JUDGMENT Imtiyaz Murtaza, J.
1. This appeal has been filed against the judgment and order dated 25.8.2004 passed by Addl. Sessions Judge, Fast Track Court No. 4, Meerut, whereby the appellants have been convicted under Section 147 I.P.C. and sentenced them for 6 months' R.I. and a fine of Rs. 1000/-, under Section 148 I.P.C. and sentenced them for one year R.I. and a fine of Rs. 1000/-, under Section 307 read with Section 149 I.P.C. and sentenced them to 7 years' R.I. and a fine of Rs. 5000/- and in default of payment of fine further imprisonment for one month, two months and 2 years R.I. respectively. The appellants have further been convicted under Section 302 read with 149 I.P.C. and sentenced to death.
2. Criminal Reference No. 14 of 2004 is for confirmation of death sentence.
3. The brief facts of the case as mentioned in the first information report lodged by Kripal Singh at P.S. Bhawanpur, district Meerut are that his nephew Ajab Singh's daughter was abducted on 5.11.1997 by Rajneesh and Vikram and the case was pending in the court. Apart from this case, other cases were also pending in the court. In the night of 24/25.5.1999 at about 12.00 O'clock Rajneesh, Surendra, Chandrapal Singh, Indrapal, Jaiveer and Aman alongwith two unknown persons reached armed with country made pistol and rifle and asked for the compromise in the case. Ajab Singh did not agree and they had started firing from their weapons. Ajab Singh, Hari Singh @ Hariya and Geeta died and Raj Pal, Veer Singh and Bala received injuries. They had also abused him and threatened to kill. He saved himself by hiding in a room of his house. The occurrence was witnessed in the moonlight and electric light. Aman Singh had also threatened the witnesses. He proclaimed that if any one will go to the police station, he will be killed and hanged on the trees. No one could dare to lodge the report in the night. He lodged the report in the morning. The distance of the police station from the place of occurrence was 4 Kms. After the registration of the report, Hukum Singh, S.H.O., started investigation. He recorded the statement of the informant at the police station and reached at the place of occurrence. He instructed Sub Inspector Sri Pal Singh to prepare the inquest memos. He prepared the recovery memos of blood stained and plain earth, empty cartridges and bullets. Recovery memo of blood stained and plain earth is Ext. Ka. 15. Recovery memo of empty cartridges is Ext. Ka. 16. He had also prepared the site plan, which is Ext. Ka. 17. He had also recorded the statements of the inquest witnesses and the statements of injured Rajpal, Smt. Bala and Veer Singh at Lokpriya Hospital. He recorded the statements of Smt. Rajkali, Smt. Champi, Satpal and Harveer. On 29.5.1999 he attached the properties of 0 absconded accused Chandra Pal and Indra Pal and prepared the recovery memo which is Ext. Ka. 18. He also attached the properties of Rajneesh and Surendra and prepared its recovery memo which is Ext. Ka. 19. He also attached the property of Jaiveer and prepared its recovery memo which is Ext. Ka. 20. The properties of Aman Singh were also attached by S.I. Phool Singh and prepared its recovery memo which is Ext. Ka. 21. On 5.6.1999 he had arrested accused Sethpal and Tejpal and a country made pistol as well as two cartridges were recovered from the possession of Sethpal and its recovery memo was prepared which is Ext. Ka. 22. On 5.6.1999 he had also arrested Narendra. Thereafter investigation was conducted by P.W. 11, Jai Dev Arya. He had started the investigation of the case from 22.6.1999. On 6.8.1999 he had submitted the charge sheet against the accused persons which is Ext. Ka. 24.
4. Post-mortem on the dead bodies of Ajab Singh, Smt. Geeta and Hari Singh was conducted by Dr. K.N. Tiwari. He found the following ante-mortem injuries on the person of deceased Ajab Singh:
1. Gun shot wound of entry 2 cm x 1 cm on the back of chest Rt. side 7 cm below angle of scapula and 3 cm Rt. to midline, margins inverted an area of blackening & tattooing 15 cm x 11 cm around wound present, direction of wound is towards Lt. Bullet recovered from Lt. Side neck.
2. Gun shot would of entry Rt. side chest interiorly 1 cm. medial to Rt. nipple 1 cm x 1 cm margins inverted, an area of blackening & tattooing of 8 cm x 7 cm. present around wound. Direction of wound is towards chest cavity. Bullet recovered from post chest wall.
3. Gun shot wound of entry 1.5 cm x 1.5 cm on Rt. side neck 1 cm below Rt. ear lobule at 6 O'clock position. Margins inverted an area of blackening & tattooing 5 cm x 4 cm around wound is present. Bullet recovered from substance of liver.
5. In the opinion of the doctor the cause of death was due to shock and haemorrhage as a result of injuries sustained.
6. The doctor had also conducted the post mortem examination on the body of Smt. Geeta and he noted following ante-mortem injuries:
1. Gun shot wound of entry 1 cm x 1 cm on outer aspect of Lt. upper arm 3 cm below top of shoulder, margins inverted, an area of blackening and tattooing 4 cm x 3 cm seen around wound. Wound is directed medially and continuous with inj. No. 2.
2. Gun shot wound of exit 1.5 cm x 1 cm on medial aspect of Lt. shoulder 2 cm below top of shoulder, margins inverted. Wound is continuous with inj. No. 1. One bullet recovered from post abd. wall in relation with inj. No. 4.
3. Gun shot wound of entry 4 cm x 4 cm Lt. side head over upper half of Lt. ear. An area of blackening tattooing 6 cm x 6 cm around wound is present hair singing seen. Wound is cranial cavity deep. One bullet recovered from cranial cavity.
4. Gun shot wound of entry on ant. Abd. wall 1 cm x 1 cm, below phisternum and 1 cm Lt. to midline an area of blackening & tattooing 4 cm x 3 cm around wound present. Wound is abd. cavity deep.
7. In the opinion of the doctor the cause of death was due to haemorrhage and shock as a result of injuries sustained.
8. He had also conducted the post mortem examination on the dead body of Hari Singh and he noted the following ante-mortem injuries:
1. Gun shot wound of entry on back of abdomen 2 cm x 1 cm 27 cm below C 7 just Lt. to midline, abraded, cavity deep, margins inverted, tattooing in an area of 8 cm x 6 cm present around wound. One bullet recovered from ant. abraded wall.
2. Gun shot wound of entry 1.5 cm x 1.5 cm on Lt. side forehead 3 cm above & lateral to outer border of Lt. eyebrow, margins inverted an area 4 cm x 4 cm of blackening and tattooing seen around wound. Wound is crania cavity deep. One bullet recovered from cranial cavity.
9. In the opinion of the doctor, the cause of death was due to haemorrhage and shock as a result of injuries sustained.
10. Dr. Vinod Kumar had medically examined Smt. Bala on 25.5.1999 and he noted following injuries on her person:
1. A lacerated wound of size 3 cm x 1 cm just above the Public symphysis fresh bleeding present.
2. A lacerated wound of size 2 cm x 1 cm over at the outer aspect of the (r) Arm fresh bleeding present margins inverted. This is 12 cm above the elbow joint.
3. A lacerated wound of size 2.5 cm x 1 cm over medial aspect of (r) arm 10 cm above the elbow joint.
11. Dr. Vinod Kumar had medically examined Veer Singh on 25.5.1999 at 6.30 A.M. and he noted following injuries on his person:
1. Pt. G/C V. Poor Pt. In Hypovolumic shock, pains present all over the abdomen.
2. A fire arm wound of size 4 cm x 2.5 cm present over (1) back of abdomen with Irregular inverted margins, bleeding from the wound present. Blackening and Tattooing present around the wound.
12. In the opinion of the doctor, the injury was fresh, caused by fire arm and K.U.O. Adv. X-ray Abd. Erect.
13. Dr. Vinod Kumar had medically examined Rajpal on 25.5.1999 and he noted following injury on his person:
1. Abrasion of size 4 cm x 1 cm present over the (r) lower chest just above the (r) lowest costal margin.
14. After the submission of the charge-sheet the case was committed to the court of sessions.
15. The prosecution in support of its case had examined 13 witnesses. P.W. 1 Kripal Singh, P.W. 2 Veer Singh, P.W. 3 Rajpal, P.W. 4 Smt. Bala, P.W. 5 Vijaipal Singh, S.I., P.W. 6 Dr. Vinod Kumar, P.W. 7 Dr. Sapali Mishra, P.W. 8 Dr. K.N. Tiwari, P.W. 9 C.P. Ram Mool Singh, P.W. 10 Hukum Singh, S.S.I., P.W. 11 Jai Dev Arya, S.O., P.W. 12 Hanif and P.W. 13 Shri Pal Singh, S.I.
16. P.W. 1 Kripal Singh deposed that Ajab Singh was his nephew and his daughter was Km. Manju. On 5.11.1997 Km. Manju was abducted by Rajnish with the help of his uncle Vikram. The accused were granted bail. The abducted girl was recovered by the police and she was handed over to Ajab Singh. She was brought to Meerut for her medical examination but she had committed suicide. In the night of 24/25.5.1999 he was present in his house situated in village Lalpur. The house of Ajab Singh is adjacent to his house. At that time accused Rajneesh, Surendra, Chandra Pal, Indar Pal, Jaiveer and Aman Singh alongwith two other unknown persons reached at the house of Ajab Singh and asked him to compromise in the abduction case. Ajab Singh refused and thereafter they had started firing. Ajab Singh, Hari Singh and Geeta died on the spot and other 3 persons had received injuries. One unknown person was armed with a rifle and other unknown accused was armed with a country made pistol. At the time of occurrence there was electric and moon light in which these witnesses had seen the occurrence. He was also challenged by the accused but he saved himself by hiding in a room. Aman Singh had also proclaimed that if any one will give the evidence or lodge the report, he will also be killed and hanged in the village. On his dictation Ramveer scribed the report. He had signed the same which is Ext. Ka. 1. In the morning he lodged the report and the injured persons were sent for medical examination and they were admitted in Lokpriya hospital. The investigating officer had recorded his statement at the police station.
17. P.W. 2 is Veer Singh. He stated that Ajab Singh was his maternal uncle. On the date of the occurrence he was sleeping under a Neem tree. His uncle Ajab Singh, aunt Bala, grand father Hari Singh and Raj Pal were also present. Accused Surendra, Rajneesh, Chandra Pal, Indra Pal, Jaiveer and Aman Singh alongwith two unknown persons reached there. They were armed with country made pistol and one unknown person was armed with rifle. He had recognised them in the moon light and electric light. Aman Singh asked his uncle Ajab Singh to compromise in the abduction case. Ajab Singh told him to come in the morning for settling the matter in Panchayat. Aman Singh insisted him to compromise then and there otherwise he will settle the matter and thereafter they had started firing. He, Hari Singh, Ajab Singh, Geeta and Rajpal had sustained injuries. Hari Singh, Ajab Singh and Geeta died on the spot. Kripal Singh is his maternal grand father. He was on his roof. The accused had also threatened him. Aman Singh had also threatened the villagers. He was taken to the police station and from there he had gone to Lokpriya Hospital for the treatment.
18. P.W. 3 is Rajpal. He stated that the occurrence had taken place about 2 years and 8 months back at about 12.00 O'clock. Ajab Singh was his nephew and he was sleeping in his Dhubari. Chandra Pal, Indra Pal, Jaiveer, Surendra, Rajneesh, Aman Singh alongwith unknown persons reached at the Chabutara of Ajab Singh. They were armed with country made pistol and one unknown person was armed with rifle. They asked Ajab Singh to compromise in the abduction case. He told him that in the morning he would ask his family members and then he will settle the matter. Thereafter, Aman Singh and his companions had started firing. Ajab Singh, Geeta, Bala, Veer Singh and Hari Singh had received injuries. After receiving the injuries he ran away from the place of occurrence. He had seen the accused persons in the electric and moon light. At the time of occurrence Kripal was on his roof and the accused had also threatened him and villagers were also challenged that if any one will give evidence he will also be killed and hanged in the trees.
19. P.W. 4 Smt. Bala stated that about 2 1/2 years back at about 12.00 O'clock she was at her Chabutara alongwith her daughter Geeta and her husband Ajab Singh. The accused Aman Singh, Chandra Pal, Indra Pal, Jaiveer, Rajneesh and Surendra alongwith two unknown persons. Aman Singh asked her husband to compromise in the abduction case of Manju. He declined to compromise in the night and told them to come in the morning, he will call a Panchayat then it would be settled. All the accused persons started firing. She alongwith her husband Ajab Singh, daughter Geeta, father-in-law Hari Singh, Veer Singh and Raj Pal had sustained injuries. Ajab Singh, Geeta and Hari Singh died. Aman Singh had also threatened villagers that if any one will give evidence he will also be killed and hanged in the trees. At the time of occurrence Kripal Singh was also present on his roof and he had also witnessed the incident.
20. P.W. 5, Vijay Pal Singh, S.I., stated that on 25.5.1999 he was posted as Head Moharrir at P.S. Bhawanpur. He prepared the chik F.I.R. No. 80/99 on the basis of the report of Kripal Singh. Chik F.I.R. is Ext. Ka. 2. He had also prepared the copy of G.D. entry which is Ext. Ka. 3.
21. P.W. 6 is Dr. Vinod Kumar. He had medically examined the injured persons.
22. P.W. 7 is Dr. Sapali Misra, radiologist. She had conducted the x-ray examination of Raj Pal. She had prepared the x-ray examination report which is Ext. Ka. 9. She had also conducted the x-ray of Veer Singh and prepared the x-ray report which is Ext. Ka. 10. She had also conducted the x-ray examination of Smt. Bala. The doctor has opined as follows :
1. Fracture of middle l/3rd of shaft of humorous seen.
23. P.W. 8 is Dr. K.N. Tiwari. He had conducted the post-mortem examinations.
24. P.W. 9 is C.P. Ram Mool Singh. He stated that on 25.5.1999 he was posted at P.S. Bhawanpur. He had gone to village Lalpur alongwith other police officers. The inquest reports of the dead bodies of Ajab Singh, Hari Singh and Geeta were prepared by S.I. Sri Pal Singh and the dead bodies were handed over to him and Con. Sanjay for the postmortem examination.
25. P.W. 10 S.S.I. Hukum Singh is the first investigating officer.
26. P.W. 11 Jai Dev Arya is the second investigating officer who had submitted the charge-sheet.
27. P.W. 12 is Hanif. He stated that on 25.5.1999 Hari Singh, Ajab Singh and Geeta were murdered in his village. Inquest reports of the deceased were prepared in his presence and he had also signed the inquest memos. The inquest reports are Exts. Ka. 25 to Ka. 27.
28. P.W. 13 is S.I. Sri Pal Singh. He stated that on 25.5.1999 he was posted as Sub Inspector at P.S. Bhawanpur. After the registration of the case he had gone to the place of occurrence alongwith S.H.O. and he had prepared the inquest memo of Ajab Singh which is Ext. Ka. 27. He had also prepared the inquest memo of Hariya @ Hari Singh which is Ext. Ka. 25. He had also prepared the inquest memo of Geeta which is Ext. Ka. 26. He had also prepared the relevant papers for the post-mortem examination. The relevant papers for the post-mortem examination of Ajab Singh are Exts. Ka. 28 to Ka. 31. The relevant papers for the post-mortem examination of Hari Singh are Exts. Ka. 32 to Ka. 36 and papers for the post-mortem of Geeta are Exts. Ka. 37 to Ka. 41.
29. The Sessions Judge after considering the evidence on record convicted the appellants as aforesaid. Hence this appeal.
30. We have heard learned counsel for the appellants, learned counsel for the complainant and the learned A.G.A. for the State and perused the entire record.
31. The counsel for the appellants challenged the findings of the trial court on various grounds.
32. The first submission of the counsel for the appellant is that there was inordinate delay in lodging the report and the first information report came into existence after consultation and deliberation. The occurrence took place at about 12.00 O'clock in the mid night and report was lodged after 5 hours and 30 minutes at the police station. The distance of the police station was only 4 Kms. Therefore, it is submitted that the report was lodged after considerable delay.
33. We have examined the submission of the counsel for the appellants and the evidence on the record. The occurrence took place in the mid night in which three persons were shot dead and three persons had suffered serious injuries. The informant was also threatened by the accused. In the first information report and in the testimony of the witnesses it is mentioned that accused had extended threats and said that if any one of them would go to the police station or lodge any report, he would be killed and hanged on the trees. The villagers could not dare to come out from their houses. Having regard to the nature of the occurrence and the commotion that would have been created during the night, one cannot expect the witnesses to go to the police station on that very night. This explanation also supported by the fact that three persons remained lying in injured condition without medical aid. In the early morning they were brought to the police station, report was lodged and thereafter they were referred to the doctor for the medical examination. The delay, if any, is properly explained by the prosecution.
34. The next submission of the counsel for the appellants is that the occurrence being of night, it would not have been possible for the witnesses or informant to identify the actual assailants and they are falsely roped in this case.
35. It is not disputed that occurrence took place in the mid night. The source of light, mentioned in the first information report, is moon light and electric light in which accused persons were identified. The investigating officer had also mentioned electric bulb at place 'B' in the site plan. It is also not disputed that the accused were previously known to the witnesses and the occurrence had not started suddenly. It is the case of the prosecution that the accused persons firstly pressurized them to compromise and in the process they must have come very close to the witnesses. The firing was also made from very close range. The postmortem reports of Smt. Geeta, Azad Singh and Hari Singh show that there were blackening and tattooing on their wounds. It is to be noted that the accused persons who were previously known to the witnesses can be identified in faint light also.
36. It is further contended by the counsel for the appellants that the first information report was not in existence at the time of inquest report and there is inordinate delay in sending the special report. The inquest report does not indicate the name of the accused. The details of weapons were also not mentioned in the inquest report. We have examined the submission of the counsel for the appellants. The signature on the chik F.I.R. of the Magistrate concerned is dated 31.5.1999 but as observed by the trial court the chik F.I.R. was received in the office of the Magistrate on 26.5.1999. Therefore, in our opinion, there is no reason to cause any doubt on the fact that the first information report was not in existence, therefore, chik F.I.R. was not dispatched forthwith. The existence of the F.I.R. on the date of occurrence is proved by various circumstances. The statement of the informant was recorded at the police station. The inquest report as well as all other relevant papers, which were prepared after registration of the F.I.R., contain the crime number and sections in which the report was registered. The dead bodies were dispatched for the post-mortem examination through P.W. 9 Constable Ram Nath Singh on 25.5.1999 between 7.30 A.M. to 9.30 A.M. The chik F.I.R. was also dispatched alongwith the inquest report, which is clear from the fact that in the list of enclosures sent alongwith the inquest report, Chik F.I.R. is also mentioned. As regard the submission of the counsel for the appellant that the names of the accused and weapons of the assault are not mentioned in the inquest report it is to be noted that the purpose of the inquest report is to report regarding the apparent cause of death ,namely, homicidal, accidental or by some machinery etc. The omission of names of the accused and manner of assault is not sufficient to put the prosecution out of the court. The scope and purpose of Section 174 CrPC was explained by the Apex Court in Pedda Narayana v. State of A.P. reported in 1975 SCC (Crl) 42 as under:
The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report.
37. The counsel for the appellants also submitted that the prosecution has failed to prove the motive. The first information report of the earlier case was not filed by the prosecution. In our opinion, this submission has got no substance. The alleged motive is also not seriously challenged by the defence. It is a case of direct evidence, therefore, the motive is not very significant. 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.
38. It is further contended that no independent witness is supporting the prosecution case. All the eye witnesses are closely related with the deceased and on that account their testimony should not be believed. We have considered this submission and there is no dispute that all the witnesses are relatives of the deceased but on that ground their testimony cannot be rejected. The Apex Court in the case of State of Punjab v. Karnail Singh had observed " We may also observe that the ground that the witnesses being close relatives and consequently, being partisan witnesses, should not be relied upon, has no substance."
39. We have carefully examined the testimonies of P.W. 1 Kripal Singh, P.W. 2 Veer Singh, P.W. 3 Raj Pal and P.W. 4 Smt. Bala and in our opinion their testimonies inspires full confidence. The presence of these witnesses at the place of occurrence is quite natural. Out of these four eye witnesses P.W. 2 Veer Singh, P.W. 3 Raj Pal and P.W. 4 Smt. Bala had received injuries in the occurrence. The testimony of P.W. 6 Dr. Vinod Kumar shows that the injuries of the injured are possible in the night of 24/25 about 12 O'clock which is the time of the occurrence. P.W. 7 Dr. Sopali Misra had noted radio opaque shadow in the injury of Veer Singh and fracture in the humorous of right hand. According to the medical opinion injuries of injured were caused by fire arm. Thus presence of these witnesses at the time of occurrence is also proved by the medical evidence also. A careful examination of the testimonies shows that they are credible witnesses and their testimonies inspire full confidence. They were subjected to extensive cross-examination and nothing could be elicited to discredit their testimony. The manner of assault is corroborated by the post mortem and medical examination reports. In our opinion the Sessions Judge had rightly recorded the findings of conviction and we also concur with the same. Lastly, the question that arises for serious consideration is whether imposition of death penalty in the facts and circumstances of the case is justified?
40. Under the old Code of Criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh v. State of Punjab A.I.R. 1980 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.
41. The Sessions Judge considered that three persons are murdered and earlier a case of abduction was pending in the court against Rajneesh and his companions and only two children aged about 13 years and 10 years are left in the family of the deceased. We are not inclined to accept the justification for imposing extreme penalty of death. We are not oblivious to the fact that it is a case of triple murder but in our opinion ipso-facto that would not be a ground for confirming the death sentence of appellants.
42. 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.
43. 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.
44. 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 altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellants would meet the ends of justice.
45. We therefore, reduce the sentence of death of the appellants to imprisonment for life
46. In view of the above the appeal is dismissed with the modification that the conviction of the appellants Surendra Pal, Indar Pal, Chandar Pal, Jaiveer and Aman Singh under Section 302 I.P.C. are maintained but the sentence of death is reduced to imprisonment for life. The other sentences awarded to the appellants under Section 147, 148 and 307 read with 149 I.P.C. are affirmed. The appellants are in jail. They shall be kept there to serve out the sentences awarded by the trial court and modified by us.
47. The reference for confirmation of death sentence is also rejected.
48. Office is directed to send a copy of this order to the court concerned within two weeks.