanwar Pal and Deepak under sections 396, 397, 412 IPC and against Smt. Arti Devi under section 412 IPC. Charges were accordingly framed on 21.8.2003 but later on, during the course of evidence it was found by the learned Sessions Judge while conducting the trial that there was prima facie evidence against the appellants Mangaroo and Yadupati Chauhan for having committed dacoity and so charged them under (c)actions 396 and 397 IPC also. He framed additional charges under the aforesaid section on 31.01.2004.
19. All the five appellants pleaded not guilty and attributed their false implication. Appellants Bhanwar Pal, Deepak alias Chanda and Smt. Arti Devi also pleaded not guilty and asserted that they were arrested on 8.3.2003 from village Dhenuki Chauk which lies within police station-Madhaura, District-Saran (Chhapra), Blhar, However, Bhanwar Pal Singh and Smt. Arti claimed articles recovered from them as their own.
20. To substantiate the charges the prosecution examined Rajesh Kumar Shukla, P.W.1, Yogendra Shahi, P.W. 2, Smt. Vijay Laxmi, P.W. 3, Smt. Ranjana Shukla, P.W. 4, Ankit Shukla alias Rikki, P.W. 5, Hridayanand Shukla, P.W. 6, Constable Shyam Rao, P.W. 7, Dr. A.P. Yadav, P.W. 8, Dr. Ajay Kumar, P.W. 9., J.P. Upadhyaya, Pharmacist, P.W. 10, Constable Bharat Chaudhary, P.W. 11, Rahul Singh, P.W. 12, Chandra Bhan Pandey, P.W. 13, Prahalad Pandey, P.W, 14, Constable Ram Naresh Prasad, P.W. 15, Aurag Kamal Srivastava, P,W. 16, Dr. S. Kesharwani, P.W. 17, Dr. Ghanshyam Singh, P.W. 18, Suman Lata Tripathi, P.W. 19, Constable Maya, P.W. 20, S.N.Singh, P.W.
21. S.S. Yadav. S.l. P.W. 22; whereas appellants Bhanwar Pal, Deepak alias Chanda and Smt. Arti Devi examined Braj Kumar Pandey, A.S.I., P.S. Madhaura as D.W. 1. No evidence was led in defence by other two appellants.
22. Yogendra Shahi, P.W. 2 had telephonically informed the police of Police Station Kotwali, Deoria at 4.00 a.m. on 8.2.2003 regarding dacoity in the house of Sanjay Shukla, which was recorded in the G.D. Ext. Ka-2 and on the basis of which FIR (Ext.Ka-3) was registered. The evidence of PAW. 7 to P.W. 18 to the extent it was relevant to the caso has already been referred to earlier, so it would be of no purpose to repeat over the same again. So, we may take notice of the evidence of other witnesses examined at the trial.
23. P.W. 1, Rajesh Kumar Shukla is son of Shri Hridayanand Shukla, P.W. 6, who has the own house in Deoria city on Bhighamapur Road in Ramghulam Tola. He deposed that on 6.2.2003 an engagement ceremony of his brother Rakesh Shukla was solemnised in village Guddijore. In the night of 7/8.2.2003 he had been working on his computer upto 2.00 a.m. in his residential office and his wife and children were sleeping in the bed room. Other members of his family wee also sleeping in their rooms. Light was on in his court yard and Verandah, (sic) had put a sum of Rs. 35,000/- in an envelope for paying to the medical representatives in the next morning. It was around 2.30 a.m. that he heard some noise out side his bed room. As soon as his wife Smt. Ranjana Shukla, P.W.4 went off the room, she was hit by Mangaroo with an iron rod, resurtantly she fell down. She entreated the miscreants to spare her but of no avail. In the meantime, P.W. 1 Rajesh Kumar Shukla reached near his wife and noticed that 2 or 3 miscreants were scuffling with his brother Sanjay Shukla and one miscreant namely Raj Kumar (not put on trial) who was having country made pistol and other miscreants had taken their position in the Varandah near washbasin. When he came out of his room, he was also given blow with iron rod by the appellant. Mangaroo, When he stopped the blow on his hand, Mangaroo appellant gave another blow on his mouth with the rod and as a consequence thereof his jaw was broken. Thereafter he fell down and became unconscious He was not aware of the happenings taken place thereafter. When he regained his conscious after A or 5 days, he found himself in the Medical College, Gorakhpur. He further stated that he and his wife had been assaulted by this miscreant accused appellant Mangaroo with the Iron rod. He further stated that he knew accused Mangaroo since 20-25 days before this incident because accused Mangaroo had attempted to outrage the modesty of a girl of Mohalla, whereupon he was slapped by his brother (Sanjay Shukla) and some other lads of the Mohalla. Thereafter, he had come alongwlth 3 -4 persons to the shop of his brother (Sanjay Shukla) with an intention to beat him. On timely information, the police reached there and took the accused Mangaroo to police station. He further stated that during the commission of dacoity he and his wife (Smt. Ranjana Shukla, P.w. 4) and his son Rikki.P.W. 5 his brother Sanjay Shukla, Smt. Vijay Laxmi Shukla (P.W. 3) wife of Sanjay Shukla, his brother Rakesh Shukla and his grand mother Pyari Devi had sustained injuries, which were inflicted by miscreants. He further stated that Sanjay Shukla, Vijay Shukla and Smt. Pyari Devi died on account of the injuries caused by the miscreants during the course of commission of dacoity. According to the evidence of the witness, the miscreants had looted three rings (on one of them the word "R" was inscribed) Rs. 35,000/- cash, ear-ring, nose pin, one golden chain, four bangles, one wrist watch, one camera (Yashika) and some saries were also looted away. Besides these articles, they also looted Rs. 54,000/- cash, three titun wrist watches, golden chain and golden ring of Sanjay Shukla and some other articles as well. He further stated about having been admitted to the Medical College, Gorakhpur for about 10 days.
24. P.W. 3, Smt. Vijay Laxmi Shukla is wife of Sanjay Shukla, who died on account of injuries having been caused by the miscreants during the commission of dacoity. She deposed that in the eventful night she was sleeping with her husband and her son. There was light In Verandah out side the room. She woke up after hearing some noise in side the house and saw that Vijay Shukla her 'Devar' was being assaulted by some miscreants and he was crying for help. She further stated that while she was opening the room, the Dacoits pushed the door and barged in her room. The appellant Mangaroo assaulted with an iron rod on her head and as a result thereof she fell down. According to her 3-4 dacoits entered her room, but out of them she could identify only Mangaroo and Yadupati Chauhan (appellants). She further stated that she was admitted to the Medical College Gorakhpur where she regained consciousness. She also stated that she became unconscious after sustaining injuries. The dacoits snatched her golden rings, golden chain and ear rings by force, due to which hurt was caused near her chin, Besides this, they looted several articles of the house and cash kept in attache. She further stated that she came to know later on that her husband Sanjay Shukla. Devar Vijay Shukla and grand mother Ram Pyari had succumbed to the injuries.
25. P.W. 4, Smt. Ranjana Shukla has reiterated the Incident In the manner stated by her husband, Rajesh Shukla, P.W. 1. She named appellant Mahgaroo, who caused injuries to her husband and identified Mangaroo appellant having assaulted on her head with an iron rod. She has also given details of ornaments taken away by the miscreants during the commission of dacoity. According to her cash of Rs. 19,000, which was kept in brief-case and Rs. 50,000/- cash which was kept in safe and clothes word also looted from her room.
26. P.W. 5 Ankit, who is a child witness aged 13 years has also supported the factum of dacoity and causing of injuries to him and his family members. He was also one of those who had sustained Injuries at the hands of the miscreants, His teeth were broken. He was also admitted to Medical Collage,Gorakhpur. He too deposed that his uncle Rakesh Shukla was referred to S,G.P.G.I., Lucknow,
27. P.W. 6, Hridayanand Shukla stated that there was engagement ceremony of his son Rakesh Shukla on 6.2.2003 at his village Guddijore. He further stated that after ceremony was over, all the other family members (except him and his wife) had returned to their city house, where dacoity was committed in the night of 7/8.2.2003. He received information about dacoity at his village house. He immediately rushed to the district hospital, Deoria where he came to know about the death of his son Sanjay Shukla. The other injured persons were sent to the Medical College, Gorakhpur where his son Vljay Shukla died at 3-4 p.m. on 9.2.2005 and his mother died at 7.00 a.m. on 14.2.2003. During the course of evidence he stated that the condition of Rakesh Shukla was still very critical. He had lost his hearing power and has become hard of hearing. He had lost his vision too. According to the doctor, he will take still more than three years to recover. He was unable to speak because, surgery in his throat was done. He stated to have been interrogated by the police on 19.2.2003 but added that at that moment he was mentally shocked and he was unable to give full details of the incident. He told the police officer that a sum of Rs. 50,000/- and Rs. 54,000/- cash which was received in engagement ceremony of his son Rakesh Shukla, Rs. 35,000/- cash from the room of his son Rajesh Shukla, Rs. 50,000/- cash from the room of Sanjay Shukla (son) and Rs. 15,000/- cash of his daughter-in-law were looted by the miscreants. He further stated that besides cash, ornaments and clothes of his daughter-in-laws and sons were looted. His evidence goes to show that on 5.3.2003 he searched his house and found Rs. 50,000/- lying in the locker of the Almirah, which was not looted and four golden bangles of his elder daughter-in-law were also not looted as she had left the same at the village house. He further stated that on 11.3.2003 he had gone to Bhatni to see off his sister; where he was informed that some dacoits have been arrested at the railway station, Bhatni and some stolen articles have boon recovered from them. Ho wont to Railway plat-form, Bhatni and saw the recovered articles. The police officials, who were present there and who knew him, requested to identify the articles to" ensure that if any of them was looted from his house in dacoity and after perusing those articles he found that most of them were the articles looted from his house during dacoity. He Identified those articles Ext. 1 to 24. Recovery memo (Ext. Ka-1) was prepared In his presence and he signed the same . He further stated that he identified the recovered articles at the Railway Station, Bhatni and no identification test parade was held before any Magistrate.
28. P.W. 19, Constable Suman Lata Tripathi, P.W. 20 Constable Maya were posted in Raserved police linos, Deoria. Their services wore requisitioned by S.I. Sudisht Singh Yadav for the purposes of search from the lady accused . It was about 1.30 or 2.00 p.m. duty Constable told them that they had to reach Railway Station, Bhatni. They were taken there in Government Jeep. S.H.O., S.N.Singh, (PW-21) S.O. Sudisht Singh Yadav (PW-22) and S.O., Mohd. Kasim All alongwith necessary police force were present there. Search of lady accused appellant Smt. Arti Devi was conducted by them. They recovered Rs. 10,000/-cash from the inner pocket of her Petti-coat and some clothes and ornaments were recovered from her Attache. Search of two appellants, Bhanwar Pal and Deepak was conducted by the police officials and some broken gold ornaments, cash and other articles were recovered from the aforesaid two appellants. The recovered articles and suit case were duly sealed and recovery memo (Ext.Ka-1) was prepared on the spot, which was duly signed by them as well.
29. P.W. 21, Shyam Narain Singh was posted as Station House Officer Kotwali, Deoria. On 8.2.2003, the case was registered at P.S. Kotwali In his absence on the basis of telephonic communication of Shri Yogendra Shahi (P.w.2). On receiving information of the crime he went to the spot and then hospital where he came to know about the death of Shri, Sanjay Shukla. He conducted the proceedings of Panchayatnama in the presence of Panches and prepared Inquest report Ext. K-9. Thereafter he kept the dead body of Sanjay Shukla In sealed cover and forwarded the same for post-mortem through constable Bharat Chaudhary, P.W.11 and Constable Rajesh. investigation was thereafter taken from him and handed over to Shri Sudisht Singh Yadav, P.W. 22. His evidence further shows that on 11th March, 2003 he received information on R.T. Set from the then Station Officer, Bhulwani Shri Sudisht Singh Yadav, P.W. 22 that he should reach at Bhathuwa crossing. Shri Mohd. Kasim Ali, S.O. P.S. Lar was also called for. They reached there and only then came to know that Sudisht Singh Yadav, P.W.22 has received information that some suspects of the said dacoity were present at Railway Station Bhatni with looted articles. They went to plat-form of Railway Station Bhatni and saw that two persons alongwlth a woman were present there in suspicious condition. They were apprehended at the Railway plat form. Each one of them was having an Attache. This witness has also stated that during search, Hridayanand Shukla, P.W. 6 reached the spot. He identified the articles looted from his house during the commission of dacoity. Two lady constables were also with police party. They searched the lady suspect namely appellant Arti Devi; whereas the other two suspects, namely appellants Bhanwar Pal and Deepak alias Chanda were searched by the police party and the stolen articles were recovered from their possession which were in the attache. Recovered articles were sealed on the spot and recovery memo Ext. Ka-1 was prepared. It was signed by him as well as by the other witnesses and the accused appellants. He has denied the defence suggestion that these accused were arrested from village Dhenuki, P.S. Madhaura, District Chhapra, Bihar.
30. P.W. 22, Sudisht Singh Yadav after being entrusted with the investigation on 8.2.2003 recorded the statement of Yogendra Shahi Informant on 8.2.2003 and inspoctod the spot and found the articles kept in the hose of Hridayanand Shukla (P.W.6) scattered. He noticed the blood stains on the floor. Quilt, cushion and other clothes were smeared with Wood. However, no family member was present when he made inspection. He prepared site plan Ext. Ka-14 and took in his possession the blood stained clothes vide memo Ext. Ka-15. On 19.2.2003, he recorded the statements of witnesses-Hridayanand Shukla, P.W. 6, Rajesh Shukla, P.W. 1, Ranjana Shukla, P.W. 4, Vijay Laxmi Shukla, P.W. 3, and Rikki, P.W. 5. He made further interrogation of Rajesh Shukla P.W. 2 and Hridayanand Shukla, P.W. 6 on 5.3.2003. On 11.3.2003 he received information and called the necessary police force and arrested the accused appellants Bhanwar Pal, Deepak alias Chanda and Smt. Arti Devi from the railway station Bhatni. He stated that at the time of arrest of these accused, S.N.Singh, S.H.O., Mohd. Kasim Ali, SO. and two lady constables with some other police constables were present He recovered the articles from the accused persons Material Ext. 1 to XXIV Recovered articles were kept in respective suitcases and duly sealed. Recovery memo was prepared on the spot which was signed by the police personnel as well as accused appellants. Hridayanand Shukla, P.W. 6 who reached there at the Railway station identified the articles recovered from the aforesaid accused appellants. During the cross examination he denied that the accused were arrested on 8.3.2003 from village Dhenuki, P.S. Madhaura District Chhapara, Bihar He also denied suggestion that in order to avoid the identification proceedings the accused and recovered articles were shown to Hridayanand Shukla, P.W. 6 at his residence.
31. D.W. 1 Brij Kumar Pandey, A.S.I., P.S. Madhaura, District Saran (Chhapra), Bihar has proved G.D. entry Nos. 178,179 and 182 dated 8.3.2003, in which it is said to have boon mentioned that the then S.H.O. Vinod Kumar Rai of P.S. Madhaura had received information on rumour that in village Dhenuki Chauk a person has been arrested by some persons looking like police personnel and S.H.O Vinod Kumar Rai had further mentioned in the G.D. that he went to village Dhenuki Chauk. It was also mentioned that one S.N.Singh claiming himself to bo S.H.O. Salempur, District Deoria, U.P. gave him an application (Ext. Kha-2) to the effect that the appellants Bhanwar Pal and his wife Smt. Arti Devi and Deepak alis Chanda were arrested by him in connection with a case under sections 457, 380 IPC of P.S. Lar.
32. On appreciation of the entire evidence adduced by the prosecution as well as defence including the factum of recovery of stolen articles and relying on various circumstances found to be established against the appellants, the learned Additional Sessions Judge convicted the appellants for the offences stated above. Considering the role of Mangaroo that it was he who had hit the deceased with the iron rod and finding his case totally different from others, sentenced him with the penalty of death under section 396 IPC. Learned Additional Sessions Judge has made reference for cpnfirmation of his death sentence under Section 366 Cr.P.C.
33. The appellants have challenged their convictions and sentences through these appeals.
34. We have heard the learned counsel for the appellants and the learned Government Advocate.
35. The case tells a pathetic story. The crime was diabolically planned and a family which has been prospering and every member of which was sincerely devoted to his work has been ruined at the hands of the out-laws. All the inmates of the family including one child were subjected to severe assault and almost all of them had become unconscious after sustaining injuries. Not only this, one of them Sanjay Shukla died on 3pot whereas the other two died in the hospital. Five other injured were treated in medical college, Gorakhpur and one of them was referred to S.G.P.G.I., Lucknow, where his treatment Is still continuing. It is amply disclosed by the medical evidence that the miscreants assaulted all the inmates on the head at temporal region with blunt object in such away that they could not even resist the onslaught and because instantly unconscious. It goes to suggest that they were habitual criminals. Investigating
36. Officer as well as family members of the complainant initially suspected this crime by "BAWARIA GIROH. Appellants Bhanwar Pal and Deepak alias Chanda are said to be the members of the said gang (Giroh).
37. It appears from the statement of P.W. 6, Hridayanand Shukla that the engagement ceremony of his son Rakesh Shukla was held on 6.2.2003. Rakesh also became a victim of assault in this crime and is still under treatment and according to the doctor's advice he has to continue the treatment for a period of 3 years more. The other four injured persons are luckily surviving .They were relieved from the Medical College, Gorakhpur and reached their house in the village Guddijore on 19.2.20003. Although it has not been specifically disputed, yet we consider it appropriate to mention that according to the evidence of the prosecution witnesses, five or more miscreants participated in this offence and during the course of commission of dacoity they assaulted inmates of the house causing death of three of them and injuries to 5 others, so it is naturally a case of dacoity with murder and if the appellants are held guilty of participating in this crime, they can be legally punished for the offences punishable under sections 396, 397 IPC. In the telephonic communication Shri Shahi, P.W. 2 had informed that three miscreants were seen running away. But the fashion in which the occurrence took place and looking to the number of persons dead and injured and the number of miscreants given by the witnesses in their depositions It is proved beyond doubt that it was the handiwork of more than 5 miscreants.
38. Factum of dacoity and injuries to inmates of the house including plunder of various articles has neither been disputed nor could be successfully disputed by the learned counsel for the appellants. Argument of the learned counsel for the appellants is that the appellants Mangaroo, Bhanwar Pal, Deepak and Yadupati Chauhan were not named in the F.I.R. and they were not subjected to any identification test parade. They were identified for the first time by the prosecution witnesses in the court so their evidence could not be relied upon by the learned Additional Sessions Judge. Learned counsel has vehemently urged that although the evidence recorded before the Court was the substantive piece of evidence, yet the test identification parade during the course of Investigation provides corroboration to the identification of the accused by the witness in court. Since in the present case, no identification test was held at all and the witnesses did not name any of the said appellants in their statement under Section 161 Cr.P.C. recorded on 19.2.2003 or 5.3.2003 and Rajesh Shukla (P.W.1) and Hridayanand Shukla (P.W.6) had expressed only suspicion against Mangaroo appellant of hatching conspiracy for planning a dacoity at their house without saying that they were actual participants in the crime and that the fact of the conspiracy against them having not been substantiated by any evidence, the appellants could not be convicted for the aforesaid offence on the basis of evidence which was adduced at the trial. In support of this argument learned counsel for the appellants has relied upon the following authorities which lay down the principles and guidelines on the point of identification of the accused, who are not nominated in FIR.
"In Mohanlal Gangaram Gohanl v. State of Maharashtra reported in 1982 SCC (Cri) 335 the Hon'ble Apex Court relying upon the case of V.C. Shukla v. State (Delhi Admn.), and Sahdeo Gosain v. King-emperor, AIR 1944 FC 38 has held that testimony of a witness who identified the accused for the first time in court without knowing him before, in absence of any test identification parade, would be valueless and unreliable".
39. In Malkhan Singh v. State of M.P. 2003 SCC (Crl) 1247 the Hon'ble Apex court has held as under:-
"The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rub of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.
But failure to hold a test identification parade would not make inadmissible the evidence of Identification in court. The identification parades belong to the stage of investigation, and there is no provision in the Cr.P.C. which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. These parades do not constitute substantive evidence. The substantive evidence is the evidence of Identification in court and the test identification parade provides conoboration to the identification of the witness in court, if required. However, what weight must be attached to the evidence of identification in court, which is not preceded by a test identification parade, is a matter for the courts of fact to examine. In appropriate cases it may accept the evidence of identification even without insisting on corroboration."
40. In Suresth Chandra Bahri v. State of Bihar 1995 SCC (Crl) 60, the Hon'ble Apex court held that where accused is not previously known to the witness test identification parade must be held at the earliest possible opportunity with necessary safeguards and precautions.
41. In Ramoshwar Singh v. State of Jammu and Kashmir 1971 Supreme Court Cases (Cri) 638, the Hon'ble Apex Court has held as under-
"The substantive evidence of a witness is his evidence in court but when the accused person is not. previously known to the witness concerned then identification of the accused by the witless soon after the former's arrest is of vital importance because it furnishes to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it Is a matter of great importance both for the investigating agency and for the accused and fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay of the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, In addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. In this way alone justice and fair play can be assured both to the accused and to the prosecution. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the Court safely to form appropriate judicial opinion about its evidentiary value for the purpose of corroborating or contradicting the statement in court of the identifying witness."
42. In Sarwan Singh v. State of Punjab 2003 SCC (Cri.) 282 referring to the following paragraph of Budhsen v. State of U.P. 1970 SCC (Cri.) 343, the Hon'ble Apex Court held as under;-
"The evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances he came to pick out the particular accused person and the details of the pad which the accused played in the crime In question with reasonable particularity. The purpose of a prior test identification, therefore, seems to be to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboratibn of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceeding. There may, however, be exceptions to this general rule, when for example, the court is impressed by a particular witness, on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the investigation stage. They are generally held during the course of investigation with the primary object of enabling the witnesses to identify persons concerned in the offence, who were not previously known to them. This serves to satisfy the investigating officers of the bona fides of the prosecution witnesses and also to furnish evidence to corroborate their testimony in court. Identification proceedings In their legal effect amount simply to this: that certain persons are brought to jail or some other place and make statements either express or implied that certain individuals whom they point out are persons whom they recognize as having been concerned in the crime. They do not constitute substantive evidence. These parades are essentially governed by Section 162 of the Criminal Procedure Code."
43. The Hon'ble Apex court on the reference to the Evidence Act held that: ordinarily identification of an accused for the first time in court by a witness should not be relied upon for the purpose of passing the order of conviction without a definite corroboration since identification for the first time in court cannot possibly be termed to be non-admissible but It Is a matter of prudence and jurisprudential requirement that the same should be upon proper corroboration otherwise the justice delivery system may stand affected. The Designated Court herein has in fact recorded a positive finding that the witnesses knew the appellant from before and they were acquainted with each other by reason wherefor the names could be mentioned in the FIR itself and in view of such a state of affairs question of decrying the evidence of all the so-called interested witnesses on a first-time identification in court would not arise. We, however, hasten to add that the requirement of the concept of justice is-acceptability and credibility of the evidence tendered by the witnesses. Once that stands completed, it will be difficult if not an impossibility to challenge a conviction only on the ground of the failure to hold prior test identification parade."
44. In Vlsveswaran v. State Rep. by S.D.M. 2003 SCC (Cri) 1270, the Hon'ble Apex court was of the view that identification of the accused either in test identification parade or in court is not a sine qua non in every case if from the circumstances the guilt is otherwise established.
45. In Dana Yadav alias Dahu and Ors. v. State of Bihar 2002 SCC (Cri) 1698, the Hon'ble Apex Court has held as under:-
"It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible, rather the same is very much admissible in law. Question Is, what is its probative value? Ordinarily, identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, . unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at Ns trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence. We are fortified in our view by a catena of decisions of this Court in the cases Of Kanta Prashad v. Delhi Admn. Vaikuntam Chandrappa, Budhsen, Kanan v. State of Kerala, Mohonlal Gangaram Gehani v. State of Maharashtra, Bollavaram Pedda Narsi Reddy, State of Maharashtra v. Sukhdev Singh, Jaspal Singh v. State of Punjab, Raju v. State of Maharashtra, Ronny George v. State of Kerala, Rajesh Govind Jagesha, State of H.P. v. Lekh Raj and Ramanbhai Naranbhai Patel v. State of Gujarat."
46. On behalf of prosecution Jearned Government Advocate has submitted that the evidence of inmates of the house is substantive evidence and the same can be very well relied upon by the court notwithstanding the fact and there is no prior identification parade at the investigation stage. He submitted that there is no time limit prescribed for holding identification test and if the case reached before the court within a reasonable time and the witnesses identified the accused there in the court, such evidence cannot be discarded merely on the ground that they were not subjected to identification test parade earlier. In support of his argument he cited the case of Pramod Manda v. State of Bihar 2005 SCC (Cri.) 75, in which the Hon'ble Supreme Court has held that:-
"It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identify, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification."
47. In the case of Simon and Ors. v. State of Karnataka 2004 (2)JIC 855 (SC), the Hon'ble Supreme court held the identification parade in court after 8 years proper with the observation that it all depends on the facts and circumstances of the case. In that case a notorious criminal Veerappan alongwith 121 accused persons was named, out of them 50 accused persons were arrested and prosecuted. But out of 50 only four accused were identified by the victim and their conviction was upheld,
48. In view of the authorities cited by the parties' counsel, It is clear that there is-no statutory rule providing for identification test at the investigation stage. It is a matter of prudence and it lends corroboration to the testimony of the witnesses given in court. However, the court has ample power to believe such evidence of a witness who identified the accused for the first time in court, if the court is impressed with his evidence and finds the same worthy of credit.
49. Now, we proceed to examine the facts of the present case keeping in view the principles laid down in the authorities alluded to above. There was no FIR lodged by any member of the victim family because all the inmates of the house had sustained injuries and the police was telephonically informed by the neighbour so there was no question to cite the name of any of the accused/appellants in the FIR. P.W.6 Hridayanand Shukla who is the head of the family was away from the place of occurrence and had no opportunity to see the crime. None being cited as an accused police has also been groping in the dark, because no definite clue was available at the early stage of the investigation. The injured were also admitted in the Medical College, Gorakhpur and were not available for interrogation. It was on 19.02.2003 that they were relieved from the Medical College Hospital and the Investigating Officer (PW-22) who was waiting for their arrival at home reached there for interrogation same day but they did not disclose the name of any of the accused. They gave omnibus statement that they had become unconscious after sustaining the injuries and could not recognise the culprits. In his statement before the court, Shri Rajesh Shukla P.W. 1, has deposed that he knew appellant Mangaroo since a month before, when the appellant Mangaroo had been beaten by his brother Sanjay Shukla and some other young chaps of the Mohalla, but he did not disclose his name in his interrogation on 19.2.2003. Even on 5.3.2003 he only suspected his hand in the commission of dacoity at his house, but he did not say that he personally participated in this crime. Case diary dated 5.3.2003 shows that some member of BAVRIA GANG had met appellant Mangaroo in the chamber of an Advocate where he had told him the name of person where they can get sufficient wealth in loot. They had chosen the time after engagement ceremony of son of Hridayanand Shukla when it was expected that he will be having collected clothes, ornaments and cash for meeting the necessary expenses of the marriage ceremony. The police informer had also named the witnesses Prabhu and Krishna Murari, who had overheard the conversation of Mangaroo and Yadupati Chauhan appellants and other accused. The Investigating Officer had recorded the statement of the witnesses Prabhu and Krishna Murari supported the case of conspiracy against the appellant Mangaroo but later on they resiled from their statements given to the Investigating Officer and filed affidavits denying the knowledge with regard to conspiracy. The Investigating Officer had prosecuted the said two appellants Mangaroo and Yadupati Chauhan under section 120B IPC for hatching conspiracy of dacoity and not for actual participation in committing dacoity but the case took a somersault, when the witnesses in the witness box identified these two appellants as the persons having participated In the dacoity. In their statements under section 161 Cr.P.C. the prosecution witnesses did name any of the suspects or accused nor they said to have noticed features of the miscreants during the course of dacoity. According to their evidence on hearing the noise they woke up and tried to rush towards the place of noise, but they were hit with iron rod and became unconscious on account of injuries inflicted on them and could not see what happened thereafter. They could also not identify the miscreants. Rajesh Shukla, P.W. 1 who was injured in the incident admittedly knew the appellant Mangaroo since a month before but he did not name him either in his statement recorded under section 161 Cr.P.C. on 19.2.003 or on 5.3.2003. His statement dated 5.3.2003 shows that he suspected hands of the appellant Mangaroo in this, crime as appellant Mangaroo was beaten by his brother Sanjay Shukla and some others lads of Mohalla before one month from the date of incident. Thereafter appellant Mangaroo had come with a view to assault his brother due to said enmity. But on account of timely intervention of police, appellant Mangaroo was arrested and taken to police station. There is no documentary material to substantiate and corroborate this version. If it was true that he had seen and recognised appellant Mangaroo during the commission of dacoity then he ought to have mentioned or disclosed his name in his statement recorded under Section 161 Cr.P.C. On 19.02.2003, but he only suspected his hands as per his statement dated 05.03.2003. His this suspicion excludes the possibility of his actual participation. The Investigating Officer also challaned the appellants under Section 120B I.P.C. Only because they were not named by any witness during investigation nor the actual participation in the crime was alleged by any witness.
50. The learned Additional Sessions Judge referring to the provision of Section 161 Cr.P.C. and the case of Tehsildar and Anr. v. State of U.P., held that PW-3, PW-4 and PW-5 have denied to have been interrogated by the Investigating Officer and given statement that they had not identified or recognised the accused or the culprits as they had become unconscious after sustaining injuries. The learned Judge had also held that the witnesses were not subjected to interrogation but they were asked some questions for gathering information only and since their statements were not recorded, there can be no material contradiction. It is settled law that any material omission In the statement recorded under Section 161 Cr.P.C. will amount to contradiction if the same was really material for the case. When theses witnesses were confronted with their statements under Section 161 Cr.P.C, they could not give any satisfactory reply with regard to their statements recorded by the Investigating Officer during the course of investigation on 19.02.2003, whereas the Investigating Officer has stated at page 108 of the Paper Book that injured had told him that they had become unconscious immediately after injuries were inflicted on them. In this circumstances when the aforesaid three witnesses did not state about the identification of the miscreants at investigation stage, the evidence of Identification given before the court seems to be an after-thought and unworthy of credence. It would not be justified to place reliance on their testimony especially when Rajesh Shukla, PW-1, who knew the appellant, Mangaroo by name since a month before of the incident, did not disclose his name at the earliest opportunity as on(c) of the accused. The witnesses while in the witness box deposed that it was Motawala accused who hit them with iron rod. By Motawala, they referred to Mangaroo appellant. If his features were clearly distinguishable from the other dacoits, the same should have been described by the witnesses in their statements given to the Investigating Officer.
51. The learned Additional Sessions Judge while considering the cases of two appellants Mangaroo and Yadupati Chauhan had taken into consideration the factum of recovery of stolen articles.which was from the other accused, but there being no recovery of stolen articles from these two appellants, the recovery made from other accused could not be read or taken into consideration as corroborative piece of evidence against them.
52. tt may be significantly noted that the appellants were charged under Section 120B I.P.C. Only while framing charges on 23.02.2003 because in the case diary only evidence against them was that of conspiracy and the Investigating Officer had charge-sheeted them under Section 120B I.P.C. only. It was after recording of complete evidence and hearing of the arguments on 03.01.2004 when the case was reserved for judgement that additional charges under Sections 396 and 397 I.P.C. were framed against these two appellants.
53. The learned Additional Sessions Judge while considering the case of these two appellants has criticised the Investigating Officer for not having subjected them to any identification test parade at investigation stage, but while doing so, he lost sight of the fact that the Investigating Officer had never prosecuted these two appellants under Sections 396 and 397 I.P.C. So the criticism made by the learned judge cannot be said to be justified.
54. The appellants Mangaroo and Yadupati Chauhan being not named in the FIR nor their features being disclosed at the earliest opportunity by any witness and there being also no charge under Sections 396 and 397 I.P.C. laid by the prosecution agency and they having been challaned under Section 120B I.P.C. only, it is inscrutable as to how on the identification before (sic) court by the said witnesses, whose evidence stands contradicted by the evidence of the Investigating Officer, the appellants could be convicted. All these witnesses cannot be placed in the category of truthful or reliable witnesses. There being no test identification parade at the investigation stage, their evidence cannot be made basis to convict these appellants. We do not feel impressed with the said identification evidence of the witnesses so as to safely rely on the same, when the circumstances are clearly militating with the same. The findings of the learned Additional Sessions Judge, therefore, cannot be upheld and the conviction of appellants Mangaroo and Yadupati Chauhan has to be set aside. More over as against appellant Yadupati Chauhan there is single identification of Smt. Vijai Laxmi, PW-3, which she made in the Court. This may be per chance also. However, evidence against Yadupati Chauhan and Mangaroo, appellant as well,was not sufficient for conviction.
55. Now, we proceed to consider the cases of other three appellants one of whom namely Smt. Arti Devi, has been convicted under Section 412 I.P.C., whereas the other two accused appellants Bhanwar Pal and Deepak have been convicted under Sections 396, 397 and 412 I.P.C. These three appellants were also not named In the F.I.R. They were not put up to any test identification parade. According to the prosecution case, they were arrested on 11.03.2003 from the Railway Station Bhatni by the police party headed by Sudisht Singh Yadav, S.O., (PW-22). Shri S.N. Singh (PW-21), S.H.O. and Sri Mohd. Kasim Ali, SO. of PS. (sic) Two lady constables Suman Lata Tripathi (PW-19) and Maya (PW-20) had been called for through R.T. Set by the said Investigating Officer on receiving information that at Railay Station Bhatni some suspects were there with stolen articles. They (Appellants Bhanwar Pal, Deepak and Smt. Arti Devi) were arrested and in presence of said witnesses search of the accused appellants was made at the Railway Station Bhatni and looted articles were recovered from their possession. Recovery memo Ext. Ka-1 was prepared on the spot which was signed by the witnesses as well as by the accused. Hridayanand Shukla, PW-6 had also reached there who identified the articles which were looted from his house. It was only thereafter that the aforesaid accused appellants were taken into custody alongwith recovered articles and brought to the police station. Defence case is that in fact they were arrested on 8.3.2003 from village Dhonuki within the police station Madhuaura district Saran, Bihar. Two appellants namely Bhanwar Pal and Smt. Arti Devi claim the articles recovered from them, whereas the other accused appellant namely Deepak alias Chanda has denied the recovery. One Braj Kumar Pandey, D.W., Assistant Sub Inspector, P.S. Madhaura, District Saran (Chhapara), Bihar was examined on their behalf who tried to prove G.D. entry Nos. 178, 179 and 181 dated 8.3.2003 of P.S. Madhaura allegedly written by Vinod Kumar Rai, the then S.O. P.S. Madhaura and tried to prove Ext. Kha -2 which is said to have been written by S.O. S.N.Singh (P.W. 21). S.N.Singh (P.W. 21) while in the witness-box was shown the said writing but he had denied it. Vinod Kumar Rai, S.O., who made G.D. entry or received Ext. Kha-2 was not examined to prove the writings nor there is any other evidence to prove it to be in the hand writing of S.N.Singh (P.W. 21). The evidence of D.W. 1, Braj Kumar Pandey was of secondary nature. The secondary evidence was not admissible in the evidence when primary evidence of Vinod Kumar Rai, S.O. was available. Therefore, there was no credible material to show that these three accused were apprehended from village Dhenuki Chauk on 8.3.2003. The learned Additional Sessions Judge has considered the evidence and discussed the same in detail. We fully agree with his conclusions. He rightly held the evidence of D.W. 1, Braj Kumar Pandey not reliable and that the G.D. entries were not proved according to law. It can not, therefore, be held that the three appellants were apprehended by the police party on 8.3.2003 from village Dhenuki Chauk. If they were actually arrested on 8.3.2003 and detained illegally, they or some one on their behalf must have made some complaint to the higher authorities of police and executive, but no such complaint was ever made and they never stated that they were continuously detained from 08.03.2003 till 11.3.003; whereas prosecution evidence shows that in fact they were arrested on 11.03.2003 with stolen articles including broken ornaments, Camera, cash and clothes were recovered out of which Shri Shukla identified the following-one attache Ext. 1, one Sari red colour Ext.2, one Blouse, Ext. 3, Sari Firoji colour Ext.4, Bushirt Chedkar Ext. 5, Tower rosy colour, Ext.6, Ladles bag Ext. 7, Camera Yasika Ext. 8, two golden chains Exts. 9 and 10, three ear rings (Jhumka) golden Exts.11,12,13 and Rs. 30,000/- cash (each note in the denomination of Rs. 500/-) Ext. 14, cash Rs. 10,000/- Ext.15, Golden (sic) Ext.16, Small towel Ext.19, ladies purse Ext.17, golden colour blouse Ext.18.cash Rs. 10,000/-Ext.20, sari (golden yellow) Ext.21, Sari printed Ext. 22, attache Ext.23 and golden chain Ext.24. There were some other article also recovered including golden and silver armaments from the possession of these accused but Shri Shukla P.W. 6 did not claim them.
56. At this juncture, it Is worth to mention that amongst the articles found with the said three appellant at Railway Station Bhatni, some Instruments of breaking and cutting open of Safe and Almirah were also retrieved. This is suggestive of the nature of the appellants.
57. The learned counsel for the appellants has urged that these articles were not recovered from the possession of the appellants at the place and time as alleged and that there is glaring contradiction with regard to time of arrest of the three appellants. He further submitted that recovered articles were in fact shown to Shri Hridayanand Shukla P.W. 6 at his residence and the theory of his arrival at Railway Station is a concocted version. He pointed out that P.W. 6 stated the time of arrest and recovery in the forenoon between 9 to 10.30 a.m.; whereas the prosecution case Is that these appellants were arrested In the after noon at about 4 p.m. According to learned counsel it is material discrepancy in the prosecution evidence and makes the arrest and recovery doubtful, His further submission is that when the arrest and recovery on 11.3.2003 at Railway Station Bhatni is not established then the defence version with regard to their arrest on 8.3.2003 should be accepted To accept this argument would amount to the making a mountain of a mole. P.W. 6 has given assessment of time on the basis of his estimate, which may be wrong due to failing memory. Despite having built a house in the city P.W. 6 he still contiguous to be a villager and the time is hardly of any essence for such a person. In view of the consistent evidence of the other witnesses coupled with the time mentioned in the recovery memo Ext. Ka-1 it was fully proved that the arrest of appellants Bhanwar Pal, Deepak alias Chanda and Smt. Arti Devi was made at about 4. a.m. on 11.3.2003 and we find no illegality in the appreciation of evidence by the learned trial court. It can also not be accepted that P.W. 6 had not reached the Railway Station and he was shown these articles at his residence.
58. It is urged by the learned counsel that in the absence of any corroborative piece of evidence, the solitary testimony of P.W. 6 regarding identification of articles Exts.1 to 24 could not be accepted, the things recovered were of the common use and available in the market, there was no distinguishing feature of any of the seized articles, While advancing this argument, the learned counsel did notkeep in his mind that Shri Shukla P.W. 6 was Head and Manager of the family and it is he who has been looking after the whole of the affairs of the family. He used to make purchases for the family. He was well acquainted with each and every article of the house. Moreover, he identified only those things which belonged to him and about the identity of which, he was doubly sure. There were other valuable things recovered from these three appellants but he did not claim them. Learned Sessions Judge accepted his evidence and we are also impressed with his evidence and find him to be truthful, honest and reliable witness.
59. It has also been submitted that there is no public witness to support the arrest and recovery of seized articles and that the evidence of police personnel being of interested persons cannot be relied upon. This argument is also devoid of any merit, because so many police officers including two lady constables who were posted in Reserve Lines would not have conspired to falsely rope in these persons, whom they had not even been knowing earlier and who were not residing within their jurisdiction. In the cross-examination of these five witnesses (PW. 6 P.W.19, 20, 21 and 22) nothing of importance could be elicited to disbelieve them and they remained unshaken despite a long and searching cross-examination.
60. It is also urged by the learned counsel for the appellants that the articles recovered from the possession of these appellants were not subjected to identification test and in absence of any such identification, evidence of P.W. 6 cannot be held sufficient to prove that in fact these articles were stolen from the house of P.W. 6 or belonged to him or his family members. According to him, if these articles would have been subjected to identification test, in that event, there would have been a corroborative piece of evidence available and that would have rendered guarantee for the truthfulness of identification made by P.W. 6.ln our opinion there Is no law requiring test Identification of recovered articles.
61. The Hon'ble Supreme Court in the case of Earabhadrappa alias Krishnappa v. State of Karnataka where similar argument was advanced held "them is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement"
62. We may make note of yet another circumstance. These three appellants, namely, Bhanwar Pal, Deepak alias Chanda and Smt. Arti Devi belong to district Badaun which is admittedly at a distance of more than 500 Kms. from the Railway Station, Bhatni. The appellants gave their addresses of district Badaun in their statements under section 313 Cr.P.C. They say that they have been selling Wool in Dhenuki Chauk with a view to earn their livelihood. If they had been selling Wool, the possibility of recovered articles being in their possession was very remote. There is no iota of evidence to show that they have been doing any such business in village Dhenuki Chauk for their livelihood at such a for off distance from their native place. They were arrested from the Railway Station with looted articles. They are unable to explain their presence there with the articles found and seized from their possession.
63. The learned trial Judge has discussed the evidence In detail and we are in full agreement with him that these three appellants, namely, Bhanwar Pal, Deepak alias Chanda and Smt. Arti Devi were arrested on 11.3.2003 with stolen articles which were looted from the house of Hridayanand Shukla, P.W. 6 in the occurrence In question, out of which Exts. 1 to 24 were correctly Identified by P.W. 6 and they belonged to him.
64. The question that now crops up for consideration is whether they could be convicted of the offence under sections 396, 397 IPC also.
65. It is argued by the learned counsel for the appellants that the appellants Bhanwar Pal and Deepak alias Chanda have been convicted under sections 396 and 397 IPC on the basis of presumption under section 114 of Evidence Act ; whereas there was no evidence to prove that they actually participated in this crime. He further submitted that the stolen articles were recovered from these two appellants after more than one month and four days from the date of commission of dacoity. The learned trial court has held that there is presumption from the recovery of looted articles from the said two appellants that they had looted the articles after committing the murder and making murderous assault on the family inmates. He further held that the two appellants were actively involved in the commission of dacoity. But his this view can not be endorsed merely because of recovery of certain articles from them nor they can be held to be dacoits by invoking presumption when their possession at the time of recovery can not be said to be recent. Although, we find the charge under section 412 IPC established beyond any reasonable doubt against the three appellants, namely, Bhanwar Pal, Deepak alias Chanda and Smt. Arti Devi, but recovery having been made after more than a month from the date of incident, the conviction of these appellants under sections 396 and 397 IPC on the basis of presumption under section 114 of the Evidence Act would not be justified legally.
66. We may refer the case of Amar Singh and Ors. v. State of Madhya Pradesh, , in which the Hon'ble Apex Court has held that the articles recovered 3oon after commission of dacoity and shown to have been stolen in course of dacoity, conviction under section 412 IPC was held proper but conviction under section 395 IPC on the basis of presumption under section 114 of the Evidence Act, on facts was found not sustainable.
67. In the case of Man Singh and Anr. v. State of Madhya Pradesh (1993) Crl. Law Journal 3669 the Hon'ble Apex Court held that presumption that the accused are dacoits can be invoked only when possession of stolen articles is recent. Accused arrested after V* months, can not be held to be dacoits merely because certain stolen articles were seized from them.
68. In view of the aforesaid law propounded by the Hon'ble Supreme Court, the recovery having been made after more than one month from the date of crime in question, the same cannot be said to be recent or soon after the incident. Therefore, these appellants ought to have been convicted under section 412 IPC only and not under section 396 and 397 IPC. Their conviction under section 396 and 397 IPC cannot be sustained. : However, their conviction under section 412 IPC is fully justified on the facts and circumstances of the case.
69. Looking to the manner, in which this gruesome and ghastly crime was committed, we are not Inclined to interfere In the matter of sentences imposed upon the appellants under section 412 IPC.
70. In the result. Criminal Appeal Nos. 873 of 2004 and 1122 of 2004 filed by Yadupati Chauhan and Mangaroo respectively, are allowed and the judgement and order of conviction and sentences passed against the said appellants are set aside. Reference made by the learned Sessions Judge for the confirmation of death sentence of Mangaroo appellant is hereby rejected. Both are in jail. They shall be set at liberty, if not required in any other case.
71. Criminal Appeal No. 1502 of 2004 and 1507 of 2004 filed by Deepak alias Chanda and Bhanwar Pal respectively, are partly allowed. Their conviction and sentences under sections 396 and 397 IPC are set aside, but their conviction under section 412 IPC Is upheld. To that extent, their appeals stand dismissed. They are in jail. They shall be released only after serving out the sentences awarded to them under section 412 IPC.
72. Criminal Appeal No. 1036 of 2004 filed by Smt. Arti Devi is dismissed and her conviction and sentence under section 412 IPC are confirmed.
73. Material Ext. 1 to 24 shall be returned to Shri Hridayanand Shukla, P.W. 6 as per direction given by the learned Additional Sessions Judge in the judgment under appeal.
74. Original judgement shall be placed on the record of criminal appeal No. 1122 of 2004 whereas copies thereof shall be placed on the record of other criminal appeals and criminal reference.
75. Let a copy of judgment be sent down to the learned Sessions Judge,
76. Deoria within seven days for compliance.