JUDGMENT Imtiyaz Murtaza, J.
1. The above appeals are preferred against the judgment and order dated 31.3.2004 whereby the appellants, Manoj, Sonu, Umesh, Tej Pal and Narendra have been convicted under Section 302/149 I.P.C. and sentenced to death, under Section 148 I.P.C. sentenced to undergo R.I. for three years and under Section 452 I.P.C. sentenced to undergo R.I. for five years and a fine of Rs. 3000/-, in default of payment of fine R.I. for three months. Appellants Manoj Sonu and Umesh are further convicted under Section 25 Arms Act and sentenced to undergo imprisonment for two years. Appellants Dinesh and Shiv Pal are convicted under Section 302/120B I.P.C. and sentenced to undergo imprisonment for life and a fine of Rs. 10,000/- each, in default of payment of fine R.I. for one year. Other appellants are further convicted under Section 302/120B I.P.C. but no separate sentence has been passed. All the sentences were ordered to run concurrently.
2. Criminal reference is for confirmation of death sentence of Manoj, Sonu, Umesh, Tej Pal and Narendra.
3. The brief facts of the case, mentioned in the report lodged by Pushplata alias Guddy, are that there was dispute between her husband Dr. Rajveer Singh and brother-in-law Rajpal Singh with regard to a land and litigation was pending in the court. On account of this enmity, on 3.6.2001 at about 7 A.M., Manoj Sonu alias Ajay armed with country made pistols, Umesh resident of Sarsawan, Sunil resident of Haryana armed with country made pistols, Tej Pal, brother-in-law of Sonu, Narendra son-in-law of Rajpal Singh armed with knives, came to her house. Her husband, sons Manish and Ashish, who were on the ground floor of the house were killed by the fire arms and knives and her brother Vinod, who was sleeping on the first floor, was also killed by the fire arms and knives/ Several persons, who heard the firing, namely, Ram Lal, Ram Singh and others reached there and witnessed the occurrence. She, alongwith her mother and brother Amit, also witnessed the occurrence, The accused persons had also tried to kill them, but she and her mother and brother entered in a room and saved themselves. They also tried to break open the door but due to pressure of the public they could not do so. The assailants brandishing and firing country made pistols threatened the witnesses and on account of these killing there was terror in the village. She further alleged that in the murder of her family, Rajpal Singh, his son-in-law Shiv Pal Singh and his brother in-law Dinesh had conspired. The report was registered at the police station Deoband, Saharanpur, Inspector Amrit Lal started investigation of the case. He reached at the place of occurrence and instructed S.I. Azad Singh Chauhan to prepare the inquest memos. He prepared the site plan (Ext. Ka-6) and recorded the statement of informant Pushplata, witnesses Amit Kumar, Anar Devi and Ram Singh. S.I. Azad Singh Chauhar collected the blood stained and plain cement, empty cartridges, blood stained and plain earth, bed sheet and prepared the recovery memos.
4. The post mortem of the deceased Ashish was conducted by Dr. R.R. Gahlot, Medical Officer, S.B.D. Hospital, Saharanpur on 3.6.2001 at 6.40 p.m. and he noted following ante mortem injuries:
1. Firearm wound of entry on the left side back of Head of 2.5 cm. x 2 cm. x cervical cavity deep situates 5 cm. posterior above left ear pinna and 16 cm. posterior from left eyebrow. Margins inverted, scalp hair around the head are burnt.
2. Firearm wound of exit on the right side face near alee of nose right side 3 cm. x 2 cm. x cavity deep. Margin everted and dislocated teeth upper jaw and bony fragment right maxilla of wound on exploration it is communicating to injury No. 1 right fracture base of skull and fracture of occipital bone and left side base of skull fractured with haematoma present.
3. Abrasions 2.5 cm. x.5 cm. x.5 cm. on right forehead 3 cm. away from right eyebrow
4. Incised wound 2 cm. x 1 cm. x muscle deep on chest right side 7 cm. below of right nipple
5. Incised wound 2 cm. x 1 cm. x muscle deep on right of chest .5 cm. oblique to injury No. 4
6. Incised wound 3 cm. x 1 cm. x muscle deep on the outer side of left thigh in the middle.
5. In the opinion of the doctor cause of death was shock and haemorrhage as a result of ante mortem injuries.
6. He conducted the post mortem of the deceased Rajvir on 3.6.2001 at 7.40 p.m. and noted following ante mortem injuries:
1. Fire arm wound of entry on the right side face 3 cm. from right angle of mouth and 5 cm. from right ear lobule in front and below of 6 cm. x 2 1/2 cm. x cavity deep star style margins inverted. On exploration fracture present of right mandible, right maxilla base of skull and fracture of frontal and right parital bone found with laceration of brain membrane extended all over the brain. Haematoma present. Five wadding and one bullet recovered from the brain matter.
2. Fire arm wound of entry 3 cm. x 3 cm. x cavity deep on the chest right side, 8 cm. from right nipple at 3 O'clock position, margins inverted surrounding of wound is abraded.
3. Fire arm wound of exit on the right side maxillary line 26 cm. from umbilicus at 2 O'clock position 3 1/2 cm. x 3 cm. cavity deep margin everted. This is communicating to injury No. 2.
7. In the opinion of the doctor cause of death is shock and haemorrhage as a result of ante mortem injuries.
8. He also conducted the post mortem of the deceased Manish on 3.6.2001 at 8.45 p.m. and noted following ante mortem injuries:
1. Incised wound of 2 cm. X 1/2 cm. x cavity deep on the chest right side 3 cm. above from right nipple at 12 O'clock position margins clear cut, Oblique.
2. Incised wound of 2 1/2 cm. x 3/4 cm. x cavity deep on the abdomen, 5 cm. above umbilicus at 1 O'clock position. Margins clear cut, oblique.
3. Incised wound of 4 cm. x 2 1/2 cm. x muscular on front of right arm in the middle
4. Incised wound 1 1/2 cm. x 1/2 cm. x scalp deep on the left side head posterly 10 cm. from left ear pinna.
5. Fire arm wound of entry 1 cm. x 3/4 cm. on the back scapula region left side x muscle deep 7 cm. below left shoulder blade and 4 cm. middle back with blackening present around it.
6. Fire arm wound of exit 1 1/2 cm. x 1 cm. x muscle deep on the axillary fold left with everted margins communicating with injury No. 5, heamatoma present.
9 In the opinion of the doctor cause of death is shock and haemorrhage as a result of ante mortem injuries.
10. He also conducted the post mortem of the deceased Vinod on 3.6.2001 at 9.35 p.m. and he noted the following ante mortem injuries:
1. Firearm wound of entry of 4 cm. x 2 1/2 cm. just below left ear lobule, above angle of left mandible x cavity deep. Margin inverted, blackening present around the wound.
2. Firearm wound of exit of 1 cm. x 1 cm. on the right side face 4 cm. below outer angle right eye 3.5 cm. from angle of mouth right, one pellet was present inside and little peeping, pellet removed and found communicating to injury No. 1. Left mandible maxxila and bones of jaws were found fractured. Haematoma present.
3. Incised wound of 3.5 cm. x 1.5 cm. x muscle deep left side face 3 cm. from angle of left mandible. 24.5 cm. from angle of mouth left oblique.
4. Two incised wound on left side neck outer surface 6 cm. below injury No. 3, .2 cm. x 1 cm. x muscle deep and 1 cm. apart, Oblique.
5. Incised wound of 6 cm. x 2 cm. x muscle deep on chest right side near mandible 5 cm. near right nipple at 2 O'clock position.
6. Incised wound of 3 cm. x 1 1/2 cm. x muscle deep on chest right side outer surface 3 cm. below post axillery fold.
7. Incised wound of 4 cm. x 2 cm. x muscle deep right side chest outer surface in post axillary line 12 cm. below injury No. 6.
8. Incised wound 3 cm. x 2 cm. x muscle deep chest outer right 4 cm. below injury No. 7
9. Incised wound 4 cm. x 2 1/2cm. x muscle deep 1 1/2 cm. below injury No. 8.
10. Incised wound 4 cm. x 2 1/2 cm. x muscle deep abdomen right 10 cm. from umbilicus 1 O'clock position.
11. Abrasion 4 cm. x 1/2 cm. on posterior surface right fore arm upper.
12. Incised wound 1 cm. x 1/2 cm. x skin deep dorsum of right hand above middle finger.
13. Incised wound 2 cm. x 1 cm. x muscle deep on abdomen laterally left 19 cm. from umbilicus 2 O'clock position.
14. Incised wound 5 cm. x.3 cm. x muscle deep back of chest 3 cm. below lower scapula angle left side.
15. Incised wound 1 cm. x 1/2 cm. x muscle deep near middle left side back.
16. Incised wound 6 cm. x 3 1/2 cm. x muscle deep on back left side 14 cm. below injury No. 15 and 6 cm. from middle back oblique.
17. Incised wound 6 cm. x 4 cm. x muscle deep 4 cm. below and outer injury No. 16 oblique.
18. Incised wound of 4 cm. x 3 cm. x muscle deep. Left side abdomen just outer left to injury No. 17.
19. Incised wound 4 cm. x 2 cm. x muscle deep on posterior surface lower part left thigh.
20. Incised wound area 6 cm. x 4 cm. Two in number posterior surface upper part left leg varying 4 cm. x 1 cm. x muscle deep and 3 1/2 cm. x 1 cm. x muscle deep oblique.
21. Incised wound 2 cm. x 1 cm. x muscle deep on inner surface left thigh lower 1/3 oblique.
11. In the opinion of the doctor cause of death was shock and haemorrhage as a result of ante mortem injury.
12. S.I. G.S. Bansal concluded the investigation and filed the charge sheet against the accused persons.
13. After submission of the charge sheet, case was committed to the court of Sessions. The Sessions Judge framed charges under Section 148, 452, 302/149 and 302/120B against Manoj, sonu, Umesh, Tejpal, Narendra, Rajpal, Dinesh and Shiv Pal. Appellants Manoj, Sonu alias Ajay and Umesh were further charged under Section 25 Arms Act. Rajpal died during the trial and Suneel had absconded.
14. In order to prove its case the prosecution had examined 10 witnesses, namely, P.W. 1 Smt. Pushplata, informant of the case, and P.W. 2 Ram Singh are the eye witness of the occurrence, P.W. 3 Dr. R.R. Gahlot conducted autopsy on the dead bodies of the deceased, P.W. 4 constable Vishanvir Singh escorted the dead bodies for the post mortem examination, P.W. 5 Inspector Amrit Lal was the first investigating officer, P.W. 6 S.I. Azad Singh Chauhan prepared the inquest report and recovery memos, P.W. 7 S.I. Jitendra Kumar investigated the case under the Arms Act, P.W. 8 S.I. G.S. Bansal is the second investigating officer who submitted the charge sheet, P.W. 9 Head Constable Pradeep Tyagi prepared chik F.I.R. and P.W. 10 S.I. Horn Singh, is a witness of the recovery of arms.
15. The defence has examined five witnesses. D.W. 1 Rahat Lal is Head Master in Primary School Begampur. He stated that Suresh Chand was admitted in Class I on 14.9.1982 and he studied up till Class V. At Sl. No. 899 of the school register admission of Suresh Chand is mentioned. Photocopy of the page of the school register indicating the name of Suresh Chand at Sl. No. 899 is Ext. Kha-I.
16. D.W. 2 Manmohan Singh stated that he was posted as Head Time Keeper in I.T.C. Ltd. Saharanpur. Narendra Kumar and Amar Singh were employed in his factory. In the year 2001 there was token system and record of attendance was maintained in the factory. The token number of Narendra Kumar is AD 509 and his personal number was 25585. Narendra Kumar was on his duty on 1.6.2001 and 2.6.2001 from 6 a.m. till 2 p.m. On 3.6.2001 Narendra was on his weekly holiday. He is absent from 4.6.2001. The token number of Amar Singh was EM 076 and personal number was 19381. On 1.6.2001 Amar Singh was present on his duty and 2.6.2001 was his weekly holiday. On 3.6.2001 Amar was on casual leave and he joined his duty on 4.6.2001 and remained from 8 a.m. till 4.30 p.m. In this connection computer floppy of Narendra Kumar and Amar Singh in which record of these persons is down loaded and certificate by Assistant HRD Manager is filed as Ext. Kha-2.
17. D.W. 3 Virendra Kumar is the neighbor of Narendra Kumar and Amar Singh. He stated that in the year 2001 Usha wife of Narendra Kumar was suffering from some illness and Avinash son of Amar Singh was also suffering. On 3.6.2001 Narendra, his wife son Chiranjeev, Amar Singh his wife Anita Devi and son Avinash had gone to Bijnor for faith healing. They had gone to Bijnor at about 7 -7.30 p.m. He further stated that on the same day at about 9.30 p.m. police of P.S. Deoband arrived at his house and inquired about Narendra Kumar and Amar Singh. On the same night at about 11 p.m. Amar Singh and Narendra Kumar alongwith his family returned to their house.
18. D.W. 4 Amar Singh stated that Narendra is his younger brother. Both were employed in I.T.C. Usha wife of Narendra Kumar was mentally ill and his son Avinash was also mental ill, both were under the treatment of several doctors, the medical prescriptions are filed as Ext. Kha-3 to Kha-9. On the advice of Pandit Mahendra Joshi they had gone to Bijnor for the worship on 3.6.2001.
19. D.W. 5 Mahendra Joshi is an astrologer and he had taken them to Bijnor for the worship on 3.6.2001.
20. Tejpal stated that witnesses had not recognised him and Narendra had filed written statement. He stated that he lives in Saharanpur alongwith his brother Amar Singh. He works in a factory in Saharanpur. Prior to the occurrence his wife Usha nephew Avinash were mentally ill despite the treatment of several doctors they could not be cured. On the advice of Pandit Mahendra Joshi they had gone to Bijnor for worship. He had gone to Bijnor on 3.6.2001 and returned at about 11 p.m.
21. The Sessions Judge considering the evidence on record convicted the appellants, as aforesaid.
22. We have heard Shri Dharmendra Singhal, Sri Devendra Saini, Shri Onkar Singh, Shri R.K. Sinha, Shri G.S. Chaturvedi, Shri Pankaj Bharti, Shri S.K. Garg and Shri Amit Mishra, learned counsel for the appellants and Shri S.P. Singh, Shri S.K. Singh and Shri R. K. Singh, learned counsel for the complainant and the learned A.G.A. for the State.
23. Learned counsel for the appellants submitted that appellants have been falsely implicated in this case and no independent witness has been produced by the prosecution, presence of informant at the place of occurrence is doubtful, F.I.R. lodged after consultation and deliberation, the appellants had no motive to commit the offence, and the investigation is tainted. To appreciate the submissions of learned counsel for the appellants we have to consider the evidence on record.
24. P.W. 1 Pushplata deposed that about 5-6 years prior to the occurrence a litigation was going on with regard to a land between her husband Rajvir and Rajpal. On account of this litigation sons of Tejpal had attacked her husband who had saved himself with his gun. On account of this there was enmity with the family of the informant. The wife of Rajpal had died few months prior to the occurrence and in this connection Rajpal and his sons Manoj, and Sonu, Tejpal, Dinesh, Narendra and Shiv Pal were sitting in the court yard of Rajpal at about 9 p.m. They were talking that in order to settle the dispute finally with Rajvir, every one of them should be eliminated so that the property of Rajvir will be theirs. She further deposed that on the date of occurrence at about 7 a.m. she was on the upper portion of her house and in the lower portion Rajvir, her sons Manish and Ashish were present and in the upper portion she alongwith her brother Amit Kumar, her mother Anar Devi and another brother Vinok Kumar were sleeping. At that time Manoj, Sonu, Umesh, Sunil armed with country made pistols, Tejpal and Narendra were armed knives came and entered into her house. All the accused started assaulting Rajvir and her sons Manish and Ashish with their respective weapons and thereafter committed the murder of her brother Vinod. The accused had also rushed towards them, she and her mother and younger brother Amit entered in the kitchen and bolted the door from inside. The accused persons also tried to break open the door but due to the pressure of the public the accused persons ran way challenging them not to give the evidence otherwise nobody will be left alive. She witnessed the occurrence and her mother and brother Amit, Ram Lal and Ram Singh also witnessed the occurrence. She lodged the report at police station Deoband (Ext. Ka-1).
25. We have carefully examined her testimony and her testimony inspires full confidence. Her presence in the house is quite natural. She has described the occurrence in a most natural manner. The weapons which are assigned to the assailants find corroboration from the post mortem examination report. The Post Mortem report shows that the deceased had suffered fire arm and knife injuries The investigating officer had found the dead bodies of children and husband of the informant on the ground floor and the dead body of her brother Vinod on the upper portion of the house. The investigating officer had also recovered blood stained earth and cement and also collected empty cartridges from the place of occurrence. During the investigation appellants Manoj, Sonu and Umesh were arrested and on their pointing out country made pistols were recovered and they were sent to ballistic expert along with the empty cartridges recovered from the place of occurrence. The Ballistic expert report (Ka 47) shows that empty cartridges recovered from the- place of occurrence are fired from these weapons. Thus the testimony of this witness finds corroboration from the ballistic expert report. Thus the testimony of this witness finds full corroboration from the post mortem report as well as from the investigation and ballistic expert report. The Sessions Judge has rightly relied upon the testimony of this witness. She was subjected to extensive cross-examination but nothing could be extracted to discredit her testimony with regard to the actual occurrence.
26. P.W. 2 Ram Singh deposed that on the date of occurrence at about 7 a.m. he heard a hue and cry and reached at the house of Rajvir and saw that Manoj, Sonu, Umesh and Sunil armed with country made pistols, Tejpal and Narendra were armed with knives. They committed the murder of Rajvir and his sons Manish and Ashish in the lower portion of the house and brother-in-law of Rajvir Vinod was murdered by them on the upper portion of the house. The accused had also extended threats to the persons present that if anybody will follow them, he will be killed. Accused persons ran away firing and brandishing their weapons. Rajvir, Manish, Ashish and Vinod died on the spot. He has fully corroborated the testimony of P.W.1. His presence at the place of occurrence is natural He lives just in front of the house of the informant. He will be the first person to be attracted by the firing. His testimony cannot be rejected on the ground that he is uncle of the deceased. In this case deceased and accused are close relative Rajvir, deceased was brother of Rajpal Singh. This witness is relative of both the parties. The testimony of a witness cannot be rejected on the ground that he is a close relative. The evidence in each case has to be considered from the point of view of trustworthiness and from the angle as to whether it inspires confidence in the mind of the court to accept and that the question of credibility and reliability of a witness has to be decided with reference to the way he fared in the cross examination and the nature of impression created in the mind of the court. He was also subjected to extensive cross-examination but nothing could be elicited there from to discredit his testimony. In our opinion the testimony of this witness also inspires full confidence. The Sessions judge also rightly relied upon his testimony.
27. P.W. 3 Dr. R.R. Gahlot conducted the autopsy on the dead bodies of the deceased persons and proved the post mortem reports. In his opinion in the post mortem report of Ashish (Ext. Ka 2), injuries No. 1 and 2 were caused by fire arm and injury No. 3 was caused by due to friction of blunt object and injury No. 3, 4 and 5 due to sharp edged weapon like knife. In the post mortem report of Rajvir (Ka 3) injuries were caused by fire arm. In the post mortem report of Manish (Ka 4) injuries 1 to 4 were caused by knife and injury No. 5 and 6 were caused by fire arm. In the post mortem report of Vinod (Ext. Ka5), injury No. 1 and 2 were due to fire arm and Wised wound were due to knife.
28. P.W.4 constable Vishanveer Singh escorted the dead bodies to the mortuary for the post mortem examination. He stated that inquest proceedings were held in his presence and thereafter, dead bodies were handed over to him.
29. P.W. 5 Inspector Amrit Lal is the first investigating officer of the case and he inspected the place of occurrence and recorded the statements of witnesses. On 3.6.2001 he arrested Shiv Pal, on 4.6.2001 he arrested Narendra Kumar on 5.6.2001 Dinesh and Rajpal were arrested, and on 13.6.2001 Tejpal was arrested. On 2.1.6.2001 accused Manoj, Sonu and Dinesh got recovered weapons. One 315 bore country made pistol was recovered on the pointing out of Manoj, recovery memo is (Ext Ka-7), one 315 bore country made pistol Was recovered on the pointing out of Sonu alias Ajay (Ext. Ka-2) and one country made pistol was recovered on the pointing out of Umesh alias Santa (Ext. Ka-3)
30. P.W. 6 S.I. Azad Singh Chauhan prepared the inquest reports of deceased Rajvir, Manish, Ashish and Vinod (Ext. Ka-10 to Ka-13). He also prepared relevant papers for the post mortem of deceased Rajvir (Ext. Ka-14 to Ka-18), deceased Manish (Ext. Ka-19 to Ka-23), deceased Ashish (Ext. Ka-24 to Ka-29) and deceased Vinod (Ext. Ka-29 to Ka-33). He also prepared the recovery memo of plain and blood stained earth (Ext. Ka-34 to Ka-37), recovered empty cartridges from the place of occurrence (Ext. Ka-39). He had also investigated the case under Section 25 Arms Act against Manoj and Umesh. After obtaining sanction from the District Magistrate he submitted charge sheet against Manoj and Umesh under Section 25 Arms Act (Ext. Ka-44 to Ka-48.). On 3.6.2001 he deposited 10 bundles of the case and prepared G.D. (Ext. Ka-52). On the basis of recovery memos of arms he prepared the chik of case crime No. 353 of 2001 under Section 25 arms Act against Manoj, case crime No. 354 of 2001 under Section 25 Arms Act against Sonu alias Ajay and case crime No. 355 of 2001 under Section 25 Arms Act against Umesh.
31. P.W. 7 Jitendra Kumar investigated the case of Arms Act against Sonu. After investigation he obtained the sanction and thereafter submitted charge sheet against him (Ext. Ka-48).
32. P.W. 8 G.S. Bansal submitted the charge sheet against the accused persons (Ext. Ka -49).
33. P.W. 9 Head Constable Pradeep Tyagi had proved the chik F.I.R. prepared by Head constable Rajendra Singh (Ext. Ka-50). G.D. was prepared on the basis of the report. Copy of G.D. is Ext. Ka-51.
34. P.W. 10 Horn Singh deposed that after the transfer of Inspector Amrit Lal he started the investigation of case crime No. 317 of 2001. He prepared the site plan of the recovery of arms, (Ext. Ka-62, Ka-63 and Ka-64). It appears from the evidence on record that the place of occurrence is not challenged. As per the eye witness account furnished by the eye witnesses, namely, P.W. 1 Pushplata and P.W. 2 Ram Singh, the place of occurrence is the house of the informant. Three persons were killed on the ground floor and one on the first floor. The investigating officer found the dead bodies of Rajvir, Ashish and Manish on the ground floor and dead body of Vinod was found on the upper portion of the house. The recovery of blood and the inquest reports of the deceased corroborate the ocular version regarding place of occurrence.
35. The counsel for the appellants has challenged the motive of the crime. It is submitted that there no such immediate motive to commit the heinous crime. The informant had mentioned motive of the crime in the report and in her deposition that there was dispute over land between her husband and Rajvir and her brother-in-law Raj Pal Singh and cases were pending in the court. We have considered the submission of the counsel. Motive behind a crime is a relevant fact of which evidence can be given. In the present case enmity between the parties due to dispute of land is admitted. But whether the motive for the crime was sufficient or not no one ca predict. It is only the perpetrator of the crime alone who knows as to what circumstance prompted him to a certain course of action leading to the commission of the crime. Different persons react differently under given circumstances. It is difficult to lay down a hard and fast rule as to how and in what manner a person would react and to achieve his motive could go to what extent in the commission of crime under a particular circumstance. It is not possible to measure up the extent of his feelings, sentiments and desire. There may be persons who under frustration and on mere trifling domestic matters take decision to commit a serious step. It all depends as to how a person reacts in a given circumstance and it is he alone who best knows his intention and motive to commit a crime and the extent thereof. Therefore, the submission of the counsel for the appellant that there was no immediate motive to commit the crime has no substance and is rejected.
36. Learned counsel has also challenged the time of occurrence. It is vehemently argued that the prosecution has wrongly mentioned the time of occurrence as 7 A.M. whereas the post mortem reports of the deceased indicate that occurrence might have taken place at sleeping hours, much earlier than what is alleged by the prosecution. In support of this submission the counsel for the appellants has drawn our attention towards the contents of small and large intestines which indicate that both were filled with gases and faecal matter. We have carefully examined this submission of the counsel for the appellants. It is true that small and large intestines are filled with faecal matter but the stomach contents of Ashish deceased shows presence of 50 gm. semi digested food material. This shows that he must have taken some food in the morning. It is also relevant to point out that bladder of all the deceased was found empty. This is more probable that the deceased were not sleeping at the time of occurrence otherwise it must have been found full. It is normal to urinate after rising from the bed. The evidence of P.W. 1 Pushplata shows that deceased had taken tea in the morning. There is nothing on the record to suggest that occurrence did not take place as alleged by the" prosecution. The contention of the counsel for the appellant that occurrence had not taken place as alleged by the prosecution has no force and is rejected.
37. Learned counsel for the appellants also challenged the presence of P.W. 1 Pushplata @ Guddi at the time of occurrence. It is submitted" that if she was present she should have been assaulted especially when her two minor children and brother has been killed by the assailants. Her testimony shows that at the time of occurrence she was in the upper portion of the house and her husband and two children were on the ground floor. It has come in evidence that firstly all those who were present on the ground floor were killed and thereafter assailants attacked Vinod who was sleeping on the upper portion. The post mortem report of Vinod shows that he had suffered about twenty one injuries and it must have taken some time also. P.W. 1 Pushplata had stated that she was also attacked by the assailants but she alongwith her mother and younger brother Amit entered into the Kitchen and saved themselves by bolting the door from inside. Merely because she did not receive any injury it cannot be said that her presence in her house is doubtful. On the contrary her presence in the house early in the morning is quite natural. She was mother of two small children and her husband was a homeopathy doctor. He used to go to the hospital at 9 a.m. She is a housewife and looks after the children in the family. Her evidence also shows that a day prior to the occurrence her mother and brother had come to meet her. At the time of occurrence they were also present on the first floor and they saved themselves by entering into the kitchen alongwith her, whereas her brother Vinod who was killed by the assailants. Her testimony inspires full confidence. It is highly improbable that anyone will save the actual killer of his/her whole family and implicate falsely some other persons with whom he/she had some previous enmity. This submission of the counsel for the appellants that P.W. 1 Pushplata @ Guddi was not present in the house at the time of occurrence has no force and is rejected.
38. Learned counsel for the appellants further submitted that the investigation of the case is tainted. It is submitted that there are cutting and over writings in the inquest reports which suggest that the first information report was not in existence at the time of preparation of the inquest reports and the name of accused is not mentioned in the inquest reports. We have considered the submission and find that there is no substance in it. A perusal of the enclosures of the inquest reports shows that first information report was dispatched alongwith the dead bodies. There is no column in the inquest report to mention the name of the accused. The purpose of the proceedings under Section 174 Cr.P.C is merely to ascertain whether a person has died under suspicious circumstances or unnatural death and if so what is the apparent cause of death.
39. Learned counsel for appellant Umesh submitted that he had no connection with any other accused and he had no motive to commit the crime and he was known as Suresh. D.W.1 Rahat Lal was examined to show that his name was Suresh. It is further submitted that his parentage and residence is not mentioned. We have considered the submission of the counsel for the appellant and there is no substance in this submission. The witnesses have mentioned his name and there was no reason to falsely implicate him. P.W. 1 Pushplata mentioned that he was friend of Manoj and her testimony is also corroborated by P.W. 2 Ram Singh. He is alleged to be armed with country made pistol and investigating officer got recovered one country made pistol on his pointing out. The recovery of weapon is also corroborated by the ballistic expert report which show that some of the cartridges, recovered from the place of occurrence, were fired from the weapon recovered on his pointing out. Sessions Judge recorded detailed reasons for rejecting this submission of the counsel for the appellant Umesh and we also concur with the findings of the Sessions Judge in this regard.
40. It is submitted on behalf of appellant Tej pal that informant did not know him prior to the occurrence. It is further submitted that she had admitted that she did not known the name of his father and there was no family relations. We have carefully examined the evidence on record and finds no substance in this submission. Tej Pal's real sister was married with appellant Sonu. He is real nephew of the deceased Rajvir. It is quite natural to know the family relatives of her husband. We have also considered the findings of the Sessions Judge and also concur with the same.
41. Appellant Narendra had taken the plea of alibi. It is submitted that on 1.6.2001 and 2.6.2001 he was on duty in I.T.C. Saharanpur and on 3.6.2001 he had gone to Bijnor for the worship for the treatment of his son. In support of his case D.W. 2 Man Mohan Singh, D.W. 3 Virendra Kumar, D.W. 4 Amar Singh and D.W. 5 Mahendra Joshi were examined. We have examined the testimonies of these witnesses and the Sessions Judge after giving cogent reasons rejected the same and there is nothing on the record to take the view otherwise.
42. It is also contended by the counsel for the appellants that the recovery of weapons on the pointing out of the appellants Manoj, Sonu @ Ajai and Umesh @ Salekh @ Santa @ Suresh should not have been believed on the testimonies of police personnel. No independent witness is supporting the recoveries on the pointing out of the appellants. This submission has no basis. The testimonies of police official cannot be rejected solely on the ground that no independent witness is supporting the same.
43. The Apex Court in the case reported in 2001 S.C.C. (Crl.) 248, State Govt. of N.C.T. of Delhi v. Sunil observed as under:
"Hence it is a fallacious impression that when recovery is effect pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily leads to recovery of any article it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of la, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth. "
44. Investigating officer stated that due to the place of recovery being forest and accused were murderer therefore, no independent person was available for being a witness. The recovery of arms are also corroborated by the ballistic expert report (Ext. Ka-54). The empty cartridges which were recovered from the place of occurrence were fired from the weapons recovered on the pointing out of the appellants Manoj, sonu @ Ajai and Umesh (a) Salekh @ Santa @ Suresh. The Sessions Judge rightly convicted them under 25 Arms Act.
45. Learned counsel for the appellants submits that there is no reliable evidence for the conviction of the appellants under Section 302 I.P.C. read with Section 120B I.P.C. Learned counsel for the appellants placed reliance upon the decisions in the case of State of U.P. v. Hori Lal and Ors. 199 Cr.L.J. 1039 and Sanjeev Kumar v. State of Himachal Pradesh 1999 Cr.L.J. 1138. On the other hand learned counsel for the complainant Shri S.P. Singh submitted that there is an eye witness account in this case with regard to the allegations of conspiracy against the appellants. - In support of his submission he placed reliance in the cases reported in 1971 Cr. L.J. 233 Noor Mohd. v. State of Maharashtra and 1994 Cr.L.J. 3271 Suresh Chand Bahri v. State.
46. We have examined the submissions of learned counsel for the parties and considered the decisions relied upon as well as the evidence on record in this case.
47. We find force in the submission of the counsel that there is no sufficient and reliable evidence for the conviction of the appellants under Section 302/120B I.P.C. In the first information report it was alleged by the informant that in the murder of his family Raj Pal, his son in law Shiv Pal and brother in law Dinesh had conspired. There was no allegation that all the accused had conspired. In her deposition she stated that few months prior to the occurrence Wife of Raj Pal had died. In this connection Raj Pal, his son Manoj and Sonu, Tej Pal Dinesh Narendra and Shiv Pal were sitting in their courtyard. They were talking that every one should be eliminated to settle the land dispute with Rajvir and his properties will also be theirs. The evidence on record about conspiracy is not very convincing. She made only general allegations. She did not specify as to who among them, spoken these words. There are some contradictions with regard to the actual occasion when these words were spoken. In her deposition she had stated that the house of Raj Pal is in the back of her house and there is a separate passage for his house and has no connection with her house. There is no door or window of her house towards his house. It is highly doubtful whether she could hear the conversation which was taking place in the house of Raj Pal. Even if she had heard this conversation then why she did not lodge any report and even she did not mention about this conversation in her report goes to show that this is an after thought. It is true that the first information report is not encyclopedia to mention all these facts as held by the learned sessions judge. In the first information report she did mention about the conspiracy of three persons but she did not mention about the conspiracy by all the persons. It is also important to point out that criminal conspiracy is hatched in secrecy. It is not believable that accused will hatch the conspiracy about the elimination of whole family sitting in a courtyard in presence of several persons and talking so loudly to enable informant to hear in her house which is completely separated from their house. In our opinion the evidence with regard to conspiracy does not inspire confidence, therefore, the findings with regard to conspiracy is set aside and consequently, the conviction of the appellants under Section 302/120B is also set aside
48. Lastly, the question that arises for serious consideration is whether imposition of death penalty 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 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.
49. The Sessions Judge considered the number of deceased, number of injuries and also held that it is too planned murdered and came to the conclusion that it is a 'rarest of rare case'. 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 four murders but in our opinion ipso facto that would not be a ground for confirming the death sentence of appellants.
50. 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.
49. 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.
50. 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.
51. We therefore, reduce the death sentence of the appellants, Manoj, Sonu, Umesh, Tej Pal and Narendra to imprisonment for life.
52. For the facts and circumstances stated above, the above appeals are decided as under:
Crl. Appeal No. 2181 of 2004 Tej Pal v. State of U.P.
The appeal is partly allowed. The conviction of appellant under Section 302/120 I.P.C. is set aside. However, the death sentence of appellant Tej Pal under Section 302/149 I.P.C. awarded by the trial court is converted to life imprisonment. The conviction and sentences under Section 148 and 452 I.P.C. awarded by the trial court, are maintained. The appellant is in jail. He shall be kept there to serve out his sentence, as awarded by the trial court and modified by us.
Crl. Appeal No. 1997 of 2004 Narendra v. State The appeal is partly allowed. The conviction of appellant under Section 302/120B I.P.C. is set aside. However, the death sentence of appellant Narendra under Section 302/149 I.P.C. awarded by the trial court is converted to life imprisonment. The conviction and sentences under Section 148 and 452 I.P.C. awarded by the trial court are maintained. The appellant is in jail. He shall be kept there to serve out his sentence, as awarded by the trial court and modified by us.
Crl. Appeal No. 2027 of 2004 Umesh @ Salekh @ Santa @ Suresh v. State The appeal is partly allowed. The conviction of appellant under Section 302/120B I.P.C. is set aside. However, the death sentence of appellant Umesh @ Salekh @ Santa @ Suresh under Section 302/149 I.P.C. awarded by the trial court is converted to life imprisonment. The conviction and sentence under Section 148, 452 I.P.C. and Section 25 Arms Act, awarded by the trial court are maintained. The appellant is in jail. He shall be kept there to serve out his sentence, as awarded by the trial court and modified by us.
Crl. Appeal No. 2129 of 2004 Manoj and Sonu alias Ajay v. State The appeal is partly allowed. The conviction of appellants under Section 320/120B I.P.C. is set aside. However, the death sentence of appellants Manoj and Sonu alias Ajay under Section 302/149 I.P.C. awarded by the trial court is converted to life imprisonment. The conviction and sentence under Section 148, 452 I.P.C. and Section 25 Arms Act, awarded by the trial court are maintained. The appellants are in jail. They shall be kept there to serve out their sentences, as awarded by the trial court and modified by us.
Crl. Appeal No. 2936 of 2004 Dinesh v. State The appeal is allowed. The appellant Dinesh is acquitted of the charges. He is on bail. He need not to surrender and sureties are discharged.
Crl. Appeal No. 2903 of 2004 Sheo Pal v. State The appeal is allowed. The appellant Sheo Pal is acquitted of the charges. He is on bail. He need not to surrender and sureties are discharged.
Criminal Reference for confirmation of the death sentence of appellants, Manoj, Sonu, Umesh, Tej Pal and Narendra is rejected.