Hon'ble Mrs. Jayashree Tiwari,J.
(Delivered by Hon. Jayashree Tiwari, J.) The present appeal has been filed on behalf of accused Saria who has been convicted to death sentence under Section 302 read with section 149 IPC alongwith a fine of Rs.2000/-. Besides, conviction under section 147, 148, 452 and 307 read with section 149 IPC by the judgment and order dated 9.7.2009 passed by the learned Additional Sessions Judge, Court no. 2 , Mahoba.
Brief facts giving rise to the present case are that Jagdish on 25.12.2000 at 6:00 p.m. came to the house of informant and informed him that he has been called upon by his brother Shiv Pal. The informant thereupon followed him for the house of Shiv Pal who was at a distance of about one and half furlong from the informant's house. As soon as they reached near the garden of Pastorji the informant found accused Saria, Jagdish, Deo Karan and Hari Ram armed with guns and Parma armed with an axe fired at him with intention to kill. Upon such firing the informant ran away in his village. Then all these accused with a common object and armed with the above mentioned deadly weapons reached the house of his brother Shiv Pal and due to old enmity they got opened the door and fired at Shiv Pal, his wife Smt. Uma and his mother-in-law Smt. Gomti and also caused injuries by the axe. The incident was witnessed by all the children of Shiv Pal and nearby people. Thereafter accused went on firing in air. Out of fear neither the informant nor any villager came out and hence no FIR could be lodged at the police station during night and hence on the next day the information was lodged by the informant at the police station.
Upon this information after due investigation by the police, charge-sheet was submitted and after supplying copies to the accused persons the learned Magistrate committed the case to the court of Sessions. Learned Sessions Judge, Mahoba framed charges under sections 147,148, 307 read with section 149, 302 read with section 149 IPC and section 452 IPC against accused Saria and the charges were read over in front of accused and on his denial and claim for trial, the trial proceeded.
The prosecution examined in all nine witnesses. PW 1 Achchey Lal is the informant. He has submitted in his evidence that Jhakhar came to him telling that his brother Shiv Pal was calling him, whereupon he accompanied Jhakhar. On the way when he reached near the garden of Pastor he saw accused Saria, Jagdish, Hari Ram and Dev Karan armed with guns and Parma with an axe present. They inflicted torchlight upon him, whereupon the informant also inflicted torchlight on them. Then with intention to kill him accused persons fired at him whereupon the informant ran away towards his home and the firing could not hit him. The accused followed him for some distance and thereafter they went to the house of Shiv Pal and murdered Shiv Pal, Smt. Uma and Smt. Gomti by the gun shot wounds and axe injuries. The people of the nearby houses had seen the incident alongwith children of Shiv Pal. The accused came out from the house after murder. They abused and continued firing. On account of the terror none of the locality came out. The witness further submitted that due to firing and terror he did not go to the police station for lodging FIR in night.
Next day he went to the police station and got the script of FIR written by one Manoj and filed it in police station Panwari. About 10-12 years ago to this incident Durjan Singh, brother of the informant was murdered. The report was lodged by Shiv Pal against Dev Karan and Hari Ram in which Dev Karan was sentenced. On account of the aforesaid grudge this incident has been caused by the accused persons and accused Saria also had a quarrel with Shiv Pal and left his house which was occupied by Shiv Pal. In the long cross-examination, from this witness nothing very material could be extracted which may go to show that there was no attempt of murder by the accused persons on the informant Achchey Lal and that FIR was not written at the time as alleged by the witness on the very next day. Regarding the grudge of the accused persons with Shiv Pal and the informant who are brothers too nothing material could be extracted in cross-examination.
PW 2 Smt. Shashi is the wife of Deep Chand and daughter of deceased Shiv Pal. At the time of the incident she was an inmate of the house of Shiv Pal being a daughter and her presence there was natural. She has deposed that at about 7:00 p.m. in the evening she was cooking vegetable in her home. Her father Shiv Pal and grandmother Smt. Gomti were sitting together nearby and mother Smt. Uma was doing some work in the adjacent room. Brother Babloo, sister Sulochana were also sitting by the side. The door was bolted from inside. The door was knocked by Jhakhar, whereupon she unlocked the door. On opening of the door Saria, Jhakhar, Parma, Dev Karan, Hari Ram entered into the house. They were armed with guns except Parma who was armed with an axe. Accused Saria attacked Shiv Pal with gun and all the accused fired at Shiv Pal, Uma and grandmother Gomti with their respective weapons as a result of which all the three died on the spot. This incident was witnessed by this witness herself, her sister Sulochana and brother Babloo. Thereafter accused started abusing and then went away. In cross-examination it has come out regarding the incident that Jhakhar fired with pistol. There was a Dhibri lantern present and in another room a lantern hanging on the wall was lightening. The fire of Jhakhar hit Shiv Pal, then Jhakhar fired at her grand mother Smt. Gomti and the witness escaped herself by going outside with an intention to save her life. After 2-3 hours uncle Achchey Lal approached the house of deceased Shiv Pal.
PW 3 Smt. Sulochana, daughter of the deceased has been presented as a witness of fact. She has stated in her evidence before the court that all the accused were present in the court and she recognized them. She stated that these accused had murdered her father Shiv Pal, mother Uma and grandmother Smt. Gomti 8-9 years ago. The time of incident was 7:00 p.m. She was sitting near the oven in her house. Her sister Shashi was also present there and father Shiv Pal and grandmother were sitting side by side and her mother and brother Babloo were doing some work inside the room. The door was knocked by Jhakhar , whereupon the door was opened. Saria armed with gun, Jhakhar with an axe entered into the house. Saria fired at her father and thereafter all other accused also caused injuries to father. When her mother ran to save, fire was made on the person of the mother, then grandmother came who also sustained fire shots. All the three Shiv Pal, Uma and Smt. Gomti died on the spot. This incident was witnessed by her in the light of Dhibri lantern and she recognized the accused persons. After committing murder the accused persons went away saying that whosoever will give the statement in this regard he will be killed. The incident was also witnessed by sister Shashi and brother Babloo. In cross- examination she stated that at the time of incident she was about 11 years old. There was Dhibri lightening inside the house when door was opened at the knock of Jhakhar. Shashi was sitting near the oven which was burning. The Dhibri light was not put off at the time of firing. The deceased who were sitting near the oven died on the same place at the time of firing. Shashi and Babloo were sitting there and she was also sitting. So nothing very material could be extracted by the defence to root out the version of the prosecution from the testimony of this witness.
PW 4 Hari Shankar Singh is the Sub-Inspector who has registered FIR, prepared chik ( Ext. no.1) and G.D. entries and has proved formally these documents.
PW 5 Dr. M.S. Rajpoot has conducted the post mortem examination of deceased Shiv Pal and following injuries have been found:
1- Incised wound 8 cm into 1 cm into brain deep on right fronto parietal 8 cm above the right ear. Edges of wound were clearly cut. The tale of the wound was on the back side.
2- Incised wound 4 cm x 1.5 cm x brain deep on right side at the back of head 7 cm behind the right ear. Edges of wound were clearly cut and the tale was downward.
3- Firearm wound of entry size 2.5 cm x 2 cm on right side of the head in the temporal region. The edges of the wound were entering inside. The injury was 3 cm above the right ear.
4- Firearm wound of exist size 3 cm x 3 cm on left side of neck. Edges of the wound booming out and 7 cm below the mastroid process. Two plastic ticklies recovered from the wound.
5- Firearm wound of entry 1.5 cm x 1.5 cm on the right side of the back, oval in shape 8 cm below the lower middle of right scapula. Blackening and tattooing present around the wound.
6- Firearm wound of exit 3 cm x 2.5 cm on left side of chest 2.5 cm below the middle of clavicle. Margins everted. One tikli recovered from the wound. The doctor has opined that the death has been caused due to shock and excessive bleeding due to ante mortem injuries.
On the person of Smt. Gomti, following injuries were found:
1- Firearm wound of entry 5 cm x 3.5 cm at the centre of upper part of sternum (at Xiphysternum). Margins inverted. Oval in shape. Left lung lacerated. Arch of arota and upper part of heart lacerated. One plastic tikli recovered form the lung and one bullet recovered form the left chamber of heart. In the opinion of doctor the death was caused due to shock and haemorrhage due to ante mortem injuries.
On the person of Smt. Uma following ante mortem injuries were found:
The statement of accused Saria was recorded under Section 313 Cr.P.C. in which he stated that he has no information about any FIR etc. He has stated that on the basis of false evidence the present charge-sheet has been filed and he has been falsely implicated due to old enmity with the informant and submitted that he will give evidence in defence.
In defence, accused has examined DW 1 Jasi Ram, DW 2 Har Nath and DW 3 Man Singh. DW 1 Jasi Ram stated that accused Saria met him in Rath and when he returned back to village he came to know that murder had taken place but he again said that he is not certain whether Saria has been falsely implicated or not. He has stated that on the date of incident he was not at home and was not at all aware about the facts of the incident. In the next morning he came to know that three persons have been murdered. Thus this defence witness has stated nothing in support of the accused and defence.
DW 2 Har Nath stated that he is resident of Bapredha and he has got property share in his in-laws place, so he is now staying in Bapredha; he has constructed a well in the year 2000 and in which Saria also cooperated with him in digging the well on labour charge basis. On 25.12.2000 Saria was digging the well and his labour work continued till 6:00 p.m. and Saria used to stay at night at that place. The digging work continued for 15 days. He stated that Saria used to sleep after his labour work near well and when articles for maintenance were required he used to bring them from Rath. Saria remained with him for one month and he has been falsely implicated in the murder case. In cross he stated that on getting information that Saria has been falsely implicated in the murder case he has not given any application to any officer or police and he was giving his statement for the first time in the court. Though DW 2 has tried to show that Saria was present at his place but his conduct in not reporting the matter about false implication of Saria before any competent authority and police and not narrating this fact to anyone earlier creates doubt about the genuineness of his statement. Had it been so, it was natural on his part to inform the police or must have written in writing to the police regarding the false implication of Saria.
DW 3 Man Singh has stated that he knew Saria and he has narrated the same story of digging well by Saria for the period of one month and staying there. In cross-examination he admitted that he was telling this fact for the first time before this Court and never gave any application to police or officer regarding false implication of Saria. Testimony of all three defence witnesses firstly do not disclose as to Saria about whom they are stating is the same Saria and the son of the same person who is the accused in the present case, secondly, the conduct of DW 2 and DW 3 in not proceeding regarding false implication of Saria shows that their evidence is clearly an after thought. So afar as DW 1 is concerned he has denied his knowledge about the indulgence of Saria in the crime.
The learned Additional District Judge after hearing the arguments and considering the entire evidence on record of the prosecution and defence found that offences under Section 147, 148, 452, 307 with 149 IPC and section 302 with section 149 IPC are proved and sentenced the accused persons under such sections and directed the accused Saria to undergo death sentence with fine of Rs.2000/- under Section 302 read with section 149 IPC, one year's RI under section 147 IPC, Two years' R.I. under Section 148 IPC, Two years' R.I. with a fine of Rs.2000/- in default three months' imprisonment under section 452 IPC and five years' R.I. with fine of Rs.2000/- in default to undergo imprisonment for three months under Section 307 read with section 149 I.P.C.
We have heard learned counsel for the appellant and the learned AGA and also gone through the judgment and the findings recorded by the learned lower court.
PW 1 is the informant who has corroborated the contentions raised in his FIR by his factual oral evidence in the court and has categorically stated that he was called by Jhakhar to go to the house of Shiv Pal and accompany Jhakhar. On the way he saw those four persons armed with guns and accused Parma armed with an axe and they have fired on informant after preparation of unlawful assembly alongwith Jhakhar who had come to call the informant. This fact is fully supported by the oral evidence given by the informant PW 1 Achchey Lal. So far as the contention of entering into the house of Shiv Pal and causing death of three persons Shiv Pal, Smt. Uma and Smt. Gomti, PW 1 is not an eye witness of the fact but he is the witness in respect of the prior conduct of the accused persons in having assembled as an unlawful assembly with the intention to kill informant as well as his brother and his family members and is duly corroborated by Prosecution witnesses and the matter of murder was told to him by the inhabitants of the house of Shiv Pal deceased i.e. by his children when reached the house of Shiv Pal.
Even if for argument's sake it is accepted that PW 1 informant is not a witness of the murder of three inmates at Shiv Pal's house, the testimony of PW 2 Smt. Shashi, daughter of deceased Shiv Pal and Smt. Uma, and Smt. Sulochana PW 3 and Babloo PW 8 son of deceased Shiv Pal and Uma who are the real inmates of the house of Shiv Pal is very natural and their presence inside the house is also very natural where the murder had taken place. Their evidence duly corroborate the contention of the prosecution that all the accused persons Saria, Dev Karan, Jagdish, Hari Ram, Parma and Jhakhar entered into the house of Shiv Pal and accused caused firearm injuries and axe on the person of the deceased as a result of which they died. Nothing material could be extracted from these three natural witnesses which may go to create any doubt regarding the evidence of murder led by them.
There appears no reason for son and two daughters to falsely implicate the accused persons as assailants of their deceased mother, father and grand mother and let the real assailants go scot free. It has been held by Hon'ble Supreme Court in the case of Vikram Singh vs. State of Punjab reported in AIR 2010 SC 1008 that the testimony of interested witnesses cannot be disbelieved merely because they were interested in successful outcome of prosecution.
So far as the point of undue delay as alleged by the learned counsel for the appellant in lodging of FIR is concerned, a perusal of the record shows that sufficient and reasonable explanation has been put forward in the FIR itself and same stands duly corroborated by PW 1 in his testimony and could not be repudiated by the defence despite detailed cross-examination that due to firing and terror noone went to police station at night to lodge FIR. In the circumstances, the delay in lodging of the FIR seems to be not so crucial and fatal so as to damage the prosecution version in its entirety as sufficient explanation has been reasonably given. There appears to be no undue delay. The delay shown appears to be quite natural.
Next point pointed out by the learned counsel for the appellant is that apparently there is no express motive alleged for causing the alleged incident. A perusal of the FIR shows that in FIR there is no assertion of motive. In the evidence during the trial it has come out that there was enmity or ill will in between the parties regarding conviction inter se in a criminal case relating to the murder of Durjan Singh brother of informant in which conviction was made by the accused.
The incident is alleged to have taken place on the eve of 25th December at 6: p.m. when there is sufficient twilight available in the evening to recognize the assailants and specially in the face of direct testimony of the witnesses who are the inmates of the house of deceased Shiv Pal and his own children and also in the face of testimony of the PW 1 himself on whom firing was made. The presence of motive or absence of motive losses its importance in the face of direct testimony of witnesses, and the testimony of the direct witnesses and the aggrieved witnesses in the shape of PW 1 clearly shows that the incident has been caused by the accused persons and none else. It is contended on behalf of the learned counsel for the appellant that PW 1 is not a direct witness of fact regarding the murder of three deceased person but this contention is not sustainable in the light of direct testimony of three children of the deceased Shiv Pal and Uma who have directly seen the occurrence and their possibility in the house of their parents at the time of incident is quite natural and possible.
So far as the medical report is concerned, it is well established that it corroborates the contention raised in the FIR and duly corroborated by the witnesses of facts by their oral testimony in Court. As per contention of the FIR injury was caused by gun shot and axe. As per medical report the doctor conducting the post mortem examination has submitted that two incised wounds were found on the head of Shiv Pal and four gunshot wounds were found on the person of the deceased Shiv Pal. Similarly on the person of Smt. Gomti mother-in-law of deceased Shiv Pal gunshot wounds of entry were found on her person and the heart and left lung was lacerated. One tikli was recovered from the left lung. In the post mortem examination of Smt. Uma wife of deceased Shiv Pal Besides four gunshot wounds of entry and four gunshot wounds of exit two contusions were also found on the person of deceased Uma in the post mortem report. Thus, the contention as raised in the F.I.R. and corroborated by the prosecution witnesses also find due corroboration from the medical report and the testimony of PW 5 Dr. M.S. Rajpoot.
So far as the contention of the light is concerned, it is alleged on behalf of the learned counsel for the appellant that there was no sufficient light for the witnesses to have recognized the assailants. The learned Additional District & Sessions Judge in his judgment has recorded the findings that the deceased Shiv Pal and his mother-in-law alongwith other members of the family were staying near the fire and cooking was going on there in the home. So light available as has been described by the witnesses is most natural at the time inside the house. Hence contention regarding absence of adequate light is not sustainable. Even accused Saria and others were well known to the inmates of the house as has come out in the evidence that accused Saria was living in the adjacent house. Before this, quarrel with father of witnesses took place and so he was well known. Similarly Jhakhar and others were also not unknown to the inmates of the house. So even in the twilight it was not impossible for them to recognize the persons who had come inside the house when the door has been opened by the witness Shashi. It has been held by the Hon'ble Apex Court in case of Bhagirath vs. State of Haryana reported in 1996 SCC (Cri.) 1014 and in AIR 1996 SC 3431 that incident having taken place at about 7:00 a.m. in the month of July when there was sufficient light to identify the accused. It has also been held by the Hon'ble Apex Court in case of Murli vs. State of Rajasthan reported in 2009 (9) SCC 417 that the witness already knew the accused even before the incident and source of light in which the witness identified the accused was categorically stated by him and his testimony had remained unshaken through out.
Witnesses produced by the defence do not establish with certainty that the accused was not involved in the commission of crime. All the three witnesses have not told that Saria was present with them and it was not at all possible for them to have gone to the village Bapredha where murder took place.
Thus finding recorded by the learned lower court regarding the corroboration of the prosecution case on facts and medical evidence does not appear to be suffering from any illegality or irregularity or perversity and appears to be a reasonable finding recorded by the learned lower court in this case.
The contention raised by the learned counsel for the appellant is that the accused is a poor person, the sentence pronounced is very excessive. The learned lower Court has mentioned that there is a criminal history of accused Saria. The learned lower court at page 16 of the judgment has mentioned that in the case diary the criminal history of accused Saria is recorded in which three cases under Section 302 IPC are mentioned to be pending against him in different crime nos. Besides these three cases, one case in crime no. 144/88 under Section 384/397 IPC, in crime no. 126/96 under Section 302 and 307 IPC, crime no. 2049/90 under Section 396 IPC, crime no. 50/2000 under Section 302 IPC, crime no. 62/2000 under Section 302 IPC. In none of the case, no conviction has been reported to be recorded. Besides, the learned lower court has taken into consideration that the accused has been convicted in a case under Section 27 of the Arms Act for about seven years ago and was absconding.
Lastly, the question that arises for serious consideration is whether imposition of death sentence to the appellant in the facts and circumstances of the case is justified?
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 Vs. 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.
Coming to the aspect whether penalties of death should be sustained in the facts and circumstances of the case, we feel called to advert to the guidelines laid down in stream of decisions commencing from Bachan Singh v. State of Punjab 1980 (2) SCC 684 and thereafter reiterated in subsequent decisions namely Machchi Singh v. State of Punjab 1983 (3) SCC 470 and Devender Pal Singh v. State of N.C.T. Of Delhi 2002 (5) SCC 234. The guidelines laid down in Bachan Singh's case (Supra) may be culled out as under:
(i)The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
In Machchi Singh and others v. State of Punjab (1983), the Supreme Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community may be shocked. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances.
In Devender Pal Singh's case (Supra), the Apex Court regard being had to both the cases supra, expanded the formulation for imposing extreme penalty. The guidelines may be abstracted below as under:
(1)When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. Murder by hired assassin for money or reward, or cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.
(3)When murder of a member of a Scheduled Caste or minority community etc is committed not for personal reasons but in circumstances which arouse social wrath; or in cases of bride burning or dowry deaths or when murder is committed in order to re-marry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when mutiple murders, say of all or almost all the members of a family or alarge number of persons or a particular caste, community, or locality are committed.
(5)When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."
We have heard learned counsel for the appellant on the points and from the perusal of the record it comes out that there was inter-se enmity in between accused Saria and deceased Shiv Pal and other relatives directly as it has come out in the testimony of the witness that Saria was living adjacent to house of Shiv Pal and there happened some quarrel in between the two, whereupon Saria left his house and went elsewhere. The deceased Shiv Pal occupied the house left by Saria. This was the main cause of grudge between the parties.
It has been held by the Hon'ble Supreme Court in the matter of death sentence that it should be awarded in the rarest of the rare case where the murder has been caused in cold blood and in pre-meditated manner. In the present case it comes out that though the murder was planned undoubtedly but there were some factor motivating the mind of accused Saria which is very relevant and that factor is taking over of the house of Saria by deceased Shiv Pal which factor was overwhelming the mind of accused Saria to react in such manner.
The learned Additional Sessions Judge has given reasons for awarding extreme penalty on two counts, firstly that there are number of criminal cases pending against the accused and that he was convicted for offence under section 27 of the Arms Act for about 7 years and was absconding.
In the light of above discussion and regard being had that reasons assigned for inflicting the extreme penalty do not constitute special reasons instead the factor of house grabbing of the house of Saria by deceased Shiv Pal was overwhelming the mind of the accused Saria so the reason do not constitute special reasons for awarding extreme penalty. We are of the view that the case does not fall in the category of rarest of rare case. In connection with the above another decision may be referred to. The Hon'ble Apex Court in the case of Ram Pal Vs. State of U.P. 2003 (47) ACC 567 has reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.
Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.
Considering the over all circumstances of the case this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellants would meet the ends of justice.
We therefore, reduce the sentence of death of the appellant to imprisonment for life.
Reference aforesaid is rejected. The appeal is partly allowed. In consequence the conviction recorded by the Sessions Judge is maintained but in the facts and circumstances and for reasons recorded above, the sentence of death awarded to the appellant by the learned Sessions Judge, Mahoba is commuted to imprisonment for life.
Dated: 8.9.2010 Criminal Capital Appeal No.4770 of 2009/P.P.