JUDGMENT Imtiyaz Murtaza, J.
1. The above appeals have been filed against the judgment and order dated 7.7.2005 passed by the Additional Sessions Judge, Court No. 3, Gorakhpur in S. T. No. 305 of 2001 and S. T. No. 357 of 2001 whereby the appellant Indrasan is convicted under Sections 302/34 I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- and in default of payment of fine further imprisonment for one year and further convicted under Section 307/34 I.P.C. and sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 5,000/- and in default of payment further imprisonment for six months and under Section 25 Arms Act sentenced to undergo imprisonment for six months.
2. Appellant Panney Lal is convicted under Section 302/34 I.P.C. and sentenced to death, convicted under Section 307/34 I.P.C. and sentenced to 10 years rigorous imprisonment and a fine of Rs. 5000/- and further convicted under Section 25 Arms Act and sentenced to undergo rigorous imprisonment for six months.
3. The appellant Anari Devi has been convicted under Section 302/109 I.P.C. and sentenced to undergo imprisonment for life.
4. Criminal reference No. 7 of 2005 is for confirmation of death sentence awarded to appellant Panney Lal by the trial court.
5. Since all the three appeals have been filed against the common judgment, therefore, they are disposed of together by this judgment.
6. The appellant Panney Lal had filed his appeal from Jail. Sri S.N. Singh, Advocate was appointed as Amicus Curiae.
7. The brief facts of the case mentioned in the first information report lodged by Shyamrali are that on 1.3.2001 at 10.05 P.M. she alongwith her mother Mona, sister Sita and daughter Gita were present in the house. Anari Devi, her aunt came to her house and started abusing in connection with the flow of water of the drain. They stopped her from abusing. In the meantime her uncle, Indrasan armed with Dao, his son Panney Lal carrying a knife reached there and said they would kill them so that every days dispute of drain would come to an end. At about 8.15 p.m. Indrasan & Panney Lal who were carrying Bhujali and knife started assaulting her mother Mona and her daughter Gita. At this she raised alarm and her father Hira and Dukhanti reached there and tried to apprehend them and they had threatened by brandishing their weapons and challenging that in case they tried to overpower them they would also face the same consequences. After sustaining injuries her mother, sister and daughter fell on the ground. After sometime her daughter succumbed to her injuries and her mother Mona and sister Sita sustained serious injuries and both were brought to the police station in a Jeep.
8. After the registration of the report Sub-inspector, C.D. Chaudhary commenced investigation. He recorded the statements of Shyanirati informant, injured Mona and Sita. On 2.3.2001 he prepared the inquest memo of the dead body of Gita and handed over the dead body to Constables Hira Singh and Shankar Prasad and prepared the relevant papers for the post mortem examination. The inquest memo is Ex. Ka. 9. He also prepared the challan lash, photo lash, Exts. Ka (10 to 11). Letter to the Chief Medical Officer for the post mortem examination, (Exts. Ka 12 & 13). He recorded the statement of Smt. Mona in the case diary. She succumbed to her injuries on 3.3.2001 at 7.40 a.m. Photocopy of her statement recorded under Section 161 Cr. P.C. is Ext. Ka. 14 On 2.3,2001 he prepared the site plan, which was Ext. Ka. 15. He collected the plain and blood stained earth form the place of occurrence and prepared its recovery memo, which was Ext. Ka. 16. He also prepared the recovery memo of 2 Dibhris in the presence of Bandhari and Murali which was Ext. Ka. 17. Thereafter, he arrested Indrasan and Panney Lal and on the pointing out of Indrasan a Dao was recovered and on the pointing out of Panney Lal a knife was recovered and he prepared the recovery memo, which was Ext. Ka. 18. The recovery memo was prepared in the presence of Ranjit Singh and Shambhu Nath Singh. A case under Section 4/25 of Arms Act (case crime No. 81 & 82 of 2001) was registered against Indrasan and Panney Lal. On 3.3.2001 he recorded the statements of witnesses of recovery memo and scribe Awadesh Mishra. He also prepared the site plan of recovery of weapons, which was Ext. Ka. 19. On 12.3.2001 he recorded the statements of Hira, Dukhanti and Smt. Deoni. On 2.4.2001 he again recorded the statement of Hira. On 14.5.2001 he submitted the charge sheet, Ext. Ka. 20.
9. Dr. S.S. Parvez medically examined Sita on 2.3.2001 and noted following injury:
Incised wound 5 cm x 1 cm, Omantum is out. (referred to surgeon) on the left side abdomen, injury K.U.O., Ad. X-ray of the abdomen in erect posture. At present bleeding is not present.
In the opinion of Doctor the injury was caused by some sharp edged pointed object.
10. He also medically examined Smt. Mona on 2.3.2001 and noted following injuries:
1. Incised wound 3.5 cm x 1.5 cm x depth. Kept under observation on the front of the right arm upper part.
2. Incised wound 3 cm x 1.5 cm x depth (not probed) on the left side of the chest, lower part, 16 cm above umbilicus blood oozing when pressed K.U.O. Adv. X-ray of chest and abdomen.
3. Incised wound 2 cm x 1 cm x depth (not probed) on the left side of abdomen, 12 cm away from umbilicus, K.U.O., Adv. X-ray of abdomen.
4. Incised wound 4 cm x 1.5 cm x depth K.U.O. on the right side of chest, lateral aspect, injury K.U.O., Adv. X-ray of chest.
5. Vertical incised wound 26 cm x 6 cm x muscle to bone deep on the front of the left forearm, K.U.O., Adv. X-ray Left forearm with elbow.
6. Incised wound 4 cm x 0.75 cm x muscle deep on the right side of back, lateral aspect, 5 cm behind the injury No. 4.
7. Incised wound 1.5 cm x 0.75 cm x muscle deep on the back of the right shoulder joint.
11. In the opinion of doctor the injury was caused by some sharp edged pointed object, simple in nature except injury No. 2, 3,4 & 5 which arc K.U.O.
12. The post mortem on the dead body of Mona was conducted by Dr. R.N. Shahi on 3.3.2001 at 5.15 a.m. and he noted following ante mortem injuries:
1. Stitched wound on right ant. Auxiliary wall 6.0 cm in length & two stitches on opening chest cavity deep.
2. Stitched wound on right arm upper part 3.0 cm length, muscle deep and one stitched would found on opening.
3. Stitched wound on the left side front of chest 8.0 cm below the left nipple at 7' O clock position. 6 cm in length with 4 stitches. On opening heart is punctured and wall of stomach is lacerated.
4. Stitched wound 7 cm. in length with 4 stitches on the left side abdomen on its upward aspect at the level of umbilicus on opening intestine is punctured at places.
5. Incised wound 2 cm x 8.0 cm x bone deep on the left arm and forearm, muscle & bone exposed.
6. Traumatic swelling 5 x 4.0 cm on the right temporal bone.
7. Abrasion 3 cm x 0.5 cm on the left breast just below the left nipple.
13. In the opinion of doctor the cause of death was due to shock and haemorrhage as a result of ante mortem injuries.
14. He also conducted the post mortem of Km. Gita on 2.3.2001 at 4.30 P.M. and noted following ante mortem injuries:
1. Incised wound 6 cm x 3 cm x abdominal cavity deep, midline and abdomen, 4 cm above the umbilicus. Wound is obliquely, loop of intestine coming out. On opening lower lobe and lines & small intestine cut. There is 1-1/2 litre clotted blood in abdominal cavity.
2. Incised 3 cm. x 1 cm. x abdominal cavity deep on the Left side back 2cm lateral to 11th 12th thoraxic vertebrae. Obliquely placed.
3. Traumatic swelling 8 cm x 4 cm on top of head on cutting underneath haematoma present.
15. In the opinion of doctor the cause of death of the deceased was shock and haemorrhage as a result of ante mortem injuries.
16. After the submission of charge sheet the case was committed to the court of sessions. The Sessions Judge framed charges against Indrasan and Panney Lal under Sections 148, 302, 307 I.P.C. and also under Section 4/25 of Arms Act. Smt. Anari Devi was charged under Section 109 I.P.C., 302/34 and 504 I.P.C.
17. The prosecution in support of its case examined 13 witnesses. P.W. 1 Smt. Shyamrati deposed that the appellant Indrasan is her uncle and Smt. Anari Devi is wife of Indrasan and Panney Lal is son of Indrasan. In village Samthan the house of Indrasan is adjacent to the house of her father. On the northern side of the house there is a courtyard, which open on northern side. The drain goes from northern side to eastern side. She deposed that about 1-1/2 years back she, her daughter Gita, mother, sister Sita were present in the house. At about 8.15 p.m. her aunt Anari Devi reached at the house and started abusing in connection with the flow of water of drain. Her mother had stopped her and some altercations took place. In the meantime Indrasan carrying Dao, Panney Lal armed with knife reached there. Anara Devi exhorted them to kill all of them. Indrasan and Panney Lal started assaulting her mother with Dao and knife. She raided alarm. Hira and Dukhnati reached there. Her daughter Gita ran inside the room. A Dibri was glowing, Panney Lal reached there and started assaulting her. She ran away outside after sustaining injuries and fell on the ground and died. Panney Lal had also assaulted her sister with knife. She also fell there. They tried to stop the accused but they showed their Dao and knife and threatened and after assaulting the accused ran away. Injured mother Mona Devi, sister Sita were kept in a Jeep with the help of villagers and brought to Barhalganj and Smt. Shyamrati got the report prepared, which is Ext. Ka. 1 and lodged the same at the police station. After the registration of the report her statement alongwith the statements of her mother and sister were recorded by Darogaji. Her mother Mona Devi and sister Gita were referred for medical examination. Her mother died after three days of the occurrence on account of injuries caused by the accused persons.
18. P.W.2 Hira deposed that about 16-17 months back at about 8 p.m. he was in the house of Dukhanti. He heard the shriek and reached at his door and saw that Anari Devi was assaulting his wife Mona Devi. They had stopped, but Indrasan reached there carrying Dao and Panney Lal carrying knife. Anari Devi exhorted them and Indrasan started assaulting Mona Devi by Dao and Panney Lal assaulted by knife. His grand daughter ran inside the room and she was also assaulted by Panney Lal and she came out of the house and died. Sita was also assaulted by knife. Dukhanti also reached there. They tried to stop the accused, but they had brandished their weapons and threatened them and thereafter the accused persons ran away. Mona Devi and Sita Devi were brought to Barhalganj and his daughter Shyamrati prepared the report, which was lodged at the police station. A dibri was glowing outisde the door and room also. On the said date the water of drain had reached at the door of the accused and on that account Anari Devi had altercated. His wife succumbed to her injuries after three days of the occurrence. The inquest memo of the dead body was prepared which was Ext. Ka. 2 and the investigating officer recorded the statements of the witnesses.
19. P.W.3 Sita deposed that about one year and nine months ago at about 8 p.m. she, her mother Mona Devi, sister Shyamrati and her daughter Gita were present a the door and a Dibri was burning inside the house at the door. Anari Devi came in the house and started abusing in connection with the flow of water of drain. Her mother stopped Anari Devi from abusing and she assaulted. In the meantime Indrasan reached there carrying Dao and Panney Lal armed with knife. Anari Devi exhorted them to kill all of them. Indrasan and Panney Lal assaulted her mother with Dao and knife. Shyamrati raised alarm and his father and Dukhanti reached there. Her elder sister went inside the room and Panney Lal assaulted her with Knife. She came out of the room and fell on the ground and died. Panney Lal had assaulted her mother with knife. She also fell on the ground and she died. The accused persons ran away after assaulting them. She was brought in a Jeep to the hospital alongwith her mother and father. After three days her mother also died.
20. P.W.4 is Dr. S.S. Parvez who had medically examined the injured.
21. P.W.5 is Dr. R.N. Shahi who had conducted the post mortem examination of Smt. Mona Devi. ;
22. P.W.6 is Dr. Jitendra Pal who had conducted the post mortem examination of Gita.
23. P.W.7 is Ram Dulare Rai who was posted as Head constable at police station Barhalganj. He had registered the case on the basis of application of Shyamrati at case crime No. 80/2001 under Sections 302, 307, 504 I.P.C. He prepared the chik F.I.R., Ex. Ka. 7 and the G.D., Ext. Ka. 8.
24. P.W.8, Chandra Deo Chowdhary is investigating officer of the case. After the investigation he submitted the charge sheet.
25. P.W.9, Ramesh Chandra Yadav was posted on 2.3.2001 as Head Constable at police station Barhalganj. He deposed that on 2.3.2001 the investigating officer and sub-inspector Parmeshwar Dayal Mishra had arrested the appellants Indrasan and Panney Lal and both had confessed and agreed for the recovery of Dao and knife and they had concealed in the field of Mustard of Lalji Singh. In the presence of Ranjit and Shambhu Nath Singh, Indrasan got recovered one Dao and Panney Lal got recovered a knife. Both the weapons were blood stained. S.S.I. C.D. Chaudhary had prepared the recovery memo. He had also signed the recovery memo. Copy of the recovery memo was given to the accused, which is Ex. Ka. 18.
26. P.W.10 Ram Kishan deposed that on 2.3.2001 he was posted as Head Moharrir and on that day at 6.45 p.m. on the basis of a report of S.S.I. Sri C.D. Chaudhary he had registered a case crime No. 81 & 82 of 2001 under Section 4/25 of Arms Act against Indrasan and Panney Lal. He had prepared the chik (Ex. Ka. 24). Copy of the G.D. entry is Ex. Ka. 25.
27. P.W.11 is sub-inspector Ramji Singh. He was posted as Sub-inspector at Police Station Barharganj on 2.3.2001, He investigated the case crime No. 81/2001 under Section 25 of Arms Act and case crime No. 82/2001 under Section 4/25 of Arms Act. He recorded the statements of Indrasan and Panney Lal. He recorded the statements of S.S.I. Chandra Deo Chaudhary and sub-inspector Parmeshwar Dayal Sharma. On their pointing out he prepared the site plan, Ex. Ka. 26. On 23.3.2001 he recorded the statements of constables Ramesh Chandra Yadav and Kamlesh Yadav. He also recorded the statements of Ranjit Singh and Shambhu Nath Singh and submitted the charge sheet against Indrasan and Panney Lal, (Exts. Ka. 27 & 28).
28. P.W.12 is Sub-inspector Ram Achchaibar Chaudhary. He deposed that on 3.3.2001 at 9.15 a.m. he received information about the death of Smt. Mona from the District Hospital, Gorakhpur. He prepared the inquest memo in the presence of witnesses Hira, Surendra Kumar, Tribhuwan, Sajan and Dilip Kumar, The dead body was sealed and handed over to constables Sahram Singh and Surya Kant Rai for the post mortem examination. The inquest memo is Ex. Ka. 2. He also prepared the challan lash & photo lash, Exts. 29 & 30. He prepared the letters to the R.I. and C.M.O. for the post mortem examination, Exts. Ka 31 & 32.
29. P.W.13 is Constable Angad Upadhyay. He deposed that on 13.3.2001 he was posted as Constable Moharrir at Police Station Kotwali Gorakhpur. He prepared the report No. 12 at 9.15 a.m. about the information of death of Mona Devi w/o Hira. The information was sent by a ward boy Qamruddin. Copy of the G.D. entry is Ex. Ka. 33.
30. The case of the defence was of denial and false implication.
31. The Sessions Judge after considering the evidence on record convicted the appellants as aforesaid. Hence these appeals.
32. We have heard Sri S.N. Singh for the appellants and Sri A.K.Singh, learned A.G.A. for the State.
33. Learned Counsel for the appellants has challenged the findings of the trial court on the ground that no independent witness is supporting the prosecution case. The witnesses examined during the trial are either interested or close relatives of the informant. It is further contended that other independent witnesses who were available are not examined.
34. We have considered the submission and in our opinion there is no substance in this submission. It is a settled position that there is no proposition in law that relatives are to be treated as untruthful witness. Just because the witnesses are related to the deceased would be no ground to discard their testimony, if otherwise their testimony inspires confidence. Being relatives, it would be their endeavor to see that the real culprits are punished and normally they would not implicate wrong person in the crime, so as to allow the real culprits to escape unpunished. The submission of the non-examination of other witnesses is concerned, mere failure to examine all the witnesses who may have witnessed the occurrence will not result in out right rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eyewitnesses shy away from giving evidence for obvious reasons. In the case of Ravi v. State the Apex Court had observed as under It is settled by a catena of cases by this Court that the evidence of eyewitnesses cannot be rejected merely because they are related. In such a situation, the evidence of PW 2 in the present case, there is no strong motive or ill will on the part of PW 2 to exonerate the real person who caused the injuries to her son and to implicate the accused.
35. In the case of Krishna Mochi v. State of Bihar , the Apex Court had observed as under
36. It is a matter of common experience that in recent times there has been a sharp decline of ethical values in public life even in developed countries much less a developing one, like ours, where the ratio of decline is higher. Even in ordinary cases, witnesses are not inclined to depose or their evidence is not found to be credible by courts for manifold reasons. One of the reasons may be that they do not have courage to depose against an accused because of threats to their life, more so when the offenders are habitual criminals or high-ups in the Government or close to powers, which may be political, economic or other powers including muscle power
37. The next submission of the counsel for the appellants is that the appellants had no motive to commit the offence. If the incident in question as projected by the prosecution is to be accepted then the presence or absence of a motive or strength of the said motive by itself also will not make the prosecution case weak. In the case of State of H.P. v. Jeet Singh the Apex Court had observed as under:
No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offense would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended.
38. In this case there was a dispute between parties with regard to flow of the water of the drain and Smt. Anari came to the house of the informant to protest about the same and in the mean time Indrasan and Panney reached there carrying weapons. The counsel for the appellant vehemently argued that the P. W. 1 Shyamrathi had deposed that there was no prior Jhagra, But this does not mean that there was no dispute. In any case the whole occurrence took place on account of dispute about flow of water and the prosecution case cannot be disbelieved only on the ground that there was no prior Jhagra.
39. The next submission of the counsel for the appellant is that the first information report is hit by Section 162 Cr. P. C. P.W. 1 had deposed that Pradhan of the village had informed the police on telephone. The police had reached at about 8.30 p.m. and the police had a talk with Awdhesh Misra and they had taken away injured along with them. We have considered the submission of the counsel for the appellant .There is nothing on the record to show as to what was the actual telephonic information sent to the police station. The testimony of P.W.7 H.C.Ramdular Rai shows that the report of the occurrence was registered at Cr.No. 80/01 at 22.5 and no telephonic information was received by him. It is a settled position that every information about an occurrence can not be treated as first information report. In the case of Ramsingh Bavaji Jadeja v. State of Gujarat , the apex court had observed as under:
If the telephonic message is cryptic in nature and the officer in charge, proceeds to the place of occurrence on basis of that information to find out the details of the nature of the offence itself, then it cannot be said that the information, which had been received by him on telephone, shall be deemed to be first information report. The object and purpose of giving such telephonic message is not to lodge the first information report, but to request the officer in charge of the police station to reach the place of occurrence.
40. The testimony of P.W.1 Shyamrati shows that Awdhesh Misra had prepared the F.I.R. on her dictation. She had also accompanied police alongwith Pradhan Ranjeet and G. Lal to the police station and reached at about 10 p.m. She had also stated that she is an illiterate. Daroga had reached in the village at about 8.30 p.m. and had also made enquiries. She had narrated the occurrence to the Daroga. He had also arrested Indrasan and after 10 minutes thereafter Panney Lal was arrested and they were taken to the police station. P.W. 8 Chandra Deo Chaubey, Investigating Officer of the case stated that the case was registered on 1.3.2001 at crime No. 80 of 2001 and thereafter he had recorded the statements of Smt. Shyamrati informant, injured Smt. Sona and Sita. He stated that on 2.3.2001 Dao and knife were recovered on the pointing out of the accused. According to the statement of P.W. 1, accused were arrested on the date of occurrence. On account of discrepancy between the statement of investigating officer and P.W. 1 Shyamrati about the time of arrest of accused, the counsel for the appellant submits that no reliance can be placed on her testimony and the recoveries on the pointing out of the appellants becomes doubtful. The counsel for the appellant further pointed out some discrepancies regarding presence of the father of the first informant. She had stated that after hearing the noise her father had reached at the place of occurrence P.W.3 had stated that her father had arrived after hearing the noise and further she had stated that her sister had gone to call her father from the house of Vishwanath where he had gone to take his dinner. It was further pointed out by the learned Counsel for the appellant that in the first information report it was mentioned that occurrence had taken place to finish every day dispute about the drain but in court P.W.1 had stated that prior to this occurrence there was no dispute about the drain. It was next contended that there was contradiction about the actual weapon in the hands of Indrasan. P.W. 1 had stated that she had told Daroga that Indrasan was carrying Daon not Bhujali. The counsel for the appellants contended that these contradictions in the testimonies of the witnesses show that either they were not present at the time of occurrence or they are falsely deposing. We do not find any force in the submission of the counsel for the appellants because witnesses are rustic villagers and some minor discrepancies are bound to occur when the evidence is recorded after about one and a half year . In the case of Krishna Mochi (supra) it was observed " A witness may not stand the test of cross-examination, which may be sometimes, because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored."
41. In the case of Leela Ram v. State of Haryana the Apex Court had observed that While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth, Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole, If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. In a very recent decision in Rammi v. State M.P. with Bhura v. State of M.P. this Court observed: (SCC p. 656, para 24)
24. When an eyewitness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
42. It is indeed necessary to note that one hardly comes across -a witness whose evidence does not contain some exaggeration or embellishment - sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same. In this case the time of lodging of the report is proved by overwhelming evidence on record. The recovery memo clearly shows that the recovery memo was prepared in case crime No. 80/01 under Sections 302/307/504/452 I.P.C. This clearly shows that the recoveries were made after the registration of the report. The timings mentioned by the informant may be due to lapse of time or due to ignorance.
43. There is hardly any difference in Dao and Bhujali. Both are heavy cutting weapons. There is nothing on the record to show that Dao is not called Bhujali.
44. The next submission of the counsel for the appellant that occurrence took place at 8.30 p.m. There was no sufficient light in which assailants could be identified. There is no substance in this submission because the occurrence did not take place at sleeping time and the assailants were very close relatives and next door neighbours and assault took place after verbal altercation. The close relatives could be easily identified in faint light also. The investigating officer had also collected Dhibris and prepared its recovery memos.
45. Another submission of the counsel for the appellants is that the Sessions Judge has wrongly considered the statement of Mona under 161 Cr.P.C. as a dying declaration. The testimony of P.W.8 Chandra Deo Chaubey, investigating officer shows that immediately after the registration of the case he had recorded the statement of informant, injured Smt. Mona and Sita. He further deposed that at the time of recording the statement of Mona, she was fully conscious and she had succumbed to her injuries on 3.3.01 at 7.40 a.m. Her statement Under Section 161 Cr.P.C. which he had recorded was Ex.Ka 14. This submission has also no substance in view of the decision of the Apex Court in the case of State of Karnataka v. Shariff wherein it was observed that " It is true that PW 11 and PW 14 were the police personnel and a Magistrate could have been called to the hospital to record the dying declaration of Muneera Begum, however, there is no requirement of law that a dying declaration must necessarily be made to a Magistrate. In Bhagirath v. State of Haryana on receiving message from the hospital that a person with gunshot injuries had been admitted, a head constable rushed to the place after making entry in the police register and after obtaining certificate from the doctor about the condition of the injured took his statement for the purposes of registering the case. It was held that the statement recorded by the head constable was admissible as dying declaration. Similar view was taken in Munnu Raja v. State of M.P. wherein the statement made by the deceased to the investigating officer at the police station by way of first information report, which was recorded in writing, was held to be admissible in evidence.
46. It is further contended that the appellant Anari Devi is wrongly convicted by the Sessions Judge as there was no role assigned to her and she was convicted only on the basis of exhortation, which is a weak type of evidence. We have considered submission of the learned Counsel. In the first information report it was clearly mentioned that on account of flow of water of the drain informants aunt Anari Devi came to her house and started hurling filthy abuses. On objection being raised other accused Indrasan and Panney reached there by threatening them and started assaulting. No other allegation was made against Anari Devi, There is nothing on the record to suggest that the occurrence was preplanned. No role of exhortation was assigned to Anari Devi in the first information report. In court the informant had assigned the role of exhortation to her. P.W. 2 Hira Lal had assigned the role of exhortation but the testimony of P.W. 3 Sita and P.W. 1 Smt. Shyamrati show that at the initial stage of the occurrence he was not present in the house. Therefore, he cannot witness the earlier part of the crime. The Apex Court has held that exhortation is a weak type of evidence and we are also of the view that in the first information report no role of exhortation was assigned to Smt. Anari Devi, therefore, it is not safe to convict Anari Devi under Section 302 with the aid of Section 109 I.P.C. and she is acquitted of the charges.
47. We have considered the testimonies of the witnesses who have supported the prosecution case. Eye Witness account is furnished by the witnesses is credible, The prosecution has proved the time and place of occurrence beyond reasonable doubt. According to the prosecution case occurrence took place at about 8.1 5 p.m. and the first information report was also lodged at 10.05 p.m. and the distance of the police station is 10 Kms. The report is promptly lodged in this case and prompt lodging of the report eliminates the chances of embellishment. The injured were firstly taken to Barhalganj P.H.C. and thereafter to the District Hospital, where they were medically examined. The injuries sustained by P.W.3 fully prove that she was present at the time of occurrence. The place of occurrence is the house of the informant, therefore, the presence of family members is quite natural. They have described the occurrence in a truthful manner, which is also consistent with the medical evidence. The weapons which were recovered on the pointing out of the appellants Indrasan and Panney were sent to chemical examination and its report shows that blood was found on these weapons and human blood was found on knife and blood on Bhujali was found disintegrated. The Sessions Judge had rightly recorded the findings of conviction against the appellants Indrasan and Pannney and we also concur with the same.
48. Lastly, the question that arises for serious consideration is whether imposition of death penalty to Panney in the facts and circumstances of the case is justified?
19. 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 page 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.
50. The Sessions Judge has awarded sentence of death to the appellant Panney Lal because he committed the murder of Gita Devi, his niece, who was a 12 year old child and her grand mother Smt. Mona He had also caused injuries to Sita, who was his cousin. He had caused death of two persons and attempted to cause death of Sita
51. The Apex Court in the case of Ram Pal v. State of U.P. 2003(47) A.C.C. 567 for the reasons mentioned in paragraph 8 and 9 of the judgment reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.
52. 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.
53. 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 appellant Panney Lal would meet the ends of justice.
54. We therefore, reduce the sentence of death of the appellant Panney Lal to imprisonment for life.
55. For the reasons stated above, the above appeals are decided as under:
Crl. Appeal No. 2939 of 2005 (Smt. Anari Devi v. State of U.P.) is allowed and the conviction and sentence of Smt. Anari Devi by the trial court is set aside and she is acquitted. She is on bail. She need not surrender. Her personal bond and surety bonds are hereby discharged.
Crl. Appeal No. 3830 of 2005 (Panney Lal v. State of U.P.) is dismissed with the modification that instead of death he is sentenced to life imprisonment under Section 302/34 I.P.C. His conviction and sentence under 307/34 I.P.C. and 25 Arms Act, as awarded by the trial court, are maintained. He is in jail. He shall be kept there to serve out the sentences awarded by the trial court and modified by us.
Crl. Appeal No. 3896 of 2005 ( Indrasan v. State of U.P.) is dismissed. His conviction and sentences awarded by the trial court are maintained. He is in jail. He shall be kept there to serve out the sentences awarded by the trial court and affirmed by us.
Crl. Ref. No. 7 of 2005 for confirmation of death sentence of appellant Panney Lal is hereby rejected.