JUDGMENT
Chandramauli Kr. Prasad, J.
Page 0774
1. In an incident which had taken place in the night of 25.12.1998 at Chilbila, a remote village within the Police Station Dinara in the district of Rohtas, eight persons lost their lives. Sharda Devi lost her husband Bharat Choudhary, two sons Dhanji Choudhary aged about 8 years, Manji Choudhary aged about 3 years, two daughters Dhanwanti Kumari aged about 6 years and Richa Kumari aged about 2×1/2 months, two brothers, namely, Sunu Kumar Choudhary, aged about 6 years and Gulab Chand Choudnary aged about 18 years and a co-villager Ram Awadhesh Choudhary aged about 20 years.
2. Altogether eight persons were put on trial and the 7th Additional Sessions Judge, Rohtas at Sasaram, by judgment dated 14th January, 2004 passed in Sessions Trial No. 342 of 1999, acquitted three accused persons, namely, Dashrath Choudhary, Rajesh Choudhary and Jira Devi but found Umesh Choudhary, Jokhan Choudhary, Dinesh Choudhary, Anil Choudhary and Sudama Choudhary guilty under Section 302, 149, 460 of the Indian Penal Code and Section 27 of the Arms Act. In addition, Umesh Choudhary has been found guilty of offence under Section 307 of the Indian Penal, Code. The learned Judge, sentenced all of them to death under Section 302/149 of the Indian Penal Code but no separate sentence has been awarded for other offences.
3. The learned Judge had submitted the proceeding to this Court for confirmation of death sentence as provided under Section 366 of the Code of Criminal Procedure.
4. Umesh Choudhary, Dinesh Choudhary and Anil Choudhary, being aggrieved by their conviction and sentence, have preferred Cr.Appeal No. 53 of 2004, whereas appeal preferred by Jokhan Choudhary and Sudama Choudhary has been registered as Cr.Appeal No. 84 of 2004.
5. Both the appeals and the Death Reference have been heard together and they are being disposed off by this common judgment.
6. Sharda Devi (P.W.7) set the criminal case in motion by giving fardbeyan on 26.12.1998 before the Officer-in-Charge of Dinara Police Station at 9 A.M. at the Government Hospital, Dinara and according to her, on 25.12.1998, in the night, she after making sleeping arrangements of her husband, son Dhanji Choudhary and brother Sonu Kumar in the middle room of the house, daughter Dhanwanti Kumari and Richa Kumari and son Manji Choudhary in the eastern room and brother Gulabchand Choudhary and co-villager Ram Awadhesh Choudhary on the bed made of paddy straw spread on Patahua (Hanging base) in the western room, went to sleep in the Page 0775 eastern room along with her son and daughters. According to her, at 11.10 in the night, she heard the sound of jumping of 7-8 persons in the court-yard as also opening of the door of the house. According to her, she heard sound of gun-shot from the middle room of the house where her husband Bharat Choudhary, son Dhanji choudhary, brother Sonu Kumar Choudhary were sleeping. On hearing the gun sound, informant got up from the bed, came to the door of her room and saw appellants Umesh Choudhary armed with katta (country made pistol), Anil Choudahry armed with rifle, Dinesh Choudhary armed with gun, Jokhan Choudhary armed with rifle, Jira Devi (since acquitted) armed with Garasi, Muneshri Devi (who died during the course of trial itself) armed with sword and Sudama Choudhary armed with rifle besides three other accused persons coming out from the middle room of the house. According to the informant, appellant Umesh Choudhary fired at her with country made pistol when she ran for safety in her room whreuon all the accused persons entered into her room and Umesh Choudhary again fired causing fracture to her left leg below knee. It has been further alleged that Umesh Choudahry removed the sheet covering her daughters Dhanwanti Kumari and Richa Kumari and son Manji Choudhary and rest of them resorted to firing from point blank range with rifle and gun.
7. It has been further alleged that after committing the murder in the eastern room, accused persons entered into the western room where her brother Gulabchand Choudhary and co-villager Ram Awadhesh Choudhary were sleeping and after climbing on Patahua, they shot them dead and thereafter came back in the court-yard. According to the informant, at that very moment, Jira Devi (since acquitted) armed with Garasi and Muneshwari Devi shouted that the inmates of the house be cut at which other accused persons disclosed that they had already killed the inmates of the house. Thereafter, according to the prosecution, firing started from the village side and on hearing the same, all the assailants fled away.
8. According to the prosecution, the motive for the occurrence is to usurp her property as her husband is unsane. It has also been stated in the fardbeyan that the informant recognized the accused in the light of Deepak (lamp).
9. On the basis of the aforesaid information, Dinara P.S. Case No. 187 of 1998 was registered and a formal first information report was drawn on 26.12.1998 at 9.30 A.M. under Section 147, 148, 149, 302, 324, 326, 357 of the Indian Penal Code and Section 27 of the Arms Act. The police, after investigation, submitted charge sheet against nine persons which included one Muneshari Devi, who died during the course of trial.
10. The learned Magistrate took cognizance of the offences and ultimately the case was committed to the Court of Sessions for trial. All the accused persons were charged for possessing fire arms for unlawful purposes punishable under Section 27 of the Arms Act, causing death of eight persons in prosecution of their common object punishable under Section 302/149 of the Indian Penal Code as also attempting to cause the death of Sharda Devi punishable under Section 307 of the Indian Penal Code. The accused persons pleaded not guilty and claimed to be tried.
11. From the trend of the cross-examination, their defence seems to be that informant Sharda Devi had illicit relationship with the deceased Ram Awadhesh Choudhary as her husband was insane and hence, all the family members have been killed.
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12. The prosecution, in support of its case, had altogether examined 11 witnesses out of which only P.W.7 Sharda Devi claims to be an eye witness to the occurrence. P.W.1 Banshi Choudhary is a co-villager who reached at the place of occurrence on hearing gun-sound and saw the accused persons variously armed fleeing away from the place of occurence. According to him, the informant disclosed the names of the assailants when he met her after the incident. P.W.2 Gurbu Choudhary is another co-villager who had arrived at the place of occurrence after the occurence but he does not claim to have seen any of the assailants fleeing away from there but according to him, the informant disclosed the names of assailants to him. P.W.3 Dashrath Choudhary is the father of the informant, who was at his village at the time of occurrence and had met the informant while she was being taken for treatment and to whom she disclosed the names of the assailants. P.W.4 Hare Ram Choudhary is the elder brother of the informant and came to the village on the following day of the occurrence and to whom the informant disclosed the names of the assailants. P.W.5 Parmeshwar Choudhary and P.W.6 Mangal Choudhary have been declared hostile.
13. P.W.8 Dr. Shankar Kumr Jha and P.W.9 Dr. Arun Kumar are the doctors who conducted the autopsy on the dead bodies of the deceased in the campus of Dinara Police Station, under the orders of the District Magistrate. P.W.8 had conducted the post mortem examination on the dead bodies of Ram Awadhesh Choudhary, Bharat Choudhary, Sonu Kumar Choudhary and Dhanji Choudhary and proved the post mortem reports (Exts.3 to 3/3). P.W.9 Dr. Arun Kumar had conducted the post mortem examination on the dead bodies of deceased Manji Choudhary, Dhanwanti Kumari, Richa Kumari and Gulab Chand Choudhary and proved the post mortem reports (Ext.3/4 to 3/7).
14. P.W.10 Sudhishtha Mishra, is a Constable and formal witness in the case who had brought the seized material in the Court, whereas P.W.11 Krishna Baitha is the Investigating Officer of the case who had inspected the place of occurrence, recorded the statements of the witneses and submitted the charge sheet.
15. It is relevant here to state that the statement of the informant Sharda Devi was recorded under Section 164 of the Code of Criminal Procedure during the course of investigation and has been brought on record as Exhibit-11 by the prosecution.
16. P.W.1 Bansi Chaudhary has deposed that on the date of occurrence at about 11.30 in the night while he was at Khalihan, heard sound of firing from the side of the house of Bharat Chaudhary and he alongwith a co-villager Parmeshwar Chaudhary (P.W.5) proceeded towards north of the village flashing the torches and saw in the torch light appellant Umesh Chaudhary armed with country made pistol, appellants Anil Chaudhary and Jokhan Chaudhary armed with rifle, appellante Jeera Devi (since acquitted) armed with garasi, Muneshwari Devi (since dead) armed with sword, appellant Sudama Chaudhary armed with rifle and appellants Dashrath Chaudhary and Rajesh Chaudhary (since acquitted) armed with gun. According to this witness, the aforesaid accused persons were going towards the north after coming out from the house of Bharat Chaudhary. He alongwith Parmeshwar Chaudhary, who later on has been declared hostile by the prosecution, went to the Darwaja of Bharat Chaudhary and at that time many villagers had collected there. He entered in the western room of the house and saw there dead bodies of Gulab Chandra Chaudhary and Awadhesh Chaudhary on the Patahua. They were shot dead and blood was oozing out from their bodies. In the middle room of the house this witness saw the dead bodies of Page 0777 Bharat Chaudhary, Dhanjee Chaudhary and Sonu Kumar. They were also shot dead and according to this witness he saw blood oozing out from their bodies. Thereafter according to this witness when he went in the eastern room, saw the dead bodies of Manjee Chaudhary, Dhanwanti Kumari and Richa Kumari and all of them were shot dead and had gun-shot injuries.
17. According to this witness, a diya (lamp) made of glass was burning in the eastern room where he saw P.W.7 Sharda Devi (informant) weeping with gun-shot injuries in her leg, who disclosed the names of all the appellants herein and stated that after committing the murder of her family members they fled away. Sharda Devi had further disclosed that there were three other persons had also participated in the crime, but she could not recognise them. Jeera Devi (since acquitted) and Muneshwari Devi (since dead) were shouting to cut all the persons of the family with garasi and sword, but the other accused persons disclosed that they had already killed all the family members and hence they should flee away.
18. He has admitted to have purchased a tractor after obtaining loan from the Bikramganj Branch of the State Bank of India and for that purpose he mortgaged 6 bighas of his land as also the land belonging to the informant Sharda Devi and her husband Bharat Chaudhary. He has also admitted that after the occurrence he had purchased 19 kathas of land from Sharda Devi. In the cross-examination he claimed to have produced the torch before the Investigating Officer who after flashing the same, returned to him. In the cross-examination he reiterated that he had identified the accused persons in the torch-light while they were fleeing away from the place of occurrence. He has admitted that the police had demolisehd the houses of the accused persons and all his belongings were taken away by them. He had denied the suggestion that in order to grab the landed property of the informant he had hatched the conspiracy to terrorise the accused persons. He had also denied the suggestion that he was in love with the informant.
19. In sum and substance the evidence of this witness is that on hearing the alarm he proceeded towards the place of occurrence, where he saw in the torch light the accused persons fleeing away from the occurrence and when he entered the rooms where the occurrence had taken place found the dead bodies of the sons, daughters, brothers and a co-villager of the informant and the informant in injured condition, who had disclosed the names of the appellants as assailants.
20. P.W.2 Ghurhu Chaudhary is a co-villager and father of deceased Ram Awadhesh Chaudhary. According to him while he was guarding the paddy, heard gun-sound from the house of Bharat Chaudhary and when he went there saw 10-12 persons coming out from his house to whom he could not recognize. According to this witness, P.W.1 Bansi Chaudhary, P.W.5 Parmeshwar Chaudhary and other villagers had gone to the house of Bharat Chaudhary, where informant Sharda Devi disclosed the names of the appellants as also other persons as assailants. He had seen the dead bodies in different rooms.
21. P.W.3 Dashrath Chaudhary is the father of the informant and resided, at a distance of about 3 kilometers from the village of his daughter. According to his evidence, after knowing labout the incident in the morning at 7 o’ clock proceeded to the village of his daughter and met her in the way, where she disclosed that appellants Umesh Chaudhary, Anil Choudhary, Dinesh Chaudhary, Jokhan Choudhary and Sudama Chaudhary besides other accused persons shot dead her family Page 0778 members and also shot at her leg. He is a witness to the fard beyan given by her daughter which had led to lodging of the first information report. P.W.3 in the cross-examination had stated that his daughter was admitted in a Hospital at Patna till the date of his deposition i.e. 2nd of August, 2000. In the cross-examination he has further stated that P.W.1 Bansi Chaudhary was present at the time when his daughter was revealing the names of the assailants to him.
22. P.W.4 Hare Ram Chaudhary is the brother of the informant and he does not claim to be an eye-witness to the occurrence. He had stated that the name of father of Bharat Chaudhary was Ram Swarup Chaudhary, whereas the father’s name of accused Jokhan Chaudhary was Ram Subhag Chaudhary and both were full brothers and each of them had got 6 bighas of land in mutual partition. According to this witness, after partition Ram Swarup Chaudhary had purchased 6 bighas of land and in that accused Jokhan Chaudhary and his father Ram Subhag Chaudhary used to demand share which was resisted by Ram Swarup Chaudhary. According to this witness, on 26.12.1998 he returned to village of his sister where he met her, who disclosed that Dinesh Chaudhary, Anil Chaudhary, Jeera Devi, Muneshwari Devi and Sudama Devi had committed the offence and according to him murders were committed to grab the entire property of Bharat Chaudhary.
23. P.W.5 Parmeshwar Chaudhary is a co-villager and has been declared hostile by the prosecution when he had stated that he had not disclosed the names of the assailants to the Sub-Inspector of Police. However he has deposed that he saw informant Sharda Devi lying injured in the eastern room of the house with her leg fractured due to gun shot injuries as also the dead bodies of two children in the said room.
24. P.W.6 Mangal Chaudhary is another co-villager and witness to the Inquest report and has been declared hostile by the prosecution. In the cross-examination he had stated that P.W.1 Bansi Chaudhary and P.W.4 Hare Ram Chaudhary were with him at Natwar in the night of the occurrence.
25. P.W.7 Sharda Devi is the informant of the case, who had lost her husband, four children, two brothers and a co-villager in the incident. According to her, she was sleeping in the eastern room alongwith 3 years son Manjee Chaudhary, 6 years daughter Dhanwanti Kumari and 1 1/2 months old daughter Richa Kumari whereas her husband Bharat Chaudhary, her elder son Dhanjee Chaudhary aged about 8 years and his minor brother Sonu Chaudhary aged about 6 years were sleeping in the middle room of the house and in the western room of the house, co-villager Ram Awadhesh Chaudhary and her brother Gulab Chandra Chaudhary were sleeping. According to her, after making arrangements, she came to her room and heard sound of jumping of 8-9 persons in the courtyard as also opening of the entrance of the house. Thereafter, according to this witness, she heard the sound of continuous firing coming from the middle room and after hearing the gun sound she got up from the bed, came at the door of the room and in the lamp saw appellant Umesh Chaudhary armed with Katta, appellant Anil Chaudhary, Jokhan Chaudhary and Sudama Chaudhary armed with rifle and appellant Dinesh Chaudhary armed with gun. According to her, appellant Umesh Chaudhary fired at her but it did not hit her and second firing of appellant Umesh Chaudhary caused injury on her left leg below the knee and she fell down by the side of three minor children. She had further stated that the appellants thereafter entered in the room and Umesh Chaudhary pulled the blanket (Chaddar) from her son Manjee Chaudhary, daughters Dhanwanti Kumari and Richa Kumari and Page 0779 all were shot dead by them. After that accused persons entered into the western room and shot dead Ram Awadhesh Chaudhary and Gulab Chandra Chaudhary. After committing the murder of aforesaid persons, according to P.W.7, all the accused persons came to the courtyard of her house, where they disclosed to accused Jeera Devi (since acquitted) and Muneshwari Devi (since dead) that they had killed the deceased. According to her, after the incident villagers including P.W.1 Bansi Chaudhary and P.W.5 Parmeshwar Chaudhary came, to whom she narrated the incident and disclosed the names of the assailants. According to her, in the morning villagers took her to Hospital on a tractor and the Sub-Inspector of Police had recorded her fard beyan. She had further stated that after recording of the fard beyan at Dinara Hospital she was referred to Patna Medical College & Hospital for treatment. She had also stated that her statement was recorded by a Magistrate while she was in the Hospital.
26. P.W.8 and P.W.9 are Dr. Shankar Kumar Jha and Dr. Arun Kumar respectively, who were at the relevant time posted as Civil Assistant Surgeons at Sadar Hospital, Sasaram and under the orders of the District Magistrate conducted the postmortem examination in the campus of Dinara Police Station, and have proved the postmortem reports.
27. P.W.8 Dr. Shankar Kumar Jha had conducted postmortems on the dead bodies of Ram Awadhesh Chaudhary, Bharat Chaudhary, Sonu Kumar Chaudhary and Dhanjee Chaudhary and had proved their postmortem reports (Exhibit-3 to 3/3). He had conducted the postmortem examination on the dead body of Ram Awadhesh Chaudhary, on 27.12.1998 at 1.10 P.M. and found the following ante-mortem injuries on his person:
(i) Lacerated wound over back of right hand at the base of thumb 3″x2″x1/3″ with black margin on lateral aspect of the wound.
(ii) Lacerated wound with black and inverted margin over manubrium sternum of chest 2″x1″x1/2″ wound of entry.
(iii) Lacerated wound with inverted margin on back of chest just lateral to T-10 vertebra 2″x1″x1/2″ wound of exit.
28. Tatooing present around wound.
29. This doctor on the same day at 1.30 P.M. conducted the postmortem examination on the dead body of deceased Bharat Chaudhary and found the following ante-mortem injures on his person:
(i) Lacerated wound with black and inverted margin present over left side of chest just left to sternum in second inter costal space 1 1/2″x1″x1″x cavity deep.
Tatooing present round the wound.
(ii) On opening the chest – pleural cavity full of blood, heart ruptured. Left lung lacerated. Right lung intact and pale. One metalic piece and one wad found lodged beneath the lower angle at left scapula.
30. This doctor on the same day at 1.50 P.M. conducted the postmortem examination on the dead body of Sonu Kumar Chaudhary and found the following injuries on his person:
(i) Lacerated wound with black and inverted margin with tatooing round the wound on front of chest on sternum corresponding to 2nd and 3rd space of size 4 “x2″x cavity deep. Wound of entry. Muscles round the wound charred.
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(ii) Lacerated wound with inverted margin on back of chest 2″ left to vertebral column at T-10 level, size 2″x1″x2″ wound of exit. Both wounds communicating each other.
(iii) On opening the chest stermun fractured, both lungs lacerated, heart ruptured, pleural cavity contains blood, 9th and 10th rib found fractured at exit side, 2nd, 3rd and 4th rib on front found fractured on both sides.
31. This doctor on the same day at 2.15 P.M. had also conducted postmortem examination on the dead body of Dhanji Chaudhary and found the following injuries on his person:
(i) Lacerated wound with black and inverted margin with tatooing around wound over left loin with loop of intestine protruding out. Size of the wound 11 1/2″x1 “x cavity deep.
(ii) Lacerated wound with black and inverted margin on right axilla of size 1″x1/2″x cavity deep with tatooing over right side of chest on lateral and front part.
(iii) On opening the chest right pleural cavity full of blood. Right lung lacerated. Two wads and pellets found in right lung, left lung intact and pale front part.
(iv) On opening the abdomen, peritoneum cavity full of blood. Liver lacerated intestine ruptured at many places. Spleen and kidneys intact and pale. Stomach contains undigested rice about 1 ozs. Small intestine contains fluid and gas. Large intestine contains gas and fluid. Bladder contains urine about 10 ml.
32. In the opinion of the doctor, deaths had occurred due to shock and haemorrhage as a result of the injuries found on the person of the deceased which were caused by fire arm and the time elapsed since death is 24 to 36 hours.
33. P.W.9 Dr. Arun Kumar had conducted the postmortem examination on the dead bodies of Manji Chaudhary, Dhanwanti Kumari, Richa Kumari and Gulab Chandra Chaudhary and had also proved their postmortem reports (Ext-3/4 to 3/7). According to this witness, on 27.12.1998 at 2.25 P.M. he had conducted the postmortem examination on the dead body of Manji Chaudhary and observed the following details on his dead body:
(i) Lacerated wound with black and inverted margin and tatooing around over chest on sternum near third intercoastal space.
(ii) Lacerated wound with inverted margin over the back in interscapular region 4″x3″x cavity deep.
34. Both wounds communicate to each other.
35. This doctor on the same day at 2.30 P.M. had conducted the postmortem examination on the dead body of Dhanwanti Kumari and found the following external injuries on her person:
(i) Lacerated wound with black inverted margin with tatooing around over the left posterior axiliary line 1″X1/2″X bone deep.
(ii) Lacerated wound 1″x1/2″x cavity deep with inverted margin with thoracic 6th level at right posterior axiliary line.
36. This doctor had further conducted the postmortem examination on the dead body of Richa Kumari on the same day at 2.40 P.M. and found the following external injuries on her person:
(i) Lacerated wound 1 1/2″x1/2″x cavity deep with blacken inverted margin with tatooing around.
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(ii) Lacerated wound over the back of left side in inter scapular region with inverted margin.
37. This doctor had also conducted the postmortem examination on the dead body of Gulab Chandra Chaudhary on the same day and found the following details on his dead body:
(i) Lacerated wound 2″x1″ with inverted blacken margin with tatooing around over the front of chest on right 2nd intercoastal space.
(ii) Lacerated wound 1″x1/2″ with inverted margin on left side of back of chest at thorasic level 2 lateral to vertebral colomn.
(iii) Tatooing lover right arm on anterior aspect.
38. In the opinion of the doctor, deaths had taken place due to shock and haemorrhage caused by the injuries found on the persons of the deceased and time elapsed since death is 24 to 36 hours.
39. P.W.10 Sudishta Mishra is a Constable and a formal witness, who has brought the material Exhibit to the Court.
40. P.W.11 Krishna Baitha, at the relevant time, was Officer-Incharge of the Dinara Police Station and the Investigating Officer of the case. He had inspected the, place of occurrence, recorded the statement of the witnesses and had found dead bodies in the three rooms. He had also found blood-stains at the place of occurrence as also the empty cartridges. He had also prepared the Inquest report and stated that it has come during the investigation that the informant and her mother were sleeping in the same room. He had also stated that he had recorded the statement of the mother of the informant. She has not been examined in the case.
41. The court below on appreciation of evidence came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and accordingly convicted and sentenced the appellants as above.
42. We have heard Mr. Vindhya Keshari Kumar, Senior Advocate on behalf of the appellants in Criminal Appeal No. 53 of 2004, whereas Mr. Sanjay Singh appears on behalf of the appellants in Criminal Appeal No. 84 of 2004. Mr. Arunj Singh also appears on behalf of the appellants in Criminal Appeal No. 84 of 2004 as Amicus Curiae. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor appears on behalf of the State.
43. Learned Counsels for the appellants contend that such a ghastly crime cannot be committed without any motive and the prosecution having not brought on record any motive for commission of the crime, appellants deserve to be given the benefit of doubt. Mr. Prasad, however, contends that the very assumption of the appellants that the prosecution has not brought on record the motive red-commission of the offence is unfounded on fact. In this connection he has drawn our attention to the evidence of P.W.4 Hare Ram choudhary, the brother of the informant, who has categorically stated in his evidence that Jokhan Choudhary and Ram Subhag Choudhary always used to demand share in 6 bighas of land which Ram Swarup Choudhary, the father-in-law of the informant, had purchased after partition which demand was refutted by him. Our attention has been drawn to the evidence of the aforesaid witness wherein he has further stated that after the death of Ram Swarup Chaudhary they continued to make demand for land from Bharath Chaudhary which Page 0782 he denied. Our attention has also been drawn to the evidence of the informant P.W.7 Sharda Devi in paragraph 19 of evidence where she had stated that “the cause of occurrence this that my husband was mentally unsound, hence, the accused persons wanted to grab the property after killing all of us”.
44. Having appreciated the rival submission, I find substance in the submission of Mr. Prasad. P.W.4 Hare Ram Chaudhary, the brother of the informant, and P.W.7 Sharda Devi had given the motive for the commission of the crime. There is nothing on record to suggest that their evidence on the aforesaid point is in any way tainted and, as such, the case of the prosecution is not fit to be rejected on the purported ground that the prosecution has not been able to prove the motive for commission of the crime.
45. It is to be borne in mind that motive for commission of the offence is lodged in the mind of the assailants and in case the prosecution has been able to prove its case beyond all reasonable doubt by producing witnesses, who are reliable motive on part of the appellants in commission of the crime would take a back seat and it shall not be necessary for the prosecution to prove the motive for commission of crime. Thus, in my opinion, what would be necessary to examine is to the truthfulness or the otherwise of the evidence of the witnesses.
46. It is relevant here to state that excepting P.W.7 Sharda Devi, no other witness claim to be an eye-witness to the occurrence. Sharda Devi had deposed about the manner in which the occurrence had taken place and had also disclosed that when Bansi Choudhary (P.W.1) and Ghurhu Choudhary (P.W.2) arrived at the scene of occurrence, she disclosed the names of the assailants to them. P.W.1 Bansi Choudhary had stated in his deposition that on hearing gun-sound when he reached the scene of crime he saw the appellants fleeing away from there and P.W.7 Sharda Devi had disclosed the names of the assailants to him. P.W.2 Ghurhu Choudhary had also reached the place of occurrence immediately after the occurrence but is honest enough to state that he himself did not identify any of the assailants but had deposed that the names of the appellants, as assailants, were disclosed by P.W.7 Sharda Devi.
47. Learned Counsel for the appellants contend that evidence of P.W.1 Bansi Choudhary and P.W.2 Ghurhu Choudhary are fit to be discarded and once it is done so the whole prosecution case shall rest on the sole testimony of P.W.7 Sharda Devi and her evidence being uncorroborated, the entire prosecution story deserves to be rejected. It has been pointed out that P.W.1 Bansi Choudhary had purchased and mortgaged land belonging to the informant’s husband and, as such, he is an interested witness. It has also been pointed out that the names of these witnesses have not been mentioned in the first information report. This according to the learned Counsel clearly shows that they have been planted to support the case of the prosecution.
48. I do not find any substance in the submission of the learned Counsel for the appellants. It is well settled that the evidence of a witness is not fit to be rejected only on the ground that they are interested. Merely the fact that P.W.1 Bansi, Choudhary had mortgaged the land belonging to the informant’s husband and much after the occurrence had purchased the land itself shall not make his evidence suspect. The informant has lost all her family members and in that view of the matter her conduct in disposing of the property and P.W.1 Bansi Choudhary purchasing Page 0783 it cannot be said to be an unnatural act. P.W.7 Sharda Devi’s position can well be imagined, she has not lost only her husband but all her children and in such a situation she must be scared in going to the village and hence deciding to dispose of the property is but natural. The plea of the appellants that their evidence is also fit to be discarded only on the ground that their names have not been disclosed by the informant in the first information report is also without any substance. The first information report is not an encyclopaedia and is not required to contain all the details. Here in the present case the informant has lost all his family members and her mental condition in such a situation can well be imagined. In such state of mind her failure to disclose the names of the two witnesses in the first information report cannot be said to be unnatural. The informant Sharda Devi (P.W.7) in her deposition had clearly stated that after P.W.1 Bansi Choudhary and P.W.2 Ghurhu Choudhary came at the place of occurrence she disclosed the names of the assailants. They in turn have also deposed that the names of the assailants were disclosed to them by the informant Sharda Devi. In that view of the matter, I am of the opinion that the evidence of P.W.1 Bansi Choudhary and P.W.2 Ghurhu Choudhary are not fit to be discarded on the grounds urged by the appellants.
49. Learned Counsel for the appellants contend that the police after investigation had submitted charge sheet against the appellants and given the names of several witnesses in the charge sheet but only eleven of them have been examined. It has been pointed out that one of the important witnesses in the case shown in the charge sheet is Lakshminiya Devi, the mother of the informant, who although was present in the house at the time of occurrence but has not been examined. In support of the submission, reliance has been placed on a Division Bench judgment of this Court in the case of Ram Ekbal Prasad and Ors. v. the State of Bihar 2001(3) PLJR 289 and our attention has been drawn to paragraph 8 of the judgment which reads as follows:
P.W.1, P.W.2 and P.W.3 claim to have seen the occurrence. In their evidence they have stated that many people came at the place of occurrence but they did not disclose about the occurrence to any one. The conduct of the witnesses appears to be something unnatural. The natural conduct is that if any incident takes place the person present there would disclose about the incident to others. We have already expressed suspicion with respect to recording of fardbeyan at the relevant time. Suggestion was also given to the witnesses that no occurrence took place in the manner as alleged by the prosecution. Therefore, it appears that real fact was not brought on the record. All the witnesses have stated in their evidence that Anil and Rajeshwar were present at the place of occurrence from before and they had seen the occurrence but they have not been examined nor any reason has been assigned for their non-examination. P.W.1, P.W.2 and P.W.3 are sons of the deceased. In such a situation, the examination of independent witnesses i.e. Anil and Rajeshwar, who were present from before was necessary to unfold the prosecution case but those witnesses have been withheld.
(Underlining mine)
50. Reliance has also been placed on a decision of the Supreme Court in the case of Habeeb Mohammad, appellant v. State of Hyderabad and our attention has been drawn to the following passage from paragraph 11 of the judgment which reads as follows:
In our opinion, the appellant was considerably prejudiced by the omission on the part of the prosecution to examine Biabani and the other officers in the Page 0784 circumstances of this case and his conviction merely based on the testimony of the police jamadar, in the absence of Biabani and other witnesses admittedly present on the scene, cannot be said to have been arrived at after a fair trial, particularly when no satisfactory explanation has been given or even attempted for this omission.
51. Yet another decision on which reliance has been placed is the decision of the Supreme Court in the case of the State of U.P. and Anr. v. Jaggo alias Jagdish and our attention has been drawn to paragraph 15 of the judgment which reads as follows:
Ramesh is the person with whom Lalu was talking at the time of the alleged occurrence. Ramesh was mentioned in the first information report. It is true that all the witnesses of the prosecution need not be called but it is important to notice that the witness whose evidence is essential to the “unfolding of the narrative” should be called. This salutary principle in criminal trials has been stressed by this Court in the case of Habeeb Mohammad v. The State of Hyderabad, , for eliciting the truth. The absence of Ramesh from the prosecution evidence seriously affects the truth of the prosecution case.
52. Mr. Prasad, however, contends that the entire prosecution story cannot be discarded only on the ground that all the witnesses mentioned in the charge sheet have not been examined. He points out that the informant had left the village and she had clearly stated in her evidence that “people of the village do not want to depose as the relatives of the accused persons threatened them to kill if they depose”. As regards the non-examination of the mother of the informant, he points out that in the evidence of the informant it has come that “after the occurrence she is unable to move and her eye sight is poor”. Mr. Prasad emphasizes that the worth of evidence on record deserves to be appreciated and if that brings home the charge against the appellants beyond all reasonable doubt the prosecution story cannot be rejected only on the ground that the witnesses named in the charge sheet have not been examined. Reliance has been placed on a decision of the Supreme Court in the case of Babu Ram and Anr. v. State of U.P. and Ors. and our attention has been drawn to paragraph 7 of the judgment which reads as follows:
It was submitted by the learned Counsel for the appellants that Ram Autar, an independent eyewitness present at the scene of occurrence according to the prosecution case and a government servant has not been examined, and therefore, an adverse inference should be drawn against the prosecution. It is settled law that non-examination of an eyewitness cannot be pressed into service like a ritualistic formula for discarding the prosecution case with a stroke of the pen. An effort should be made at appreciating the worth of such evidence as has been adduced. If the evidence coming from the mouth of the eyewitnesses examined in the case is found to be trustworthy and worth being relied on so as to form a safe basis for recording a finding of guilt of the accused persons then non-examination of yet another witness who would have merely repeated the same story as has already been narrated by other reliable witnesses would not cause any dent or infirmity in the prosecution case. In the case at hand we additionally find from the testimony of Asharfi Lal that in Page 0785 spite of being a government servant and not involved in local village disputes he is afraid of deposing against the accused persons and there is substance in the submission of the learned Counsel for the State that Ram Autar if tendered in the witness box would have followed the same track as was chosen by Asharfi Lal, PW3.
(Underlining mine)
53. Having appreciated the rival submission, I find substance in the submission of Mr. Prasad. Informant had stated in her evidence that because of the threat by the relative of the appellants other witness are scared to depose in the case. So far as the mother of the informant is concerned, it has come in evidence that she is not in a position to move and her eye sight is weak. Although the witnesses are eyes and ears of the Court, who disclose to it the manner in which occurrence takes place but the tendency of the witnesses not to depose in the case and to avoid appearance on the purported plea of their personal safety and the casual attitude is well known. I am of the opinion that the evidence on record deserves to be examined and appreciated and it found truthful conviction can be sustained. The evidence on record cannot be discarded only on the ground that the prosecution had not produced all the witnesses mentioned in the charge sheet.
54. Learned Counsels for the appellants contend that appellants were well known to the informant and in that situation it was expected from them that they would conceal their identity. They submit that none of the accused had covered their face which is absolutely unnatural and hence appellants deserve to be given the benefit of doubt. In this connection our attention has been drawn to paragraph 63 of the evidence of P.W.7 Sharda Devi wherein she had stated that none of the accused involved in the occurrence had covered their faces with Galmochha or painted their faces”.
55. I do not find any substance in the submission of the learned Counsel for the appellants. In the occurrence entire family members of the informant have been wiped out. Not only that, the informant had also sustained gun shot injury. Further it depends upon the temperament of the perpetrators of crime. Merely the fact that the appellants have not concealed or painted their faces to conceal their identity itself does not create any doubt to the case of the prosecution.
56. Learned Counsels for the appellants submit that according to the prosecution, the occurrence had taken place in the dead of night and although the prosecution witnesses have stated about the source of identification, but the Investigating Officer having not seized the source of identification i.e. torch and Dibiya stated by the prosecution witnesses, it has to be held that in fact there did not exist any source of identification.
57. I do not find any substance in the submission of the learned Counsel for the appellants. The witnesses have clearly stated to have seen the Dibiya (lamp) at the place of occurrence. It has also come in evidence that the Investigating Officer had seen the torch and found the same to be in working condition and thereafter returned the same to the witness. In that view of the matter, it cannot be said that there was no source for identification of the appellants. Not only this, the appellants are known to the witnesses from before. They belong to the same village. P.W.1 Bansi Choudhary had identified them in the torch light. Further P.W.7 Sharda Devi had seen them from a close range. The capacity of a witness living in the village cannot be compared with those living in towns and accustomed to the fluorescent light. Accordingly, I am Page 0786 of the opinion that the case of the prosecution is not fit to be rejected only on the ground that the Investigating Officer had not seized the means of identification. Reference in this connection can be made to a decision of the Supreme Court in the case of State of Orissa v. Dibakar Naik and Ors. , in which it has been held as follows:
20. Regarding non-seizure of the torchlight, used by the witness to see the occurrence, it was held in Balo Yadav v. State of Bihar that such an omission cannot be considered as a lapse on the part of any investigating officer and as such it was not a ground for impairing the testimony of the witness concerned. Even if there was failure on the part of the investigating agency to take steps for the seizure of torchlight, such an omission cannot be treated as a ground to reject the prosecution case.
58. It has also been contended, faintly, by the Counsels representing the appellants that according to the prosecution, eight persons have been killed by the appellants and had that been so, they would not have left the informant alive to be an eye witness to the occurrence. They also contend that the nature of the dispute was not such that appel1ants would kill altogether eight persons. I am not all impressed by these submissions of the learned Counsel for the appellants. How a criminal will act in a given circumstance entirely depends upon his own character. Human behaviour has also been a mystery to human beings. Merely the fact that the informant was left alive alone or the nature of dispute being not serious, it cannot be presumed that appellants had not committed the crime. P.W.7 Sharda Devi has lost her husband, four of her children, two brothers and her claim to be an eye witness to the occurrence, cannot be doubted as she has sustained gun shot injuries in the incident and in such, a circumstance, it is unlikely that she will leave the real culprit and implicate innocent persons. Her evidence has been corroborated by the evidence of P.W.1 Banshi Choudhary who had seen the appellants fleeing away from the place of occurrence immediately after the incident. The informant had also disclosed the names of the appellants to P.W.2 Ghurhu Choudhary when he arrived at the place of occurrence and both P.W.1 Banshi Choudhary and P.W.2 Ghurhu Choudhary have supported this part of the prosecution case.
59. P.W.8 Dr. Shankar Kumar Jha and P.W.9 Dr. Arun Kumar, who had conducted the post mortem examinations, have deposed that the deceased persons died of gun shot injuries. Thus, the evidence of the informant Sharda Devi is corroborated by the evidence of two doctors and is also supported by the evidence of P.W.1 Banshi Choudhary and P.W.2 Ghurhu Choudhary.
60. The Investigating Officer Krishna Baitha (P.W.11) had found blood at the place of occurrence, dead bodies at the place disclosed by the witnesses and empty cartridges at the place of occurrence. Thus, the evidence of the informant is not only supported and corroborated by the evidence of other witnesses, but also finds support from the objective findings at the place of occurrence.
61. It is relevant here to state that the appellants besides being found guilty under Section 302/149 of the Indian Penal Code, have also been held guilty of offence under Section 307/149 of the Indian Penal Code for attempting to cause the death of the informant Sharda Devi. It has been contended by the learned Counsel for the appellants that the doctors who had examined her, had come to support the case of the prosecution during trial and as such, it has to be assumed that informant did not Page 0787 receive any injury. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of Ramdeo Yadav and Ors. v. State of Bihar 1988 Cr.L.J. 4031 and our attention has been drawn to the following passage from paragraph No. 6 of the judgment which reads as follows:
6.- xxx Evidently, the doctor has seen the injuries and, so the evidence should have been given by the doctor himself as to what he had seen and found. Section 294 of the Code of Criminal Procedure has been provided in the Code for obviating the difficulty of formal proof of certain document and not for providing a substitute for direct evidence of witnesses like the doctor. This section simply says that where the genuineness of a document is not disputed it may be read in evidence in any inquiry or trial. It is significant that Section 294, Cr.P.C. does not refer to a document, which even if exhibited cannot be read as a piece of evidence. The injury report by itself does not prove anything, as it is not a substantive piece of evidence. It is the evidence of the doctor taken on oath in regard to the injuries which alone is substantive evidence. The injury report can only be used to corroborate or contradict the doctor and it cannot be a substitute for the evidence of the doctor. Of course, Section 32 of the Evidence Act provides an exception to this general principle but evidently the present case does not come within any of the clauses of Section 32 of the Evidence Act. That being so, the injury reports of the witnesses as also of accused Dukhi Yadav referred to by the learned trial court in its judgment have to be excluded from consideration. But, even if these injury reports are excluded from the evidence, there remains sufficient material on the record to prove in a general wav the fact that these witnesses had sustained injuries in course of the occurrence. Indeed, their own evidence is also there on this point. Then there is also the evidence of the investigating officer who had found injuries on their persons and had referred them to the doctor for medical examination. Of course, these materials cannot be enough to prove the specific injuries said to have been sustained by them but, they are sufficient to establish the broad fact that they had sustained some injuries in course of dacoity.
62. Our attention has further been drawn to paragraph No. 38 of the judgment of this Court in the case of Medni Singh and Raghubir Singh and Anr. v. The State of Bihar 2005 (3) BBCJ 39 which reads as follows:
38.- xxx Their attendance could not be procured by the prosecution. Injuries were admittedly simple in nature. Besides, the defence has advanced the case that accused Medni Singh also suffered injury at the hand of the informant (Ext.A). In absence of examination of doctors the factum of injuries have not been proved.
63. True it is that the doctor who had examined the informant has not come to depose and as such, it is difficult for the this Court to appreciate the nature of injury sustained by her. But this itself shall not lead to the conclusion that, in fact, informant did not sustain any injury. Informant had clearly stated that she has sustained gun shot injury on her leg and P.W.1 Banshi Choudhary, P.W.3 Dashrath Choudhary, P.W.5 Parmeshwar Choudhary and P.W.11 Krishna Baitha have seen her in injured condition. Not only this, during the course of trial, it has come that she was sent to the Patna Medical College and Hospital for treatment of injuries sustained by her. In that view of the matter, it cannot be safely said that informant although sustained injury, but in the Page 0788 absence of the doctor, the nature of injuries sustained by her, cannot be ascertained and as such, it may not be safe to convict the appellants under Section 307/149 of the Indian Penal Code. But as the hurt has been caused by a fire arm, the offence squarely falls within the mischief of Section 324 of the Indian Penal Code. Accordingly, I alter the conviction of the appellants under Section 324/149 of the Indian Penal Code, instead of Section 307/149 of the Indian Penal Code.
64. Learned Counsels for the appellants contend that the case in hand does not fall in the category of rarest of the rare cases and as such, extreme penalty of death is not called for. It has been pointed out that number of persons killed is not relevant to determine the question of sentence. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of A. Devendran and Ors. v. State of Tamil Nadu and our attention has been drawn to passage of paragraph No. 23 of the said judgment which reads as follows:
24.- xxx The learned Sessions Judge awarded death sentence to the accused Devendran on the ground that as soon as the driver Nagarajan entered into the house the said Devendran shot the gun which hit Nagarajan and he died. This itself cannot be held to be sufficient to hold that it is an act of a depraved mind. The number of persons who died in the incident is not the determinative factor for deciding whether the extreme penalty of death could be awarded or not. On the evidence of P.W.2 as well as the evidence of P.W.5 it is difficult to hold that the deaths of the persons were either diabolical, ghastly or gruesome.
65. It has also been pointed out that there is nothing on record to suggest that the appellants shall be a menace to the society and incapable of rehabilitation or reformation after they come out of incarceration and shall be a continuing threat to the society. In support of this submission, reliance has been placed on a decision of the Supreme Court in the case of Bachhitar Singh and Anr. v. State of Punjab and our attention has been drawn to following passages from paragraph Nos. 22 and 23 which read as follows:
22. This takes us to consider the death penalty awarded by the trial Court and confirmed by the High Court. It is contended by the learned Counsel for the appellants that the case does not fall within the category of ‘rarest of rare’ which would invite capital punishment. On a perusal of the evidence and materials on record, we find that apart from the solitary incident in question, there is no evidence on record either oral or documentary, which would suggest about the misconduct of the appellants in the past. There is also no evidence on record to suggest that the appellants would be a menace and threat to the harmonious and peaceful co-existence of the society. In a case, what appears tos be similar with the present one, Prakash Dhawal Khairnar (Patil) v. State of Maharashtra : the accused had done to death his own brother, brother’s wife and children out of land dispute. This Court held that no doubt the crime was heinous and brutal but at the same time it will be difficult to hold that it is rarest of rare case. The court was also of the view that it would be difficult to hold that the appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue the criminal acts of violence as would constitute a continued threat to the society. The same principle has been followed by this Court in Ram Anup Singh and Ors. v. State of Bihar JT 2002 (5) 621. In the case at hand also, we are of the Page 0789 view that having regard to the absence of evidence to the contrary that the appellants are a menace to the society threatening the peaceful and harmonious co-existence of the society and they are likely to be a continuous threat to the society if once they come out of incarceration, no doubt the crime was committed in a heinous and brutal manner but viewed from the facts and circumstances, as noticed above, it would be difficult to hold that the case falls within the category of ‘rarest of rare’. At the same time, there is no reason to believe that they cannot be reformed or rehabilitated. Viewed from the aforesaid perspective, we are of the opinion that the appellants must be given a chance to repent that what they have done is neither approved by the law or by the society and be reformed or rehabilitated and become good and law abiding citizen.
23. In the facts and circumstances of the case, as stated above, we would think that sentencing them to rigorous imprisonment for life would meet the ends of justice.
66. Reliance has also been placed on a decision of the Supreme Court in the case of Prakash Dhawal Khairnar (Patil) v. State of Maharashtra and our attention has been drawn to the following passage from paragraph No. 23 of the said judgment which reads as follows:
23. From the record, it is revealed that the accused Prakash Patil did not have any criminal tendency. He was working as Water Analyser (Sr. Scientific Assistant). The facts and circumstances of the case reveal that he killed his brother, brother’s wife and children because of frustration, as he was not partitioning the alleged joint property. No doubt, it is heinous and brutal crime but at the same time it will be difficult to hold that is rarest of rare case. It is also difficult to hold that appellant is a menace to the society and there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society.
67. Reliance has also been placed on a Division Bench judgment of this Court in the case of State of Bihar v. Sanjeet Rai 2006 (4) P.L.J.R. 479 and our attention has been drawn to paragraph No. 59 of the said judgment which reads as follows:
59.- True it is that the crime has been committed in a heinous and brutal manner but there is nothing on record to show that the two condemned shall be menace to the society threatening its peaceful existence and continuous threat to the society, if come out of incarceration. There is no reason to believe that they cannot be reformed and they are likely to continue criminal activities. Having given my most anxious consideration and viewed from this angle, the case in hand does not come within the category of rarest of the rare cases, calling for extreme penalty of death.
68. Mr. Prasad, however, contends that the manner in which the appellants have committed the crime shocks the collective conscious of the society and as such, it falls within the category of rarest of the rare cases and as such, the death sentence is fit to be confirmed.
69. Having given my most anxious consideration to the rival submissions, I am of the opinion that the extreme penalty of death needs to be inflicted in gravest cases Page 0790 of extreme culpability and before opting for the death penalty, the manner of the crime is required to be taken into consideration and not the circumstances of the offender. In a case in which the collective conscious of the community is shocked that it will accept the holders of the judicial power to inflict death penalty. To hang or not to hang, a balance of aggravating and mitigating circumstances has to be drawn up with due regard to the mitigating circumstances and a just balance has to be struck between the two before the option is exercised. So long the death sentence is provided under the statute, the holders of the judicial powers, dehors their personal opinion, has to inflict the death sentence, if the circumstances of the case so justify.
70. Keeping in view the aforesaid, when I test the case of the appellants, I do not find anything on record to suggest that appellants are menace to the society who cannot be reformed or rehabilitated and shall constitute a continuing threat to the society. Although the crime committed is heinous and brutal, yet, in my opinion, it does not fall in the category of rarest of the rare cases. Accordingly, I do not find it safe to confirm the sentence of death awarded to the appellants. Following the precedent of the Supreme Court in the case of Prakash Dhawal Khairnar (Patil) (supra), I sentence the appellants to suffer rigorous imprisonment for life with the condition that they shall not be released before completing the actual term of 20 years, including the period already undergone by them.
71. In the result, the conviction of the appellants under Section 307/149 of the Indian Penal Code is set aside and they are convicted under Section 324/149 of the Indian Penal Code but no separate sentence is awarded for that. However, their conviction under Section 302/149 of the Indian Penal Code is upheld. I decline to confirm the death sentence awarded to the appellants, instead I sentence them to suffer rigorous imprisonment for life with the condition that they shall not be released before completing the actual term of 20 years, including the period already undergone by them.