D. K. Trivedi, J.@mdashCapital Sentence No. 2 of 1993 connected with Criminal Appeal No. 368 of 1993, arises out of the judgment and order dated 651993, passed by VIth Addl. Sessions Judge, Sitapur, convicting the appellant, Sankata under Section 302/34, I.P.C. and awarding death sentence to him.
2. The appellant Sankata alongwith three other accused persons, namely, Sita Ram, Chhotey and Pyarey was prosecuted under Section 302/34, I.P.C. Accused Sankata was further prosecuted under Section 302 I.P.C, simpliciter.
3. Accused Sankata was convicted and awarded death sentence by the learned Addl. Sessions Judge while other three accused persons above named were acquitted of the charges.
4. The prosecution case, in brief, is that three months prior to this incident she buffalow of one Raj Kishore was missing which was being searched by Raj Kishore and the deceased Prithvi Pal. It is alleged that Raj Kishore and Prithvi Pal were suspecting that accused persons are responsible for the said mischief and on this account all the accused persons became inimical with the deceased Prithvi Pal.
5. It is said that on 20th May, 1991, at about 1130 P.M. Prithvi Pal deceased, Shrimati complainant and her soninlaw Mahanand were sleeping outside the house. It is further said that the accused persons came there and on hearing noise all the three persons woke up and saw and accused persons standing near the cot of Prithvi Pal. Accused Sankata and Chhotey said that Prithvi Pal is responsible for levelling the charge of theft of shebuffalow and therefore, he shall be killed. It is said on the instigation accused Sankata who was armed with Katta fired at Prithvi Pal as a result of which Prithvi Pal Singh fell down and dies on the spot. Shrimati raised an alarm and on hearing the alarm Raj Kishore, Paloo and other persons reached there and witnessed the incident. It is further, alleged that thereafter the accused persons ran away. Shrimati widow of Ram Singh thereafter got the report (Ext. Ka1) scribed by one Masterji and lodged the same at P.S. Sakran on 2151991 at about 730 A.M. The distance of the policestation is 6 kms. from the place of incident.
6. The First Information Report of the incident was loged in presence of Ram Shanker Singh, Station Officer (P.W.6) who immediately took up the investigation. After lodging of the report, Ram Shanker Singh went to the village and prepared the inquest report (Ext. Ka6) and other relevant papers (Ext. Ka7 to Ka10) and thereafter sent the dead body to the mortuary for postmortem examination. He also recorded the statement of the complainant and prepared the site plan (Ext. Ka11). One empty cartridge was also recovered by him from the place of occurrence. He also recorded the statement of the witnesses and inspected the torches of the witnesses.
7. On 25th May, 1991, the Investigating Officer arrested accused Sankata, Pyare and Chhotey. He also recovered on country made pistol and two live cartridges from the possession of accused Sankata. It is said that Sankata had admitted that he killed Prithvi Pal Singh by firing two shots from this pistol.
8. The Investigating Officer, after completing the investigation and due formalities submitted the chargesheet against all the four accused persons.
9. Autopsy on the dead body of the deceased was conducted by Dr. A. A. Khan (P.W.3) on 2251991, at about 230 P.M. and he found following antemortem injuries on the person of Prithvi Pal Singh:
(i) Multiple circular abrasion each 0.2 cm. x 0.2 cm in an area of 14 cm. x 12 cm. on the left scapular region. The blackening was found all over the region of abrasions.
(ii) Fire arm wound of entrance 4 cm; x 4 cm. x cavity deep balckening all around the margins on the left side of upper abdomen at the subcostal margin in the memory line 13 cm. below the nipple causing multiple laceration of small bowel.
10. The doctor also found the stomach full of blood and 32 pellets and threewad pieces were also recovered. The postmortem report is Ext. Ka2. According to doctor, the death was caused due to shock and harmorrhage as a result of antemortem injuries.
11. Prosecution in support of its case examined seven witnesses in all. Out of them Shrimati (P.W.I) widow of Ram Singh and Paloo (P.W.2) are the witnesses of fact. Dr. A. A Khan (P.W.3) conducted the autopsy and proved the postmortem report. Dilip Kumar Saxena (P.W.4) Legal Assistant in the Court of District Magistrate proved the sanction granted by the DistrictMagistrate regarding prosecution of accused, Sankata under Section 25 Arms Act. Ram Shanker Singh (P.W.6) conducted the investigation and submitted chargesheet against the accused persons. Iqbal Bahadur (P.W.7) registered the case, proved the report and other entries.
12. The accused persons on the other hand denied the prosecution case and stated that they all have falsely been implicated in this case due to enmity. Accused Pyarey stated that his brother Sunder died in police custody prior to this incident and on the application moved by him and Chhotey, a Magisterial enquiry was initiated against the police personnels and as such the police was pressurising them not to give evidence against them. It is further said that as they denied to oblige the police, they have been implicated falsely in the case by the police.
13. After considering the evidence on record the learned Addl. Sessions Judge came to the conclusion that the prosecution has successfully proved the guilt of the accused persons beyond reasonable doubt and convicted the accused Sankata as mentioned above. He further came to the conclusion that prosecution has failed to prove the guilt of other three accused persons, namely Chhotey, Pyare and Sita and consequently the learned Addl. Sessions Judge acquitted them of the charges levelled against them.
14. Sankata, the appellant, aggrieved by the aforesaid judgment and order of the learned Addl. Sessions Judge has filed the present appeal from jail.
15. The learned Addl. Sessions Judge has also sent a reference to this Court for confirmation of death penalty and, therefore, both, the appeal as also the capital sentence have been consolidated and are decided by the common judgment.
16. As pointed out above, AccusedSankata has filed this appeal from jail, Sri J. N. Choudhry, a senior Advocate of this this Court was appointed as amicus curiae.
17. We have heard Sri J.N. Chowdhary and the Government Advocate at great length and perused the record.
18. The contention of the learned Counsel for the appellant is that the Court below committed an error in holding that the prosecution has proved its case beyond reasonable doubt overlooking the evidence adduced by the prosecution which is not sufficient and reliable. Shrimati (P.W.I) is neither reliable nor she has proved the fact that she had witnessed the incident as alleged by the prosecution. Similarly, Paloo''s (P.W.2) statement on the face of record is not reliable and further his presence at the spot at the time of incident is doubtful. According to him, the incident took place in the night and it was just a hit and run affair and as such there was no opportunity for the witnesses to identify the assailants. According to the learned Counsel for the appellant, the appellant Sankata is entitled to be acquitted in view of the discrepancies and inconsistencies in the statement of the witnesses.
19. Learned Counsel for the appellant next contended that the Court below has committed an error in relying the fact of recovery of gun and cartridges from the possession of accused Sankata. The trial Court has further committed an error in holding that as no charge under Section 25 Arms Act is made out, therefore, the recovery of gun will not be considered in this case. According to him the said fact will be considered in trial under Section 25 Arms Act.
20. Lastly, it is argued that the learned Court below has erred in awarding death penalty without giving any reason and without considering the fact that as to whether the instant case falls in the category of the arrest of the rare cases or not.
21. We find force in the contention of the learned Counsel for the appellant. The incident took place in the night. The prosecution version is that Sankata fired shot and thereafter accused persons ran away. Before the Court it was stated that two shots were fired but it is not clear as to who fired the first shot. This improvement was made by the prosecution in order to explain two injuries which were found by the doctor on the dead body of the deceased. Both the eyewitnesses are partisan witnesses and the other witness, namely, Mahanand, who was sleeping just near the deceased was not examined by the prosecution.
22. So far as the recovery of gun and cartridges is concerned, it is not disputed that the cloth in which articles were alleged to have been sealed did not contain the signature of the public witness.
23. Prosecution in support of its case had examined two witnesses, namely, Shrimati (P.W.I) and Paloo (P.W.2). Shrimati widow of Ram Singh has stated in the F.I.R. that her son Prithvipal (deceased) and soninlaw were sleeping just outside the house whereas in her statement before the Court, she stated that all of them were sleeping inside the Tarwaha''. The Investigating Officer, who had prepared the site plan, had pointed out that she alone was sleeping in the ''Tarwaha'' while deceased and Mahanand were sleeping at point A and C in front of the wooden shop. The Investigating Officer has also recovered blood from the place mentioned above and, therefore, in view of the inconsistency in the statement regarding place of incident, it is not possible to believe the statement of Srimati.
24. The report of the incident was lodged by Srimati (P.W.I) in which she has stated that Sankata Prasad fired his gun and ran away. This fact indicates that the incident took place just in the manner of hit and run affair. From the contents of the report, it is also clear that only one shot was fired but the doctor who conducted the autopsy on the dead body of Prithvi Pal Singh found two gun shots wound of entry, one on the front side and other on the back side. Thus, it is clear that the deceased had received two gun shots injuries and not one. Even from the perusal of examinationinchief. it appears that Sankata Prasad fried one shot and nothing is mentioned about the second shot but in the crossexamination Srimati (P.W. 1) has stated that two shots were fired and the second shot was fired by Sankata Prasad.
25. As pointed out above, if there is only one gun shot, then it was not possible for Paloo (P.W.2) to reach the place of occurrence after hearing the shot. He has also stated that Prithvi Pal was killed in his presence. In these circumstances, improvement has been made by Srimati (P.W.I) in her crossexamination that two gun shots were fired. Both the eyewitnesses are partisan witnesses and admittedly other witness, namely, Mahanand, who was sleeping near the deceased or was present near the deceased was not examined by the prosecution.
26. There is nothing not record to show as to who fired the first shot. According to Srimati the first shot was fired when she was awaken and the second when she came out from the Tarwaha but it is not disputed that both the shots were fired one after another. If shots were fired one after another then the presence of (P.W.2) at the scence is doutful as Ms house situates at a distance of 4045 paces. In the first information report as also in the examinationinchief no such fact has been mentioned by Srimati, therefore, it becomes difficult to believe her statement. The perusal of the first information report and examinationinchief reveals that she and other persons woke up on hearing the noise of steps and then saw that the accused persons were standing near the cot of the deceased and further on the instigation of some of the accused, Sankata fired a gun shot causing injury to Prithvi Pal, who fell down at the spot.
27. It appears that all the above improvements have been made in order to exaplain inconsistencies in medical and oral evidence as also to gain some time so that witnesses may get some time to reach the place of occurrence. According to prosecution version, Srimati (P.W. 1) and Paloo (P.W.2) reached at the place of occurrence with their torches but Paloo (P.W.2) has stated that he was in his house which situates at a distance of 4045 paces and he reached there after hearing gun shot.
28. The report of the incident, as stated by Srimati, was scribed by one Masterji but she had not disclosed the name of said ''Masterji'' even in her statement. Surprisingly, the report did not contain the signature of the scribe nor had the prosecution disclosed the name of the scribe. Admittedly, Srimati (P.W.I) is ani lliterate lady and from the perusal of the first information report, it cannot be said that it was the brain work of Srimati (P.W.I). It appears that it was written by some literate person and as such nonproduction of the scribe by the prosecution creates doubt in the genuineness and veracity of the first information report.
29. Similarly, Paloo (P.W.2) an eyewitness and whose house is alleged to be situated at a distance of 4045 paces, has not been shown in the siteplan by the Investigating Officer but he has admitted that his house is at a distance of 4045 paces. Paloo (P.W.2) has stated in his statement that he woke up in order to urinate then he heard sound of the gunshot. It is said that thereafter he took his torch and rushed to the house of Prithvi Pal Singh and when he reached there Prithvi Pal was standing and then some of the accused persons instigated and whereupon Sankata fired his gun causing fatal injuries to Prithvi Pal. It is said that Prithvi Pal then fell down on the cot. It is again impossible for us to believe that accused persons as also the deceased remained standing near the cot of the deceased after firing first shot and then waited for arrival of the witnesses. According to Prithvi Pal when the first shot was fired, he was at his house and as such it is not possible to believe that the accused persons did not fire second shot and remained standing there.
30. In fact this story for the first time was introduced before the Trial Judge in order to gain some time. In the first information report, it is said that the accused persons reached at the spot and accused Sankatafired his gun on instigation of some of the accused persons. If the first fire was made on the instigation of the accused persons then there was no occassion for the other accused persons to instigate him again. These improbabilities itself, in my opinion, makes the statement of the witness unreliable. Again Paloo (P.W.2) stated that Prithvi Pal was standing near the cot under the thatch. It is also admitted that this Chappar lies in ''Tarwaha'' in front of the house but in the siteplan Prithvi Pal and Mahanand were shown to be sleeping near the shop. It is an admitted fact that there is a grove in between the house of the deceased and this witness. Paloo (P.W.2), if had heard the sound of gun shot at his house then in our opinion, it was not possible for him to reach the place of occurrence and witnessed the incident as alleged by him.
31. In the first information report the prosecution version is that the witnesses reached at the place of occurrence when the accused persons were running away and the witnesses recognized the accused persons while they were running away but now Pallo (P.W.2) has stated that he saw the whole incident including the part of instigation. In these circumstances, it is difficult for us to rely on the testimony of this witness, namely, Paloo. Paloo, as pointed out above, has admitted in his statement that deceased was his friend and, therefore, it appears that this witness was introduced in order to implicate the accused persons.
32. Apart from this, the first information report is also not a genuine document. Srimati wife of Ram Singh has stated that she got the report written by one Masterji but identity of Masterji was neither disclosed by Srimati (P. W 1) nor by the police. It is also an admitted fact that the report was written in presence of Ram Shankar Singh (P.W.6) even then her statement was not recorded by the Investigating Officer at the police station.
33. According to Ram Shanker Singh (P.W.6), he immediately went to the village and prepared the inquest report and thereafter recorded the statement of Srimati (P.W.1). Srimati, as pointed out above, is admittedly an illiterate lady and, therefore, from the reading of the first information report, it cannot be said that it is a brain work of illiterate and rustice village woman. Another discrepancy is that the first information report, admittedly, was written by one Masterji but the report did not contain his signature.
34. Learned Counsel for the appellant suggested that this report was prepared with the'' consultation of the police by some unknown person and thereafter same has been shown to have been lodged by Srimati. In the circumstances narrated above, we find force in the defence suggestion and, therefore, it is not possible for us to place reliance on the report alleged to have been lodged by Srimati (P.W.1).
35. Learned Counsel for the appellant has further strenuously argued that the prosecution has failed to prove the recovery of the gun from the possession of appellant, Sankata. It is said that the recover)'' of the gun and cartridges were made in presence of public witnesses but not a single public witness was produced to prove the recovery. It is also not disputed that the recovered articles remained lying at the police station for a period of more than one month. It also comes out from the prosecution version that the gun and articles which were allegedly recovered were wrapped at the site even then signature of public witnesses were not obtained on the wrapper. These omissions on the part of Investigating Agency creates suspicion regarding recovery of gun and cartridges from the possession of accused, Sankata. In the absence of any signature of witness on the wrapper there is no guarantee that the articles remained in sealed condition and further this fact also throws doubt as to whether articles were sealed at the spot or not. In fact it cannot be said that the articles were kept in sealed condition.
36. As the recovery itself becomes doubtful, the evidence of Ballistic Expert is of no relevance for proving the guilt of the accused. The trial Judge while convicting the appellant has relied upon the recovery of gun and cartridges as also on the opinion of the Ballistic Expert without considering the abovementioned facts.
37. According to the Trial Judge, the facts averred above are of no relevance in the instant case as no charge under Section 25 Arms Act against the accused, Sankata was framed and further Sankata, appellant has not been prosecuted under Section 25 Arms Act. According to him these facts ware to be considered only during the trial under Section 25 Arms Act. In our opinion, the view taken by the learned Addl. Sessions Judge is apparently erroneous. Recovery of gun and cartridges and thereafter the opinion of the Ballistic Expert has relevance for convicting the appellant in this case and if, the said fact are relevant and are taken into consideration then the fact that whether recovery of the articles is genuine or not is also relevant and to be examined.
38. As pointed out above, there are many discrepancies in the investigation and, therefore, the investigation does not inspire confidence. The report, admittedly, was written in presence of Ram Shanker Singh, Investigating Officer but he had not recorded the statement of the complainant at the police station. He had also not cared to search the scriber of the report and further had acted in a very careless manner in keeping the recovered articles at the police station for more than one month. It is also an admitted fact that the Investigating Officer had not obtained the signature of the public witness on the wrapper in which seized articles were kept.
39. It has also been alleged by the defence that one Sunder brother of accused, pyare was killed by the police and on the application moved by Pyare, a magisterial enquiry was ordered by the District Magistrate. It is said from the side of the defence that at the time of incident the said enquiry was pending and, therefore, the police was pressurising accusedPyare and his relations not to give evidence against the police personnels before the SubDivisional Magist7ate. It is suggested by the defence that Prithvi Pal was killed in the night by some unknown persons and finding the opportunity the police has implicated the accused persons in this case in order to put pressure on the accused persons. The Investigating Officer has denied all these facts including death of Sunder in police custody but it appears that the Addl. Sessions Judge has summoned the files of enquiry which shows that the enquiry was being conducted. In these circumstances, it cannot be said that the suggestions given by the defence are without any substances.
40. However, in any case, the testimony of both the eyewitnesses, namely, Srimati (P.W. 1) and Paloo (P.W.2), as indicated above, is not worth to be reliable and, therefore, in our opinion, the prosecution has miserably failed to prove the guilt of the appellant beyond reasonable doubt.
41. In view of the inconsistencies about the place of incident, manner of assault and in the statement of witnesses, it is not possible to believe the testimony of both the eyewitnesses, who are, admittedly, partisan witnesses and their presence is neither probable nor possible. The investigation also does not inspire confidence and further alleged recovery is not believable as the alleged recovered articles were not sealed properly and the possibility of tampering cannot be ruled out.
42. In this case learned Addl. Sessions Judge has awarded death sentence to the appellant Sankata merely on the ground that the appellant was the sole responsible for the murder of Prithvipal. No special reason has been given by the learned Addl. Sessions Judge for awarding death sentence. It appears that the learned Addl. Sessions Judge has not cared to go through the provisions contained in Section 354 (3) Cr. PC., which reads as follows:
"354 (3): When the conviction is for an offence punishable with death or, in the alternative, with imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death, the special reasons for such sentence."
43. The above provision, therefore, clearly indicates that normally sentence for murder is imprisonment for life and not sentence of death. The Court is required to give special reasons for awarding death sentence. Special reasons would mean specific facts and circumstances obtained in the case justifying the extreme penalty. On this point, the Hon''ble Supreme Court has laid down guildlines which should weigh in the mind of the Court while awarding sentence.
44. In a case reported in (1973) 1 SCC 20, Jagmohan Singh v. State of U. P., the Hon''ble Supreme Court has observed that the discretion in the matter of sentence is to be exercised by the judiciary after balancing all the aggravating and mitigating circumstances of the crime. In that case it was also observed that if a murder is diabolically conceived and cruelly executed, imposition of death sentence on a murderer would be justified. The leading case on this point is reported in (1980) 1 SCC 684, Bachan Singh v. State of Punjab. In that case the Hon''ble Supreme Court has laid down several guidelines and has also given certain instances of aggravating and mitigating circumstances. The said view was followed subsequently in other cases by the Hon''ble Supreme Court reported in Machhi Singh v. State of Punjab, (1983) 3 SCC 470; Kehar Singh v. State (Delhi Administration) (1988) 3 SCC 609, Alaudin Mian v. State of Bihar, AIR 1989 SC 1456. The latest case on this point is reported in JT 1994 (3) SC 54, Shanker alias Gauri Shanker v. State of Tamil Nadu.
45. It is rather stange that the Court below has awarded death sentence without giving any reason for the same. He has simple observed that since the appellant Sankata was sole responsible for the murder, he was liable for death sentence. The Court below should not only look to the crime and the victim but also circumstances of the criminal and the impact of the crime on the community. We are, therefore, constrained to observe that the learned Addl. Sessions Judge has awarded the death sentence in a cursory manner and ignoring the guidelines and the law laid down by the Hon''ble Supreme Court and the provisions contained in Section 354 (3) Cr. P. C.
46. In view of the reasons given above, the conviction and sentence awarded by the learned Sessions Judge is hereby set aside. The reference submitted by the Trial Judge is hereby rejected. The appellant is in jail. He shall be released forthwith unless wanted in any other case.
