JUDGMENT
Imtiyaz Murtaza, J.
1. The above bunch of appeals has been assignee to this Court for rehearing and decision afresh pursuant to an order passed by the Apex Court in Criminal Appeal Nos. 727 and 729 of 1998 whereby the judgment and order rendered by a Division Bench of this Court acquitting the accused persons was set aside and the matter was relegated to this Court for rehearing.
2. It would appear that the above appeals stemming from a composite judgment were preferred in this Court assailing the judgment and order dated 18.4.1996 passed by 3rd Addl. Sessions Judge Muzaffarnagar in S.T. No. 72 of 1985 whereby the appellants Veer Singh, Tahal Singh, Amrik Singh, Kameer Singh and Balkar Singh were convicted under Section 302 read with Section 149 I.P.C. and sentenced with death penalties. They were further convicted under Section 307/149 I.P.C. and sentenced to undergo R.I. for a period of 6 years, attended with further conviction under Section 452 I.P.C. and sentence to undergo R.I. for 4 years. The appellants Veer Singh, Tahal Singh and Balkar Singh were further convicted under Section 148 I.P.C. and sentenced to undergo R.I. for 2 years while Kameer Singh and Amreek Singh were further convicted under sec ion 147 I.P.C. and sentenced to undergo R.I. for one year. Government Appeal aforesaid was also filed assailing the judgment and order of Addl. Sessions Judge aforesaid whereby verdict ending up in acquittal of Hardeep @ Deepa, Sinder Singh and Nishon Singh had been in challenge.
3. The incident is staced to have taken place on 14.7.1984 at about 12 in the night in village Dogpura District Muzaffarnagar in which in all 12 persons lost their lives and two persons escaped with injuries. The author of F.I.R. is one Sardar Gurdeep Singh resident of village Varnau P.S. Kairana District Muzaffarnagar who as alleged in the F.I.R. was attracted on hearing firing and shrieks coming from the side of the house of Shisha Singh and Mohar Singh of village Dongpur which according to the First Informant is a village adjacent to his village. It is further alleged that the First Informant armed with his licensed gun rushed towards the house of Shisha Singh alongwith Jaswant Singh and Hazoor Singh. Upon getting closer to the place of occurrence, he saw in the moon-lit night and also in the light shed by torches which they took with themselves that Kartar Singh and his son Mahendra Singh were standing at the roof top of the house of Shisha Singh armed with jun and country made pistol respectively and at that time, Kartir Singh was seen igniting attack and exhorting his son Sindra, and Ginder and Mahendra and one Lakkha to slay the entire family of Shisha Singh and Mohar Singh. It is further alleged that the First Informant dared the accused persons who it is further alleged, opened fire upon which the First Informant retreated to a safer place. It is further alleged that Harbhajan Kaur wife of Shisha Singh escaped in an injured state to a paddy field nearby with staggering gait and fell down on the ground groaning and revealed to him that the accused persons aforesaid had killed her family members and also members of Mohar Singh’s family and sought help from him. Smt. Har Bhajan Kaur was removed to a safer and protective privacy and thereafter, the First Informant alongwith Jaswant Singh proceeded to Police station where he lodged the F.I.R. at about 4.15 a.m. on 14.7.1984.
4. The investigation of the case was taken up by S.I. Mohd. Akhtar who was then posted as S.O. Jhinjhana. After registration of the case, the police party rushed to the spot. The injured were removed for medical examination. The Investigating officer collected blood stained and plain earth from the pace of occurrence and also prepared recovery memo (Ex Ka-5). He also collected empty cartridges, bullets wads, pellets turban (Ex ka 26), mattresses, Ext. ka 27 Pillow, Ex ka 28 ashes Ext ka 31 and drew site plan Ext. ka 32. The inquest was conducted on the dead bodies and inquest memos (Exts ka 33 to ka 37) were prepared by S.I. Jodhveer Singh and S.I. R.S. Rathore on his direction. Inquest report and relevant papers relating to post mortem of the dead body of Smt. Bhajan Kaur are Ext. ka 38 to ka 41. Inquest report and the relevant papers relating to the post mortem of Km. Rano are Ext. ka 42 to Ka 45. Inquest report and relevant papers relating to the post mortem of the dead body of Km. Kulvindra are Ext. ka 46 to ka 49. Inquest report and relevant papers relating to the post mortem of the Dead body of Sheesha Singh are Ex. Ka 50 to 53. Inquest report and relevant papers relating to the post mortem of the dead body of Mohar Singh are Ext. Ka 54 to Ka 57. Inquest report and relevant papers relating to the post mortem of the dead body of Jogendra Singh are Ext. Ka 58 to Ka 61. Inquest report and mrpairere’ relating to’ the post mortem of the dead body of Ratan Singh are Ext. Ka 62 to 65. Inquest report and relevant papers relating to the post mortem of the dead body of Autar Singh are Ext. Ka 66 to 69. Inquest report and relevant papers relating to the post mortem of the dead body of Surjeet Kaur are Ext. Ka 70 to Ka 73. Inquest report and relevant papers relating to the post mortem of the dead body of Gurmed Singh alias Angrej Singh are Ext. Ka 74 to Ka 77. Inquest report and relevant papers relating to the post mortem of the dead body of Jassa Singh are Ext. Ka 78 to Ka 81. He had also prepared a letter to R.I. in respect of the deceased persons which is Ext. Ka 82. All the dead bodies were sealed and were entrusted to H.C. Candrapal Singh, constable Shiv Kumar and constable Naresh Kumar for being taken to the mortuary. On 14.7.1984, accused Balkar Singh was arrested and blood stained Kurta was taken into possession under a recovery memo Ext. Ka 84. On his pointing out, a sword was recovered from a field of Chari and a recovery memo was prepared which is Ext. Ka 85. The investigating officer also prepared the site plan of the place of recovery of sword which is Ext. Ka 86. On 15.7.1934, the statements of Soran Singh, Mukhtar Singh Hazoor Singh, Jan Singh and Jassa Singh were recorded. On 16.7.19.H, the Investigating officer interrogated the informant Gurdeep Singh and inspected his torch and prepared a fard which is Ext Ka 87. He also recorded the statement of Smt. Harbans Kaur and Bagga alias Ajayab Singh. Accused Sahendra alias Satyendra and Deepa were also arrested and on their pointing out Lathi and Ballam were recovered and he prepared the recovery memo, which is Ext. Ka 20, and site plan Ext. Ka 90. On 5.8.1984, Amrik Singh and Nishan Singh were arrested and on the pointing out of Nishan Singh a gun and four cartridges were recovered of which recovery memo, Ext. Ka 17 and the site plan of the place of recovery Ext. Ka 92 were prepared. On the pointing out of accused Sahendra a Kulhari was recovered. On the pointing out of accused Sinder a Kulhara was recovered. On the pointing out of Ginder, a blood stained Gandasa was recovered of which Recovery memos Ext.Ka 22 and 23 and site plan of the place of the recovery Ext. Ka 93 were prepared.
5. After the investigation was over, charge she-set was submitted arraying Lakha Singh, Sahendra Singh, Jogendra Singh alias Ginder, Kartar Singh, Tahal Singh, Amrik Singh, Amir Singh, Dheer Singh, Balkar Singh, Sahendra Singh son of Saudagar Singh, Hardeep alias Deepa, Nishan Singh as accused persons. The charge sheet against accused Mahenora alias Minder, was filed abserte reo (abscondence), which b Ext. Ka 94.
6. Medical examination of Smt. Harbans Kaur was conducted on 14.7.1984 at 6.30 A.M. by Dr. Naresh Sharma enumerating following injuries:
1. Incised would 11.0 cm x 1.5 cm x bone deep on head, Lt. side, oblique, 6.5 cm. above Lt. ear. Bleeding – Fresh, sharp, K.U.O. Ad. X-ray.
2. Lacerated wound 1.2 cm x 0.5 cm x bone deep on Rt. ear, upper part of lobula. Fresh bleedinG.K.U.O. Ad. X-ray.
3. Red contusion 7,0 cm x 1.0 cm. on Rt. cheek between injury No. 2 & 4. on face Rt. side. Fresh, Blunt, K.U.P. Ad. X-ray.
4. Lacerated wound 3.0 cm x 0.7 cm. x through an through Rt. cheek with injury on corresponding area on Rt. jaw measuring 3.0 cm. 0.3 cm x bone deep. Fresh, bleedinG.K.U.P. Ad. X-ray.
5. Red contusion 20 cm. x 1.5 cm on back both side if midline upper third. Fresh, blunt, simple.
6. Multiple lacerated wound in an area of 37.0 cm x 2H.0 cm on chest and abdomen front, both side. Sizes 3.0 cm x 0.7 cm x not probed and 0.2 cm x 0.2 cm x muscle deep. Hard pallet like thing felt. Blackening present. Fresh, caused by discharge c; firearm. K.U.O. Ad. X-ray.
7. Lacerated wound 1.0 cm x 0.7 cm x muscle deep surrounded by abraded area 8.0 cm x 6.0 cm. on Lt. thigh inner si e. Fresh, K.U.P. Ad. X-ray.
8. Abrasion – 5.0 cm x 1.5 cm on Rt. knee, front outerside, Fresh.
The Doctor opined that the injury No. 1 could hove been caused by sharp edged weapon while injury No. 6 was opined to be the result of fire-arm.
7. Medical examination of Babbu was conducted on 14.7.1984 at 7.15 A.M. by Dr. Naresh Sharma in which are enumerated following injuries:
1. Multiple gun shot injuries in an area 9.0 cm x 7.5 cm. on Lt. elbow & firearm, back and outer side. Fresh. K.U.P. Ad. X-ray.
2. Multiple small abrasion in an area 7.5 cm x 4.5 cm on Rt. buttock outer side. Friction-Simple. Fresh.
8. Dr. M.K. Taneja, Medical Officer, District Hospital, Muzaffarnagar conducted the autopsy on the body of Jogendar mentioning following ante mortem injuries:
1. Incised wound 12.0 cm. x 4.0 cm. x cutting the mandible bone infront of face lower part.
2. Incised would 7.0 cm. x 3.0 cm. on the front of neck lower part cutting the trachea and soft tissue reacting upto bone.
3. Gunshot would of entry 0.7 cm. x 0.7 cm. margin inverted on the front of chest, Blackening and tattooing present, margins lacerated right side 8 cm. above nipple.
4. Gunshot would of exit 4.0 cm. x 3.0 cm. on the back right side scapular region. Margin everted communicating with injury No. 3.
5. Lacerated would 3.0 cm. x 2.5 cm. x bone on the front of right foot medial part.
6. Gunshot would of entry 0.7 cm. x 0.7 cm. on the front of right leg middle part, tattooing and blackening present Margins inverted.
7. Gunshot would of exit 2.0 cm. X 2.0 cm. margins c verted on the lower third of right leg posteriorily.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage due to ante mortem injuries.
9. Dr. M.K. Taneja, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Ratan Singh and noted the following ante mortem injuries:
1. Gunshot would of entry 2.0 cm. x 1. 2 cm. x right middle neck, blackening and tattooing present, margin inverted and lacerated. Soft tissue coming out 2.0 cm. below and behind the right ear.
2. Multiple gunshot would of entry in an area of 34.0 em. x 18.0 cm. on the back both side upper and middle part of the size of 0.5 cm. x 0.5 cm. x cavity deep. Margins inverted.
3. Lacerated would 10.0 cm. x 3.5 cm. x bone deep on the right leg lower most part alongwith of both bone leg.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage due to ante mortem injuries.
10. R.K. Vats, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Smt. Surjeet Kaur in which following ante mortem injuries were noted:
1. Incised wound 15 cm. x 6 cm. x bone deep over root of neck right side outer aspect, margins sharp and clean cut. We find spinal in shape wound covered in and around by clotted blood. Underneath injury all the soft spending including veins and arteries cut.
2. Contusion 3 cm. x 2 cm. over front of forehead congestion underneath present.
3. Multiple contusions in an area of 15 cm. x 10 cm. over outer side 1/3 upper part of right arm, largest one measuring 6 cm. x 3 cm. and smallest 3 cm. x 2 cm. congestion underneath present.
4. Contusion 5 cm. x 4 cm. over top of right shoulder congestion underneath present.
5. Contusion 3 cm. x 2 cm. over back of chest upper 1/3 region right side.
6. Contusion 7 cm. x 4 cm. over back of thigh middle 1/3 region.
7. Contusion 6 cm. x 2.5 cm. over top of left shoulder.
8. Contusion 5 cm. x 3 cm. over front of upper 1/3 of left thigh.
According to the opinion of the doctor cause or death of the deceased was shock and haemorrhage due to ant,: mortem injuries.
11. Dr. R.K. Vats. Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Jagtar Singh and noted the following ante mortem injuries:
1. Incised would 10 cm. x 4 cm. x bone deep over Lt. side lower 1/3 of neck. Margins sharp & clean cut. Spindle in share. Clotted blood present over & around the wound. All the soft structures including vessels & nerve cut underneath the injury.
2. Gun shot wound of entry 6 cm x 5 cm x cranial cavity deep over upper part of cheek & eye Lt. side. Margins irregular & inverted blackening & charring present. Clotted bloc d over & around the wound present. Fifty nine small rounded & fit metallic shot recovered from the brain tissue Lt. eye lacerated extensively underneath injury.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage as a result of ante mortem injuries.
12. Dr. B.K. Misra, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Gurbhy Singh who found the following ante mortem injuries:
1. Firearm wound of entrance 3 cm. x 1 1/2 cm. on neck left side, 2.1 cm. behind the left ear at 5 O’clock position. Margins inverted. Blackening scorching and tattooing present. Whole skull deep corresponding to injury No. 2.
2. Firearm wound of exit 6 cm. x 4 cm. x skull deep on the right side neck 5 cm. behind Rt. ear at 7 O’clock position. Margins everted. No blackening, tattooing @ scorching, corresponding to No. (1) injury.
3. Incised wound 6 cm x I 1/2 cm. x bone deep on too of head longitude placed spindle shaped bone cut.
4. Firearm wound of entrance 3 cm x 2 cm x muscles and bone on the Rt. upper arm, 4 cm below top of Rt. upper arm, outer aspect oblong wounds. Margin inverted, slight scorching, blackening and tattooing present, 1 card board and 1 disc recovered alongwith 32 small pellets and sealed.
5. Firearm wound 5 cm x 3 cm x abdomen deep on abdomen on right half 7 cm from umbilicus at 7 O’clock Margins inverted, slight blackening, scorching and tattooing present. 1 card board, two disks and 34 small pettets recovered from this wound and sealed.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage and coma due to ante mortem injuries.
13. Dr. B.K. Misra, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Jassa Singh and noted the following ante mortem injuries:
1. Incised wound 13 cm x 3 cm x trachea deep on the neck front, below the adam & apple transverse placed. Oesophagus and big vessels on Rt. side of neck also cut.
2. Incised wound 14 cm x 2 cm x muscles on face and chin obliquely placed bone also cut (lower jaw) on Rt. side face.
3. Incised wound 7 cm x 2 cm bone on the face Rt. side obliquely placed extending to the right nose and lip (upper).
4. Incised wound 13 cm x 2 cm x muscles on the face transversely placed. Bone exposed, extending upto right angle of mouth.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage due to ante mortem injuries.
14. Dr. Suresh Chandra, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Gurpreet Singh and noted the following ante mortem injuries:
1. Incised wound 7 cm. x 2 cmx. x underlying bones cut upto brain matter on (R) side of face, forehead & skull just outer to right eye.
2. Incised wound 13 cm. x 2 cm. x brain deep (underlying bones are cut through & through) on (R) side of face, forehead & skull, from outer angle of mouth to the middle of skull crossover 2 cm. in front of (R) ear.
3. Incised would 10 cm x 3 cm x brain deep (underlying bones are cut through & through) 1 cm below the (R) ear.
4. Incised would 2 cm x 1 cm x muscle deep on the outer side of (R) upper arm upper part.
Margins of all these injuries are clean cut; sharp spindle shaped (both ends angular) direction is oblique.
5. Tr. Amputation of (R) four finger at the level of metacarpal bones. Margins clean cut.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage due to ante mortem injuries.
15. Dr. Suresh Chandra, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Km Kulvinder Singh and noted the following ante mortem injuries:
1. Incised wound 11 cm. x 2 cm x buccal cavity and bones on (L) side of face.
2. Incised wound 20 cm x 3 cm x brain deep underlying bone cut on right side of the head just below right eye. Brain matter was coming out.
3. Incised wound 6 cm x 2 cm x bone deep on the front of (R) forearm lower part fracture of underlying (sic).
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage due to ante mortem injuries.
16. Dr. R.S. Kasana, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Km. Rano and noted the following ante mortem injuries:
1. Incised wound 7.5 cm x 2.5 cm x bone deep Lt. side head & face extending from angle of Lt. eye to back of middle lateral R. ear bone underneath.
2. Lacerated wound 5 cm x 4 cm x muscle deep on 1, forearm 2 cm below Lt. elbow joint.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage on account of ante mortem injuries.
17. Dr. R.S. Kasana, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Smt. Bhajan Kaur and noted the following ante mortem injuries:
1. Incised wound 9 cm x 2.5 cm x bone deep Rt. side head. 3 cm above Rt. ear. Lacerated brain matter coming out bone underneath.
2. Incised wound 10 cm x 3 cm x bone deep Rt. side reck 2 cm below Rt. ear extend from back of neck to Rt. side f ice bone underneath.
3. A gunshot wound of entry 1 cm x 1 cm x bone deep on Lt. forearm 6 cm above Lt. wrist joint. Margin inverted. There is no blackening & tattooing present, one brass metallic bullet recovered underneath.
4. Incised wound 4 cm x 2.5 cm x bone deep on Rt. scapular region upper part.
5. Linear abrasion 5 cm x 0.5 cm on Rt. upper arm upper part.
6. Incised wound 4 cm x 1.5 cm on back of neck.
7. Incised wound 4 cm x 2 cm on back of neck 2 cm below injuries No. 6.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage on account of ante mortem injuries.
18. Dr. D.C. Mobar, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Mohar Singh and noted the following ante mortem injuries:
1. Incised wound 9 cm x 2 cm x cavity deep Rt. side head just above Rt. ear, margin clean cut, angle angular, temporal & parietal bone cut under injury. Brain cut under injury.
2. Incised wound 18 cm x 21/2 cm x bone cut right side face extending from outer angle of Rt. eye to back of Rt. ear, the maxilla bone Rt. side lobule of Rt. ear cut through & through under injury. Margin clean cut. The wound is deep & broad on face.
3. Incised wound 7 cm x 2 cm x bone cut on Rt. mandible upon, the mandible is cut through & through under injury, ma gin clean cut.
4. Incised wound 22 cm x 4 cm x bone cut on Rt. side neck extending from front of neck mid line to posterior mid line. The wound is on middle of neck. Margin clean cut, all foscea trachea, Oesophagus, & 5 vertebral body cut through & through under injury spine at C 5 level cut under injury. All blood vessels of neck Rt. side cut under injury.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage as a result of ante, mortem injuries.
19. Dr. D.C. Mobar, Medical Officer, District Hospital, Muzaffarnagar has conducted the autopsy on the body of Sheesha Singh and noted the following ante mortem injuries:
1. Incised wound 32 cm x 2 1/2 cm x bone cut on left side head 2 cm above left ear & extending from 7 cm behind & above left ear to right side face upto the angle of mandible, oblique Margin clean cut, angle angular. The temporal bone frontal bone, maxilla bone, nose lower part all are cut under injury. Underlying blood vessels also cut.
2. Incised wound 12 cm x 2 cm x bone cut on front of chin. The wound is extending from 4 cm away & 1 1/2 cm below left angle of mouth to right side chin. Margin clean cut. The mandible bone under the injury was cut.
According to the opinion of the doctor cause of death of the deceased was shock and haemorrhage as a result of injury noted above.
20. In all, 18 witnesses were examined by the prosecution to prop up its case out of which P.W. 1, P.W.2 and P.W.3, P.W. 10, P.W. 11 and P.W. 12 are doctors who conducted either autopsy on the dead bodies or examined the injured.
21. We have heard at length Sarva/Sri G.S. Chaturvedi, G.P. Dikshit, Udai Chandai, S. Shekhar Giri on behalf of appellants in Appeal Nos. 749 of 1996 and 761 of 1996 and Sri P.N. Misra, Apul Misra for the respondents in Govt. Appeal No. 1341 of 1996. We have also heard learned Additional Government Advocate on behalf of the State.
22. The learned Counsel for the appellants assailed the finding recorded by the learned Sessions Judge predominantly on the grounds that it was a case hinging on solitary evidence; that motive alleged was of flimsy nature; that the occurrence took place in the dead of night and there was no effective source of light as to enable the witnesses to have recognised the assailants; that no specific role has been assigned to any of the accused persons; that the accused persons have been falsely implicated in the case on account of faction in the village and enmity; that the accused Nishan Singh, Hardeep, and Sinder Singh were not named in the F.I.R. and subsequently, they were named in her statement under Section 164 Cr.P.C. by P.W. 4 and therefore, the entire prosecution story is a fabric with all false thread; that the statement of solitary witness bristles with discrepancy and contradictions inasmuch as in her statement before the Magistrate she did not nominate Hardeep alias Deepa, Nishan Singh and Sinder Singh but in her statement before the Court she made improvement by nominating the aforesaid accused persons and therefore, it has been argued, her statement was not reliable and cannot be acted upon for basing conviction attended with the submissions that the trial court has not appreciated the evidence in correct perspective and has converged to the conclusion of guilt without any concrete evidence supporting the prosecution case.
23. In connection with the above submissions, we would take up the statement of P.W. 4 namely, Harbansh Kaur wife of deceased Sheesha Singh who is an injured witness, for scrutiny.
24. A recapitulation of her deposition is necessary regard being had to the fact that besides being injured she is very material witness. To begin with, she deposed that her dwelling place is situated abutting the path-way leading to village Dongpura attended with the further deposition that dwelling places of Kartar Singh and Mohar Singh are also adjacent to her dwelling place. Recounting the precise details of day of occurrence, she deposed that on the fateful day, she alongwith her family members namely her sons Jogendra Singh and Jassa Singh, her daughter Rano, Jogendra’s daughter-in-law Bhajan kaur and her three children Bagga Singh, Km. Pulvendra and Gurmy Singh were fast asleep while her husband had gone to the Tube-well. It is further deposed that a lantern was burning in the house. She was awakened in the mid-night by the barking of dogs. After a short while, her sons and other family members were also awakened. She noticed an assemblage c-: certain persons near her gate and after a short while, she also noticed Kartar Singh and his 4 sons Mahendra Singh, Lakkha Singh, Gindar Singh and Sindar Singh amongst the gathered people. She made a vivid description deposing that Kartar Singh was armed with a country made pistol, Mahendra Singh with a gun, Sindar Singh with an axe and Gindar Singh with a Gandasa and Lakkha Singh with a Tabal. She further deposed that alongwith these accused, her neighbor Sapooran Singh and his four sons namely Veer Singh, Taharan Singh were also present in the assemblage and they were armed with country made pistol while Kameer Singh and Amrik Singh were armed Lathi. There were six – seven other persons amongst them including Nishan Singh, Hardeep Singh. Sindar Singh was also amongst them. Balkar Singh who was also in the assemblage was equipped with a sword. Out of the assemblage, some of them effected entry into her house while the remaining accused persons moved to the house of Mohar Singh. It is further deposed that with a view to screening themselves from the attack of the accused persons, they escaped to a Kotha and hid themselves there and bolted the door from inside. Out of the accused persons, Kartar Singh commanded the co-accused to climb up the roof. Kartar Singh and Mahendra Singh, climbed up the roof top and started digging the roof and also threw burning woods in the Kotha. Kartar Singh ignited attack by exhorting Mahenara Singh, Gindar, Sindar and Lakkha to do away with all the persons of the house. She further deposed that as soon as she and ner family members tried to escape from Kotha, Kartar Singh, Mahendra Singh, Balkar Singh and Amrik Singh let loose killing spree initially killing her daughter Rano followed by attack and killing of Bhajan Kaur, her sons Kulvendra and Gurpreet Sngh. She also gave age of Gurpreet Singh as about 1 1/2 years and Kulvendra about 3 years old, Rano being about 18 years old. Thereafter, she deposed, the accused persons also find on her and as a result she had sustained injuries on her chest. She further recounted that Sindar assaulted her with a e and a Gandasa blow was also inflicted on her left side of face. She further recounted in her deposition that Jassa Singh and Yogendra Singh were also killed while they tried to escape towards the house of Mohar Singh. She also recollected that Jassa was killed while trying to run away towards tube-well and both were slain outside their house. It is also deposed by her that she recognised the assailants in the moon light and also the light shed by the lantern. It has come in her deposition that her son Jassa Singh had tried to escape with one child Bagga in his arm but Jassa was slain while escaping while Bagga who was aged 5 years sustained firearm injuries. At the time of occurrence, it has been further deposed, there were shrieks emanating from the house of Mohar Singh attended with further deposition that in all five persons of the family of Mohar Singh were also killed. She deposed that she escaped to the paddy crop where she came across Hujoor Singh, Gurdeep Singh and Jaswant Singh and sought their help and pleaded with them to lodge the report. It is further deposed that she stayed back with Hujoor Singh while Jaswant Singh and Gurdeep Singh proceeded to the police station. She had asked Hujoor Singh to go to the tube-well to inform her husband that accused had committed murder of family members. Hujoor Singh proceeded to the tube well and informed her on return that Mohar Singh and Sheesha were also hacked to death. She had recognised the accused persons in court. She also stated in her deposition that Mahendra Singh had met his end. On the count of motive, she recollected in her deposition that a sum of Rs. 8000/- was lent to Mahendra Singh for purchasing the land about 8 years back and when the money was demanded back, he equivocated and seemed unwilling to pay back the debt. She also recounted that the accused had also borrowed money from Mohar Singh. Mahendra Singh, she further deposed, was a shady character who was arrested by the police of Police station Jhinjhana and Kairana and on account of his arrest; he suspected her and the deceased persons to be police informer. She further stated in her deposition that the sister of Mahendra Singh had a liaison with Avatar Singh son of Mohar Singh and that once Avatar Singh had taken liberties with her and on this count also Mahendra and other accused bore animosity with her family members and the family of Mohar Singh.
25. P.W. 5 is Hujoor Singh whom the injured witness aforesaid had come across in the paddy field. He deposed that his dwelling place lies at a distance of about 1 Km. from the dwelling place of Kartar Singh. At about 11.00 P.M. he had heard the yelling emanating from the Dera of Sheesha Singh upon which le called out Jaswant Singh from his house and both went to the house of Gurdeep Singh. Gurdeep Singh also accompanied them by taking gun and torch with him and all the three reached the house of Kartar Singh where he saw a throng of people. He denied having recognised any of the accused persons. He further denied to have seen any accused perpetrating the crime. He however, deposed that he had met Harbansh Kaur who revealed to them that she had been assaulted by Kartar Singh and other accused persons. This witness was stigmatized as having been won over by the prosecution and was declared hostile. In the cross-examination made by the prosecution, this witness started that Gurdeep Singh was done to death after this occurrence. He further stated that Gurdeep had lodged the report and feared retaliation from Mahendra Singh. It has also come in his deposition that Pala Singh, brother of Mahendra Singh had taken him to the court and obtained his signatures on some blank papers which according to further deposition, he put his signatures for fear of Mahendra Singh. He further deposed that investigating officer had made queries from him and he had told him about the occurrence. He explained that Harbansh Kaur had asked him to convey information to her husband Sheesna Singh. He further explained that he went to the tube-well where he saw that Sheesha Singh had already been hacked to death and therefore he proceeded to the tube-well of Mohar Singh where he also found him lying dead and supine.
26. P.W. 6 Dr. Naresh Kumar Sharma had medically examined Harbansh Kaur on 14.7.1984 at 6.30 A.M. He proved medical examination conducted by him on Harbansh kaur.
27. P.W. 7 Ramesh deposed that he did not recognize any of the accused persons. He explained that he was serving in the house of Mohar Singh as doing menial work. He denied to have witnessed any occurrence. The prosecution declared this witness hostile.
28. P.W. 8 Jahangir Singh deposed that about four years two months back he was present in his house alongwith Sahab Singh. At about 7 or 8 a.m. Sinder and Ginder came there and confided to them that they alongwith Lakha Singh, Mahendra Singh, Sinder Singh Ginder Singh Kartar Singh Balkar Singh, Nishan Singh Sudhakar Singh and Deepa and Tahal Singh Kamir Singh, Veer Singh and Amrik Singh, the sons of Sampurna Singh Peepal Singh Jagtar Singh, Amit Singh, Balbir Singh and two others had slain the family members of Mohar Singh and Sheesha Singh in the intervening night of 14/15.7.1984. After confiding to them about the incident the aforesaid accused persons sought protective privacy to screen them. He also deposed that Sahendra and Jogendra had kinship with him.
29. P.W. 9 Mukhtar Singh happens to be the son of deceased Mohar Singh. He deposed that Lakha Singh had borrowed a sum of Rs. 1600/- from Mohar Singh, which he was disinclined to return despite repeated demands. He also state; in his deposition that his brother Pappu alias Autar Singh too; liberties with the sister of Mahendra and in this connection a Panchayat was held. He stated that Mahendra Singh was the son of Kartar Singh and the daughter of Kartar Singh was married to the brother of accused Nishan Singh. He further staged that Mahendra was arrested by the police of P.S. Jhinjhana one year prior to the occurrence and on this count he (Manendia Singh) suspected hands of P.W. 9 in tipping the police and in getting him arrested. He denied his presence on the day of occurrence.
30. P.W. 10 Dr. Suresh Chand had conducted the post mortem examination on the dead body of Gurpreet Singh and Kulvendra and he proved post mortem report.
31. P.W. 11 Dr. K.R.S. Kasana had conducted the post mortem examination on the dead body of Km. Rano and Smt. Bhajan Kaur and he also proved the post mortem report aforesaid.
32. P.W. 12 Dr. D.C. Mobar conducted the post mortem on the dead body of Mohar Singh and Sheesha Singh. He also proved the post mortem report supra.
33. P.W. 13 Kundan Singh deposed that after about 18 20 days of the occurrence, he heard the police telling that accused persons were hiding in the house of Nishan Singh. Thereafter, police raided the house of Nishan Singh and took in custody accused Nishan Singh and Amrik Singh. He further deposed that accused Nishan Singh offered to get the double barrel gun used in murder recovered and thereafter the police party took the accused for recovery and recovery of double barrel gun was made from the heap of cow dung cakes. He also deposed that it was in his presence that the accused took out a D.B.B.L. Gun and four cartridges. A recovery memo was prepared by the police which is Ka-17.
34. P-W. 14 Indra Pal Sharma deposed that on 14.7.1984 he was posted as Head Moharrir at P.S. Jhinjhana and on that date at 4.15 a.m. Gurdeep Singh had given an oral information about the occurrence and acting on his information he prepared the report. He also deposed that Chik F.I.R. was prepared and thumb impression of Gurdeep Singh was obtained thereon, He further deposed that Gurdeep Singh had since met his end. He proved Chik F.I.R. which is marked Ext. Ka-18 and G.D. entry which is marked Ext. Ka-19.
35. P.W. 15 Sheesha Singh deposed that he came to village Dingpura two or three days after the occurrence. He denied to have witnessed any recovery by the Investigating offer on the pointing out by any of the accused persons.
36. P.W. 16 Bagh Singh deposed that the Inspector had arrested Sahendra and Deepa and after the arrest, Sahendra offered to get recovery of lathi used in the crime while Deepa offered to get recovery of Ballam used in the crime. Accused Sahendra took the police party towards the culvert and brought out a Lathi from the Bush and handed over the same to the Inspector. Accused Deepa had also brought out a Ballam from the bush at another place. He further deposed that both lathi and Ballam were blood smeared and that the recovered article were sealed and recovery memo was prepared which is Ext. Ka-20.
37. P.W. 17 Sohan Singh deposed that he had gone to P.S. Jhinjhana alongwith Amar Singh where he found accused Sinder and Ginder. He also deposed that both the accused on being questioned by the police spilled out the truth and offered to get the weapons recovered and accordingly, their statements were recorded which is Ext. Ka-21. He further deposed that both the accused took the police and the witnesses to their house in Dongpura and Sinder took out blood stained Kulhara from the sugar cane field of Virsa Singh of which recovery memo was prepared. He further deposed that Ginder took the police party and witnesses to the field of Chari of Virsad and took out a Gandasa from the said crop which was accordingly sealed on the spot and recovery memo was prepared.
38. P.W. 18 S.I. Mohd. Akhtar is the investigating officer of the case. He deposed that at the time of occurrence he was posted as Station officer of P.S. Jhinjhana and the case was registered in his presence. He further deposed that he noted down the contents of chik F.I.R. and G.D. and proceeded to the place of occurrence alongwith informant. He also proved Exhibits relating to blood stained and simple earth, empty cartridges, bullets, wads, pellets, turban mattresses, pillow, ashes and brick.
39. The case of the defence is one of denial and of false implication. The accused did not produce any witness in their defence. The appellant Veer Singh repudiated the prosecution story and pleaded his false implication attributing it to the hostility and enmity. Tahar Singh also stated in his statement under Section 313 Cr.P.C. that he was nominated in ‘he case due to enmity. Amrik Singh also attributed his false implication to enmity and faction in the village. Appellant Kameer Singh denied the prosecution story and stated that he was arrested from Ammupura P.S. Nisang district Karnal and detained at the police station for about 10 days and falsely nominated in this case on account of enmity. Appellant Balkar Singh also denied the prosecution story and stated to have been arrested by the police from his house. He disowned any recovery of blood stained kurta and blood stained sword at his pointing out. Hardeep Singh also pleaded innocence and his false implication. Sahendra also denied the prosecution case and stated that the Lathi was not recovered at his instance. Nishan Singh stated that he has been falsely implicated in this case. He also disowned his confessional statement and denied recovery of licensed gun at his instance. He further added that the police had seized his licensed gun and cartridges from his house and plated it to have been recovered at his instance. The Sessions Judge had acquitted Hardeep alias Deepa, Sindar Singh and Nishar Singh.
40. The trial court, on appraisal of evidence on record, recorded finding of conviction against the appellants in the above appeals and that of acquittal in so far as accused Hardeep, Sinder Singh and Nishan Singh arrayed as respondents in the Government Appeal are concerned as aforesaid.
41. Coming to grips with the first submission advanced across the bar by learned Counsel for the appellants, it has bee; argued that motive alleged is of flimsy nature and was not proximate enough to have induced the accused to perpetrate the crime and on this count, he fiercely argued that when the substratum of the prosecution case fails, the entire prosecution case has to fail. From a close scrutiny of the materials on record, it would appear that it appears to be a case of direct evidence and existence of motive may not be very material. Before proceeding further, it would be useful to say that the motive in a criminal case is not to be treated as a sine qua non or else it would be very difficult for the prosecution in every case to cull out motive and to bring the same on record. The well enunciated principle laid down on this aspect by the Apex court is that if the prosecution proves the existence of motive, it would be well and good for it, particularly in a case hinging on circumstantial evidence, for such motive could then be counted as one of the circumstance. In a case which turns on direct evidence, the element of motive does not play so crucial a role as to cast a doubt on the creditworthiness of the prosecution witness. Whether or not the accused persons were imbued with proximate motive which led them to perpetrate the crime, we would first notice the evidence of P.W. 4 Smt. Harbans Kaur. It has come in her deposition that Mahendra Singh was lent a sum of Rs. 8000/- approximately eight years back prior to the occurrence, which he was evading to pay back which created bitterness. It has also come in her deposition that Mohar Singh had also lent some amount to Mahendra Singh. Besides the above, it is also indicated in her deposition that Mahendra Singh suspected that family members of Smt. Harbans Kaur had tipped the police about his activities which led to his arrest twice by the Police of P.S. Jhinjnana and P.S. Kairna. Yet another motive attributed to the accused as would appear from her deposition is that Mahendro, sister of Mahendra Singh had developed a liaison with Autar Singh alias Pappu son of Mohar Singh who had once outraged her modesty. The factum of loan lent to accused Mahendra Singh also finds support from the evidence of P.W. 9 Mukhtiyar Singh son of deceased Mohar Singh who stated that Lakkha Singh had taken Rs. 1600/- from Mohar Singh about 5-6 years prior to occurrence which he was disinclined to repay despite repeated demands. It has also come in his deposition that Mahendra Singh accused had made imputation against Autar Singh his brother to the effect that he had taken liberties with his sister Mahendro and as a consequence, a Panchayat was convened in the village the decision of which was received with hostility by Mahendra Singh and he wanted to avenge himself. It has further come in his deposition that one year prior to the occurrence Mahendra Singh was arrested by the Police of P.S. Jhinjh ma and in this connection, he suspected that family of deceased had tipped the police about his activities.
42. The accused persons in their statements while pleading innocence attributed their false implication to hostility and enmity between them and family of the deceased and thus there is implied admission about enmity and hostility between the two parties.
43. In view of the above testimonies of P.W. 4 Smt. Harbans Kaur and P.W. 9 Mukhtiyar Singh it clearly transpires that the above causes were the root cause of estrangement and the relations between the parties were strained.
44. So far as sufficiency of the motive for a crime of this diabolical nature such as it is, is concerned, the Apex Court in the case of Ranganayaki v. State (2004) 12 SCC (Crl.) has held as under:
The motive for doing a criminal act is generally a difficult area for the prosecution. One cannot normally see into the mind of another. The motive is the mind which impels a man to do a particular act. Such impulsion is…need not necessarily be proportionally grave to do grave crimes. Many murder has been committed without any known or prominent motive. It is quite possible that the aforesaid imputing factor would remain undiscovered.
45. In the light of the above discussion and also regard being had to the observations of the Apex Court (supra), we are clearly of the opinion that the motive for crime was the ill-will and enmity and thus the motive was proximate enough for the accused to have perpetrated the attack. The admission about enmity and hostility between the feuding parties finds manifestation from the statement of the accused as well. As such, there is nothing improbable in the appellants having nurtured grievance against the victim family and wanting to settle scores with them and therefore, the submission of the learned Counsel that motive alleged was feeble or of flimsy nature does not commend to us for acceptance.
46. The next argument advanced across the bar is that the occurrence took place during the dead of night and there was no proper source of light in which the accused could be identified by the P.W. 4 Smt. Harbans Kaur. In this connection, we feel called to revert to the scrutiny of deposition of Smt. Harbans Kaur P.W. 4 once again. It is clearly stated by the witness in her deposition that it was moon lit night and a lantern was also burning. The factum that it was moon-lit night has not been repudiated. One more aspect worthy of notice is that she f suffered Kulhari and Gandasa blow attended with the fact that she remained present at the place of occurrence for sufficient time. It would further transpire that she had witnessed the occurrence and also assault on her family members both from inside the room and also from the place when she emerged from Kotha. The another relevant aspect to be reckoned with is that accused persons and the witnesses are well known to each other and identification by her, when she had seen them from close quarter, cannot be ruled out. It is settled position in law that if persons are known to each other from the manner of walk, talking and peculiar feature, identification is possible. The decision in Kalika Tiwari v. State of Bihar is a decision which throw beacon light on the issue involved in which the Apex Court held as under:
The visibility capacity of urban people who are acclimatized to fluorescent light or in candescent lamps is not the standard to be applied to villagers whose optical potency is attuned to country made pistol. Their visibility is conditions to SLCII lights and hence it would be quite possible for them to identify the man and matter in such lights.
47. The trial court has assigned cogent reasons and we are in full agreement with the finding of the trial court on the point. In the perspective of above discussion, the contention of the learned Counsel for the appellants that there was no sufficient source of light to have enabled the witness to identify the perpetiators of crime, does not appeal to us for acceptance.
48. The learned Counsel for the appellant “switched over to next submission and argued vehemently that dying declaration of P.W. 4 Smt. Harbans Kaur was recorded by Magistrate on 14.7.1984 in which she nominated only Sinder, Mahendra and Ginder sons of Kartar Singh as assailants. It is further argued that names of other assailants do not find mention in her “dying declaration” and assailed the same as unusable and discrepant and also canvassed the tenability of the prosecution case. We have very closely scrutinized the submissions from all possible angles and we have no patina of doubt in our mind that the submission aforesaid has no measure of substance and does not commend to us for acceptance. It would transpire that the Magistrate recorded her statement as dying declaration as her condition, at that time, was critical on account of grievous nature of her injuries :but as the Luck would have it, she survived. A stream of ruling has settled the position in law that in this peculiar situation, the statement recorded as dying declaration, can be treated as a statement under Section 164 Cr.P.C. and not one admissible under Section 32 of the Evidence Act. The above view finds reinforcement from the decision of the Apex Court in Ram Prasad v. State of Maharasthra , in which the Apex Court has held “As long as the maker of statement is alive, it would remain only in the realm of a statement recorded during investigation.” It brooks no dispute that statement recorded by a Magistrate under Section 164 becomes useable to lend corroboration to a witness as envisaged in Section 157 of the Evidence Act or to contradict him as postulated in Section 151 thereof. This position in law finds support from the case of Maqsoodan v. State of U.P. a three Judge Bench of this Court (SCC p 223). The paragraph 11 being germane to the question involved is excerpted below.
11. When a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. In the instant case, the makers of the statements Exts. Ka-22 and Ka-23, are not only alive but they deposed in the case. Their statements, therefore, are not admissible under Section 32; but their statements however are admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in court.
49. The Apex Court while remanding the present appeals to this Court observed as under:
It is trite law that when maker of purported declaration survives the same is not statement under Section 32 of the Indian evidence Act, 1872 (For short the ‘Evidence Act’) but is a statement in terms of Section 157 of the Evidence Act for the purpose of corroboration and under Section 155 for the purpose of contradiction in Ram Prasad v. State of Maharashtra , Sunil Kumar and Ors. v. State of Madhya Pradesh and Gentela Vijayvardhan Rao v. State of A.P. 1996 (6) Supreme Court 356.
50. It is also significant to mention here that the statement of P.W. 4 was recorded by the Magistrate in question-answer form. It would appear that she was posed a specific question as to how she sustained injuries and in reply to this a question, she disclosed that she was assaulted by three sons of Kartar Singh. There is nothing to manifest that she was asked about entire occurrence and therefore, on this ground, the argument that names of certain appellants do not find mention in her dying declaration, has no cutting edge.
51. We would now embark upon next submission, which revolves round the argument that the entire prosecution case hinges on sole eye witness namely P.W. 4 Smt. Harbans Kaur and that her testimony bristles with many contradictions and infirmities and therefore it is argued that her testimony should not be relied upon as it does not inspire confidence. It is further argued that she is also related to the deceased and therefore corroboration is a must. The learned A.G.A. repudiated the above contentions with all vehemence and argued that the witness is an injured witness having sustained as many us eight injuries on her person and considering that number of her family members were slain before her eyes, she would not substitute the appellants for the real culprits attended with further submission that her testimony clearly established the commission of offence by the appellants and therefore, it is argued, there is no valid justification why she would depose falsely against the appellants screening the real culprits.
52. The legal position in this connection is well settled by a catena of decisions of the Apex Court. The common thread running through various decisions of the Apex Court is that on the basis of the testimony of a single ocular witness, conviction may be recorded but at the same time, the Apex Court has administered caution that while doing so the Court must be satisfied that the testimony of solitary ocular witness is of such a quality that the Court finds it safe to base a conviction solely on the testimony of that witness. One such ex-cathedra decision on the point is Yaqoob Ismail Bhai Patel v. State of Gujrat the relevant portion of which is excerpted below.
The legal position in respect of the testimony of a solitary eyewitness is well settled in a catena of judgments inasmuch as this Court has always reminded that in order to pass conviction upon it, such a testimony must be of a nature which inspires the confident of the Court. While looking into such evidence this Court has always advocated the rule of caution and such corroboration from other evidence and ever, in the absence of corroboration if testimony of such single eyewitness inspires confidence then conviction can be based solely upon it.
Yet another decision on the point is Chako v. State of Kerala (2004) 12 269 in which the Apex Court laid down as under:
Coming to the question whether on the basis of e solitary evidence conviction can be maintained, a bare reference to Section 134 of the Evidence Act, 1872 (in short “the Evidence Act”) would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained.
53. We nave scrutinized the evidence very closely and critically and also other evidence on record qua the arguments with a avowed view to assess whether her evidence is of such a quality that a conviction for the offence of murder can be safely based on her sole testimony. From a close scrutiny of the deposition of Smt. Harbans Kaur P.W. 4 it clearly transpires that she had vividly described the precise details. It would further transpire that the evidence of P.W 4 was not shaken inspite of incisive cross examination. It is further eloquent from her deposition that the witness was subjected to incisive and grueling cross examination and on material facts, she remained unshaken and no adverse inference could be drawn from her cross examination. She gave rational and sensible answers which appealed to the court below and the court below credited the witness as truthful witness whose sincerity in speaking the truth could not be doubted. We have also scrutinized the evidence from all possible angles and having given our anxious considerations, we find nothing improbable in her deposition and there appears to be no reason for us to think it proper not to act on her testimony. She being close relation would be the last person to spare the real culprits No doubt, possibility may be there that a close relative may implicate some innocent persons along with real assailants but at the same time there is no possibility of substituting innocent persons for real culprits. We would also like to say that all the arguments raised before us were also raised before the court below which were fully repelled for cogent reasons with which we are in full agreement. We also feel called to say that the trial court has taken utmost pains in fully scrutinizing and properly evaluating the evidence of the witness and after applying the correct principles governing the appreciation of the evidence it accepted the evidence of the witness. In this view of the matter, we are unable to endorse the argument of the learned Counsel as supportable on the materials on record as we are unable to find any discrepancy or defect in her evidence so as to lead the Court to reject the same.
54. The learned A.G.A. canvassed the tenability of the submissions of learned Counsel for the appellants and argued that it is not a case hinging on sole eye witness and in connection with the point mooted across the bar, he drew attention to the material part of evidence of P.W. 5 Hujoor Singh stating that the said witness supported the prosecution on all essential aspects except saying that he had no occasion to identify the assailants. It has come in his deposition that P.W. 4 injured had escaped in an injured state to the paddy field where she came across him, Jaswant Singh and Gurdeep Singh, the informant and told them about the occurrence and also disclosed the names of the accused persons. The aforesaid witness also claimed to have seen a gathering of people near the house of Sheesha Singh but denied to have recognised any of the accused persons. This witness, it is further argued, also deposed that the injured sought help from him to inform her husband Sheesha Singh whereupon he went initially to the tube-well of Sheesha Singh and thereafter to the tube-well of Mohar Singh where both the persons were found lying dead at their respective tune-wells. The aforesaid witness further deposed that Gurdeep Singh left for police station to lodge the F.I.R. leaving her to his care.
55. There is no general rule that the evidence of the relations of the deceased must be corroborated for securing the conviction of the offender. Each case, it leaves no manner of doubt, is to be considered on its own facts. In the present case, there is an intrinsic ring of truth in the evidence of the eye witness and also the fact that she herself was attacked and injured was undoubtedly in a position to identify the assailants coupled with the recovery of blood stained earth from the place of occurrence which leaves no reasonable doubt about the guilt of the accused persons.
56. From a further scrutiny of the evidence of the aforesaid witness, it is also noteworthy that the aforesaid witness has claimed to be attracted to the scene of occurrence on hearing gun shots and he immediately hustled towards the scene of occurrence alongwith Gurdeep Singh who was armed with gun and Jaswant Singh. It would thus transpire that the aforesaid witness supports the prosecution to the extent that P.W. 4 Harbans Kaur met him in the paddy field in the injured state and she also disclosed to him the names of the assailants while the occurrence was still in process. Although from the contents of F.I.R. lodged by Gurdeep Singh who could not be examined due to his death, it clearly transpires that Hajoor Singh alongwith Jaswant Singh and Gurdeep Singh tried to confront the accused persons but they retreated on account of being fired upon but it is not clear why this witness was not willing to support the prosecution case as regards participation and involvement of the accused persons. It may be, the witness was panicked from testifying to truth ostensibly having seen the fate c Gurdeep Singh who had lodged the F.I.R. The conclusion is therefore Irresistible that the aforesaid witness lent considerable support to the prosecution case and also to the version of P.W. 4. Besides, even if it be assumed for the sake of argument that there was discrepancy in the statement of P.W. 4 on the it aspect, we feel constrained to say that there is no general ml that if a part of the statement of an ocular witness does not inspire confidence, the entire statement would be rendered thrown away as, unbelievable.
57. The Government Appeal has been preferred against the acquittal of accused Hardeep alias Deepa, Sinder Singh and Nishan Singh. It would appear that the case against the aforesaid accused has ended up in acquittal giving them benefit of doubt on the ground that the accused were not named in the F.I.R. and further that the guilt of the accused had not been proved beyond reasonable doubt.
58. What considerations weighed with the court below in recording acquittal against the accused/respondents are to the following effect; firstly that the accused/respondents ware not nominated in the First Information Report, secondly that they were not enumerated as assailants by P.W. 4. Smt. Harbans kaur in her statement under Section 164 Cr.P.C. and also in her statement under Section 161 Cr.P.C. and lastly that no identification parade was demanded or conducted.
59. Learned A.G.A. addressed lengthy arguments and assailed the finding on the ground that the acquittal was bad m law and that the acquittal was against the weight of evidence on record. The salient points canvassed by the learned A.G.A. are enumerated below.
1. The Sessions Judge has eschewed from consideration the arrest of Hardeep Singh alias Deepa and Sunder on 17.7.1984 and recovery of blood stained spear and Lathi and human blood on their pointing out.
2. That the respondent accused persons were Known to P.W. 4 Smt. Harbans Kaur before incident as they were neighbours and in this connect he drew attention to her statement in which she deposed that “all the assailants were Sardars and they would recognise them if they are produced before her and despite her statement no identification was claimed by these accused/respondent.
3. That accused Nishan Singh was arrested on 5.8 1984 and Ballistic Expert opinion goes to prove his involvement.
4. As regards absence of names of accused acquitted by the Sessions Judge, it was argued that F.I.R. was lodged by Gurdeep Singh who died before commencement of trial and further that F.I.R. was not recorded on the dictation of Smt. Harbans Kaur P.W. 4.
5. It was further argued that the P.W. 4 disclosed the names of the accused persons in her statement before the court.
60. In support of the contentions aforesaid, learned A.G.A. cited good deal of decisions. On the point that Informant is rot an eye witness, decisions in Pandurang v. State of Hyderabad (Three Judge decision), Kamla S. v. Vidyadharn M.J. and Anr. 2007 (2) Supreme Court (JT) p 611, Kari Choudhary v. Mst. Sita Devi and Ors. , Anil Kumar v. State of U.P. . Thakur Prasad v. State of M.P. . He also cited following decisions in support of the mooted point relating to identification. The decisions are Simon and Ors. v. State of Karnataka AIR 2004 SC 2775, State of U.P. v. Anil Singh . Instead of making idle parade of learning by citing and discussing all the decisions, it would suffice to say that we have derived considerable advantage from riding of the aforesaid decisions. On other points, several decisions have been cited and most of the decisions cited have been discussed and relied upon in the main judgment and we need not reiterate the ratio of the said decisions all over again.
61. Since the entire mooted questions have already been discussed at prolix length in the judgment in hand, we need not reiterate the same all over again.
62. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. See Bhagwan Singh v. State of M.P. . The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 1973 SCC (Crl.) 1033, Ramesh Babulal Doshi v. State of Gujarat (1996 SCC (Crl.) 972 and Jaswant Singh v. State of Haryana 2000 SCC (Crl.) 991.
63. The Sessions Judge recorded acquittal in so far as accused Hardeep alias Deepa, Sinder Singh and Nishan Singh holding that their names do not find mention in the First Information Report or in the statement of P.W. 4 recorded under Sections 161 and 164 Cr.P.C. The Investigating officer arrayed as P.W. 18 also admitted that the names of these accused persons were not enumerated in the First Information Report nor in the statement of Smt. Harbans Kaur recorded by him on 16.4.1994 in the Hospital/Medical College. He further conceded that the aforesaid accused persons were also not put forth for identification. The learned Sessions Judge accepted the statement of learned Counsel for the respondents in Government Appeal that names of respondents accused were not disclosed in the First Information Report and therefore, he held the subsequent mentioning of names of the accused persons as improvement which he discarded. In this connection he also relied upon a decision of the Apex court in the Case of Yudhister v. State of U.P. (1971 SCC (Crl.) page 684 in which the quintessence of what has been held is that if a particular fact does not find place in the F.I.R. and also in the statement under Section 161 Cr.P.C. then it should be treated as improvement and cannot be considered. The learned Sessions Judge also held that the statement of Harbans Kaur P.W. 4 regarding involvement of accused Sinder Singh, Hardeep alias Dipa and Nishan Singh cannot he relied upon for convicting the respondents accused. The learned Sessions Judge also rejected the evidence of recovery under Section 27 of the Evidence Act said to be made at the instance of the accused respondents and put weight to the submissions of the learned Counsel for the respondents that recovery under Section 27 of the Evidence Act is not strong enough to connect the accused with the commission of offence. Upon overall consideration, the view of the Sessions Judge does not suffer from any infirmity or perversity and he rightly converged to the conclusion in so far as acquittal recorded against accused respondents is concerned. In the result, the Government Appeal fails and is dismissed.
64. In so far as Criminal Reference Nos. 5 and 6 of 1996 made against the death sentence recorded against Veer Singh, Tahaf Singh and Amrik Singh, Kameer Singh and Balkar Singh are concerned, the learned Counsel challenged the judgment of the court below on the ground that the death sentence was unwarranted as the case does not fall within the parameters laid down for recording of death sentence. He further invoked merciful view of the court in the case to save the lives of the appellant accused persons. In view of discussion made above, the conviction of the appellants is maintained and we need not reiterate the reasoning all over again. However, on the point of sentence, we have heard learned Counsel for the appellants at length.
65. Under the old code of Criminal Procedure, ample discretion was given to the courts to pass death sentence as a genera proposition and the alternative sentence of life term could be awarded in exceptional circumstances that too after advancing special reasons for making this departure from the general rule. The new code enacted in 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately, death sentence is to be awarded.
66. A Constitutional Bench of the Apex Court in the case of Bachan Singh v. State of Punjab AIR 1980 P. 898 while upholding the constitutional validity of death sentence articulated the view that as a legal principle death sentence instill awardable but only in rarest of the rare cases when the alternative option of lesser sentence is unquestionably foreclosed. In the case of Ram Pal v. State of U.P. 2003 (47) ACC 567, the Apex Court for reasons mentioned in paragraphs 8 and 9 of the judgment, reduced the sentence from death to life imprisonment despite the fact that 21 persons had been murdered in the incident in question.
67. The quintessence of various decisions rendered on the point is that it is the bounden duty of the Court to impose a proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders. It is only in very grave cases where it is a crime against the society and the brutality of the crime shocks the judicial conscience that the Court has the power, as well as the duty, to impose the death sentence.
68. Compassion in sentencing process is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed and this might arouse in them a feeling of remorse and repentance. The sentencing process is generally a difficult and complex one. It requires the exercise of sound judicial discretion. After amendment in the Cr.P.C., it no longer appears necessary to assign reasons for awarding the lesser penalty in the case of conviction for the offence of murder and the Court is now free in its discretion to award any one of the two sentences prescribed by Section 302 I.P.C. Since the Court is to determine proper sentence regard being had to the fact (1) the murders were committed as far back in the year 1984, and the appellants have been suffering incarceration in unbroken continuity, (2) that on conviction by the trial court on 18.4.1996, the accused were sentenced to death with me result that till date the shadow of death because of capital sentence must have haunted them and (3) it is not possible to assign with certainty the fatal blows inflicted on the vulnerable part of the deceased to any particular accused person, and also considering that the wounds inflicted by the incident, have healed up with the passage of time and any harsh sentence would certainly reopen the old wounds and accentuate the animosity and hatred amongst the families of both the parties, and also regard being had to the fact that it is always the desire of the Court that amity between feuding parties should always be encouraged, it would meet the ends of justice if we sentence them all to imprisonment for life. We are fully conscious that the murders were gruesome and diabolical in nature which initially dissuaded the court from exercising compassion but keeping in view all the considerations mentioned supra, we feel that the more appropriate sentence in this case would be that of life imprisonment.
69. Considering the over-all circumstances of the case though the crime committed is grisly and heinous act which leaves the Court shocked but at the same time, it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that the ends of justice would be best attained if the death sentence recorded against the appellants namely, Veer Singh, Tahal Singh and Amrik Singh, Kameer Singh and Balkar Singh is commuted to one of life imprisonment. In the result the Criminal Reference Nos. 5 and 6 are accordingly rejected.
70. We therefore, commute the death sentence recorded against the appellants to one of life imprisonment and while upholding the judgment of the court below, it is directed that the judgment shall stand modified to this extent. The Criminal References Nos. 5 and 6 shall stand disposed of accordingly.
71. In the light of the above discussions, the Criminal appeal Nos. 749 of 96 and 761 of 1996 preferred by respective appellants are dismissed accordingly and the conviction and sentences recorded against the appellants are affirmed with tie exception that the sentences recorded against the appellants namely, Veer Singh, Tahal Singh and Amrik Singh, Kameer Singh and Balkar Singh shall stand modified in terms of the above. All the appellants shall surrender to their bonds to serve out the sentences accordingly.