JUDGMENT
C.K. Prasad, J.
Page 0002
1. Four persons, namely, Maheshwar Rai, his two sons Sanjeet Rai and Ranjeet Rai, and wife Shivpatiya Devi were put on trial for offence under Section 302 and 307/34 of the Indian Penal Code for having committed the murder of Ram Ekbal Rai, his son Mithlesh Rai, wife Indu Devi and daughter Beauty Kumari and for attempting to commit the murder of his daughter Geeta Devi, son Mukesh Kumar and daughters Nibha Kumari, Khushboo Kumari and Meena Kumari in furtherance of their common intention.
2. The 3rd Additional Sessions Judge, Vaishali at Hajipur, by judgment dated 23rd of August, 2003 passed in Sessions Trial No. 12 of 2002, held them guilty of both the charges and by order dated 26th of August, 2003, accused Sanjeet Rai and Ranjeet Rai were sentenced to death under Section 302 of the Indian Penal Code, and rigorous imprisonment for ten years under Section 307/34 of the Indian Penal Code. Accused Maheshwar Rai and Shivpatia Devi have been sentenced to undergo rigorous Page 0003 imprisonment for life and ten years respectively. Sentences were directed to run concurrently.
3. The learned Judge has submitted the proceeding to this Court for confirmation of death sentence of convicts Sanjeet Rai and Ranjeet Rai and the same has been registered as Death Reference No. 11 of 2003. All the convicts have also preferred appeal against the judgment of conviction and sentence and that has been registered as Cr.Appeal No. 405 of 2003.
4. During the pendency of the appeal, convict Maheshwar Rai, appellant No. 1 of Cr.Appeal No. 405 of 2003, died and as such, his appeal stood dismisssd having been abated by order dated 25.7.2006.
5. The Death Reference and the appeal have been heard together and are being disposed off by this common judgment.
6. Prosecution story, according to the fardbeyan given by P.W.6 Geeta Devi before the Officer Incharge of Desri Police Station on 20.11.2000 at 9.30 A.M., is that her father Ram Ekbal Rai was the youngest brother amongst the two brothers. Appellant Maheshwar Rai is the other brother. Her father was posted as Paid Manager in Mahnar Cooperative Bank. According to the fardbeyan, her father Ram Ekbal Rai was married earlier to Meena Devi and from the said wedlock, two children were born, which included the informant Geeta Devi and her brother deceased Mithilesh Rai. According to the first information report, her father married the second time with the deceased Indu Devi and from the said wedlock, five children were born, i.e. injured Mukesh Kumar, deceased Beauty Kumari and injured Khushboo Kumari, Nibha Kumari and Meena Kumari. According to the informant, her mother died about 20 years ago and her elder brother Mithlesh Rai had passed the Engineering Examination and employed in a technical institute. The informant has alleged that the family of her father and that of her uncle accused Maheshwar Rai, live in the same house in which four rooms and a verandah in the north and east were in his possession and four rooms and a verandah in south and east were in the share of her uncle. According to the informant, partioion of the landed as well as movable and immovable property between her father and uncle was effected during the life time of her grand father but her uncle did not intend giving any share to her father.
7. The informant has alleged that earlier, her uncle Maheshwar Rai committed murder of her mother in order to grab the property and had also inflicted Bhala blow on her father and for that a case was registered, in which he was taken into custody.
8. According to the fardbeyan, accused Maheshwar Rai had two sons, namely, appellants Sanjeet Rai and Ranjeet Rai and four daughters who are all married and living in their respective matrimonial home. Her father and brother were in service but her uncle and his both the sons are engaged in cultivation work and that had made them jealous of their living standard and hence nurtured malice towards them. The informant had alleged that three months prior to the occurrence, her brother Mithlesh Rai, deceased, had got employment as Instructor at a Polytechnic in Patna and since then, Maheshwar Rai, his two sons, namely, appellants Sanjeet Rai and Ranjeet Rai and wife Shivpatia Devi used to threaten that although Mithlesh Rai had got employment but they could enjoy fruits of employment, only if he remains alive. It has been alleged by the informant that her uncle and members of the family used to beat mercilessly her father, step mother Indu Devi and all the children over petty Page 0004 matters and used to threaten that they would kill all of them. The informant, in her fardbeyan, has also stated that her uncle, his two sons and wife, appellants herein, made several attempts to kill her father but every time, the matter was settled through Panchayat.
9. According to the informant, after her brother got employment, the father of the daughter-in-law of accused Maheshwar Rai and father-in-law of appellant Ranjeet Rai came to their house and threatened her father to leave the village along with family members leaving behind all the property, failing which he would be killed.
10. According to the informant, in the evening of 19.11.2000, her elder brother Mithlesh Rai, deceased came to the village from Patna and was to return the next, day, i.e. on 20.11.2000. She had also come to her parents place from her matrimonial-home along with her son Nitish Kumar aged about 10 months on the eve of Chhath festival. According to her, in the night intervening 19th and 20th of November, 2000, her father Ram Ekbal Rai, deceased, along with her elder brother Mithlesh Rai deceased were sleeping in the room adjoining the verandah, whereas her mother Indu Devi deceased along with her youngest sister Meena aged about 3 months were sleeping in the room, situated in north and west corner of the house. Informant further stated that she along with her son and all the remaining brothers and sisters were sleeping in the room situated in north and south direction.
11. As usual, according to the informant, her father got up at 3 A.M. and left the house for taking bath in the river Ganga, with a Lota. Mithlesh Rai, however, remained sleeping in the room itself. According to the informant, the four accused persons, who were waiting out side, killed her father by sword, axe and sickle. Thereafter, according to the informant, they assaulted Mithlesh Rai with sword and after sustaining the sword injury, Mithlesh Rai in order to save his life entered in the room of her mother screaming. According to the informant, when her mother Indu Devi tried to save him, accused persons assaulted her too with sword and other weapons. Having seen the accused persons assaulting her brother and mother, according to the informant, she came out of her room and saw accused Maheshwar Rai having axe Ranjeet Rai and Sanjeet Rai with sword and accused Shivpatia Devi with sickle, giving repeated blows on the neck and other parts of the bodies of her brother and mother.
12. According to the informant, the lantern was burning in the verandah and when she started shouting loudly, accused Ranjeet Rai caught hold of her and put cloth into her mouth. According to the informant, after the accused persons had killed her brother and mother, all of them together began to cut her remaining younger brothers and sisters, one after another. According to the informant, in order to save herelf and sister Beauty Kumari, they hid themselve beneath a wooden cot (chowki) but accused Ranjet Rai pulled her and cut her. According to the informant, her sister Beauty Kumari, elder brother Mithlesh Rai and step mother Indu Devi died instantaneously. According to the informant, all the accused persons tried to assault her also but she bolted herself in side another room along with her child.
13. According to the informant, after committing the murder, all the accused persons, fled away towards north after locking the house and when she came out screaming to the darwaza with a torch saw her father lying dead in a pool of blood on the raised platform. On hearing alarm, villagers collected at the place of occurrence and took Page 0005 her severely injured broher Mukesh Kumar (P.W.7), and sisters Nibha Kumari (P.W.3), Khushboo Kumari (P.W.4) and Meena Kumari to Patna for treatment.
14. According to the informant, all the accused persons committed the murder of her father, mother, brother and sister Beauty Kumari and attempted to murder her brother Mukesh Kumar, sisters Nibha Kumari, Khushboo Kumari and Meena Kumari. Thus, according to the first information report four peersons were murdered in the incident and attempts were made to murder five persons.
15. On the basis of aforesaid information, Desri P.S. Case No. 174 of 2000 was registered under Section 307, 302/34 and 120B of the Indian Penal Code. The police, after investigation, submitted charge sheet and the appellants were ultimately committed to the court of Sessions to face the trial.
16. During the trial, appellants were charged for committing the murder of Ram Ekbal Rai, Mithlesh Rai, Indu Devi and Beauty Kumari by means of axe, sword and sickle, punishable under Section 302 of the IPC as also attempting to commit murder of four persons, namely, Geeta Devi, Mukesh Kumar, Nibha Kumari and Khushboo Kumari by means of axe, sword and sickle, punishable under Section 307 of the IPC.
17. Appellants refuted the charge and claimed to be tried. They also claimed to be innocent and their defence is of denial simplicitor and false implication due to old enmity and land dispute. They have also taken the plea of alibi and in order to prove that, examined D.W.1 Rameshwar Rai. Another witness, namely, Ali Hussain has also been examined as D.W.2 to controvert the claim of informant Geeta Devi to be an eye witness to the ocrruuence and to show that she was at her parent’s place on the date of occurrence. A doctor, namely, Dr. Shiv Narain Singh, has also been examined as D.W.3 who is alleged to have examined accused Maheshwar Rai in the jail.
18. The prosecution, in order to prove its case, examined altogether 12 witnesses out of which P.W.3 Nibha Kumari, P.W.4 Khushboo Kumari and P.W.7 Mukesh Kumar besides being eye witnesses to the occurrence, had also sustained injuries in the occurence. P.W.6 Geeta Devi is the informant of the case and claims to be the eye witnesses to the occurrence.
19. P.W.1 Suraj Rai, P.W.2 Udai Kant Rai, P.W.5 Lal Babu Rai and P.W.8 Dilip Rai do not claim to be eye witnesses to the occurrence and they have deposed that they are related to the deceased Ram Ekbal Rai and after hearing the news of murder of four persons of his family, they came to the village and saw his neck-cut dead body near the well. They have also deposed that in the verandah of the house the dead body of Indu Devi was lying with cut injuries on her neck and head and that of Mithlesh Rai with cut injury at several places in the room. They also claim to have seen the dead body of Beauty Kumari with her head cut and Mukesh Kumar, Khushboo Kumari, Nibha Kumari and Meena Kumari in seriously injured condition. They have further stated that the informant Geeta Devi told them that the appellants had cut them with axe, sword and sickle. They have further stated that with the help of the villagers, they had sent the injured to the Patna Medical College and Hospital for treatment.
20. P.W.9 Dr. Nagendra Mohan Sinha was at the relevant time posted as Civil Assistant Surgeon, and conducted the autopsy on the dead body of Ram Ekbal Rai, Page 0006 Mithlesh Rai and Indu Devi. P.W. 10 Dr. Pankaj Kumar Singh is another Medical Officer who had conducted post mortem examination of deceased Beauty Kumari. P.W.11 Dr. Sanjeev Ranjan Kumar Singh, at the relvant time, was posted as Surgeon on duty in the Patna Medical College and Hospital and had proved the injury reports (Exts.5, 5/1, 5/2 and 5/3) of Nibha Kumari, Meena Kumari, Mukesh Kumar and Khushboo Kumari.
21. P.W.12 Chitranjan Thakur at the relevant time was Officer-in-charge of Desri Police Station and had recorded the fardbeyan (Ext.1) of Geeta Devi and registered the formal first information report (Ext.4). He had also prepared the inquest reports (Exts.6, 6/1, 6/2 and 6/3) of the deceased Ram Ekbal Rai, Indu Devi, Mithlesh Rai and Beauty Kumari in presence of the witnesses. He had recorded the statement of the witnesses, inspected the place of occurrence and prepared its sketch map (Ext.7).
22. P.W.3 Nibha Kumari, at the relevant time, was aged about five years and the learned Judge has certified that this witness understands the question. She has stated in her evidence that her aunt appellant Shivpatiya Devi caused injury by sickle on her face. The learned Judge, in seisin of the trial, had noted a long cut mark on her face. She has further stated that all the accused persons assaulted Mithlesh Rai, Mukesh Kumar, her mother Indu Devi and sisters Beauty Kumari, Meena Kumari, Khushboo Kumari and her father. She has further stated that her aunt Shivpatiya Devi assaulted the aforesaid persons by sickle whereas her uncle Maheshwar Rai assaulted them by means of axe. According to her deposition her cousin Sanjeet Rai and Ranjeet Rai assaulted them by means of sword and her mother, father, brother and sister died there.
23. P.W.4 Khushboo Kumari is another injured aged about six years and the learned Judge, in seisin of the trial, has certified that the witness understands the question. She has stated in her evidence that accused Ranjeet Rai, Sanjeet Rai, caused injuries to her father Ram Ekbal Rai, her mother Indu Devi, brother Mithlesh Rai and sister Beauty Kumari with swords, whereas accused Maheshwar Rai and Shivpatiya Devi by axe and sickle respectively and on account thereof, they died. She has further deposed that all the accused had also inflicted cut injuries on her, Mukesh Kumar, Nibha Kumari and Meena Kumari. She has specifically stated that it was convict Sanjeet Rai who had inflicted cut injury by means of sword. This witness had shown the mark of injury in the head behind the ear to the learned Judge, who had noted the said fact in her deposition. she has further deposed that the assailants had cut her father near the well, her mother on the front portion of the house, her brother Mithlesh Rai in the room of her mother and Beauty Kumari in the room of Geeta Devi. She has stated that the injury was inflicted on her in that very room where Beauty was killed.
24. P.W.7 Mukesh Kumar is another injured witness and has come forward to depose that at the time of alleged occurrence, as his father used to go to take bath in the river Ganga in the early morning, he woke him up for study and after some time, his elder brother Mithilesh Rai came shouting “Maa maa, papa ko kat diya, mujhe bhi kat raha hai.” According to this witness, hearing the same, her mother came out of the room and then his uncle accused Mahehwar Rai cut her by axe and accused Sanjeet Rai and Ranjeet Rai cut Mithilesh Rai by means of swords, whereas his aunt accused Shivpatiya Devi gave sickle blows to Meena Kumari and Nibha Kumari. Page 0007 According to this witness when he wanted to flee away from there, accused Sanjeet Rai gave sword blow on his neck and face and also on the shoulder. This witness has shown to the learned Judge, in seisin of the trial, the long cut scar marks on his neck, face and shoulder which have been noted by him. According to this witness, after sustaining the injuries and before becoming unconscious, he had seen his mother and brother Mithilesh Rai dead and had also seen Meena, Nibha and Mukesh injured but had not seen Beauty Kumari dead. It is relevant here to state that this witness, while deposing before the court, had also brought Meena Kumari aged about two and half years, another injured in the occurrence and the learned Judge, in seisin of the trial, had taken note of the fact that this child had a long cut scar mark on her neck.
25. P.W.6 Geeta Devi is the informant of the case and she has stated in her evidence that on the alleged date of occurence, at 3 A.M., her father Ram Ekbal Rai, as usual, was making preparation to go to take bath in river Ganga and she handed over him bucket, Lota and rope. According to this witness, her father Ram Ekbal Rai went at the well infront of the house and was cleaning his hands when all the four accused came there and accused Maheshwar Rai gave axe blow on his neck, whereas accused Sanjeet and Ranjeet gave sword blows and accused Shivpatiya Devi attacked her father with sickle and sustaining the injuries, he fell down and died near the well. According to this witness, her brother Mithilesh Rai, was sleeping in a room adjoining verandah and all the accused persons having aforesaid weapons in their hands, went there and attacked her, which caused slight cut on his neck. Thereafter, according to this witness, Mithilesh, in order to save his life, fled in the room of her mother Indu Devi who came to his rescue at which, all the convicts killed her mother Indu Devi and her brother Mithilesh Rai. According to this witness, therefter, all the four accused persons assaulted Mukesh on his neck and further, assaulted and killed Beauty Kumari by weapons in their hands. According to this witness, Khushboo Kumari was assaulted by accused Ranjeet Rai by means of sword and both Sanjeet Rai and Ranjeet Rai assaulted Nibha and cut her neck and eye. She has further stated that her sisters Meena aged about 3 months was assaulted by convict Ranjeet and Sanjeet by means of sword and after cutting her neck and face, they threw Meena Kumari in a brinjal field. According to this witness, when her ten months old child started crying accused Sanjeet Rai and Ranjeet Rai put cloth in her mouth and all the accused persons fled away believing all her family members to be dead. According to this witness, all the four injured were sent to the Patna Medical College and Hospoital for treatment.
26. P.W.9 Dr. Nagendra Mohan Sinha, at the relevant time, was posted as Assistant Civil Surgeon. He had conducted post mortem of Ram Ekbal Rai on 20.11.2000 at 3 P.M. and found following antemortem injuries on his person.
(i) Incised wound massively penetrating involving whole thickness of right side of neck cutting skin, soft tissues of neck, great blood vessels of neck and wind pipe is also cut with fracture and dislocation of hyoid bones.
(ii) Incised wound massive defused bifurcating lower part chin bone deep,
(iii) Incised wound massively defused over right side of face bone deep.
27. According to the doctor, death had taken place within 24 hours and in his opinion, injuries were caused by sharp cutting weapon and the deceased died due to shock and haemorrhage as a result of above noted injuries, which were sufficient to cause death in ordinary course of nature.
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28. This witness P.W.9 had also conducted the post mortem examination of the deceased Mithilesh Rai on 20.11.2000 at 3.40 P.M. and found following antemortem injuries on his person:
(i) Incised wound massive defused present over all around neck more deep on right side cutting skin soft tissues of neck great vessel, wind pipe and nerves.
(ii) Incised wound 4″ x 2″ x muscle deep present over right side of face. (mandibular area).
(iii) Incised Wound 5″ x 2″ x bone deep over right temporal area of skull, under line temporal bone is found fractured.
(iv) Incised wound 2″ x 1″ over mid portion of scalp centrally placed.
(v) Incised wound massive and defused involving chin, under lying soft tissues of chin are divided due to cut.
(vi) Incised wound 5″ x 1.1/2″ over left upper arm obliquely placed.
(vii) Amputation of little finger of right hand and ring and middle finger of left hand.
(viii) Incised wound 3″ x 2″ over left side of fore arm near wrist dorsal aspect.
29. The witness has opined that injuries on the person of the deceased were caused by sharp cutting weapon and the deceased had died due to shock and haemorrhage and injuries found on his person were sufficient to cause death in ordinary course of nature. In the opinion of the doctor, the death had taken place within 24 hours.
30. This witness had further conducted the post mortem examination of Indu Devi at 4.15 P.M on 20.11.2000 and found following antemortem injuries on her person:
(i) Incised wound masive defused penetrating whole thickness of left side of neck on upper portion cutting skin, soft tissues and great vessels of neck and the wind pipe.
(ii) Incised wound 3″ x 1/2 ” over right front chest just above breast skin deep.
31. In the opinion of the doctor, the injuries found on the person of the deceased were caused by sharp cutting weapons and the deceased died due to shock-and haemorrhage as a result of the injuries found on his, person, which were sufficient in ordinary course of nature to cause death. The doctor has opined that the death had taken place within 24 hours of the post mortem report.
32. P.W.10 Dr. Pankaj Kumar Singh is another Medical Officer, who had conducted post mortem examination of the deceased Beauty Kumari on 20.11.2000 at 4.40 p.m. and found following injuries on her person:
(i) Incised wound with depressed margin over whole of the back, left side of neck involving the musseles, blood vessels & nerves cutting all blood vessels & fracture of cervical vertebrae.
(ii) Incised wound size about 2 “x 2” bone deep over the left side of dorsal surface of the wrist joint.
33. This witness had found fracture of C-4 and C-5 vertebrae and in his opinion death had taken place due to shock and haemorrhage caused by the injuries found on the person of the deceased, which were sufficient in ordinary course of nature to cause death. He has also opined that death had taken place within 24 hours of the examination.
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34. P.W.11 Dr. Sanjeev Ranjan Kumar Singh, at the relevant time was posted as Registrar, Plastic Surgery in the Patna Medical College and Hospital and had proved the injuries reports (Ext.5, 5/1,5/2 and 5/3) of P.W.3 Nibha Kumari, Meena Kumar P.W.7 Mukesh Kumar and P.W.4 Khusbhu Kumari given by Dr. A.K. Singh, Surgeon on duty in casualty Department of Plastic Surgery in the Patna Medical College and Hospital, who examined the injured on 20.11.2000. According to the injury report of Nibha Kumari, following injuries were found on her person.
(i) Lacerated wound bone deep over right side of cheek running through the oral cavity, 5″x 2″ size.
(ii) Lacerated wound just below above wound 2″x1″ size.
(iii) Multiple minor cuts and abrasions.
35. The injuries found on injured Mukesh Kumar were as follows:
(i) Lacerated wound bone deep, 5″x3″ size, over left cheek and ear.
(ii) Lacerated wound muscle deep over right shoulder 2″x1.
36. The injury found on the person of Khushboo Kumari is as follows:
(i) Lacerated wound bone deep 4″x1″ over occiput and neck left side.
37. P.W.12 Chitranjan Thakur at the relevant time was posted as Officer Incharge of the Sonbarsa Police Station and according to his evidence on 20.11.2002 at 7 A.M. he received information on telephone that Ram Eqbal Rai and three members of his family have been murdered by cutting their neck and other four children have been seriously injured. According to this witness he entered this information in the Station Diary and proceeded for the village Nayzgaon, where the occurrence had taken place. After he reached the village, he found the dead body or Ram Eqbal Rai on the raised platform of the well with his neck cut and blood spread all over the place. At this place he recorded the fardbeyan (Ext.1) of Gita Devi and on that basis registered the formal First Information Report (Ext.4). This witness has stated that he saw the dead body of Indu Devi lying in the verandah of the house with her half neck cut and blood spread over there. The sub Inspector of Police had also stated that he saw the mutilated dead body of Mithilesh Rai lying in the inner room of the same verandah and blood spread all over the room. He also found the dead body of Beauti Kumari lying in the centre of the room situated towards the west and blood spread over there also. In the presence of two witnesses, he prepared the Inquest Reports of the deceased (Ext.8, 8/1, 8/2 and 8/3). Cause of death of all the victims according to the Inquest Reports is cutting of neck with sharp edged weapon.
38. Acording to this witness during the course of investigation informant had stated that she got up after the accused persons had fled away and when she came out taking torch in her hand, thought that her father might not have lost his life as he would had gone to the river Ganga for taking bath.
39. Besides the aforesaid oral and documentary evidence the prosecution has also brought on record the letters written by the appellants Ranjit (Exts.2 and 2/2) and Sanjeet ( Exts.2/1). In the letter (ext.2) written to the informant Gita Devi, appellant Ranjeet had stated that he had not committed any wrong to her son and she has been benefitted, as property worth Rs. 4 lakhs has devolved on her. In the letter he had further stated that she should enter into compromise and get him out of the jail. Appellant Sanjeet Rai in his letter (Ext. 2/1) had threatened the informant to sign the Page 0010 compromise petition so that he may be released and further to give to her, as much money as she would desire. In the said letter appellant Sanjeet Rai had further stated that they had done no harm to her or her son Rakesh and promised help in partition of the property. In the letter, he had questioned her as to what wrong his father and mother had committed for which she had implicated them in the case.
40. Another letter (Ext.2/2) written by Ranjeet Rai shows that he had made request to the husbands of the informant to compromise the case and give statement in their favour after getting money from them. In the letter a veiled threat has also been given by saying that even if statement is given against them, they shall be released with some difficulty but he will not gain anything by getting them punished. In the letter appellant Ranjeet Rai went on to say that even if punishment is awarded by the trial Court, they shall be enlarged on bail by the High Court. Said letter requested the husband of the informant to compromise the case and in return he promised to help him in partition suit. In this letter also he has stated that their mother and father ought not to have been implicated in the case.
41. D.W.1 Rameshwar Rai, who happens to be the son-in-law of the accused Maheshwar Rai, Sripatiya Devi and brother-in-law of accused Ranjeet Rai and Sanjeet Rai, has been examined by the accused persons to prove their alibi. He had stated in his evidence that on 19th and 20th of November, 2000 there were Astjam and Vivah Kirtan at his residence and for attending the same all the accused persons came at 12’O Clock on 19.11.2000 and remained till 20.11.2000.
42. D.W.2 Ali Hussain has been examined by the accused to show that informant Gita Devi infact was not at her parents village where the occurrence had taken place but at her matrimonial home at village Atta. He has stated in his evidence that about two years ten months ago while he was harvesting his tobacco crop a man from 28 tola came and informed Gita Devi about murders and hearing the same, she went to her parental village. In the cross examination, he had stated that he is in jail custody in connection with a case under Section 307 of the Indian Penal Code since about nine months.
43. D.W.3 Dr. Shiv Narayan Singh in his evidence has stated that accused Maheshwar Rai aged about 70 years is an old T.B. patient and under his treatment. He has further stated that he was admitted in jail Hospital on 15.9.2001 and was examined by a Medical Board on 20.5.2001 and his treatment continued till 13.10.2001.
44. The trial Court relying on the evidence of the prosecution witnesses and the documents produced in support thereof and after rejecting the evidence of the defence witnesses came to the conclusion that the prosecution has been able to prove its case beyond all reasonable doubt and convicted and sentenced the appellants as above.
45. Mr. Alok Kumar Sinha, appearing on behalf of the appellant submits that claim made by P.W.6 Gita Devi to be an eye-witness to the occurrence is absolutely false and once her evidence is discarded, the appellants deserve to be given the benefit of doubt. In this connection Mr. Sinha has drawn our attention to the evidence of P.W.12 Chitranjan Thakur, the Investigating Officer of the case in paragraph 12 of his cross examination, where the informant is alleged to have stated to him that the accused persons committed murder, while they were asleep. According to the Page 0011 Investigating Officer of the case Gita Devi had further stated that her father might have been saved as he would had gone to Gangajee to take bath but when she came out found his dead body on the platform of the well, besmeared with blood. In this connection, our attention has also been drawn to the evidence of D.W.2 All Hussain, wherein he has stated that Gita Devi was told about the murders of her family members, while she was at the matrimonial home and she went to her parental village after receiving this information.
46. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, appearing on behalf of the State however submits that Gita Devi had lost her parents, brother and sister as also four of her brothers and sisters have been seriously injured and in such a situation, his mental condition can well be imagined, hence the infirmity pointed out by the Counsel for the appellant is of no consequence. He also points out that the evidence of D.W.2 fit to be discarded as there is overwhelming evidence on record to show that the claim made by informant Gita Devi to be eye-witness to the occurrence is trustworthy.
47. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Sinha. P.W.3 Nibha Kumari, P.W.4 Khusuboo Kumar and P.W.7 Mukesh Kumar are eye witnesses to the occurrence and all of them had sustained serious injuries on their person and they have stated about the presence of Gita Devi at the time of occurrence. Not only this, the letters written by the accused Sanjeet Rai and Ranjeet Rai (Ext.2 series) clearly show that she was present at the time of occurrence, otherwise they had no occasion to communicate to Gita Devi that they had neither harmed her nor her son. Had Gita Devi not present at the place of occurrence, the plea put forth by the aforesaid accused to claim mercy on the ground that they did not harm either her or her son did not arise at all. As regards the evidence of D.W.2, it is evident that he is lying. He has admitted in his cross-examination that he was in jail in a case since nine months and from that it is evident that he came in contact with the accused and that is why he had come to support them falsely.
48. Mr. Sinha, then contends that no independent witness of the village has come forward to support the case. In this connection our attention has been drawn to the evidence of P.W.6 Geeta Devi wherein she has stated that a large number of villagers have collected and they had good relation with them. Mr. Prasad, however, contends that in the face of the evidence of informant and the eye witnesses, non-examination of any other witnesses of the village shall not discredit the case of the prosecution.
49. Having considered the rival submission, I do not have the slightest hesitation in rejecting this submission of Mr. Sinha. True it is that after the occurrence, a large number of persons had come to the place of occurrence but there is no material to show that they in fact have seen the occurrence. The accused persons have chosen the early hours of the morning i.e. 3 A.M. in the month of November to perpetuate the crime and, as such, the possibility of the villagers not seeing the occurrence cannot be ruled out. Not only this P.W.3 Nibha Kumari, P.W.4 Khusboo Kumari and P.W.7 Mukesh Kumar have supported the case of the prosecution and the very fact that they had sustained injuries on their person, which have boon found and seen by the doctor as also the learned Judge, their presence at the time of occurrence is proved beyond all reasonable doubt. It is not a rule of law that to establish the guilt examination of all the villagers is necessary. In fact it is a rule prudence and in case in which Page 0012 there are overwhelming evidence to prove the case, mere non examination of the co-villagers shall in no way affect the case of the prosecution. It is well settled that to bring home the charge it is the quantity of evidence and not the quality which matters.
50. Mr. Sinha, submits that possibility of some unknown persons killing the deceased persons cannot be ruled out and in this connection our attention has been drawn to the First Information Report in which the informant had stated that after she came out from the house, having a torch in hand, saw some unknown persons in the torch-light but she could not recognise them as she was frightened. Out attention has also been drawn to paragraph 22 of the cross-examination of P.W.6 Gita Devi where she has stated that when she came out with torch in hand, a person, to whom she did not recognise, snatched her torch. These materials according to Mr. Sinha clearly show that in fact the deceased persons were killed by unknown persons.
51. I do not find any substance in this submission of Mr. Sinha also. P.W.6 Gita Devi and all other injured eye-witnesses have clearly stated that the accused persons have killed the deceased persons. It has come in evidence that a large number of villagers had collected after the occurrence. It is not expected from a witness to recognise all the villagers and in such a situation mere failure to recognise the person snatching the torceh shall not cast any shadow on the case of the prosecution. Accused persons are closely related to the informant and the eye witnesses and in fact living together in the adjoining house. They have categorically stated that the appellants had committed murder, hence mere presence of unknown persons if at all in the village, shall not discredit the case of the prosecution.
52. Mr. Sinha, submits that the occurrence had taken place at early hours in the month of November and, as such, it has to be assumed that the incident had taken place in dark and in the absence of any source of light, claim made by the witnesses that they had identified the appellants as the perpetrators of crime is not fit to be accepted. I do not find any substance in the submission of the learned Counsel. Accused persons and the witnesses are close relatives and in fact lived in the house adjoining to each other. The very fact that the witnesses sustained injuries at the hand of the accused persons, clearly go to indicate that they came in contact with each other. The capacity of people living in village and that of urban people living in the light cannot be equated. From what I have found above, I am of the opinion that the claim made by the witnesses that they had seen the accused persons committing the crime cannot be ruled out only on the ground of insufficiency of light.
53. Mr. Sinha, then submits that informant Gita Devi is an eye witnesses to the occurrence and when four persons have been killed and four persons severely injured it was unlikely that had the accused persons committed the crime they would had left her without any scratch. It has been pointed out that Gita Devi had not sustained even minor injury in the occurrence. I do not find any substance in the submission of the learned Counsel. Human behaviour has always been a mystery to human beings. Merely the fact that Gita Devi was not injured itself shall in no way discredit the case of the prosecution. From the evidence on record I have come to a definite finding that in fact Gita Devi was present at the time of occurrence. It has come in evidence that accused persons had grudge against the deceased Ram Ekbal Rai and his family members as they were more affluent than them and property was the Page 0013 root cause. Gita Devi is married and in fact living at the matrimonial home and, as such the accused persons might have thought that she will not be in a position to resist the accused persons taking possession of the property of the deceased persons and that might have weighed with them, not to assault Geeta Devi. As observed earlier, human behaviour cannot be uniform and merely because Gita Devi was left out without any injury, in no way discredits the case of the prosecution.
54. Mr. Sinha, also submits that in fact the accused persons were not at the village where the occurrence had taken place and, as such, their participation in the crime is absolutely ruled out. In this connection our attention has been drawn to the evidence of D.W.1 Rameshwar Rai in which he had stated that all the accused persons were at the village from 19th to 20th of November 2002 to attend the Astjam and Vivah Kirtan. I do not find any substance in the submission of Mr. Sinha. It is well settled that plea of alibi must be proved with absolute certainity so as to completely exclude the possibility of the presence of the accused persons at the place of occurrence. D.W.1 Rameshwar Rai is none other than the son-in-law and brother-in-law of the accused persons and his zeal to protect the accused persons from the sackle of punishment is but natural. Three of the eye-witnesses to the occurrence whose presence at the time of incident is but natural have sustained injuries on their persons and they have clearly stated about the appellants committing the crime. The informant whose claim to be an eye-witness had already been accepted by me and from their evidence it is evident that it is the accused persons who have committed the crime. Hence the plea of the appellants of alibi is absolutely false and D.W.1 Rameshwar Rai has deposed falsely to save them. In my opinion the plea of alibi has not been proved at all so as to exclude the possibility of the accused persons at the place of occurrence. From the discussion above, I am certainly of the opinion that the prosecution has been able to prove its case beyond all reasonable doubt.
55. Mr. Sinha, lastly submits that P.W.3 Nibha Kumari, P.W.4 Khusboo Kumari and P.W.7 Mukesh Kumar are child witnesses aged about, five years, six years and 14 years respectively and the possibility of they being tutored cannot be ruled out. The learned Judge had satisfied himself that P.W.2 and P.W.4 understood questions and P.W.7 Mukesh Kumar being aged about 12 years it can be assumed that he had attained the age of discretion to narrate the incident. Even at the cost of repetition, I may state herein that these persons have sustained serious injuries and that establishes their presence at the place of occurrence. Hence in my opinion their evidence cannot be discarded only the ground that they are child witnesses.
56. Evidences of P.W.3 Nibha Kumari, P.W.4 Khusboo Kumari, P.W.6 Gita Kumari and P.W.7 Mukesh Kumar are consistent in material particulars and they have clearly stated that it is the accused persons who had killed four persons and caused severe injuries also to four persons by means of axe, sword and sickle. P.W.9 Dr. Nagendra Mohan Sinha who had conducted post mortem examination of Ram Eqbal Rai, Indu Devi and Mithlesh Rai and P.W.10 Pankaj Kumar who had conducted post mortem examination of Beauty Kumari have stated in their evidence that all the four deceased had sustained incised injuries, which is in conformity with the evidence of the witnesses. Inquest Reports and the learned Judge’s finding cut mark on all the four injured person further lend support to the case of the prosecution. Out of the four eye-witnesses to the occurrence P.W.3 Nibha Kumari, P.W.4 Khusboo Kumari and P.W.7 Mukesh Kumar had sustained serious injury on their persons. The presence Page 0014 of P.W.6 Gita Kumari has also been proved beyond all reasonable doubt. They have lost their father mother, brother and sister in the occurrence. It is unlikely that they will spare the real culprit and falsely implicate the accused persons. Occurrence has taken place in the morning and the statement of Gita Devi was recorded at the place of occurrence on the same day at 9.30 a.m. Prompt reporting of the First Information Report also lends support to the case of the prosecution.
57. It is relevant here to state that two of the accused persons, namely, Ranjit Rai and Sanjeet Rai have been sentenced to death. Mr. Sinha, contends that the case in hand does not fall within the category of rare of rarest cases and as such the extreme punishment of death is not called for. He also points out that these two accused cannot be said to be menace to the society threatening its peaceful and harmonious co-existence and likely to be a continuous threat to the society, hence death sentence is not called for. Reliance has been placed on a decision of the Supreme Court in the case of Bachhitar Singh v. State of Punjab AIR 2002 (2) S.C. 3473 and our attention has been drawn to paragraphs 22 and 23 of the judgment which read as follows:
22. In the case at hand also, we are of the 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 citizens.
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.
58. Reliance has also been placed on a decision of the Supreme Court in the case of Prakash Dhawal Khairnar v. State of Maharashtra 2002 2 Supreme Court Cases 35 and our attention has been drawn to the following passage from paragraph 23 of the 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 heinour and brutal crime but at the same time it will be difficult to hold that it is rarest of rare case. It is also diffic[Bt 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 casts of violence as would constitute a continuing threat to the society.
59. Mr. Prasad, however contends that the case in hand is on amongst rare of the rarest cases in which death penalty is called for. He points out that the accused persons are Page 0015 closely related to each other and the occurrence has taken place at the dead of night without any provacation and the victim of the crime are innocent. The manner in which the occurrence has taken place clearly indicates the previous planning and the accused persons getting annoyed only because their relatives had better economic condition and one of the deceased had got employment, clearly show their cruel mind.
60. Having considered the rival submission, I do not have the slightest hesitation in accepting the broad proposition that the death sentence is called for only in rarest of the rare cases and so long it is provided in the Statute, it has to be assumed that death sentence is permissible to be imposed.
61. 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 can not 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.
62. In the case of Prakash Dhawal Khairnar (Supra), the Supreme Court while setting aside the death sentence directed that accused found guilty “shall not be released unless he had served out atleast 20 years of imprisonment”. In my considered opinion the facts and circumstances of the case justify such direction, so far as the accused Ranjeet Rai and Sanjeet Rai are concerned.
63. Accordingly, I set aside the sentence of death of accused “Ranjeet Rai and Sanjeet Rai and commute it to life imprisonment with a direction that they shall not be released unless they serve out 20 years of imprisonment and decline to confirm the death sentence.
64. In the result, I do not find any merit in the appeal and is dismissed accordingly with the modification in the sentence and Death Reference is answered in the manner indicated above.
Rekha Kumari, J.
65. I agree.