Shiv Charan, J.@mdashUnder challenge in the above mentioned appeals is the judgment and order dated 16.5.2006 passed by the then Sessions Judge, Maharajganj in Spl. Session Trial No. 28 of 2004, State v. Saheb Patel and others, under Sections 302/34, 307/34 and 506, I.P.C. and Section 3(2)(v) of S.C./S.T. (Prevention of Atrocities) Act, P. S. Kotwali, district Maharajganj.
2. By the impugned judgment and order, the learned Sessions Judge after acquitting the Appellants of the offences punishable under Sections 307/34 and 506, I.P.C., convicted and sentenced the Appellant Saheb Patel to death sentence for the offence u/s 302, I.P.C., whereas the Appellant Sanjay Patel has been convicted and sentenced to life imprisonment for the offence u/s 302, I.P.C. and Appellant Hari Bansh Yadav alias Gobari has been convicted and sentenced to life imprisonment for the offence u/s 302/34, I.P.C. Both these Appellants have also been sentenced to pay a fine Rs. 5,000 each with default stipulation. Learned Sessions Judge convicted the Appellants Saheb Patel, Sanjay Patel and Hari Bansh for the offence u/s 3(2)(v) of S.C./S.T. (Prevention of Atrocities) Act (hereinafter called as S.C./S.T. Act) also, but no separate sentence for this offence has been awarded u/s 3(2)(v) of S.C./S.T. Act.
3. Learned Sessions Judge has also made a reference as provided u/s 366, Cr. P.C. for confirmation of death sentence of the Appellant Saheb Patel. Both the criminal appeals and reference are being decided by this common judgment, as they arise out of the same judgment.
4. Facts of the prosecution story as revealed from the documents and evidence of the witnesses are as follows:
Ram Ratan complainant lodged an F.I.R. at P. S. Kotwali, district Maharajganj on 8.1.2004 at 7.55 p.m. with the allegations that today on 8.1.2004 at about 6.30 p.m. a village panchayat was going on at the door of Surya Narain son of Shiv Shankar to resolve the dispute relating to the theft of fishes from the pond of Dinesh Mallah son of Laxman. Shobhi, Bholi, Jagdish Sharma, Nand, Umesh, Awadh Raj and several other persons of village were present in the panchayat. In the panchayat Dinesh expressed doubts about the theft of fishes from his pond on Gobari and Sanjay Patel. Babu Lal, brother of the complainant, his son Sailesh and nephew Anil and several other persons, who were present in the panchayat, were interrogating Sanjay and Gobari regarding theft of fishes from the pond of Dinesh. Sanjay Patel and Gobari were denying the allegations of Dinesh. It was resolved by the panchayat that both these persons must be taken at Senduria out post. On it, Babu Lal, Sailesh and Anil became ready for carrying both these persons at the police outpost. On being annoyed from this act, Saheb Patel who was present in the panchayat opened fire on Babu Lal by his single barrel gun. After sustaining injury, Babulal fell down on the ground. When Sailesh, son of the complainant, rushed to save Babu Lal, the accused Gobari caught him on which Sanjay pierced Krich (Gupti), a sharp edged weapon, in the stomach of Sailesh. In the meantime, Saheb Patel opened second fire after reloading the single barrel gun, which hit Anil, who sustained fire arm injury and fell down on the ground. This incident was witnessed by all the persons present in the panchayat and other persons of the village. To terrorize the panchayat, the accused persons opened indiscriminate firing. On it, the participants of the panchayat tried to escape and ran hither and thither. Terror prevailed in the village and the villagers who were going for natural call also began to flee away hither and thither. There was hue and cry everywhere and public peace was disturbed. All the accused persons fled away from the spot giving threatening that if any body will come forward he will also be shot dead. Afterwards by the jeep of Raj Kumar, son of Dukkhi, injured Babu Lal, Shailesh and Anil were transported to the District Hospital, Maharajganj, where Babu Lal and Shailesh were declared dead and Anil was referred to Medical College, Gorakhpur.
5. After leaving the dead bodies of Babu Lal and Shailesh in the hospital under the supervision of the family members, the complainant Ram Ratan went to P. S. Kotwali, Maharajganj and handed over written report Ext. Ka-1, on the basis of which F.I.R. was registered. Investigation of the case was entrusted to Sri D. P. N. Pandey, the then Circle Officer, Sadar. During the course of investigation Investigating Officer visited the place of incident and prepared fard recovery of khokha cartridges, tikli and bullet, which were recovered from the spot. Investigating Officer also collected blood stained and simple earth from the spot. He also got the inquest reports and other material documents prepared for sending the dead bodies of the deceased for postmortem. Later on, Anil injured also succumbed to the injuries on way to hospital at Lucknow and inquest report and other necessary documents were also got prepared by the Investigating Officer relating to the dead body of Anil. Blood stained and simple earth recovered from the spot was also sent to Forensic Science Laboratory for examination. He also recorded the statement of the witnesses. He performed other formalities relating to the investigation and afterwards on the basis of result of investigation submitted charge sheet against the accused persons. The Investigating Officer took the accused Sanjay Patel and Saheb Patel in police custody by the order of C.J.M. On the pointing out of Saheb Patel one single barrel gun and at the pointing out of Sanjay Patel Krich was recovered and fard recovery was prepared.
6. On the case being committed to the Court of Session for trial, charges under Sections 506 and 302/307 both read with Section 34, I.P.C. and Section 3(2)(v) of S.C./ S.T. Act were framed. The accused-Appellants Saheb Patel and Sanjay were charged under Sections 4/25, 27 and 30 of Arms Act also. All the Appellants pleaded not guilty and claimed to be tried.
7. The prosecution in order to bring home the charges examined Ram Ratan P.W. 1, Bholi P.W. 2 and Umesh Kumar P.W. 6 as the witnesses of fact and incident. Ram Ratan P.W. 1 is also the complainant. He lodged the F.I.R. at the police station after getting the written report scribed from Kashi Prasad. He proved written report Ext. Ka-1, P.W. 3 Dr. R. S. Mishra, the then Medical Officer, Gorakhpur working as Senior Pathologist conducted the postmortem of the dead bodies of Sailesh, Babu Lal and Anil and proved the post mortem report Ex. Ka-2, Ex. Ka-3. Ext. Ka-4 respectively. S.I. Bibhuti Prasad P.W. 4 was posted as H.C.P. at P.S. Kotwali, Maharajganj on 8.1.2004. He has stated that on the basis of the written report of Ram Ratan, he prepared chik F.I.R. Ext. Ka-5. Entry was made in the G.D. of this fact and as Anil injured also died on the way to the hospital at Lucknow, he made entry of this fact in the G.D. He proved copy of the G.D. Exts. Ka-6 and Ka-7 respectively. Daya Nand P.W. 5 is the witness of the factum of recovery of the gun and Krich at the pointing out of accused Saheb Patel and Sanjay Patel. This witness has stated that these weapons were recovered by the police in his presence at the pointing out of accused persons and fard recovery was also prepared on the spot by the Investigating Officer, on which he also put his signature. He has recognized his signature on the recovery memo, which was shown to him in Court. S.S.I. Harish Chand Bharti P.W. 7 stated that injured Anil died on the way to the hospital at Lucknow and his dead body was brought at the police station. He was deputed to prepare the inquest report of the dead body of Anil. He proved the inquest report Ext. Ka-8 and other documents Ext. Ka-9 to Ext. Ka-16. This witness also stated that at the time of recovery of the weapon of offence at the pointing out of accused Saheb and Sanjay Patel, he was also present and these weapons were recovered at the pointing out of these accused persons by the Investigating Officer and fard recovery was prepared on the dictation of the Investigating Officer, on which he also put his signature. Sri D.P.N. Pandey P.W. 8, presently Addl. S. P., was the Investigating Officer This witness stated that investigation of the case was entrusted to him. That he got the site plan Ext. Ka-17 of the place of incident prepared through constable Brijesh Yadav. Khokha cartridge, wad piece and tikli were recovered from the spot and fard recovery was got prepared on the spot, which is Ext. Ka-18. P.W. 8 has further proved the fard of blood stained and simple earth Ext. Ka-19. Fard recovery Ext. Ka-20, site plan of the place of recovery Ext. Ka-21 and other recovered items Ext. 1 to Ext. 48. Fard of Patro-max Ext. Ka-22 was also prepared. This witness also proved the extract of the statement u/s 161, Cr. P.C., Exts. Kha-1 to Kha-3 of witnesses Ram Ratan, Bholi Prasad and Umesh respectively. Another circle officer Shri Anand Shankar Dubey P.W. 9 is also Investigating Officer. Remaining investigation was completed by this witness and he also recorded the statements of some witnesses. This witness has stated that the properties relating to the case were sent to Forensic Science Laboratory. He has proved inquest report of Shailesh (Ext. Ka-22) and Babu Lal (Ext. Ka-23) and other documents relating to sending the dead bodies for post mortem (Ext. Ka-24 to Ka-28). After completing the investigation he submitted charge sheet against the accused persons.
8. Accused persons in their statements recorded u/s 313, Cr. P.C. denied the prosecution allegations and evidence of the prosecution. The Appellant Saheb Patel has further stated that all the formalities performed by the Investigating Officer were forged and frivolous and after obtaining gun and cartridges from the house of Saheb Patel, formalities were performed. All the accused persons stated that they are innocent. No witness was produced by the accused persons in their defence.
9. Perusal of the statement of the witnesses is essential. Prosecution examined Ram Ratan P.W. 1, Bholi P.W. 2 and Umesh Kumar P.W. 6, as the witnesses of fact and the incident. Ram Ratan P.W. 1 is the complainant and close relation of the deceased. Babu Lal deceased was the brother, Shailesh was son and Anil was the nephew of this witness. He (P.W. 1) has stated that Gujia Devi was the Pradhan of the village and Babu Lal deceased was the husband of Gujia Devi and they are chamar by caste. Saheb Patel and Sanjay Patel are real brothers and they belong to high caste. The accused Haribansh alias Gobari is Yadav by caste, but he is the friend of Saheb Patel. Dinesh Mallah resident of this village got a lease of a pond for fishining purposes. Dinesh and Saheb Patel were partners in the pond, but afterwards this partnership was dissolved by Dinesh, as he suspected that theft of fishes was being committed from his pond. Dinesh expressed suspicion of theft of fishes on Sanjay Patel and Gobari alias Haribansh and at the instance of Dinesh, village Pradhan called a panchayat to resolve this dispute at the door of Surya Narain. It is further stated by the witness that in the panchayat besides him, village Pradhan Smt. Gujia Devi, Babu Lal, Shailesh, Anil, Saheb Patel, Sanjay Patel and Gobari, Awadh Raj, Jagdish and Bholi and several other persons of the village participated. panchayat commenced at about 5 or 5.30 p.m. and in the panchayat it was told to Sanjay Patel and Gobari that they must confess about committing theft of fish. On it Sanjay and Gobari declined to confess and they stated that they are not involved in the theft of fishes, hence they will not confess about it. On it, the members of the Panchayat opined that Sanjay and Gobari be taken to the police out post, where the police will decide this fact. When some persons of panchayat started to carry these accused to the police outpost, then Saheb Patel being annoyed opened fire and Babu Lal by his single barrel gun. Babu Lal fell down on the ground after sustaining fire arm injuries. When Shailesh rushed towards Babu Lal for his rescue, the accused Gobari caught Shailesh and then Sanjay Patel pierced Krich (a sharp edged weapon) in the stomach of Shailesh, due to which his intestines came out. Anil also rushed for the rescue of Shailesh, but in the meantime after reloading his gun Saheb Patel opened fire on Anil, due to which he sustained injuries and fell down there. After this incident the participants of the panchayat started running here and there due to fear and thereafter, accused persons giving threatening to the witnesses fled away from the spot towards north. Thereafter all the three injured were transported to Maharajganj district hospital by Jeep of Raj Kumar. Doctor of the hospital declared Babu Lal and Shailesh brought dead. After proving first aid to the injured Anil, he was referred to Gorakhpur hospital. Then Anil was carried to Gorakhpur hospital by ambulance. Regarding this incident F.I.R. was lodged by this witness after getting the written report Ext. Ka-1 scribed from Kashi Prasad. This witness further stated that Saheb Patel and Sanjay Patel used their weapons with intention to cause death. Sanjay had licensed gun and they are wealthy people. They felt themselves humiliated in the panchayat and that''s why this incident was committed by them. It is further stated by the witness that doctors of Medical College, Gorakhpur referred Anil to Lucknow for treatment, but on the way to Lucknow near Khalilabad, Anil also succumbed to the injuries. This witness was cross-examined at length but nothing could be elicited from the witness so as to disbelieve his statement. He has fully supported prosecution version in cross-examination also. A suggestion has been given to this witness that he has given false statement due to enmity. But from the perusal of the statement of the witnesses no enmity with the accused persons is established, although it is a fact that he is the close relation of the deceased.
10. Bholi P.W. 2 is also an eye-witness. He stated that on 8.1.2004 wife of Babu Lal was the Pradhan of the village and she is chamar by caste. A lease of pond was given to Dinesh Mallah of his village by Gram Samaj for fishing purpose. That theft of fishes was committed from the pond and in this connection Dinesh made a complaint to Babu Lal and told that he is suspicions that Sanjay and Gobari are involved in the theft of fishes and in order to resolve the matter, a panchayat was convened at the door of Surya Narain Patel. Panchayat started at 5.00 p.m. There was the light of patro-max on the spot. Shobhi, Awadh Raj, Sharma Nand, Jagdish, Anil, Shailesh, Bholi and several other persons including Babu Lal and complainant Ram Ratani were present in the panchayat. Dinesh told in the panchayat that Sanjay Patel and Gobari are involved in fishing from his pond. On it, Sanjay Patel and Gobari denied this fact, but Babu Lal insisted that they are involved in the theft of fishes, hence they must pay compensation to him. On it also both these accused persons denied and disputed this fact and they said that they are not involved in the theft of fishes and hence they are not liable to pay any compensation to Dinesh. Members of the panchayat were of the opinion that compensation may be recovered from these persons and same be paid to Dinesh. When they did not concede to this suggestion of the panchayat, then Babu Lal, Shailesh and Anil caught Sanjay and Gobari and tried to carry them at the police outpost. On it, Saheb Patel said that - "chamaran siyaran ke itna himmat hai ki hamare bhai aur dost ko pakad kar chauki par le ja rahein hain." Sanjay is the brother of Saheb Patel and Gobari is his friend. Sanjay and Saheb belonged to Patel caste and Gobari is Yadav. When an effort was made to carry the accused persons to the police outpost, then Saheb Patel opened fire by his licenced gun on Babu Lal. Shailesh rushed for the rescue of his uncle Babu Lal, but Gobari immobilized Shailesh by catching him and then Sanjay Patel pierced Krich in the body of Shailesh. Being injured Shailesh fell down at a distance of about four paces from Babu Lal. In the meantime Anil also rushed to save his father, but Saheb Patel killed Anil also and afterwards members of the panchayat fled away from the spot. By the jeep of Raj Kumar, the injured Babu Lal, Shailesh and Anil were taken to the District Hospital, Maharajganj, where Babu Lal and Shailesh were declared dead by the doctor and Anil after administering some medicine was referred to Gorakhpur hospital. It is also stated by P.W. 2 that the accused persons with their weapons fled away towards north and they threatened that if any body will try to stop them he will be killed. In cross-examination this witness has stated that theft of fishes was not committed in his presence and at what time the theft of fishes was committed is not known to any body. Regarding the factum of the theft of the fishes he came to know in the morning of 8th and earlier to that no body was aware about the factum of theft. This witness was also cross-examined on the point of members of panchayat and Panch who were expected to participate in the panchayat. This witness also stated that nothing was reduced in writing regarding proceedings of the panchayat and F.I.R. regarding theft was not lodged at the police station and he knows that it is the function of the police either to apprehend the accused or got their confessional statement recorded and as per his information no F.I.R. was lodged of the factum of theft. This witness also stated that Babu Lal was the resident of his mohalla but he is not his relation. He was not aware about the lease of pond in favour of Dinesh, but numerous persons told about the execution of lease deed in his favour. Dinesh Mallah himself was present on the place of incident and he was at a distance of ten paces from Saheb Patel, but none attacked on Dinesh. None of the accused persons tried to apprehend or thrash Dinesh. No injury was caused by these accused to any other person except these three deceased persons. This witness also admitted that all the three deceased sustained single injury each. No second blow was given by these accused persons on either of the deceased. This witness has denied a suggestion that he was not present on the spot and incident was not seen by him. This witness also denied that Ram Ratan is related to him.
11. Umesh Kumar P.W. 6 is also an eye-witness of the incident and this witness also stated that Babu Lal, Shailesh and Anil deceased were resident of his village. Saheb Patel opened fire at Anil and Babu Lal whereas Sanjay caused stabbed wound to Shailesh by Krich. Two or four shots were fired. Saheb Patel opened fire by single barrel gun. Saheb and Sanjay Patel belong to his village. Incident took place at the door of Surya Narain Patel at about 6 p.m. A panchayat was convened at the door of Surya Narain about the theft of fishes. Sanjay and Gobari were charged of committing theft of fishes from the pond of Dinesh Mallah. For convening the panchayat, Dinesh went to the house of Babu Lal, who was the husband of village Pradhan at that time. Inquiry was made from the accused persons in the panchayat as to whether they have committed theft or not. Sanjay and Gobari Yadav denied from committing the theft. Panchayat commenced at 5.00 p.m. and continued up to 6.30 p.m. These accused persons were repeating again and again that when they have not committed theft of fishes then why they should confess. On it, the persons of the panchayat told that as they are the influential and wealthy persons of the village, hence they will not confess their guilt and they must be taken to the police out post Sindhuria. P.W. 6 has further stated that when Babu Lal, Anil and Shailesh were trying to carry Gobari and Sanjay Patel to the police out post Sindhuria, the accused Saheb Patel became annoyed that his brother and friend are being taken to the police out post and saying that "chamar tum logan ka man badh gaya hai" Saheb Patel threw the blanket and opened fire on Babu Lal from single barrel gun. When Shailesh rushed towards Babu Lal to save him, the accused Gobari caught Shailesh and then Sanjay Patel pierced Krich in the stomach of Shailesh. When Anil rushed towards Babu Lal, the accused Saheb Patel caused fire arm injury to Anil also, who fell down after sustaining fire arm injury. Saheb Patel and Sanjay alongwith Gobari carrying their weapons and giving threatening to cause the death if any body will stop them, fled away towards north. Babu Lal and Shailesh died on the spot. Thereafter, Anil, Shailesh and Babu Lal were carried to Maharajganj hospital by jeep. Anil was referred to Lucknow, but near Khalilabad he succumbed to his injuries. In his cross-examination, this witness stated that he and Babu Lal are the members of the same family. Babu Lal is his uncle. That Dinesh expressed his suspicion that probably Sanjay and Gobari committed theft of fishes from his pond. He was not an elected person on the post of panchayat, he is an agriculturist. Further stated that Dinesh Mallah was expressing his doubts on Sanjay and Gobari. No other members of panchayat was expressing any doubt of theft on accused persons. Babu Lal was only saying that if they had committed theft of fishes, then they will have to pay the fine. P.W. 6 has further stated that talks were going on in a brotherly atmosphere, but accused persons were disputing the factum of committing theft of fishes. That the accused persons are wealthy persons of the village. This witness was also cross-examined at length but there is nothing in his statement due to which his statement may be disbelieved. This witness denied the suggestion that no such panchayat was convened and nothing was seen by him and he is giving false statement. This witness also denied the suggestion that the incident had taken place in the darkness of the night and nobody has seen the assailants.
12. Evidence has also been produced regarding the factum of recovery of the weapons at the pointing out of accused Saheb Patel and Sanjay Patel. In this connection statement of Daya Nand P.W. 5 is material. He is an independent witness. There is no reason to disbelieve his statement. The Investigating Officer also has supported his statement regarding recovery of weapon at the pointing of accused person.
13. Perusal of the injuries of the deceased is also material. It has been established by the prosecution evidence that three persons were murdered in the incident, namely, Babu Lal, Shailesh and Anil. Post mortem of the dead bodies of these deceased was conducted by Dr. R. S. Mishra P.W. 3 on 9.1.2004. According to the statement of Dr. R. S. Mishra following ante mrotem injury was found on the body of Shailesh:
Incised wound 3 cm. ? 1 cm. ? abdominal cavity deep on right side abdomen, 8 cm. below lower rib and 6 cm. lateral and above umbilicus. Loops of intestine were coming out of wound.
On opening right kidney and liver were found lacerated and punctured and about one litre blood was found in the abdominal cavity.
This witness opined that deceased died about one day earlier, i.e., possibly on 8.1.2004 at about 6.30 p.m. The injury was sufficient for death. The injury was possible to be caused by a Gupti "a sharp edged weapon".
This witness further stated that in the post mrotem of Babu Lal following injuries was found on the body:
Fire arm wound of entry 0.4 cm. ? 0.4 cm. ? thoracic cavity deep on right side back, 10 cm. below injury angle of scapula. No blackening and charring present.
Fire arm wound of exit 3 cm. ? 2 cm. on right side chest 4 cm. above right nipple.
On opening thoracic cavity right lung was found lacerated. Rounded 6 pellets found adherent on the body wearing cloth towards the site of entry of firearm wound. About 1-1/2 liter blood was present in the thoracic cavity. The cause of death was shock and haemorrhage due to above mentioned injuries. Doctor also opined that the injury found on the body of the deceased was sufficient for instantaneous death and death was possible on 8.1.2004 at about 6.30 p.m.
Post mortem of Anil was conducted on 9.1.2004 at about 5.30 p.m. and according to the post mortem report, the following ante mortem injuries were found on the body of the deceased:
Fire arm wound of entry 1.5 cm. ? 1.5 cm. ? through and through on back of coccygeal region in the middle. Margins inverted. Direction (illegible) to right.
Fire arm wound of exit 2.00 cm. ? 1.5 cm. on right iliac fossa. Margins averted.
On opening the abdomen, urinary bladder, rectum and large intestine were found punctured and lacerated. About 1.5 liter blood was present in abdominal cavity. According to the opinion of the Doctor cause of death was due to shock and haemorrhage as a result of ante mortem injuries and the deceased had died about half day earlier....
In the cross-examination Dr. R. S. Mishra stated that nature of faecal material found in the abdomen of Shailesh and Anil shows that they had taken meal about four hours earlier. From the material found in the abdomen of Babu Lal, it cannot be said with certainty that when he took the meal or whether he consumed any liquid substance or not. Injuries found on the body of Babu Lal and Anil were possible to be caused by different weapon. The injuries of Anil was through and through. No bullet was found from inside the body. The injury of Babu Lal was caused by cartridge.
14. The learned trial court having taken the entire evidence into consideration and hearing parties counsel, convicted and sentenced the Appellants-accused as stated in para 2 hereinabove. Hence, this appeal.
15. We have heard Sri V. P. Srivastava senior advocate, appearing for the Appellants and Sri D. R. Chaudhry Government advocate for the State and also perused the entire material available on record and relevant law cited by learned Counsel for the parties.
16. It has been argued by learned Counsel for the Appellants that prosecution story is highly improbable and doubtful. It is also highly improbable that panchayat was convened at the door of Surya Narain to resolve the dispute of the allegation of Dinesh Mallah regarding committing theft of fishes of the pond. It has also been argued that it was not the function of village panchayat to resolve a dispute regarding criminal act. The competent authority for such an act is the police. Further argued that all the witnesses produced by the prosecution are highly interested and related witnesses and they are also the chance witnesses and hence no reliance can be placed on the statements of these witnesses. It has also been argued that according to the allegations of the prosecution, independent witnesses were available on the spot, but intentionally no independent witness has been examined by the prosecution. Learned Counsel for the Appellants further argued that Dinesh and Surya Narain were the most material witnesses to prove the prosecution version, but for the reasons best known to the prosecution both these material witnesses have been withheld. Dinesh was the person who expressed apprehension and doubt on Sanjay and Gobari regarding theft of fishes from his pond and this material witness ought to have been produced by the prosecution and under these circumstances adverse inference must be drawn against the prosecution. Further argued that Surya Narain was the person at whose door panchayat was convened and according to the statement of the witnesses, Surya Narain was also present in the panchayat, but he has also not been examined. Learned Counsel further argued that the cause of action for committing the offence might have been available against Dinesh, who made false allegation against the accused persons, but none of the witnesses have stated that any efforts was made by the accused persons to assault Dinesh to cause him injury or to cause his death. No cause of action and motive was available to the accused persons to commit the murder of Babui Lal, Shailesh and Anil. That this fact also falsified the prosecution story. Learned Counsel for the Appellants further argued that from the allegations of the prosecution as well as from the statements of the witnesses inference may be drawn that right of private defence was available to these accused persons, because false allegation was made against the accused Sanjay and Gobari about committing the theft of fishes from the pond of Dinesh and these accused persons were being pressurized by the deceased as well as by other persons present in panchayat to confess their guilt and pay the fine while no theft was committed by these Appellants and hence they were denying from confessing their guilt and paying the fine, but even then the deceased persons tried to apprehend the Appellants in order to carry them to the police out post so that the police may extort confession from the accused persons. The contention of the learned Counsel for the Appellants was that this act of the deceased persons was against the law and im-permissible, hence the accused persons were well within their right to defend themselves in order to get themselves released from the clutches of the deceased and other persons of the panchayat. It was further submitted that it is not the function of private individual to apprehend a person for the charge of criminal offence and pressurize him to confess his guilt. If according to Dinesh and other persons, these accused persons were guilty of committing theft, then the matter ought to have been reported to the police and then it was the discretion of the police to apprehend these accused persons for the offence. Hence, the act of the deceased persons was devoid of any legal force and under these circumstances there was no option for the accused persons except to exercise their right of private defence and hence the Appellants-accused cannot be said to be guilty of committing any offence. Learned Counsel for the Appellants also argued that no evidence has been produced by the prosecution that the murders were committed by these accused persons in a preplanned and premeditated manner and since the deceased and other persons present in panchayat were pressurizing the Appellants to confess their guilt, hence it was a case of grave and sudden provocation and it cannot be said that the offence u/s 302, I.P.C. is made out and hence the offence would not travel beyond Section 304, I.P.C. In this connection, the learned Counsel also argued that there were no repeated firing by Saheb Patel and repeated attack by Sanjay and that Gobari has been falsely roped in this case and he had nothing to do with the offence as he was not armed with any weapon and since the role of Gobari is only of catching hold, hence he cannot be convicted with the aid and assistance of Section 34, I.P.C. and the learned Sessions Judge was not justified in convicting the Appellant Gobari for the offence punishable u/s 302, I.P.C. with the aid of Section 34, I.P.C. Learned Counsel also argued that severe and maximum punishment has been awarded by learned Sessions Judge against Saheb Patel. There were numerous mitigating circumstances which were not considered by the trial court in order to award capital sentence. Only single shot was fired by this Appellant on each of the deceased. There was no repeated firing and it cannot be said to be a diabolic ghastly and gruesome murder, so as to bring the case in the category of rarest of the rare cases.
17. Learned Government Advocate Sri D. R. Chaudhary disputed the arguments of learned Counsel for the Appellants and he argued that the witnesses are natural witnesses. They were present in the panchayat. They have fully supported the prosecution story. Their statements cannot be discarded merely due to the reason that they are close relation of the deceased. No reason was available to the witnesses to give false evidence against the accused persons. Three persons were murdered by the Appellants-accused in the incident and it was Saheb Patel who committed the murder of Babu Lal and Shailesh by causing fire arm injuries and sentence awarded by the Sessions Judge is perfectly justified and in consonance with the gravity of the offence.
18. From perusal of the prosecution evidence it is evident that the incident took place on 8.1.2004 at about 6.30 p.m. during the proceedings of a village panchayat. The panchayat was convened at the door of Surya Narain on 8.1.2004 at 5.30 p.m. Earlier to that, one Dinesh Mallah had made a complaint to Babu Lal deceased that theft of fishes is being committed by Sanjay Patel and Gobari from the pond which was given to him by Gaon Sabha on lease and to resolve this dispute a panchayat was convened on the date of the incident. In the panchayat besides Dinesh, Surya Narain, deceased Babu Lal, Shailesh, Anil and many other persons the accused-Appellant Saheb Patel, Sanjay Patel and Gobari alias Haribansh were present. The prosecution case is based on direct evidence and not on any circumstantial evidence. Although motive is not relevant in a criminal case when there is direct evidence, but the prosecution alleged that Dinesh Mallah was suspicious that Sanjay Patel and Gobari are involved in committing the theft of fishes from his pond. It is also undisputed fact that matter was not reported to the police by Dinesh Mallah and it is also a fact that Dinesh Mallah has not been examined by the prosecution as witness either regarding the factum of the incident and regarding the motive. Even Surya Narain at whose door panchayat was convened has also not been produced as witness and on this ground much has been argued on behalf of the accused-Appellants that Dinesh Mallah and Surya Narain were the most material witnesses of the incident and also regarding the factum of theft of the fishes, but the prosecution intentionally withheld these witnesses and hence adverse inference must be drawn against the prosecution. It has also been argued that as Dinesh Mallah has not entered in the witness box, hence it cannot be said to be proved that there was allegation against Sanjay and Gobari for committing theft of fishes from the pond of Dinesh. We disagree with the argument of learned Counsel for the Appellants that merely due to the reason that prosecution failed to examine Dinesh and Surya Narain Patel as witnesses of the fact and other related circumstances, hence prosecution story must be thrown away on this ground. There is consistency in the statements of the witnesses regarding convening a village panchayat to resolve the allegation of Dinesh Mallah for committing theft of the fishes from his pond. Prosecution at the first available opportunity in the F.I.R. specifically alleged that in order to resolve the allegation of Dinesh Mallah against the Appellants panchayat was convened and on the date and time of the incident a panchayat was in progress. Babu Lal deceased was the husband of village Pradhan and hence Dinesh approached Babu Lal for getting the matter resolved in the panchayat. There is nothing abnormal in convening a panchayat by Babu Lal at the door of Surya Narain Patel for getting the dispute resolved. It is not very uncommon in the village to convene such panchayat to resolve such matters amicably. Even now-a-days also the old tradition is in vogue for getting such dispute resolved in the village panchayat instead of rushing for any minor dispute to the police and it was but natural that Babu Lal being the husband of village Pradhan convened a panchayat at the door of Surya Narain and in that panchayat Dinesh Mallah made allegation against Sanjay and Gobari for committing theft of fishes from his pond. Learned Counsel also argued that this fact also cannot be said to be proved that pond was leased out by Gaon Sabha to Dinesh Mallah for fishing. We have seen the statement of the witnesses in this connection and this fact has not been disputed specifically on behalf of the accused persons. The witnesses have not been cross-examined specifically with the object for drawing the inference that no pond was leased out to Dinesh Mallah by Gaon Sabha for fishing. We are not concerned to record a finding on this point that whether really any theft of fishes was committed by Sanjay Patel and Gobari as alleged by Dinesh Mallah. This was only the allegation of Dinesh Mallah and this allegation was the root cause of entire incident. There appears no other reason for the prosecution to fabricate this fact. Moreover, there is direct evidence of the prosecution against the Appellants-accused about the allegation of committing the theft of fishes from the pond of Dinesh Mallah. In our opinion, the Appellants are not entitled to any benefit for non-examining Dinesh and Surya Narain as witnesses and further no benefit can also be given to the Appellants on the ground that no effort was made by the accused persons to assault Dinesh Mallah who was the main cause of the incident. It cannot be possible that the accused persons would go to this extent so as to commit murder of each and every person involved in the matter. As murder of three persons had been committed, hence it was not necessary for the accused persons to commit the murder of Dinesh Mallah, who made false allegation against them. There can be various reasons for drawing the inference that no harm was caused by accused persons to Dinesh Mallah. Present case is based on the direct evidence of the witnesses. It is the settled law that when the case is based on direct evidence, absence or weakness of motive loses its significance. Following judgment are relevant in this connection:
In the case of
There is no such principle or rule of law that where the prosecution fails to prove the motive for commission of the crime, it must necessary result in acquittal of the accused. Where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved.
In the case of
No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to untravel the full dimension of the mental disposition of an offender towards the person whom he offended.
The following observations regarding motive made by the Hon''ble Apex Court in the case of Nathuni Yadav and Ors. v. State of Bihar and Anr. XXXIV 1997 ACC 576, are worth mentioning:
Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impells a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain unrecoverable. Lord Chief Justice Chambell struck a notice of caution in ''Reg v. Palmer'' thus: "but if there be any motive which can be assigned I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives ; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.
In the case of
It is well-settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is creditworthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant.
19. Hence in view of the above judgments of Hon''ble Apex Court, motive is not relevant when the case is based on direct evidence. There is eye-witness account in the present case and it has been stated by the witnesses that firstly Saheb Patel opened fire on Babu Lal by a single barrel gun in order to cause his death. Thereafter, when Shailesh rushed to save Babu Lal, then Gobari alias Haribansh caught Shailesh, on which Sanjay Patel, who was armed with Krich (Sharp edged weapon), caused stab wound to Shailesh with the intention to cause his death and this stab wound was so fatal that Shailesh died on the spot instantaneously. In the meantime Saheb Patel reloaded his single barrel gun and opened fire on Anil which caused through and through fire arm injury to Anil on he vital part of the body. Hence, considering this evidence of direct involvement of the Appellants, absence of motive is not very relevant and we are of the opinion that it is not going to make any difference regarding the reliability of the prosecution story and the statement of the witnesses that Dinesh Mallah has not been examined and hence motive cannot be said to be proved.
20. Prosecution examined Ram Ratan P.W. 1, Bholi P.W. 3 and Umesh Kumar P.W. 6 as the witnesses of the incident. It is admitted fact that Babu Lal deceased was the brother of the witnesses Ram Ratan P.W. 1. Anil was the son of Babu Lal and Shailesh was the son of Ram Ratan. As such the complainant Ram Ratan P.W. 1 was closely related to the deceased persons. Although Bholi P.W. 2 is not closely related to the deceased persons, but he belongs to the caste of the deceased and he is also resident of the same mohalla to which Babu Lal deceased belonged. It has been argued on behalf of the Appellants that Bholi P.W. 2 is also not an independent witness. We have perused the statement of P.W. 2 and from the statement of this witness no such inference can be drawn that this witness was related to the deceased or complainant. Merely due to the reason that this witness belong to the same caste, his statement cannot be disbelieved. He has specifically stated that he was present in the panchayat at the time of the incident and he saw the incident. This witness has specifically stated that he was not a witness of factum of theft of fishes from the pond of Dinesh Mallah. We have already stated above in this connection that we are not supposed and expected to record a finding to the effect as to whether Sanjay and Gobari Appellants had committed the theft of the fishes or not. It was only the allegation of Dinesh and incident took place on this allegation and background and relevancy of this fact is only to the effect that a panchayat was convened at the initiative of Dinesh Mallah on the date and time of the incident, as he had doubt and apprehension that Sanjay and Gobari committed theft of fishes from his pond. Whether it was false allegation or it was correct, it is not our concern for the disposal of this appeal, because this witness has stated that he is not the witness of the theft of fishes from the pond.
21. Umesh Kumar P.W. 6 is also a witness of fact and he was present at the time of the incident in the panchayat. He was cross-examined at length but nothing could be elicited from him so as to discredit his evidence. Umesh P.W. 6 admitted in his statement that he and Babu Lal belong to same family (Parivar) and Babu Lal was his uncle. In this connection, learned Counsel for the Appellants argued that Ram Ratan and Umesh Kumar are highly interested and related witnesses and they are also the chance witnesses. There was no occasion for these witnesses to remain present in the panchayat at the time of the incident. In our considered opinion, the statements of the witnesses Ram Ratan and Umesh Kumar cannot be discarded merely due to the reason that they are highly interested witnesses. These witnesses were cross-examined on the point that whether they were appointed as punch for participating in the panchayat in order to resolve the dispute in question. From the circumstances it is evident that panchayat was not convened in the official manner of a legally constituted panchayat. The panchayat of village people was convened in order to resolve the dispute amicably. As we have stated hereinabove also, it is not uncommon in the village for convening such panchayat for resolving such trifle disputes. It was not a matter of such grave nature so as to approach the police. As Dinesh Mallah was apprehensive regarding theft of the fishes from his pond and he was suspicious that Sanjay and Gobari are involved in the theft and the matter was of a trifle nature, hence instead of approaching the police in order to apprehend the culprit, Dinesh Mallah approached deceased Babu Lal, husband of the village Pradhan, for convening a panchayat for getting the matter resolved. The panchayat was of village people and not of duly elected punches as has been argued. In such panchayat the residents of the village are expected to participate and expressed their views. Ram Ratan irrespective of the fact that he is brother of the deceased Babu Lal and father of deceased Shailesh participated in the village panchayat. Umesh Kumar also participated in the panchayat in the capacity of resident of village. Hence, in our opinion these witnesses produced by the prosecution cannot be termed as chance witnesses. Much has been argued about evidentiary value of the statements of these witnesses and learned Counsel for the Appellants expected us that statements of these witnesses should be discarded as they are the close relation of the deceased. We find no force in this contention of the learned Counsel for the Appellants. There is a catena of judgments of the Hon''ble Apex Court to the effect that testimony of a witness cannot be discarded merely on the basis of close relation with the deceased or strained relation with accused. The Hon''ble Apex Court has held in the case of
Now it is well-settled by series of decisions of this Court that while appreciating the evidence of the witnesses related to the deceased having strained relations with the accused party, their evidence cannot be discarded solely on that basis, but the Court is required to carefully scrutinize it and find out if there is scope for taking view whereby the Court can reach to the conclusion that it is a case of false implication. The credibility of a witness cannot be judged merely on the basis of his close relation with the deceased and as such cannot be a ground to discard his testimony. If it otherwise inspires confidence and particularly so, when it is corroborated by the evidence of independent and injured witnesses.
In this judgment, the Hon''ble Apex Court also placed reliance on a judgment of five Judges Bench in
The categorical testimony of eye-witnesses account has not been considered and discussed at all by the High Court. Their testimony was thrown out at the threshold on the ground of animosity and relationship. This is not the requirement of the law. That apart P.W. 4. Tarsem Lal is an independent eye-witness. P.W. 4 also hails from the same village. He is neither related to the complainant party nor to the accused party. He has stated that he saw the accused Mast Ram in his verandah with a gun in his hand and also saw him running away from the spot after the gunfire. The High Court has not considered and discussed the testimony of P.W. 4 at all.
22. The same law has also been laid down by Hon''ble Apex Court in
23. It has also been argued by learned Counsel for the Appellants that the role of catching hold the deceased Shailesh has only been assigned to the Appellant Gobari and merely on this ground he cannot be held guilty for the offence punishable u/s 302, I.P.C. and hence the learned Sessions Judge committed gross illegality in convicting the Appellant Gobari for the offence u/s 302, I.P.C., with the aid of Section 34, I.P.C. The contention of the learned Counsel was that from the circumstances it cannot be presumed that there was common intention or meeting of the mind of Gobari also in committing the murder of these three persons. In this connection learned Counsel for the Appellant cited some judgments of Hon''ble Apex Court. Prior to considering the judgments of Apex Court on this point it will be material to consider and highlight the role of Gobari in the commission of offence. It is an established fact as we have also discussed hereinabove elaborately that Dinesh Mallah was suspicious and apprehensive that Sanjay Patel and Gobari were involved in committing the theft of fishes from his pond. A panchayat was convened on the date and time of incident in order to discuss this act of Godari and Sanjay Patel. Under these circumstances Gobari cannot be termed as unconcerned person. In the panchayat it was resolved that as Sanjay Patel and Gobari are not admitting their involvement, hence they must be handed over to the police for interrogation and in response to this unanimous decision of panchayat, the deceased persons tried to apprehend Sanjay and Gobari in order to carry them to the police out post and handed them over to the police. The witnesses specifically stated that when Saheb Patel opened fire on Babu Lal and caused him fire arm injury, then Shailesh rushed for the rescue of his uncle Babu Lal but the accused Gobari caught him and immobilized him and it was due to this act of Gobari that Sanjay Patel caused stabbed wound to Shailesh by Krich (a sharp edged weapon). If Gobari might have not apprehended Shailesh, then it was not possible for Sanjay to cause stab wound to Shailesh. Hence, the circumstances shows that Gobari is also equally involved in the commission of offence. Sanjay Patel had been successful in committing the murder of Sheilesh due to active participation of Gobari. Under these circumstances the learned Sessions Judge was fully justified in convicting the Appellant Gobari for the offence u/s 302/34, I.P.C. In this connection learned Counsel for the Appellants cited
The above principles have been reiterated by this Court in Pandurang Tukia and Bhillia v. State of Hyderabad(supra). It has also been stated in the said decision that there is no special rule of evidence for applying Section 34 and "at bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or as we prefer to put it in the time honoured way, the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis.
It has further been held in the same judgment:
To establish joint responsibility for an offence, it must of course be established that a criminal act was done by several persons ; the participation must be in doing the act, not merely in its planning. A common intention a meeting of minds to commit an offence and participation in the commission of the offence in furtherance of that common intention invite the application of Section 34. But this participation need not in all cases be by physical presence. In offences involving physical violence, normally presence at the scene of offence of the offenders sought to be rendered liable on the principle of joint liability may be necessary, but such is not the case in respect of other offences where the offence consists of diverse acts which may be done at different times and places.
24. Learned Counsel for the Appellants in this connection cited the judgment of Hon''ble Apex Court in Bhabha Nanda Sharma and Ors. v. State of Assam 1977 SCC 1930 ; Maqsoodan and Ors. v. State of U. P. 1983 Cri LJ 218 ;
25. Learned Counsel for the Appellants vehemently contended that in view of Sections 96 and 97 of the Indian Penal Code these Appellants cannot be convicted u/s 302, I.P.C., as from the circumstance it may be inferred that what was done by these Appellants was in exercise of right of private defence. In this connection Government advocate Sri Chaudhari argued that no plea has been taken by the Appellants before the trial court regarding exercising the right of private defence and that no evidence was produced in defence before the trial court in this connection. The learned Counsel for the Appellants argued that it is not necessary for the Appellants to produce defence evidence or to raise the plea of exercising the right of private defence. That the inference about exercising the right of private defence may be drawn even from the evidence of the prosecution. In this connection learned Counsel for the Appellants cited the judgment of Hon''ble Apex Court in
It may be true that the right of private defence need not specifically be taken and in the event the Court on the basis of the materials on record is in a position to come to such a conclusion, despite some other plea had been raised that such a case had been made out, may act thereupon.
Hence, in view of this judgment of Hon''ble Apex Court even if the plea of right of private defence had not been raised by the accused persons, this plea may be considered by this Court, although, it is also the law of Hon''ble Apex Court delivered in various judgments that plea of right of private defence must be raised by the accused persons and must be proved by them. In this connection, the learned Government advocate cited
26. Regarding the right of private defence, the learned Counsel for the Appellants argued that it has come in the evidence that Dinesh Mallah was suspicious and apprehensive that Sanjay and Gobari are involved in committing the theft of fishes from his pond which was leased out to him by Gaon Sabha and a panchayat was convened on the date and time of incident in this connection. That the witnesses have specifically stated that Sanjay and Gobari were pressurized by the deceased and other participants of the panchayat to confess about their guilt of committing theft and pay the fine but as per evidence of the prosecution witnesses these accused persons disputed and denied specifically the fact of committing theft of the fishes. Learned Counsel further argued that the witnesses have stated that it was resolved in the panchayat that both these culprits must be handed over to the police for interrogation and in order to hand over them to the police they were apprehended by the deceased persons in order to carry them at the police out post and if this evidence of the prosecution is to be considered worth reliable then due to this act of the deceased persons, right of private defence accrued to these Appellants. It was also argued that it was not the function of the deceased persons or other participants of panchayat to resolve the dispute of theft of the fishes from the pond of Dinesh Mallah. That every criminal act whether of serious nature or of triffle nature must be reported to the police and must be investigated by the police. No private individual has any right to pressurize any person in order to extort the confession regarding involvement in the offence. That neither the deceased persons nor the other participants of the panchayat were authorized to discuss the allegation of theft of Dinesh, hence the panchayat was unlawful and further when these Appellants denied and disputed from committing the theft of fishes from the pond of Dinesh, then as to how the deceased or any other member of the panchayat were authorized and within their right to pressurize them for making confession about the offence. That when an illegal act was being committed by the deceased and other persons to pressurize the Appellants to confess in the panchayat about the involvement in the offence of theft of fishes from the pond of Dinesh Mallah, then these Appellants were fully within their right to exercise the right of their private defence. Further argued that as per evidence of the prosecution the deceased and other persons of the panchayat were not satisfied with the denial of the Appellants regarding their involvement in the theft of fishes, but they have gone much beyond that. On the denial of these Appellants the deceased persons apprehended Sanjay Patel and Gobari illegally in order to hand over them to police so that their confession may be extorted. That in order to get themselves released from the clutches of the deceased, the accused persons exercised their right of private defence and in order to get themselves released the accused persons were authorized to exercise the right of private defence up to any extent. In this connection learned Counsel for the Appellants cited following judgments:
1.
2. Bihari Rai v. State of Bihar, 2009 Cr LJ 340 (SC).
3. Raghbir Singh and Ors. v. State of Haryana LXIV 2009 ACC 269:2009 (1) ACR 637 (SC).
On the strength of these judgments learned Counsel for the Appellants argued that as these Appellants exercised their right of private defence, hence no offence can be said to be made out against them as provided u/s 96, I.P.C. Although there may be no denial about the evidence produced by the prosecution in this connection, but there are certain other circumstances which are evident from the prosecution evidence which are also necessary to be considered. We have stated above that Dinesh Mallah expressed his apprehension and doubt regarding committing theft of fishes from his pond against Sanjay Patel and Gobari and not against Saheb Patel. Only this fact was to be considered in the panchayat that whether these accused/Appellants are involved in the commission of the offence of theft of fishes from the pond of Dinesh Mallah. It was not expected in these circumstances either from the Appellants or from the deceased and other participants of the panchayat that they will participate in the panchayat armed with deadly weapons. It is undisputed fact that no injury at all was sustained by either of the Appellants and that no person had attacked on these Appellants. When the deceased persons tried to apprehend the accused Sanjay and Gobari in order to hand over them to police, the accused Saheb Patel opened fire on Babu Lal. It has not come in evidence that any other person in panchayat was armed with deadly weapons. There is no evidence or circumstance for drawing inference that any other persons of the panchayat was armed with any weapon and had attacked on Saheb Patel or any other Appellant. In order to get the matter resolved only an effort was made by the members of the panchayat to apprehend Sanjay and Gobari in order to hand over them to the police for interrogation. There was no risk to the life of Saheb Patel or any other Appellant. None provoked these Appellants so as to cause triple murder on the spot. There is no circumstance from which inference can be drawn that these accused persons were within their right to exercise the right of private defence. We also disagree with this argument of learned Counsel for the Appellants that seeing the circumstances of the case, it may be inferred that these Appellants exceeded their right of private defence, and hence at the most these Appellants may be held guilty for the offence u/s 304, Part I or II, I.P.C. We are of the opinion that there was no such circumstance so as to justify these Appellants to exercise the right of private defence or to infer that the Appellants exceeded the right of private defence. Sanjay and Gobari were apprehended to be carried to the police out post for interrogation. There was no apprehension to the life of the Appellants so as to give them right to exercise the right of private defence. We are of the opinion that even from the circumstances of the case and from the prosecution evidence right of private defence shall not accrue to the accused persons. These accused persons committed a ghastly and diabolical offence by committing murder of three innocent persons, who had nothing to do with the allegation made against them. No benefit can be given to the Appellants on the bass of above judgments of Hon''ble Apex Court so as to give them benefit of Sections 96 and 97, I.P.C.
27. Learned Counsel for the Appellants also argued that in view of the circumstances as has come above in the prosecution evidence the case of these Appellants is covered under Exception IV of Section 300, I.P.C. It has been provided u/s 300, I.P.C.:
300. Murder.-Except the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Secondly,-If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or Thirdly,-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or Fourthly,-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
28. Learned Counsel for Appellant further argued that as the present case is of single injury, hence the offence would not travel beyond Section 304, Part I or II, I.P.C. In this connection learned Counsel for the Appellant cited
29. It has also been argued by learned Counsel for the Appellants that it is the definite case of the prosecution that the death of Babu Lal and Anil was caused by the fire of Saheb Patel by single barrel gun and inference may be drawn that injury was caused by a cartridge of 12 bore. In this connection learned Counsel for the Appellants attracted our attention towards fard recovery prepared by the Investigating Officer about the property recovered from the spot. Learned Counsel argued that a bullet was also recovered from the spot and it is not the case of the prosecution that any other third person caused bullet injury to either of the deceased, hence it becomes doubtful that Saheb Patel committed the murder of Babu Lal and Anil. That it is possible or possibility cannot be ruled out that a weapon of different bore was also used in the offence. Learned Counsel also attracted our attention towards the statement of Dr. R. S. Mishra P.W. 3, who conducted post mortem on the dead body of the deceased. This witness has stated that the injuries of Babu Lal and Anil were caused by different weapons. Injury of Anil is through and through and hence no bullet was recovered from inside the body. Whereas the injury of Babu Lal was caused by pellets. Learned Counsel argued that in view of this statement of Doctor it cannot be said proved that Anil also sustained fire arm injury by the weapon of Saheb Patel and it is possible that this injury was caused by some other weapon. In this connection, learned Counsel for the Appellants also produced Modi Medical Jurisprudence. Learned Counsel also cited a judgment of this Court in
It is now well-settled by series of decisions of this Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eye-witness has to get primacy as medical evidence is basically opinionative.
30. In this connection learned Government advocate also cited the following judgment of Hon''ble Apex Court:
1. Mainpal and Anr. v. State of Haryana 2004 SCC 1882.
2. Vishnu alias Undrya v. State of Maharashtra (2006) 1 SCC 217: 2006 (1) ACR 328 (SC).
3. Madan Gopal Kakkad v. Naval Dubey and Anr. 1992 SCC 598.
31. In all the above judgments, the Hon''ble Apex Court has held that if there is variance in between the eye-witness account and medical evidence then it is the ocular evidence which shall prevail. The Hon''ble Apex Court also held that the statement of Doctor is only the opinion of expert. Hence, we disagree with the argument of learned Counsel for the Appellants that Babu Lal and Anil sustained fire arm injury from different weapons.
32. In view of the foregoing discussion, we come to the conclusion that the Appellants-accused committed cold blooded murder of Babu Lal, Anil and Shailesh in very daring manner in the full view of numerous persons of the village and participants of panchayat. It was a high handed act on the part of the accused persons. The prosecution has proved beyond reasonable doubt that Dinesh levelled allegation against Sanjay and Gobari expressing apprehension and doubt on them about committing the theft of fishes from his pond. Hence, at the instance of Dinesh Mallah on the initiative of Babu Lal being the husband of village Pradhan, a panchayat was convened in village on 8.1.2004 at about 5.30 p.m. and at about 6.30 p.m. the accused persons committed the murder of Babu Lal, Anil and Shailesh by causing injuries to them by fire arm and sharp edged weapon Krich. It is not a case of exercise of right of private defence. Three persons were murdered without any rhyme and reason merely on the ground that deceased persons tried to apprehend Sanjay and Gobari in order to hand them over to police so that they may be interrogated regarding theft of fishes from the pond of Dinesh Mallah. There was nothing abnormal in doing so, because if there is an allegation against a person of a committing of a cognizable offence, then even the persons of public are authorized to apprehend them and hence the act of apprehending the Appellants Sanjay and Gobari by the deceased persons so as to hand them over to police cannot be said to be unjustified. Due to this act of the deceased persons, the accused Saheb Patel or other accused persons were not authorized to cause murder of three persons. Moreover, the case is also not covered under any of the exceptions provided u/s 300, I.P.C. Gobari alias Haribansh is equally responsible for the murder. He caught Shailesh and immobilized him so as Sanjay may cause injury by Krich. We are also of the opinion that the case cannot be covered u/s 304, I.P.C. merely on the ground that all the three deceased sustained single fire arm and stabbed wound and there had not been repeated fire and stabbed wound either of the deceased. There is also an important circumstance that without any rhyme and reason Saheb Patel come to panchayat duly armed with licensed single barrel gun and Sanjay Patel with a sharp edged weapon and this fact shows that these accused Appellants come in the panchayat fully prepared for committing the murder. Learned Sessions Judge has rightly convicted the Appellants for the offence under Sections 302 and 302/34, I.P.C. There is no scope to make any interference by this Court in conviction of the Appellants. Accused-Appellants Sanjay and Gobari have been awarded minimum sentence, which cannot be reduced by this Court.
33. Learned Sessions Judge has awarded the maximum sentence of death to Saheb Patel for the offence u/s 302, I.P.C. It appears that the learned Sessions Judge swayed for imposing the maximum sentence of death to Saheb Patel on the ground that he committed murder by causing fire arm injuries to Babu Lal and Anil. Two persons were murdered by the act of Saheb Patel. Learned Counsel for the Appellant argued that considering the nature and overall circumstances, the case does not come in the category of rarest of rare cases as has been defined by Hon''ble Apex Court for awarding the death sentence and hence keeping in view overall circumstances of the case as well as the mitigating circumstances, lesser punishment of life imprisonment must be awarded to Saheb Patel also. In this connection there are several land mark judgments of Hon''ble Apex Court laying down the guidelines in which death sentence is to be awarded. There is a land mark judgment of the Constitution Bench of Apex Court in this connection in
Aggravating circumstances.-A Court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality ; or (b) if the murder involves exceptional depravity ; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed-
(i) while such member or public servant was on duty ; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant ; or (d) if the murder is of a person who had acted in the lawful discharge of his duty u/s 43 of the Code of Criminal Procedure, 1973 or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance u/s 37 and Section 129 of the said Code.
34. The Hon''ble Apex Court in Bachan Singh case (supra), has also mentioned the mitigating circumstances which are to be considered for awarding the death sentence vide para 206 at page 750 of the report:
206. Dr. Chitale has suggested these mitigating factors: Mitigating circumstances.-In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
1. That the offence was committed under the influence of extreme mental or emotional disturbance ;
2. The age of the accused, if the accused is young or old, he shall not be sentenced to death ;
3. The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society ;
4. The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above ;
5. That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence ;
6. That the accused acted under the duress or domination of another person ;
7. That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
35. There are other judgments of Hon''ble Apex Court also in
36. We have also considered all the above judgments and other judgments in this connection and considering overall facts, we are of the opinion that merely on the ground that Saheb Patel committed murder of two persons, we do not consider it a fit case for awarding maximum penalty of death. We have considered the aggravating and mitigating circumstances as has been laid down by Apex Court and in our opinion the present double murder was not committed after previous planning or involves extreme brutality. As stated above, Saheb Patel caused single fire arm injury to Babu Lal and Anil. This can be mitigating ground in order to award lesser sentence of life imprisonment. We are of the opinion that the murder of Babu Lal and Anil does not involve exceptional depravity. Except this fact that the two persons were murdered by Saheb Patel, there is no other aggravating circumstance in order to warrant the maximum penalty of death sentence. Learned Government advocate has also not pointed out and high-lighted the aggravating circumstances so as to justify the maximum penalty of death to Saheb Patel. In our opinion this is not such a case which can be termed as rarest of the rare cases for awarding maximum penalty. Hence, considering the law laid down by Hon''ble Apex Court in various judgments and also considering the aggravating and mitigating circumstances, we are of the opinion that it is not a fit case to confirm the death sentence as awarded by learned Sessions Judge. In our opinion, the Appellant Saheb Patel also may be sentenced to undergo imprisonment of life and to pay the fine.
37. Section 357(1)(c), Cr. P.C. lays down that when passing judgment, the Court may order the whole or any part of the fine recovered to be applied on paying compensation to the persons who are, under the Fatal Accidents Act, 1855, entitled to recover damages from the person sentenced for the loss resulting to them from such death. Hence, in present case, the legal heirs of the deceased are entitled to recover the compensation from the accused-Appellants. We are altering the death sentence of the Appellant Saheb Patel to sentence of imprisonment of life and fine. Hence, ends of justice require that as provided in Section 357(1)(c), Cr. P.C., adequate compensation should be paid to the legal heirs of deceased Babu Lal and Anil, whose murder has been committed by the Appellant Saheb Patel. The Hon''ble Apex Court also has held in the case of
38. Consequently, Criminal Appeal No. 2945 of 2006, is dismissed. The conviction and sentence recorded by the trial court by the impugned judgment against the Appellants-accused Sanjay Patel and Hari Bansh Yadav alias Gobari are affirmed. These Appellants are undergoing sentence in jail. They shall be kept there to serve out the remaining sentence.
39. Criminal Appeal No. 2953 of 2006 is partly allowed. The conviction of the accused-Appellant Saheb Patel u/s 302, I.P.C. is upheld, but setting aside the death sentence, he is sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,00,000 (Rupees one lakh only). The Appellant Saheb Patel is confined in jail. He shall be kept there to serve out the sentence imposed by us.
40. The entire amount of fine imposed by this Court on the Appellant Saheb Patel will be paid half-half to the legal heirs of deceased Babu Lal and Anil, whereas the entire amount of fine imposed by the trial court on the Appellant Sanjay Patel and Hari Bansh Yadav alias Gobari will be paid to the legal heirs of deceased Shailesh. Three months time is granted to deposit the entire amount of fine in trial court concerned, failing which the amount of fine shall be recovered by the trial court by putting movable or immovable property of the Appellants to auction in accordance with the rules.
41. Criminal Reference No. 9 of 2006 is hereby rejected.
42. The office is directed to return lower court record expeditiously alongwith a copy of this judgment. The trial court concerned shall issue fresh conviction-warrant of the accused-Appellant Saheb Patel in accordance with this judgment. Compliance report be submitted by the trial court within a period of two months.
