JUDGMENT Amar Saran, J.
1. Crl. Appeal No. 1238 of 2003 was filed by appellant Preeetam Singh, represented by Sri Sunil Kumar, Advocate, 'Criminal appeal No. 1243 of 2003 was preferred by Ram Autar Singh, also represented by Sri Sunil Kumar, Advocate and Jail Appeal No. 3936 of 2003 was preferred by Smt. Shanti Devi. There was a Reference No. 18 of 2003 also under Section 366 of CrP.C. for a confirmation of the sentence of death which has been awarded to all the three appellants in the aforesaid criminal appeals and jail appeal. The appeals and reference were preferred against the judgment and order in ST No. 30 of 1998 (Crime No. 162 of 1997) passed by the Addl. District and Sessions Judge, Court No 3. Bulandshahr in which the appellants Preetam Singh and Ram Autar had been sentenced to death under Section 302 read with Section 34 I IPC for causing death of the deceased in the first incident and again under Section 302 read with Section 149 IPC for causing death of the deceased in the second incident. The convictions and sentences were, however, made concurrent. The appellant from jail, Smt. Shanti Devi, was convicted to death under Section 302 read with Section 149 IPC. The appellants Ram Autar and Preetam were sentenced to five years' RI for concealing the evidence of the murder of Munni Devi under Section 201 IPC and, thereafter, to five years' RI under Section 201 IPC for concealing the evidence pertaining to murder of Km. Lovely, Vikasveer and Smt. Vijyawati, who was murdered in the second incident. However, as both the incidents were connected with the sane matter, the sentences were made to run cumulatively and concurrently and the appellants Ram Autar and Preetam were to cumulatively undergo 5 years' RI under Section 201 IPC. The appellant, Shanti Devi, was sentenced to life years' RI under Section 201 IPC on account of the (sic) relating to the second incident. All the three appellants were sentenced to 2 years' RI under Section 148 IPC and to five years' RI and a fine of Rs. 2,000/- each under Section 452 IPC. In default of payment of fine, they were to undergo an additional simple imprisonment of six months' RI All the appellants were also Convicted to five years' RI and a fine of Rs. 2,000/- each under Section 436 IPC. In default of payment of fine, they were to undergo a further simple imprisonment of 6 months. The aforesaid Sessions Trial No 30 of 1998 was also tried along with Sessions Trial No. 28 of 1998 and Sessions Trial No. 750 of 1998. In ST No. 28 of 1998, the appellant Ram Autar was convicted to 3 years' RI and a fine of Rs. 2,000/- under Section 25 of the Arms Act (Crime No. 163 of 1997) and in the connected ST No. 750 of 1998 (Crime No. 174 of 1997) under Section 6/25 of the Arms Act, the appellant Preetarm Singh was convicted to 3 years' RI and a fine of Rs. 2,000/-. In default of payment, the aforesaid appellants viz. Ram Autar and Preetam were to undergo a further simple imprisonment of 6 months. The sentences awarded to the appellants were to run un concurrently. However, the sentence of death awarded to the appellants was to await confirmation by the High Court.
2. As Sri Sunil Kumar expressed his inability to argue on account of want of instructions in the criminal appeals on behalf of the appellants, Preetam Singh and Ram Autar, Sri Brijesh Sahay was appointed as amicus curiae to argue the aforesaid two appeals on behalf of those appellants. Sri Ramji Saxena was appointed as amicus curiae by the court to argue the jail appeal preferred by Smt. Shanti Devi.
3. The aforesaid counsel and Sri A.N. Mulla, learned AGA, have been heard at a considerable length by this court for three days and they have rendered able assistance to this court in the disposal of the aforesaid criminal appeals and the jail appeal as well as the death reference.
4. The allegations in this case were that an FIR was lodged on 11.9.1997 at 8.20 am by the informant, Ram Gopal, alleging that there, was a land dispute between the informant and his nephews Satyendra Singh and Sanjeev son of Bahori Singh. There was even a litigation between the parties, in respect of which there had been a compromise in the court of Munsif, Bulandshahr. However, the opposite panics still bore enmity and on 10.09.1997, when the informants wife Smt. Munni Devi and his nephew Satyendra were returning from village Jairampur, at about 5.30 am, the accused Satyendra, Sanjeev, Sandeep and the appellant Preetam, who were armed with country-made pistols and Ram Autar, who was armed with a double-barrelled gun, surrounded Smt. Munni Devi and Satyawan on the pathway in front of the field of Kanti and Mohan. Smt Munni was shot dead there and her dead body was dragged into the field of Kanti Mohan. Satyawan ran way from the spot, and after that, the accused persons reached the house of the informant Ram Gopal at about 6 p.m. There the appellant Smt. Shanti, who was armed with a sword and Km Puja (daughter of Satyendra) who was armed with a gandasa caught hold of Vikasveer, son of the informant Ram Gopal and Km. Lovely, his grand-daughter and took them into the courtyard where they were hacked to death. At that time, Smt. Vijaiwati, sister-in-law of the informant, arrived there and she was also done to death with sword and gandasa. Thereafter, the three dead bodies were dragged near the burji (haystack). Their bodies were set to fire after sprinkling kerosene oil on the haystack. The informant and his brother Ajai Pal (PW 3) arrived at the spot, and raised a cry but none of the villagers came forward to help him out of terror of the accused. The accused were standing firing and terrorizing the witnesses and warning them not to go to the police station for a lodging a report. After they fired for about 2 hours, the accused persons left towards the field alter crossing the canal. Owing to the fear of the accused persons no report was lodged in the night and it was lodged only in the next morning at police station Anup Shahar.
5. At the police station, the Head Moharrir, Virendra Singh, prepared a chick report (Ext. Ka-4) in the morning at 8.20 am on the basis of the written report filed by the informant Ram Gopal. On the basis of the chick report, a case was entered in the G.D. at 8.20 am at G.D. No. 16/18 by Head Moharrir Virendra Singh (Ext. Ka 35). The investigating officer, PW 8 Virendra Singh, made the relevant entries in his case-diary. He recorded the statement of Ram Gopal, the informant, called for the fire brigade as the bodies were still burning and proceeded to the place of occurrence with other police personnel. At the spot he got the inquest of the dead bodies of Vikas, aged about 10 years, Km. Lovely aged about 5 years, and Smt. Vijaiwati conducted by sub-inspector N.K. Bhatnagar (PW 7). The inquest of Smt. Munni was conducted SI R.K. Sharma, PW 6. PW 8 Virendra Singh also prepared the site-plan of the two places where the incidents took place, i.e. near the fields of Kanti and Mohan in village Malakpur and the house of the informant in village Echora, on the pointing but of the informant and the witnesses, which have been marked as Ext. Ka 36 and Ka 37. He also recorded the statement of witnesses Satyawan (PW 2), Vijai Pal (PW 3) under Section 161 Cr.P.C.
6. On 12.9 1997 he arrested the accused Km. Puja and the appellant Smt. Shanti Devi, who is the grandmother of Km. Puja. The latter was arrested in village Aurukla. PS Shikarpur. He also collected the material exhibits from the spot which included the plain and blood-stained earth, ashes of hay, pieces of burnt bones, slippers, a pharsa which was alleged to have been recovered from Smt. Kanti Devi. Their relevant entries were made at G.D. No. 27 (Ext. Ka 40) at 4 pm on 12.9.1997 at PS Anoop Shahr by Head Moharrir Virendra Singh. The appellant Ram Autar was arrested by SI N.K. Bhatnagar and he is said to have got a gun recovered from him and to have confessed to his involvement in the crime, when he was taken into police custody on orders of the CJM on 30.9.1997. The said gun originally belonged to Ajai Pal which was stolen from him on 11.2.1991, about which a case was registered under Sections 457 and 380 IPC at case crime No. 31 of 1991. The fard of the recovered gun at the instance of the appellant, Preetam, is Ext. Ka 3. Subsequent to the recovery of the gun a case was registered at case crime No. 174 of 1997 under Sections 6/25 of the Arms Act and 411 IPC against the appellant, Preetam, which is ext. Ka 41. As SI Virendra Singh (PW 8) was transferred, the remaining investigation was conducted by SI R.P. Yadav who submitted the charge-sheet against the accused persons on 26.11.1997 under Sections 147, 148, 149, 452, 435, 436, 302 and 201 IPC in case crime No. 162 of 1997. The said charge-sheet by Sri R.P Yadav (Ext Ka 43) and the steps taken by HM Virendra Singh in this case were also proved by PW 8, SI Virendra Singh.
7. On 12.9.1997 at 1.30 pm post-mortem was conducted on the body of Munni Devi by Dr. Anil Kumar. PW 4, who was A.M.O.H, at CMC Office, Bulandshahr. According to Dr. Anil Kumar, the age of the deceased was 45 years, the probable time of death was about 2 days. Maggots were present. Rigor mortis had passed all over. The abdomen was distended and skin had peeled offal places Foul smell was coming out. He found the following ante-mortem injuries:
Incised wound 2 x 2 cm. x muscle deep over left pinna.
Incised wound 7 x 2 cm. x bone deep over right side chin.
Firearm wound of entrance 4 x 2 cm. brain deep on left side forehead just above left eye brow. Margins inverted and lacerated. Firearm wound of exit 9 x 7 cm x brain deep left side head 6 cm above pinna.
Incised wound 1 x 1cm x bone deep right side face below right eye.
Incised wound 2 x 1cm muscle deep on right thumb.
8. There was a fracture of frontal bone and fracture of both parietal bones. Membranes, and brain were lacerated and the cause of death was due to coma and shock and haemorrhage as a result of ante-mortem injuries. Two hundred grams of semi-digested food was present in the stomach.
9. Dr. Anil Kumar also conducted post-mortem on the dead body of Vikasveer, who was aged about 10 years, on 12.9.1997 at 12 pm (noon). The time of death was about 2 days. Rigor mortis had passed all over. Ante mortem burns (superficial to deep) were found all over body. Body was in a pugilistic attitude. Lines oil ; redness and vesications were present. The cause of death was due to shock and the ante-mortem burn injuries. The time of death could be 6 pm on 10.9.1997. According to Dr. Anil Kumar, nature of the injuries could not be determined as the body of Vikasveer was so badly burnt .
10. On 12.9.1297 at 12.30 pm Dr. Anil Kumar conducted the post-mortem on Smt. Vijayawati. Rigor mortis had passed all over Her age about 50 years. There were ante-mortem burns superficial to deep all over the body. The body was in pugilistic attitude Lines of redness and vesications were present. Her right hand and right and left legs upto the mid-thigh were absent. Left upper extremity was absent Skull was burnt and left half was absent. Left side of the chest cavity was absent and burnt. The membranes, brain, pleura, right and left lungs, liver with gall bladder, pancreas., spleen, kidneys and bladder were burnt and congested. The death was due to shock as a result of ante-mortem burn injuries. The time of death could be 6 pm on 10.9.1997.
11. On 12.9.1997 Dr. Anil Kumar also conducted post-mortem on the dead body of Lovely, aged about 5 years, at 1 pm. Rigor mortis had passed all over. There were ante-mortein burns on the whole-of leg to the sole along with the mid-thigh. Burns were superficial to deep. There was no other portion of the body remaining, except the burnt leg and it was impossible to determine the nature of injuries even on the burnt leg. The cause of death was shock due to ante-mortem burn injuries and it was possible that deceased deceased had died on 10.9.1997 at 6 pm.
12. As the accused Satyendra and Sanjeev absconded after the incident, and Km. Puja was being tried under the Juvenile Justice Act, as she was found to be a child, the charges were framed against the appellants Ram Autar, Preetam Singh and Smt. Shanti Devi on 16.3.1998 under Sections 148, 452, 201 and 436 and the appellant Ram Autar and Preetem Singh under Sections 302/34 IPC and 201 IPC for committing the murder of Munni Devi in the jungle of village Malakpur and for concealing the evidence of the. ! offence and separately under Section 25 of the Arms Act against Ram Autar and under Sections 6/25 of the Arms Act. On 16.3.1998 Ram Autar was separately charged under Section 25 of the Arms Act whilst on 27.7.1999 the charge was framed against the appellant Preetam Singh under Sections 6/25 of the Arms Act and on 22.10.1999 Ram Autar. Preetam Singh and Smt. Shanti Devi were, charged under Sections 302/149 IPC for having committed the murder of Vikasveer. Lovely and Smt. Vijawanti along with the other companions at about 6 pm in village Echora in prosecution of the common object of the assembly to commit the aforesaid murders.
13. The appellants pleaded not guilty to the charge and claimed to be tried.
14. The appellant Smt. Shanti Devi pleaded that Ram Gopal and Ors. had murdered her husband and, thereafter, she had got the gun belonging !to her husband. Bahori, transferred to her son Satyendra. The said gun was stolen before this incident, in respect of which a report was lodged by Satyendra against Ram Gopal, Premveer and Ors. However, in collusion with the police no proceedings were carried out in respect of that report and on account of that enmity the accused persons had been falsely implicated and that they were innocent.
15. The case of the appellant Preetam was that he was not related to Smt. Shanti Devi. However, he had taken her land on rent. The informant's side was objecting to his cultivation of that land, hence he had been falsely implicated.
16. The case of the appellant Ram Autar, was that Preetam, appellant, was his brother-in-law (bahnoi) and he held also been falsely implicated by the informant in collusion with the police because of his relationship with Preetam. He had no concern the land in question and he was even a resident of another village.
17. The prosecution has examined 10 witnesses. PW 1 Ram Gopal Singh, PW 2 Satyawan Singh and PW 3 Ajai Pal Singh were the eye-witnesses of fact and eye-witnesses of this Case. PW 2 Satyawam was the only witness of the first incident relating to the murder of Munni Devi, which took place near the field of Kanti and Mohan in village Malakpur at about 5.30 pm and PWs 1 Ram Gopal (informant) and PW 3 Ajai Pal were the witnessed of the murders of Vikasveer, Lovely and Smt. Vijayawati, which place at the house of the informant Ram Gopal in village Echora. The evidence of PW 4, Dr. Anil Kumar, has been alluded to above PW 5, constable Raj Kumar was a formal witness, who carried the dead bodies for post-mortem examination. PW 6 SI R.K. Sharma, conducted the inquest on the body of Munni Devi on the direction of SI Virendra Singh (PW .8) mentioned above. PW 7, SI N.K. Bhatnagar, conducted the inquest on the remaining three bodies on the direction of SI, Virendra Singh (PW 8), which has also been mentioned above PW 8 SI Virendra Singh was the principal investigating officer in this case, who also proved the preparation of the chick FIR etc. by Head Moharrir Virendra, Singh and also proved the charge-sheet which was finally submitted by R.P. Yadava, SI. The details of the investigation conducted by SI Virendra Singh has been described above PW 9, SI Pooran Singh Chauhan, was a formal Witness, who tiled the charge-sheet Under under Sections 6/25 of the Arms Act against the appellant Preetam, and PW 10. SI Jandel Singh, who initially investigated the case under Section 25A of the Arms Act against the appellant Ram Autar and the charge sheet in that case by SI Mangal Singh.
18. The defence also examined two witnesses D.W 1 Ram Kumar, who was the witness of arrest of Ram Autar and DW 2 Radhey Shyam who was also another witness of the arrest of Ram Autar and who claims that Ram Autar was working in his employment in village Sahar, PS Chhatari. District Bulandshahr.
19. It would be useful to describe the pedigree of the accused showing how the accused and the witnesses were inter-related. It may be noted that the appellant Preetam was not related to the appellant Shanti Devi or the accused Satyendra, Sanjeev, Km. Puja or the informant Ram Gopal land other relations but he is said to have taken some land of Smt. Shanti Devi for cultivation and the appellant Ram Autar was brother-in-law (sala) of the appellant Preetam. The pedigree of the other accused persons and the prosecution side is given as under:
Lila Singh Amar Sinngh PW 1 Ram Gopal PW 3 Ajai Pal Bahori Singh (died issueless) Singh, wife Munnj Devi Singh, wife Vijaywati (deceased) (deceased) Lovely (granddaughter) Vikasveer Satyawan (deceased) (deceased) Satyendra Sanjeev (accused) (accused) Km. Puja (accused)
20. The prosecution case as put forward by the informant PW I Ram Gopal Singh is that all the accused other than Ram Autar belonged to his village. On 10.9.1997 at about 6 pm the absconding accused Satyendra and Sanjeev and the appellant Preetam and Ram Altar, amongst whom Ram Altar was carrying a double-barrelled gun, and Ors. were armed with country-made pistol, arrived at his house accompanied by Shanti and Puja, who were armed with a talwar(sword) and gandasa, respectivly. They ail surrounded Vikasveer, who was aged about 8 or 9 years in age and Lovely, who was 4 years old. Puja and Shanti started cutting Vikasveer in the courtyard of his house with their weapons and, thereafter, they hacked Km. Lovely at the western door of the house. Satyendra, Sanjeev and Ram Altar were firing with their weapons and had caught hold of Vikasveer and Lovely. The informant and his brother Ajai Pal, who was in the neighbourhood, arrived on hearing the cries and sound of firing. When Ajai Pal's wife Smt. Vijaywati reached there to save the children, then Satyendra, Sanjeev, Preetam and Ram Altar caught hold of her and fired with their weapons and she was also attacked with knives because of which she died. Thereafter, the accused persons dragged the three bodies and threw them in the field . Sanjeev brought kerosene oil and set fire to some sacks for the purpose of lighting the fire. On the cries of Ram Gopal, his son Vichhitraveer also arrived at but Ram Gopal Singh stopped him from going to the place of incident. The accused were resorting to firing and raising threats and warning the people not to report to the police otherwise they would also meet the same fate. The accused stood by the side of the sacks where the bodies were burning for about 2 hours and when they were half-burnt, they even burnt the roof (chhappar) of the house of Ajai Pal. The firing had also resulted into the roofs of Satyendra and Sanjeev getting burnt as their house was adjoining. Thereafter the accused persons left the place. This incident witnessed by Ram Gopal and his brother Ajai Pal and Ors. After the accused left, Ram Gopal found the three half-burnt corpses. He requested the villagers to accompany him to the police station but none agreed. The guns of the informant were locked in the house when the incident had occurred. After the incident he took out his gun and kept watch on the roof of the house. At about 8 pm Satyawan returned from Jairampur and he disclosed about the incident which took place on the way (ie the incident with Smt. Munni Devi), where she is said to have fired upon on l0.9.1997 at 5.30 pm near the field of Kanti and Mohan by Ram Altar armed with double-barrelled gun, Satyendra, Sanjeev and Preetam, who were armed with country-made pistols. These persons had emerged from the sugarcane field where they were hiding and started firing on Munni and Satyawan. Munni Devi died on the spot whilst Satyawan made good his escape. Thereaftrer the aforesaid four accused persons dragged Munni Devi's dead body in the field of Kanti Mohan and concealed it there. The next morning the informant Ram Gopal went to Jairampur along with Satyawan and there he found the dragging marks in the sugarcane field and also the body of Smt. Munni Devi. After that they returned home, wrote-out the report and lodged the same at the police station; This report was marked as ext. ka 1, Motive for this murder was that one of the brothers of Ram Gopal, namely, Amar Singh had died issueless. The father of Sanjeev and Satypndra, namely, Bahori Singh, wanted to grab that land alone. Because of that there was a litigation between Ram Gopal and Bahori. However, there was a compromise in the matter but Bahori was not happy in happy in his heart with the compromise and bore enmity against Ram Gopal and Ors., which had caused the incident.
21. According to PW 2 Satyawan Singh on the fateful day, this witness was returning from village Jairampur to his village. Echora along with his aunt Smt. Munni Devi. At about 5.30 pm when they approached the field of Ram Singh in village Malakpur then Satyendra Singh, Sanjeev, Preetam and Ram Altar emerged from the sugarcane field. Amongst them, Ram Altar had a double-barrelled gun whilst the others carried country -made pistols. They shouted at Satyawan and Munni Devi to stop and said that the land should be given to them. Thereafter they tried to attack Satyawan but his aunt told him to run away to save his life as according to her these people would not say anything to her as she was a woman. Satyawan thereupon fled from the spot, but he was chased by Satyendra and Sanjeev who returned after chasing him for about 10-15 paces. Satyawan, thereafter, stopped there and when he looked back he found the four accused persons above-named firing on his aunt Smt. Munni Devi, who was lying there. He raised some cries but because the place of incident was a deserted field, no help was forthcoming. The four accused ran behind him but he hid in the sugarcane field for one and a half or 2 hours. After that he returned to his house where he found the dead bodies of Lovely, Vikasveer and Vijayawati King in the burji. Then he met his uncle Ram Gopal and his father Ajai Pal to whom he disclosed about the incident which had taken place with him and Munni Devi on the way.
22. The third eye witness examined by the prosecution, PW 3 Ajai Pal Singh has deposed that on the date of incident at about 6 pm he was in the neighbourhood of his house. At that time Ram Gopal's son Vikasveer and granddaughter Lovely were playing in the courtyard. The accused Preetam, Satyendra and Sanjeev armed with country-made pistols and Ram Altar armed with a double- barreled gun arrived there. Shanti Devi and Satyendra's daughter Puja also arrived there. The latter two were armed with a sword and a gandasa, respectively. Preetam, Satyendra, Sanjeev and Ram Gopal fired with their weapons on Vikasveer in the courtyard of Ram Gopal which resulted in his death. The accused Puja caught hold of Lovely and pulled her out of the house where Shanti and Puja hacked her with sword and gandasa. At that time, Ajai Pal's wife arrived there in an attempt to save Vikasveer and Lovely but Preetam, Sanjeev, Ram Altar and Satyendra also fired at her with their weapons that caused her death This incident was also witnessed by Ram Gopal, Vichitraveer and Narendra. The three dead bodies were thrown in the sacks of hay in the burjee. Sanjeev brought kerosene oil from the house, Ram Altar sprinkled the same on the hay bags and Satyendra, Preetam lit the stack resulting in the dead bodies being burnt. The accused persons kept the dead bodies burning about an hour. They kept waving their weapons and firing and threatening that if anyone would approach the spot, he would meet the same fate. Ajai Pal's son Narinder approached the licencees in the village but they did not come forward to render any assistance. This witness and Ram Gopal possessed licenced weapons but as his weapon had been stolen, hence his brother Ram Gopal used to kept his weapon under lock and key. At the time of incident their weapons were locked in the house, hence the witnesses could not take any action in self defence. After the incident, the accused persons burnt the roof (chhappar), in the house of Ajai Pal. Thereafter, they left in the direction of the canal. No effort was madeby the witnesses to extinguish the fire as they had no assistance. At about 8.30 pm when Satyawan returned to the village from Jairampur he disclosed how Munni Devi had been murdered at about 5.30 pm on the kuchcha pathway on route to their village Echora by the accused Preetam. Ram Altar, Satyendra and Sanjeev with firearms. Satyawan had run away to save his life. However, they did not go to see the dead body of Muni Devi in the night because of fear.
23. It has been pointed out by the learned counsel for the appellants that so far as the first incident near the field of kantar and Mohan is concerned, it appears that Smt. Munni Devi was done to death when she was ail alone there and the solitary witness of that incident Satyawan was not present, as Munni Devi had no reason to accompany Satyawan to go to Jairampur to meet his ailngfriend Vijaipal Singh, which is said to be the reason for visiting Jairampur. The tact of the matter is that the deceased Munni Devi was indeed murdered at the pathway between the two villages, Jairampur and Echora, near the fields of Kant and Mohan in village Malakpur. No advantage is gained by the prosecution by inventing the story that Satyawan had gone to meet his ailing friend Vijaipal. If indeed the prosecution wanted to invent a story and not to describe the purpose of the visit in a truthful manner, he could easily have invented a more plausible story for the purpose of Satyawan accompanying Munni Devi, but the fact that he artlessly gives the reason for Munni Devi accompanying him to Jairampur to meet his ailing friend, is the guarantee of the truth of this version. There can be no dispute that in Munni Devi was murdered at the place in question, hence there is no reason to rule out that Munni Devi could not have gone to see Vijaipal who was ailing as he may have been close to Munni Devi's family. It is also significant to note that this fact that Munni Devi had gone to see Vijaipal in village Jairampur is mentioned in the FIR itself.
24. What is more significant is that a very natural version finds place in the FIR and in the earliest statement of Satyawan to the police that when the assailants Satyendra, Sanjeev, Preetam and Ram Altar arrived at the place of incident Smt. Munni Devi told Satyawan to run away as she felt that the assailants would not harm her as she was a lady. This is very natural description of the events as they must have actually taken place and their does not appear to be any trace of embellishment in this statement. Even though in these circumstances as the witness Satyawan was a young man of 25 years in age, he could have made good his escape from the spot and he remained unhurt in the incident
25. Learned counsel for the appellant further contends that there were incised wounds on the body of Smt. Munni which are unexplained. In this connection it may be pointed out that the four incised wounds on the body of Smt. Munni are very superficial being muscle deep over the left pinna and the right thumb and bone deep on the right side of the chin and the right side of the face below the right eye and there was no internal damage under these injuries. The internal damage was only under the fire arm wound of entry, on the left side of the forehead, which corresponded with its exit would and which disclosed a fracture of the frontal bone, and fracture of both parietal bones. The superficial incised injuries in question could easily have been received when Smt. Munni was dragged into the sugarcane field where her body was found due to stumps and sharp edges of the plants. Also, although Satyawan claims to have stopped near the place of incident at about 20 paces from where he witnessed the murder, but this appears to be an exaggeration as no witness would have stayed near the spot when the assailants were carrying firearms and indulging in such a brutal crime and, therefore, it was not unlikely that he may not have noted whether the assailants had any sharp edged weapons with them. Furthermore, so far as the contention of the learned counsel for the appellants that there were no dragging marks (ie the abrasions) on the body of Munni Devi, we do not know whether Smt. Munni Devi was a heavy or a woman of light weight as that condition is not described in the post-mortem report. Some confusion as to whether Munni was carried into the sugarcane field where her body was found or whether she was actually dragged there, could always arise in the circumstances of the case, and it is also not necessary that in each case dragging marks must be found on the body of the victim. The witness had stated that he was all alone at the isolated pathway near the field of Kanti and Mohan at the time of incident, hence this court can safely rely on his testimony, which appears to be quite natural and believable in the circumstances of the case. The fact that he disclosed about this incident only at 8.30 pm when he reached the village and also that the other witness Ram Gopal, the informant, Ajai Pal etc. only arrived at the spot the next morning to see the body of Smt. Munni Devi lying in the field are facts which do not substantially detract from the value of the testimony of Satyawan. Such delays are natural as in such circumstances this witness as well as the other witnesses are bound to be extremely terrorized after the incident. Accordingly, Satyawan's remaining hiding in the Held for three hours before going to his village and the delayed FIR the next morning (which also describes the first incident witnessed by Satyawan) in no manner impair the value of the testimony.
26. Learned counsel for the appellants has also doubted the presence of the witnesses in the second incident which took place in the house of Ram Gopal where Vikasveer, Lovely and Vijaiveer lost their lives. It is contended by the learned counsel for the applicants that actually none of the male members were present in the village at the time of that incident, hence only women or children were attacked and the learned counsel seeks to reinforce this contention by the fact that the FIR was lodged the next morning at 8,20 am, and no male persons or witness (except the ten years old boy Vikasveer) received any injury in this incident. We are not in agreement with this suggestion of the learned counsel for the appellants, When six accused persons, who were armed to the teeth with firearms, sword and pharsa, arrived at the spot when the children and ladies were present in the house of Ram Gopal whilst the witnesses Ram Gopal and Ajai Pal were present in the neighbourhood and the sudden brutal attack was launched on the two deceased children and Smt. Vijaiwati, the mule witnesses could not normally be expected to jump into the fray and to sacrifice their lives. The brutality of the attack would be apparent from the fact that the dead bodies were even hurled into the fire which was set up in the haystack after kerosene oil was sprinkled over the bodies. Their bodies, as we have found in the post mortem report, have been decapacitated virtually beyond recognition and many of the limbs and the other parts of their bodies are even missing. What man would have courage to come forward to intervene in such a brutal incident, which would almost certainly have resulted in his death. It is notable that in this case none of the licencees of the weapons of the village have come forward to render any help, nor they have chosen to accompany the informant to the police station. Even the chowkidar reluctantly agreed to accompany the informant to the police station to lodge the report. All these facts shows the extent of the terror unleashed by the accused. The delay in the report and the visit by the informant to the field of Kanti and Mohan in village Malakpur the next morning is also wholly natural in the facts of this case and such delay does not impair the value of the testimony of the informant and other witnesses. Therefore, there is no force in the suggestion of the learned counsel for the appellants that the delay in the FIR suggests that the informant and other male members were away from the village when this incident took place. But, rather the fact seems to indicate that it was on account of the great terror that has been caused by the incident that the report was lodged the next morning. Likewise, the suggestion of the learned counsel for the appellants that even no efforts was made to extinguish the fire which was only extinguished after the arrival of the fire brigade also only suggests that the witnesses were extremely terrified to do anything and does not indicate that the witnesses were not there. In this connection we find force in the argument by Sri A.N. Mulla, learned AGA, that the witnesses might have felt that no purpose would now be served in trying to extricate the badly burnt dead bodies from the fire or to set it out, as at that stage nothing would had been left to save. The witnesses could now have reasoned that at this stage it would be better not to touch the charred bodies, which constituted material evidence of the crime, but to permit the police to arrive and do the needful. The fact that the accused could remain at the place of incident for two hours as they carried out the operation of the burning of the dead bodies and firing in the air also indicates the extent to which the accused persons were willing to terrorise the witnesses.
27. It is further argued that there was hardly any motive for the accused persons to commit the crime, as it has been pointed out by this court and the apex court in a series of decisions that the question of motive loses importance when there is an eye-witness account. However, it cannot also be said that in this case there is a complete absence of motive. Admittedly, after the death of Amar Singh, another brother of Ram Gopal and Bahori Singh (husband of Shanti Devi), who had died issueless, there was litigation between the parties over the land of Amar Singh. The fact that there was a compromise in that litigation and the case had been decided by the Munsif in terms of the compromise, will not lead to the irresistible inference that the dispute between the parties had ended. That there was bitterness between the parties is apparent from the fact in her statement under Section 313 Cr.P.C. the appellant Shanti Devi had stated that Ram Gopal and others had murdered Bahori Singh and that she had lodged a report for stealing the gun of Satyendra (her son) against Ram Gopal, Premveer and others, but the police had not taken any action on that report. Also, PW 1 Ram Gopal states that the accused had fired on him after the compromise of 1983, (but he had not lodged any report but only informed the police verbally), and there were other minor incidents about which no report was lodged between the parties. Therefore, in spite of the compromise in 1983, it could not be ruled out that bitterness subsisted between the parties. The accused persons, on the other hand, have given no suggestion as to how the four persons on the side of the prosecution would have lost their lives, or suggested that there could be any other assailants who may have committed this crime.
28. Even so far as the appellant Preetam and Ram Altar are concerned, although they are not directly related to the families of Shanti Devi and Ram Gopal etc. but if Preetam was ploughing the land of Smt. Shanti Devi and late Bahori Singh on batai, then he could easily have been their accomplice in the crime if the parties were fighting to take possession of the land in dispute. So far as Ram Altar was concerned, although he was sala of Preetam and a resident of the other village, Sahar, however, absolutely no credible reason has been suggested by the appellants for implicating these accused persons in the case and for leaving out the real assailants who could have committed the four murders.
29. It is further argued by the learned counsel for the appellants that in the FIR, the statements under Section 161 Cr.P.C. and to some extent in court, the role of assaulting the deceased Vikasveer, Lovely and Vijayawati was assigned to the two female accused, Shanti Devi and her granddaughter Puja, and it was only subsequently as an improvement that the role of firing was even assigned to the male accused for the second incident. In this regard, it may be mentioned that if an incident of such magnitude as the present takes place in which eye witnesses run helter-skelter, the same could not be the handiwork of just two ladies, and for such a crime nominating six persons as accused does not appear to be an exaggeration. It could not be considered a fatal circumstance that such details assigned to these accused persons are not mentioned in the FIR or the statements under Section 161 Cr.P.C. or are half-heartedly sought to be introduced in the statements in the court. To commit the crime of the magnitude of the present, the same could not be a handiwork just two female accused, Shanti and her granddaughter Pooja, but the other four male accused persons must also have participated in the crime, which first resulted in the murder of Smt. Munni Devi on the pathway in the village Malakpur between villages Jairampur and Echora and, thereafter, in the second incident where the three deceased persons, Vikasveer, Lovely and Vijayawati, were murdered in village Echora in the house of the informant, who were thereafter, set to fire. The non-intervention of the other witnesses and licencees of the village also indicate that the incident in question could not be the act of two ladies only.
30. Conversely, Sri Ramji Saxena, who appears as the amicus curiae for Smt. Shanti Devi, argues that there was no necessity of the women for having participated in this incident when the accused persons who were present in the village with firearms could have easily committed the crime, and there was no medical corroboration of any incised wounds on the body of the deceased, Vikasveer, Lovely and Smt. Vijayawati. So far as the bodies of these three deceased are concerned, they were completely burnt and even certain parts of the body had been reduced to ash and there was no possibility of there being any medical evidence for examining as to whether these injuries were due to firearms or due to incised weapons. But that circumstance would not be of any assistance to the accused in any manner. As mentioned above, the magnitude of the incident suggests that naming these accused persons with the arms alleged was not an exaggeration and so far as the female accused are concerned, they were given specific roles right from the beginning.
31. The investigation of this case has also been criticized by the learned counsel for the appellants. They have pointed out that some crime numbers and the sections appear to have been added later on in the inquest report, hence the inquest was not in existence when the FIR was lodged. However, much importance cannot be given to this discrepancy, as essentially the inquest is only concerned with the facts and circumstances of the death of the deceased as it appears to the inquest witnesses and the police officers conducting the inquest. In this connection it has been specifically laid down in the case of Amar Singh v. Balwinder Singh : (2003) 2 SCC 518, at paragraph 12, that the proceedings under Section 174 Cr.P.C. which deal with the inquest only require the police to enquire and report on suicide etc. and they have a limited scope. The details of the incident arc not required to be mentioned in the inquest report.
32. It was also argued by the learned counsel for the appellants that the investigating officer has acted in a motivated manner and sought to get a pharsa recovered from the appellant Shanti Devi when she is said to have been armed with a sword as per the evidence on the record. Also, the recovery of a hall-gun from Preetam on 1.10.1997, which belonged to Ajai Pal, is extremely suspicious and it shows the extent to which the police could go to rope in the accused persons.
33. It does appear that there are certain defects in the investigation of this case. Certain slippers were found near the deceased Munni Divi, which was assigned to the appellant Preetam but no attempt was made by the police to connect the said slippers with Preetam. The bloodstained pharsa was also not sent to the chemical examiner, However, these discrepancies in the inquest report and some laches or defects in the investigation of the case cannot result in the case of the prosecution being doubted as a whole and being thrown over-board. What is required in the circumstances of the case is that the court should be more circumspect.
34. The appellants' counsel had also argued that Section 452 IPC appears to have been subsequently added in the inquest report and the place of occurrence was changed. However, a mere addition of Section 452 could give rise to no ground to doubt that the incident in question took place at the place alleged, specifically in view of the fact that even the burnt dead bodies were recovered from the haystack near the house of the parties in the middle of the village and the prosecution would have got nothing by shifting the venue if indeed the incident had taken place elsewhere. Even chhappars of the house of the witness Ajai Pal and the accused Satyendra had been burnt. Therefore, in the circumstances, minor discrepancies and contradictions in the evidence and the defects in the investigation would not result in the case of the prosecution to be thrown over the board, although a close scrutiny of the evidence is required in just circumstances. In this connection, it has been appositely mentioned in the case of Dharmendrasinh alias Mansing Ratansinh v. State of Gujarat: (2002) 4 SCC 679, at paragraph 14, that:
"In our view the High Court taking into account the observations made in the decision referred to above came to the conclusion that otherwise reliable statement of the witness PW 3 Ashaben could not be discarded or discredited and even though there had been any fault or negligence in conducting the investigation, that too by itself, is not sufficient to dislodge the prosecution case as a whole. The chances of making some embellishment here and there in the statement are not rule out even in cases of otherwise truthful and reliable witnesses. The concept of falsus in uno and falsus in omnibus has been discarded long ago. Therefore in such circumstances the court may have to scrutinize the matter a bit more closely and carefully to find out as to how far and to what extent the prosecution story as a whole is demolished or it is rendered unreliable. For this purpose the statement of the witnesses will have to be considered along with other corroborating evidence and independent circumstances so as to come to a conclusion that the contradiction in the statement of a witness could be considered as an embellishment by the witness under one or the other belief or notion or it is of a nature that the whole statement of the witness becomes untrustworthy affecting the prosecution case as a whole. The same principle will apply to a faulty or tainted investigation. Other relevant facts and circumstances cannot be totally ignored altogether. While appreciating the matter, one of the relevant considerations would be that chances of false implication are totally eliminated and the prosecution story as a whole rings true and inspires confidence. In such circumstances, despite the contradictions of the defective or tainted investigation, a conviction can safely be recorded."
35. In this view of the matter, there is sufficient reliable evidence for sustaining the conviction of the appellants as recorded by the court below.
36. One last question arises as to whether the death sentence awarded to the appellants should be sustained. In this regard, it may be pointed out that the appellant from jail, Smt. Shanti Devi is a woman. Her age, as per the statement under Section 313 Cr.P.C. on 8.1.2003, was 65 years. Therefore, she would now be about 67 years in age. Her husband does appear to have been murdered for which she was prosecuting Ram Gopal and others, as is apparent from her reply in the statement under Section 313 Cr.P.C. and, therefore, there does appear to be a string of enmities between the parties and in such circumstances when the parties may have been after each other's life, it is possible that the present incident transpired. Also, there are some inconsistencies in the evidence which may not dislodge the prosecution case altogether, as held above, such as the recovery of a pharsa from Shanti Devi when she is said to have a sword and there does seem to be some change in the role of Shanti Devi at different stages as in the court the other male accused persons were assigned the role of fire on the diseased Vijayawati and causing her death.
37. Furthermore, there does not appear to be any serious hearing of the appellants on the question of sentence as the judgment of conviction was pronounced by the Sessions judge on 15.2.2003 and on that very date the sentence of death was also awarded to the appellants. Such course of action has been disapproved in the case of Allauddin Mian v. State of Bihar, (1989) 3 SCC 5 that there must be substantial compliance with Section 235(2) Cr.P.C before sentence of death is pronounced, and in such circumstances the better course of action should have been to have heard the appellants separately on the proper sentence to be awarded to them.
38. So far as the other appellants, Preetam and Ram Altar are concerned, we find that they do not even appear to be directly concerned with the incident in question and no specific role of killing the three deceased Lovely, Vikasveer and Vijayawati was assigned to these appellants in the FIR and in the statement under Section 161 Cr.P.C. but belatedly they have been assigned the role of firing at the deceased Vijayawati along with the two absconding accused, Satyendra and Sanjeev. In this state of evidence, it cannot be stated with any degree of assurance as to what was the exact role played by these appellants. In view of these facts and circumstances, the sentence of death awarded to the three appellants are set aside and, instead, they are sentenced to imprisonment for life. The remaining sentences awarded to the appellants shall remain as they are and require no modification.
39. The aforesaid criminal appeals, the jail appeal and the criminal reference is rejected, with the aforesaid modification in sentence.
40. In view of the assistance rendered by the learned counsel for the appellants, who appeared as amicus curiae for them, we direct that Sri Brijesh Sahai be paid Rs. 1,500/- each in both the criminal appeals, nos. 1243 of 2003 and 1238 of 2003, in which he represented the appellants Preetam and Ram Altar, and Sri Ramji Saxena be paid Rs. 1,500/- for representing Smt. Shanti Devi, who appealed from the jail.