JUDGMENT Imtiyaz Murtaza, J.
1. This appeal has been filed against the judgment and order dated 9.12.2004 passed by the Additional Sessions Judge/F.T.C.4 Deoria in S.T.No. 152 of 2004 whereby the appellants have been convicted under Section 302 I.P.C. and sentenced to death and a fine of Rs. 5000/- each, and in default of payment of fine further rigorous imprisonment for one year.
2. Briefly stated, the facts mentioned in the first information report lodged by Ram Awadh Yadav are that about one month prior to the incident his son Sheodhari got registered a sale deed of the land from one Rudra Narain Shukla, who was pattidar of Harihar Shukla. The accused were annoyed due to the execution of the sale deed and they were inimical with them. On 7.11.2003 at about 7. p.m. Sheodhari had-gone to the house of Shyam Kunwar of the village. On the exhortation of Harihar Shukla, Panney @ Pratap Narain Shukla hurled a bomb, which hit Sheodhari on his abdomen and he fell on the ground. Chhanney @ Prabhu Naain Shukla fired from a country made pistol on the abdomen of his son Sheodhari. One Vishwajeet s/o Ramanand cut the neck of Sheodhari with a Gandasi and he died on the spot. Hearing the sound of explosion and firing, informant Ram Awadh Yadav, his sons Ramdhari and Tilakdhari and one Dalsingar of the village rushed to the spot flashing their torches and saw the accused persons running away from the spot. The occurrence was also witnessed by Shyam Kunwar son of Sobaran.
3. On the basis of the written report case crime No. 41/2003 under Section 302 I.P.C. at police station Ekona, District Deoria was registered against the accused persons.
4. Chandra Bali Yadav, S.H.O., P.S. Ekona commenced the investigation. He recorded the statements of informant and witness Ramdhari and prepared the site plan on their pointing out. He also recovered one empty cartridge of 12 bore. The blood stained Gandasi was recovered from the bush of Shyam Kunwar. He also collected residue of bomb. Blood stained earth and plain earth was also collected. He also inspected the torches of the witnesses. He prepared the recovery memos, Exs. Ka. 2 to Ka. 6. Site plan of the place of occurrence is Ex. Ka. 8. He also prepared the inquest memo of the dead body, which is Ex. Ka.7 and also prepared the relevant papers for the post mortem examination and handed over the dead body to Ram Charittar Yadav and Lal Chandra Yadav for the post mortem. Harihar Shukla, Panney @ Pratap Narain, Chhaney @ Prabhu Narain were arrested on 8.11.2003. He recorded the statements of Constable Ram Charittar Yadav and Constable Lal Chandra and Ishwar Chand, scribe of the first information report. The statement of Tilakdhari was recorded on 15.11.2003. After the conclusion of the investigation he submitted the charge sheet against Harihar Shukla, Panney @ Pratap Narain Shukla and Chhaney @ Prabhu Narain Shukla, which is Ex. Ka. 8.
11. P.W. 1 Ram Awadh deposed that Harihar Shukla belongs to his village. Rudra Narain Shukla was pattidar of Harihar Shukla, who shifted to District Pratapgarh and the accused had taken the forcible possession of his land. Rudra Narain Shukla had transferred his land through a sale deed in the name of Suresh, son of the deceased Sheodhari. The execution of the sale deed had annoyed the accused persons and they became inimical with the deceased. On the date of occurrence at about 7.00 p.m. Sheodhari Vaclay had gone to the house of Shyam Kunwar. On the exhortation of Harihar Shukla, Panney @ Pratap Narain Shukla hurled a bomb which hit ;the deceased on his abdomen and he fell down. After that, Chhanney @ Prabhu Narain Shukla fired at Sheodhari with a Katta and another accused Vishwajeet, who had absconded and was not facing trial, cut the neck of the deceased with a Gandasi and Sheodhari died on the spot. The incident was witnessed by Ramdhari, Tilakdhari and Dalsingar, who rushed to the spot. At the time of incident informant was returning from his field through Kharanja road and witnessed the incident. At the time of occurrence a lantern was burning at the house of Shyam Kunwar and the witnesses had seen the accused persons by flashing their torches. He had lodged the report, which was scribed by Rajaram.
12. P.W.2 Ramdhari Yadav deposed that Rudra Narain Shukla was pattidar of Harihar Shukla whose land was forcibly occupied by the accused after his migration to Pratapgarh. Rudra Narain Shukla had sold his land to Sheodhari and after the execution of the sale deed Sheodhari had taken the possession of the land and this had annoyed them and they became inimical. On the date of incident at about 7.00 p.m. his brother Sheodhari had gone to the house of Shyam Kunwar and he had gone to his field and was returning therefrom. It is further stated that when he reached near the place of incident he saw that Harihar Shukla was exhorting to kill the deceased and Panney hurled a bomb, which struck the abdomen of the deceased. It is further stated that when he fell down Chhanney fired from a country made pistol. Vishwajeet got his neck cut by a Gandasi. The occurrence was also witnessed by Shyam Kunwar and his family members. Ram Awadh, Tilakdhari and -several persons of the village also witnessed the incident.
13. P.W.3 Tilakdhari deposed that at the time of the incident he was coming from his field and witnessed the incident. His father Ram Awadh and brother Ramdhari were also with him. He stated that Panney had hurled a bomb on the deceased and Dhanney had fired from a country made pistol and Vishwajeet had cut the neck by a Gandasi. The occurrence was witnessed in the torch light. Shyam Kunwar and Dalsingar also witnessed the occurrence.
20. The first submission of counsel for the appellants is that the prosecution has relied upon 3 eyewitnesses namely P.W-l Ram Awadh Yadav, P.W. 2 Ramdhari yadav and P.W. 3 Tilakdhari. P.W. 1 is father of the deceased and P.Ws. 2 and 3 are brothers of the deceased, therefore, their testimonies should not be believed. It is further submitted that the presence of two independent witnesses namely Dal Singar and Shyam Kunwar is admitted but the prosecution did not examine them.
21. We have considered the submission of the counsel for the appellants. It is a, settled position of law that testimony of close relatives should not be thrown away merely on the ground of their relationship. The court should scrutinise their testimony with more caution. If the testimony inspires confidence and trustworthy; the same could be relied upon. As regards the non-examination | of other witnesses namely Shyam Kunwar and Dal Singar is concerned, it is a well-settled principle of law that prosecution is not bound to examine all the witnesses. Now a days the villages are faction-ridden. In some cases persons may not like to come and depose as witnesses and in Some other cases the prosecution may carry the impression that their evidence would not help it. In such a case, mere non-examination would not affect the prosecution version. But at the same time, if the relatives or interested witnesses are examined, the court has a duty to analyse the evidence with deeper scrutiny and then come to a conclusion as to whether it has a ring of truth or there is reason for holding that the evidence was biased. Whenever a plea is taken that the witness is partisan or had any hostility towards the accused, foundation for the same has to be laid. If the materials show that there is a partisan approach, the court has to analyse the evidence with care and caution. Additionally, the accused persons have always the option of examining the left-out persons as defence witnesses.
22. It is also submitted by the counsel for the appellants that the first information report in this case is anti-timed. Learned counsel for the appellants has drawn our attention towards the statement of P.W. 5 Chandraoli Yadav, investigating officer. He had deposed that he gathered the information of the incident that one explosion had took place towards North in village Bhedi. He had also visited the place of incident after about 10 minutes of the incident. He found that a dead body was lying at the place of occurrence. Informant Ram Awadh was not there but witnesses Tilakdhari, Ramdhari and Dal Singar were present. He was informed that Ram Awadh had gone to lodge the report at the police station. He returned after about 20 - 25 minutes to the police station and after the registration of the report, he again visited the place of occurrence. He had collected the empty ciridges in the night on 7.11.2003 and also collected the remains of the explosion. It is contended by the counsel for the appellants that recovery memos Exts. Ka. 2 and Ka. 3 were prepared on 8.11.2003 which contradict the statement of P.W. 5. The statement of P.W. 1 shows that after hearing the explosion, police did not reach on the spot. He further deposed that after about half an hour of the; incident, the dead body was taken to the police station where it remained through the night and it was dispatched for the post-mortem examination at 8.30 A.M. Learned counsel for the appellants has also drawn our attention towards the statement of P.W. 2 who admitted that deceased was murdered about one hour earlier to the dispatch of the dead body for the post-mortem examination. According to the counsel for the appellants this shows that murder took place early in the morning on 8.11.2003. It is also pointed out by the counsel for the appellants that P.W. 3 deposed that the dead body remained throughout the night at the spot and the investigating officer visited the place of occurrence at 6.00 A.M. It is vehemently argued that these contradictions in the statement of the witnesses show that prosecution has suppressed the actual time of the occurrence and the same is not clear whether the dead body remained at the place of occurrence or kept at the police station before dispatching for the post-mortem examination. We have considered the submission and in our opinion there is no merit. The eye witness account with regard to actual occurrence and participation of the appellants is credible and consistent and these contradictions are minor in nature and they are bound to occur when the witnesses are rustic villagers. It is further submitted that the first information report was received in the office of Chief Judicial Magistrate, Deoria on 12.11.2003. It is submitted that due to delay in sending the F.I.R. to the court concerned, possibility cannot be ruled out that the F.I.R. was anti-timed.
23. We have considered the submissions of the counsel for the appellants. The first information report of the incident was registered on 7,11.2003 at 8.15 P.M. The distance of the police station is only one furlong. The inquest proceedings were conducted on 8.11.2003 at 8.00 A.M. In the instant case according to P.W, 5 special report of the incident was sent on 7.11.2003 after lodging of the F.I.R. by a constable. P.W. 6 Ishwar Chand Shukla also stated that special report was sent by Con. Udai Narain on the same day. Post-mortem examination was conducted on 8.11.2003 at U40 P.M. The first information report was also dispatched alongwith inquest report to the doctor concerned for the post-mortem. The delay in sending the F.I.R. in no way prejudices the prosecution case.
24. The counsel for the appellants submits that crime number is not mentioned in the inquest report which shows that the F.I.R. was not in existence at the time. No substance has been found in this contention because in the inquest report time of occurrence and G.D. entry number of registration of crime are mentioned.
25. Learned counsel for the appellants also challenged that there was no source of light in which the witnesses had identified the accused persons. In the first information report no source of light was mentioned. At the time of inquest proceedings, light was not available. P.W. 5, investigating officer, deposed that laritern was burning and this fact is supported by the testimonies of 3 eyewitnesses who stated that lantern was burning at the house of Shyam Kunwar and the witnesses were also having torches with them. The witnesses were already known to the accused. They are residents of the same village. Even known persons can be identified in faint light.
26. The further submission of the counsel for the appellants is that P.W. 3, Tilakdhari, was interrogated by the investigating officer after one week i.e. 15.11.2003. The delay in interrogation of P.W. 3 makes the prosecution case doubtful and suggests that P.W. 3 was neither present on the spot nor he was available to the investigating officer for interrogation. The investigating officer deposed that after lodging of the F.I.R. he recorded the statement of informant Ram Awadh and thereafter recorded the statement of Ramdhari, P.W. 2. He inspected the place of occurrence and completed other formalities on 8.11.2003. He arrested the accused persons on 15.11.2003 and recorded the statement of P.W. 3, Tilakdhari. Thus, the statement of Tilakdhari was recorded after above 8 days. The evidence of Tilakdhari cannot be rejected simply because there was some delay in recording 161 Cr.P.C. statement. The name of P.W. 3, Tilakdhari, is mentioned in the first information report as an eye witness. He is also witness of the recovery memos which were prepared on 8.11.2003, Therefore, his presence cannot be doubted and his testimony cannot be rejected. It is well settled principle that it is not every delay in recording the statement, which may be fatal. The prosecution is under obligation to offer explanation for the delay and if the explanation is reasonable and plausible, testimony of the witness cannot be considered unacceptable because of his delayed interrogation. Apart from this the defence must put specific question to the investigating officer for the delay in recording his statement and must seek explanation from him. In the present case no question. was asked by the defence for the delayed recording of the statement of P.W. 3, Tilakdhari. The Apex Court held as under in the case of Banti v. State of M.P. :
"As regards the delayed examination of certain witnesses, this Court in several decisions has held that unless the investigating officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is no reason to interfere with the conclusion."
27. The last submission of the counsel for the appellants is that ocular account of witness is totally inconsistent with the medical evidence. According to the prosecution case Panney alias Pratap Narain Shukla hurled a bomb on the deceased and Chhanney alias Prabhu Narain Shukla had fired from a country made pistol and Vishwajeet cut the neck of the deceased by Candasa. In the postmortem examination report 4 incised wound and 3 blast injuries were noted by the doctor and 25 big metallic pellets of bolt shape from the abdominal cavity of the deceased were recovered. The doctor did not find any firearm injury which can be said to be of country made pistol. It is submitted that complicity of Chhanney alias Prabhu Narain Shukla is doubtful. We have considered the submission and perused the evidence on record. The blast injuries are of a very big dimension and injuries caused by firearm became invisible. It would not be possible to distinguish the firearm and blast injuries. The manner of assault and the weapon used is consistent with the testimony of the witnesses. It is not necessary for the prosecution to explain each and every shot fired by a country made pistol. It is the case of the prosecution that firstly a bomb was hurled and thereafter country made pistol was fired. The role of the accused, manner of assault is credit worthy and if no separate pellet was recovered, it cannot be said that the firearm was not used in committing the murder of the deceased. Now a days cartridges are used which are filled by different metallic pieces. The possibility cannot be ruled out that same metallic pieces might be filled which are used in preparation of a; bomb. In such a situation in our opinion there is no conflict in medical and direct evidence. The role assigned to Chhanney @ Prabhu Narain Shukla by the witnesses is consistent, credible and inspires full confidence.
28. The counsel for the appellants submitted that on the basis of same evidence one co-accused Harihar Shukla is acquitted by the trial court and the evidence of the witnesses with regard to appellant should also have been rejected by the trial court. We have considered the submission of counsel for the appellants and also perused the grounds for acquittal of Harihar Shukla. The Sessions Judge had considered the submission of the counsel for the accused that only role of Harihar Shukla was of exhortation and no active role is assigned to him. He was also not carrying any weapon. The Sessions Judge had considered the submission and also considered the observations of the Apex Court and High Court and held that the complicity of accused Harihar Shukla becomes- doubtful and prosecution has not succeeded to prove beyond reasonable doubt the involvement of the accused Harihar Shukla and also held that the rule of abundant caution would be attracted and he was given benefit of doubt and acquitted. The case of the appellants is distinguishable from the case of Harihar Shukla. The appellants have been assigned specific weapons and their roles are corroborated by the medical evidence also. The appellants cannot be acquitted only because the evidence of the witnesses was not relied against Harihar Shukla. It is well settled by the catena of decisions of the Apex Court that the mere fact that out of many accused some are acquitted is not sufficient to entitle the rejection of the entire prosecution case. It is further held that the court should make every effort to disengage the truth from the falsehood and to sift the grain from the chaff rather than take the easy course of rejecting the entire prosecution case.
29. Lastly, the question that arises for serious consideration is whether imposition of death penalty in the facts and circumstances of the case is justified?
30. Under the old Code of criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab A.I.R. 1980 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed. The Sessions Judge sentenced the appellants to death on the ground that the genesis of the dispute was the land which the deceased had purchased from one Rudra Narain Shukla, in the name of his son. It is further held that the deceased was done to death in a very brutal manner by causing injuries by fire, bomb blast and thereafter cutting the neck by Gandasi. We have considered the reasoning given by the sessions judge for awarding death sentence. Considering the aggravating and mitigating circumstances we are of the opinion that in the facts and circumstances of the case, this case does not fall within the category of 'rarest of rare case' and it can not be said that imposition of lesser sentence of life term altogether foreclosed.
31. In view of the above the appeal is dismissed with the modification that conviction under Section 302 I.P.C. is upheld but sentence of death is reduced to imprisonment for life. The appellants are in jail. They shall be kept there to serve out the sentence as reduced by us. 32. Reference made by learned Sessions Judge for confirmation of death sentence is rejected. 33. Office is directed to send a copy of this judgment to the Chief Judicial Magistrate, Deoria, within two weeks.