Allahabad High Court
Ramesh Pal Singh And Others vs State Of U.P. on 19 October, 2012
Author: Ravindra Singh
Bench: Ravindra Singh, Surendra Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
RESERVED
A.F.R.
CAPITAL CASE (APPEAL) NO.3627 OF 2011
Ramesh Pal Singh and others..........................Appellants.
Versus
State of U.P.......................................................Respondent.
Connected with
CAPITAL CASE (APPEAL) NO.3801 OF 2011
Surjan Singh and others.....................................Appellants.
Versus
State of U.P.......................................................Respondent.
Connected with
CAPITAL CASE (APPEAL) NO.3844 OF 2011
Sukhpal and another..........................................Appellants.
Versus
State of U.P.......................................................Respondent.
Connected with
CAPITAL CASE (APPEAL) NO.4678 OF 2011
Pappu @ Jai Pal Singh......................................Appellant.
Versus
State of U.P.......................................................Respondent.
And
Reference No.13 of 2011
Hon'ble Ravindra Singh,J.
Hon'ble Surendra Kumar, J.
(Delivered by Hon'ble Surendra Kumar, J.)
1. Heard Sri P.N.Misra, Senior Advocate assisted by Sri Dharemendra Singhal, Sri S.P.Tiwari learned counsel for the appellants, Sri Arunendra Singh, Sri M.S.Yadav, Sri Anand Tiwari, learned A.G.A. appearing on behalf of the State of U.P.
2. The instant capital appeals arise out of a common judgment and order, therefore, are decided together by a common judgment.
3. The aforesaid capital appeals have been preferred by the ten accused persons (who are appellants herein) namely Ramesh Pal Singh, Ajay Pratap @ Pappu, Kayam Singh, Surjan Singh, Rakesh @ Bhola, Lalu @ Randhir, Sanju @ Sanjay, Sukhpal, Tejpal @ Mukhiya and Pappu @ Jai Pal Singh against the judgment and order dated 8.6.2011 passed by the Additional Sessions Judge/ Special Judge, (Dacoity Affected Areas), Etah, in Session Trial No.23 of 2010 State Vs. Ramesh Pal Singh and others arising out of Case Crime No.468 of 2008, Police Station Jalesar, District Etah and Session Trial No.21 of 2010 State Vs. Rakesh @ Bhola arising out of Case Crime No.471 of 2008, under Section 30 Arms Act, Police Station Jalesar, District Etah whereby each of the appellants has been convicted under Sections 148 and 302 read with Section 149 IPC and sentenced to undergo three years rigorous imprisonment under Section 148 IPC and further sentenced to death with fine of Rs.10,000/- each under Section 302 read with Section 149 IPC. In default of payment of fine, further to undergo three months additional imprisonment. Appellant Rakesh @ Bhola has also been convicted under Section 30 Arms Act and sentenced to undergo one year imprisonment. All the sentences have been directed to run concurrently. Out of the fine so realized, a sum of Rs.50,000/- has been directed to be paid as compensation to the complainant/first informant Smt. Laxmi Devi and her daughter Km. Arti.
4. Narendra Pal one of the accused persons has been acquitted by the trial court vide impugned judgment and order dated 8.6.2011 under Sections 148 and 302 read with Section 149 IPC.
5. A reference No.13 of 2011 has been made by the Additional Sessions Judge, to this Court for confirmation of the death sentence.
6. Facts of the case in a nutshell are that all the appellants as well as deceased and first informant were residents of Village Pilkhatra, Police Station Jalesar, District Etah. The appellants Ramesh Pal Singh and Surjan Singh are real brothers. The appellant Surjan Singh along with his three sons namely Rakesh @ Bhola, Lalu @ Randhir and Sanju @ Sanjay, the appellant Ramesh Pal Singh along with his three sons namely Ajay Pratap @ Pappu and two juvenile accused Rajesh and Ramu, the appellant Sukhpal Singh and Tejpal @ Mukhiya sons of Babu Singh belong to one family. The accused Pappu @ Jai Pal Singh and Kayam Singh are friends of remaining accused persons/appellants. According to the prosecution case, ten appellants and two juvenile Ramu and Rajesh are involved in the incident.
7. A written report Ext. Ka-1 scribed by Man Pal Singh was given at Police Station Jalesar, District Etah, situated at the distance of 20 kilometers from the place of the incident on 14.11.2008 at 9:35 a.m. by Smt. Laxmi Devi PW-1. The first information report was lodged on the basis of the written report. It is alleged in the report that Km. Vijay daughter of the appellant Ramesh Pal Singh had illicit relation with Devar Uday Pal @ Bhura (younger brother of the first informant's husband). About 15 days prior, Km. Vijay eloped with Uday Pal @ Bhura but they returned on the next day. Feeling aggrieved, the members of the family of Km. Vijay had extended threat to eliminate the family of the complainant Smt. Laxmi Devi. On 13.11.2008 at about 12:00 Noon, Km. Vijay and Uday Pal @ Bhura disappeared from the house, soon thereafter twelve accused persons namely Ramesh Pal Singh, Surjan Singh, Pappu @ Jai Pal Singh, Ramu, Rajesh, Sukh Pal, Tejpal @ Mukhiya, Rakesh @ Bhola, Lalu @ Randhir, Sanju @ Sanjay, Kayam Singh and Ajay Pratap @ Pappu armed with licenced rifles and illegal firearms arrived at the house of the first informant and enquired about her husband Satya Bhan Singh. When they were informed that Satya Bhan Singh was not present in the house they went away threatening that they ( three deceased persons viz. Km. Vijay, Udai Pal @ Bhura and Satya Bhan Singh would be killed at such a place where no one weeping for them could reach. At about 6:00 p.m., Satya Bhan Singh, husband of the complainant arrived at his house but as soon as he was entering the house, the aforesaid appellants caught hold of Satya Bhan Singh, dragged him and took him away brandishing their weapons, on the road leading from Pilkhatra to Jamalpur Gaduri. Km. Arti daughter of the first informant aged about 12 years and the first informant were entreating to the accused persons to leave Satya Bhan Singh. In the meanwhile, Desh Raj resident of Village Jirauli, Police Station Akrabad, District Aligarh besides several residents of the village also arrived and requested the accused persons to leave Satya Bhan Singh. A large number of crowd also started to walk behind the accused persons. The accused persons after taking Satya Bhan Singh to different places, finally took him towards Bade Bamba near Patel where it was seen that Uday Pal @ Bhura, younger brother of Satya Bhan Singh and Km. Vijay were lying tied under thick cover of Patel/dried leaves of sugarcane. Thereafter, twelve accused persons took the trio away towards Jamalpur Gaduri Kachcha road in front of the field of Narendra Singh at about 1:00 a.m. where in the presence of the witnesses, the appellants fired indiscriminately on the three deceased Satya Bhan Singh, Uday Pal @ Bhura and Km. Vijay with their respective firearms who died immediately on the spot. Seeing this ghastly incident, a panic situation was created in the village. In the morning of 14.11.2008, the accused persons came and extended threats openly in the village that if anyone dared to give evidence against them, he would also meet the same fate.
8. On the basis of the aforesaid written report Ext. Ka-1, the first information report at Case Crime No.468 of 2008 under Sections 147, 148, 149, 302 IPC, Police Station Jalesar, District Etah, was registered on 14.11.2008 at 9:35 a.m. against twelve accused persons. The then S.H.O., Sri N.K. Chaudhary, PW-14 took up investigation of the case on 14.11.2008, the day first information report of murder case was lodged at Police Station Jalesar, District Etah. Sri N.K. Chaudhary on the same day made spot inspection and prepared site plan of the same at the pointing out of the first informant Smt. Laxmi Devi PW-1, Ext. Ka-18 and also recovered 15 empty cartridges from the place of the incident and prepared its memo Ext. Ka-19 and took blood stained and plain earth in separate pots from the place where the dead bodies were lying preparing its memo Ext. Ka-20, Ext. Ka-21 and Ext. Ka-22. This Investigating Officer also recovered the gold metal earrings allegedly worn by the deceased Km. Vijay from near her dead body and sealed the same in the piece of cloth after preparing memo Ext. Ka-23. He also took chappals of the deceased Km. Vijay from near her dead body in his possession and prepared its memo Ext. 24. This Investigating Officer reached the house of the accused persons but they could not be traced.
9. Sri N.K. Chaudhary PW-14 arrested the accused Rakesh @ Bhola and Sukhpal on 17.11.2008 at 6.35 a.m. and from possession of the accused Rakesh @ Bhola, his licenced rifle no.054200138 and three cartridges were recovered. From possession of the another appellant Sukhpal, a sum of Rs.40 was recovered and its memo Ext. Ka-25 was prepared by this PW-14. The appellants Ramesh Pal Singh and Tejpal @ Mukhiya were interrogated in jail by this PW-14 after getting permission from the court and then on the basis of their statements, they were taken on police remand on 2.12.2008 and then at the pointing out of the appellant Ramesh Pal Singh, a country made pistol 315 bore along with three live cartridges was recovered from his possession and on the same day namely 2.12.2008, a licenced rifle no.AB0609361 at the pointing out of the appellant Tejpal @ Mukhiya was recovered from his house and its recovery memo Ext. Ka-26 was prepared. This PW-14 arrested the appellant Ajay Pratap @ Pappu on 30.11.2008 at 9:00 a.m. from Tiraha and then 315 bore rifle no.AB0612767 and cartridges were recovered and its recovery memo Ext.Ka-30 was prepared. This rifle was of the accused-appellant Ajay Pratap @ Pappu. All these facts have been proved by this Investigating Officer PW-14 in his evidence in the trial court.
10. According to the testimony of this PW-14, he tried to arrest the accused persons, some of them surrendered but some were arrested and then they were interrogated by him. One appellant Jai Pal Singh during interrogation told this PW-14 that on the day of the incident, Jai Pal Singh had in his possession licenced rifle of Narendra Singh Pradhan and this rifle was used by the appellant Jai Pal Singh in committing these three murders. Memo of this fact Ext.Ka-28 was prepared.
11. The site plan of the place of recovery of rifle at the pointing out of the appellant Tejpal @ Mukhiya was prepared by this PW-14 vide Ext. Ka-27. This PW-14 recorded statement of Km. Arti PW-2, Narendra Pal Singh PW-4 and Vinod Kumar PW-5 on 24.12.2008 and statements of other eyewitnesses were also recorded by this PW-14 on 29.12.2008. This PW-14 prepared site plan of the place of murder as Ext.Ka-29 at the pointing out of Smt. Laxmi Devi and other eyewitnesses.
12. This Investigating Officer PW-14 also inspected the place from where the deceased were taken to the place of murder. The investigation was made by this PW-14 till 30.11.2008, thereafter this PW-14 was transferred, hence remaining investigation of this triple murder case was given to S.S.I. Sri Chandra Bhan Singh. This PW-14 identified hand writing and signature of Sri Chandra Bhan Singh and proved charge sheet Ext. Ka-31 filed against the accused persons and also proved Chik FIR Ext. Ka-32 and its G.D. entry Ext. Ka-33 having been prepared in the hand writing and signature of the constable Sri Om Gautam.
13. It is evident from cross examination of Sri Chaudhary PW-14 that one accused Narendra was not named in the first information report and his name had not also figured in the evidence of witnesses and his name for the first time figured in the statement of Km. Arti PW-2 under Section 161 Cr.P.C. recorded after one month of the incident of triple murder. It is also evident that the appellant Pappu @ Jaipal Singh was taken on police remand and nothing incriminating was recovered from his possession. The licenced rifle/revolver of Narendra allegedly used by the appellant Pappu @ Jaipal Singh was not recovered during investigation from his possession, hence the same was not sent to Forensic Science Laboratory.
14. It is further evident from cross examination of PW-14 that no recovery memo of 315 bore Tamancha from possession of the appellant Ramesh Pal Singh is available on record. This Investigating Officer has candidly admitted in his cross examination that he could not tell the name of the Police Officer, whose seal was affixed on the bundles of firearm recovered from Ramesh Pal Singh and Ajay Pratap @ Pappu. All the cartridges were recovered from the place of murder by this PW-14. The empty cartridges recovered from place of the murder and firearms recovered from the appellants could not be sent to the Forensic Science Laboratory for examination as this PW-14 remained busy in other murder cases during the period of one and half months when the investigation was made by him. This PW-14 has clearly denied defence suggestion about false recovery of the aforesaid firearms and empty cartridges etc. This witness has also denied suggestion put to him on behalf of the appellant Ajay Pratap that the witness had taken the licenced rifle with cartridges of Ajay Pratap from the house of Ajay Pratap after the incident of murder and falsely involved the firearm in this incident of murder by discharging cartridges from the said firearm and created false and fabricated evidence.
15. Post mortems on the dead body of Satya Bhan Singh, aged about 35 years, Km. Vijay aged about 22 years (daughter of Ramesh Pal Singh) and Uday Pal @ Bhura aged about 30 years were conducted by Dr. Yatindra Bhardwaj PW-13 on 15.11.2008 and prepared the post mortem reports Ext. Ka-15, Ext. Ka-16 and Ext. Ka-17 at 1:15 p.m., 2.15 p.m and 3.15 pm. respectively.
16. According to the post mortem report of the deceased Satya Bhan Singh Ext. Ka-15, following ante mortem injuries were found:-
(i) A firearm wound of entry on the lower part of left abdomen on the back side, 5 cm above the iliac crest and 7 cm away from the mid line. Blacking was present, size 1.5 cm x 1.5 cm, wound was directed anteriorly upwards, towards the Rt ant. chest, underlying structures were damaged.
(ii) A firearm wound of exit on the Rt ant. chest just below the nipple, size 6 cm x. 4 cm, underlying ribs were fractured. This injury was in continuation with Injury No.1.
(iii) A crush injury over the whole of skull and face, both eyes were also damaged, brain matter was coming out.
(iv) Multiple abraded contusion all over the ant. chest in the area of 30 cm x 28 cm.
(v) Multiple lacerated wound on the upper part of Rt ant chest in the area of 18 cm x 14 cm.
On internal examination, skull and both jaws were found fractured.
Cause of death was due to shock and hemorrhage as a result of ante mortem injuries.
17. According to post mortem report of the deceased Km. Vijay, aged about 22 years, Ext. Ka-16, following ante mortem injuries were found:-
(i) A firearm wound of entry on the Rt side of neck in the upper part, wound was directed downwards, posteriorly and laterally, great vessels were lacerated, size 1.5 cm x 1.5 cm, a metallic piece was recovered from the injury.
(ii) A firearm wound of entry on the left ant chest just on the 7 O' clock position of nipple, size 1.5 cm x 1.5 cm, blackening present, wound was 4cm below the inframmanary line, wound was directed downwards posteriorly and laterally, causing damage to internal structure.
(iii) A firearm wound of exit on the upper part of left lateral abdomen 20 cm below the mid axillary line, size 3 cm x 3 cm. This was in continuation with Injury No.2.
(iv) A firearm wound of entry on the mid of sternum, size 4 cm x 4 cm, 10 cm below the sternal notch, blackening present, wound was directed downwards posteriorly towards the left side causing damage to internal structure.
(v) A firearm wound of exit on the lower part of back of left abdomen, 5 cm away from mid line and 3 cm above the iliac bone, size 4.5 cm x 4.5 cm. This was in continuation with Injury No.4.
(vi) A firearm wound of entry on the Rt ant. chest, on the 5 O' clock position, 7 cm below the breast, size 1.5 cm x 1.5 cm, blackening present, wound was directed as the downwards posteriorly causing damage to internal structure.
(vii) A firearm wound of exit on the back of lower part of Rt abdomen, 8 cm away from the Injury No.5, size 2.5 cm x 3 cm. This injury was in continuation with Injury No.6.
On internal examination, skull, both side ribs and upper jaw were fractured.
Cause of death was due to shock and haemorrhage as a result of ante mortem injuries.
18. According to post mortem report of the deceased Uday Pal @ Bhura, aged about 30 years, Ext. Ka-17, following ante mortem injuries were found:-
(i) A firearm wound of entry on the sternal angle size 5 cm x 5 cm, blackening present, wound was directed downwards posteriorly towards right side causing damage to internal structure.
(ii) A firearm wound of exit on the back of upper part of Rt side of chest just lateral to mid line at level of upper part of scapula ( in continuation with injury no.1).
(iii) A firearm wound of entry on the left ant. chest, 6 cm below the nipple, on the 8 O' clock position, size 1.5 cm x 1.5 cm, blackening present, wound directed downward posteriorly causing damage to internal structure.
(iv) A firearm wound of exit on the back of abdomen, on the left side on the lower part, size 2 cm x 2 cm, 8 cm above the iliac chest and 10 cm away from the mid line (In continuation with Injury No.3).
(v) Crush injury over the whole of skull and face, brain matter coming out.
(vi) A firearm wound in the form of glancing injury in the ant. lateral aspect of Rt. forearm, just below the elbow, size 10 cm x 8 cm deep, muscles damaged.
(vii) A firearm wound of entry on the upper part of Rt side of abdomen, size 1.5 cm x 1.5 cm, blackening present, directed downward posteriorly causing damage to underlying structure. Two metallic pieces recovered from this injury.
On internal examination, skull bones, ribs and both jaws were fractured.
Cause of death was due to shock and haemorrhage as a result of ante mortem injuries.
19. After submission of the charge sheet, the Chief Judicial Magisrate, Etah, committed the case to the Court of Session Etah, for trial, which was tried by the Special Judge (DAA) Etah. Charges under section 148, 302 read with Section 149 IPC were framed against the appellants to which they pleaded not guilty and claimed to be tried on the said charges. One appellant Rakesh @ Bhola was also additionally charged under Section 30 Arms Act to which he also pleaded not guilty and claimed to be tried.
20. To prove charges levelled against the appellants, the prosecution examined Smt. Laxmi Devi PW-1 (wife of the deceased Satya Bhan Singh and Bhabhi of the deceased Uday Pal @ Bhura), Km. Arti PW-2 a girl of 14 years of age and student of Class 8th standard (daughter of the deceased Satya Bhan Singh), Desh Raj Singh PW-3, Narendra Pal Singh PW-4, Vinod Kumar PW-5, Lakhan Singh PW-6, Smt. Bitta PW-7, Kanchi Singh PW-8, Smt. Manju PW-9, Smt. Phool Bano PW-10, Smt. Shanti PW-11 and Netrapal Singh PW-15 in the eyewitnesses account. The prosecution also examined S.S.I. Sri Chandra Sen Malik PW-12 who after lodging of the first information report of this triple murder, by Smt. Laxmi Devi PW-1, accompanied S.H.O. Sri N.K. Chaudhary and other police personnel to the place of the murder, conducted inquest on the three dead bodies under direction of Sri Chaudhary. Sri Malik has proved inquest report Ext. Ka-2, Challannash Ext. Ka-3, Photonash Ext. Ka-4, report of R.I. Ext. Ka-5 and letter to the Chief Medical Officer Ext. Ka-6.
21. Sri Malik has also proved inquest report and other papers of the dead body of the deceased Satya Bhan Singh as Ext. Ka-7, Ext. Ka-8 and Ka-10. Sri Malik has also proved papers relating to dead body of the deceased Uday Pal @ Bhura as Ext. Ka-11 to Ext. 14. Sri Malik is witness of conducting inquest report and preparing other papers of the three dead bodies on 14.11.2008. The police promptly and without any delay reached the place of murder immediately after lodging of the first information report of the incident and then said proceedings of inquest etc. were completed. The first information report of the incident was lodged on 14.11.2008 at 9:35 a.m. Sri Malik and Sri Chaudhary, Investigating Officers immediately reached the place of murder within just 15 to 20 minutes by making entry in G.D. no.19 at 9:35 a.m.
22. The prosecution has also examined Dr. Yatindra Bhardwaj PW-13 who as stated above conducted autopsy on three dead bodies and prepared post mortem reports Ext. Ka-15, Ext. Ka-16 and Ext. Ka-17 and has stated that death of three deceased persons were likely to have been caused in the intervening night of 13/14.11.2008 and there could be margin of 9 hours regarding time of death on both sides. The doctor has also denied defence suggestion that he has deposed falsely in collusion with first informant.
23. The prosecution has also examined the Investigating Officer Sri N.K. Chaudhary who was S.H.O. at Police Station Jalesar, District Etah. Sri Chaudhary promptly and without any delay proceeded to the place of the murder, recorded statement of the witnesses under Section 161 Cr.P.C. and made recoveries of the aforesaid firearms from the aforesaid appellants.
24. Netrapal Singh PW-15 examined by the prosecution is witness of Panchnama and he proved Panchnamas of the deceased Satya Bhan Singh, Uday Pal @ Bhura and Km. Vijay Ext. Ka-2, Ext. Ka-7 and Ext. Ka-11 having been prepared in his presence on 14.11.2008. He is real Bahnoi of the first informant Smt. Laxmi Devi and reached the place of murder at the relevant time on getting the information of the aforesaid three murders.
25. The appellants while examining under Section 313 Cr.P.C. have denied the prosecution story claiming their false implication on the ground of party faction and old enmity. They have also challenged recoveries of firearms allegedly made from them by the police. The appellant Ramesh Pal Singh aged about 60 years has also stated that the deceased Km. Vijay then aged about 18 years was his youngest daughter. He does not know how she had died. On the day of the incident of murder, he was at the house of his brother-in-law (Sadhu) in village Gorkho, District Firozabad where he had gone one day prior to the incident. He has further stated that he has not tried to know how his daughter Km. Vijay had died. The house of deceased Satya Bhan Singh was 10-12 houses away from his house. He does not know the place of the residence of the first informant Smt. Laxmi Devi. He has denied his involvement in the murder of his daughter Km. Vijay and her lover Uday Pal @ Bhura and Satya Bhan Singh elder brother of her lover.
26. The appellant Surjan Singh, is real brother of the appellant Ramesh Pal Singh, who has also stated that he does not know how his niece Km. Vijay died. He is a teacher and claimed to have gone to Ganga Ji for taking bath. He has also denied his involvement in these three gruesome and brutal murders showing his ignorance.
27. The appellant Ajay Pratap @ Pappu has also stated that he does not know about murders of three deceased including his sister Km. Vijay. According to him, his sister Km. Vijay had no illicit relation with anyone. The police had taken his licenced rifle from his house and discharged some cartridges from his rifle and then shown false recovery of cartridges from the place of the murder and sent the same to Forensic Science Laboratory for forensic examination.
28. The appellant Tejpal @ Mukhiya has also stated that on 13.11.2008 he went to bring seeds and came back on 14.11.2008 and then went to Aligarh. His licenced rifle was taken by the police from his house on 16.11.2008 in his absence which was deposited at Police Station and after discharging some fires from his rifle, the same was sent to Forensic Science Laboratory.
29. The appellant Sukh Pal has also taken plea of ali bi stating that he was away from his house and was in Harduaganj between 11.11.2008 to 15.11.2008 and he heard about the said murders on coming back to his house.
30. The appellant Rakesh @ Bhola has also stated that the deceased Km. Vijay was his cousin sister and the police had taken his licenced rifle from his house and falsely involved in the said murder.
31. The appellant Kayam Singh has taken plea of ali bi stating that on the day of murders, he was at Aligarh.
32. The appellant Pappu @ Jai Pal Singh has also taken plea of ali bi saying that on the day of murders, he was not in his house but was at Agra and came back to his house on 15.11.2008. He has a licenced gun and has been falsely implicated due to enmity with Narendra Pal of the village.
33. All the appellants have stated that the first informant Smt. Laxmi Devi PW-1 has given false evidence against them and has falsely implicated them due to enmity. The appellants have adduced no evidence in their defence in the trial court. Some of the appellants took plea of alibi without adducing any evidence of alibi.
34. Now a look at the eyewitnesses account is necessary. Smt. Laxmi Devi PW-1 reiterated the prosecution story as alleged in the first information report of the incident by her. It is evident from testimony of Smt. Laxmi Devi PW-1 that her Devar deceased Uday Pal @ Bhura developed illicit relationship with the deceased Km. Vijay, daughter of one the appellants Ramesh Pal Singh. Her Devar Uday Pal @ Bhura eloped Km. Vijay 15 days prior to this incident of triple murder and duo came back to the village on the next days, then the appellants threatened to exterminate her whole family.
35. According to the testimony of Smt. Laxmi Devi PW1, it was on 13.11.2008 at about 12:00 Noon, her Devar Uday Pal @ Bhura and Km. Vijay disappeared from the house, soon thereafter the appellants armed with licenced rifles and other illegal firearms arrived at the house of the witness and enquired about her husband Satya Bhan Singh. They were informed by her that her husband was not present in the house, then the appellants went away threatening that all the three persons namely Satya Bhan Singh, Uday Pal @ Bhura and Km. Vijay would be killed at a such place where no one weeping for them would reach. On the same day i.e. 13.11.2008 at 6:00 pm., Satya Bhan Singh, husband of the witness arrived at his house and as soon as he was entering the house, the appellants caught hold of Satya Bhan Singh, dragged him and took him away terrorizing with their weapons on the road leading from Pilkhatra to Jamalpur Gaduri. The witness and her daughter Km. Arti a girl of 14 years PW-2 and other villagers entreated to the appellants to leave Satya Bhan Singh but they did not leave him. She and other witnesses had torches in their hands. Thereafter, the appellants took Satya Bhan Singh towards Bamba/culvert on Jamalpur Dadari road where her Devar Uday Pal @ Bhura and Km. Vijay were lying tied under Patel/thick cover of heap of dried leaves of sugarcane. The duo were took out from Patel and then the trio were taken by the appellants on Kachcha road leading to Jamalpur Dadari. On this pathway/Kachcha road, near the field of Narendra Singh, on 13/14.11.2008 at 1:00 O' Clock in the night, the appellants committed murder of her husband Satya Bhan Singh, Devar Udal Pal @ Bhura and Km. Vijay in the presence of the witness by making indiscriminate firing with their respective firearms. Seeing this ghastly and barbaric incident of murder, panic was created in the village. This witness went, bitterly weeping, to the nearby village Battapura seeking help, but none came forward to help her. When she went to her village Pilkhatra, again due to terror of the appellants, she could not get any help. On the following morning about 7:00 a.m., the appellants taking round of the village extended death threats that if anyone dared to give evidence against them, he would also meet the same fate. This act of the appellants created terror/consternation in the village and scared everyone in the village. Thereafter, witness along with her Nandoi Man Pal Singh left for Police Station Jalesar around 7:30 a.m. Before reaching Police Station, she got the report of the incident scribed through Man Pal Singh which was recited to her and after hearing and understanding the contents thereof, she made her signature thereon and the same was proved by her as Ext. Ka-1.
36. The examination-in-chief of Smt. Laxmi Devi PW-1 was recorded in the trial court on 6.10.2010. When the stage of cross examination came, she fell down on the earth and was helped by orderly and other litigants present inside the court room and advised rest for a while, then her cross examination will be resumed. It appears that her cross examination was resumed on 20.10.2010 after a gap of 14 days of her examination-in-chief. According to this part of cross examination of Smt. Laxmi Devi PW-1, the appellant Ramesh Pal Singh had three sons namely Ajay Pratap @ Pappu, Ramu and Rajesh. The trial against two appellants Ramu and Rajesh was separated on the ground of their juvenility. Her husband Satya Bhan Singh had two brothers namely Uday Pal @ Bhura, deceased in this case and Satya Pal. Satya Pal used to reside in Delhi. The deceased Uday Pal @ Bhura was married to Smt. Sunita, daughter of Hori Lal of Hamirpur, 6-7 years prior to this incident. Three children were born out of their wedlock. Smt. Sunita went to her parents' house along with her children one month prior to this incident and till this incident, no litigation between Uday Pal @ Bhura and Smt. Sunita started. Hori Lal, father-in-law of the deceased Uday Pal @ Bhura is a man of criminal proclivity and several criminal cases were pending against him and all the cases have subsequently ended. Her husband and his brothers had 40 Bighas of agriculture land. Each brother of her husband was in possession of his respective share.
37. It transpires from this part of cross examination of Smt. Laxmi Devi PW-1 that there was deep and intimate relationship between Uday Pal @ Bhura and Km. Vijay prior to their murders and they used to call/ visit the house of each other.
38. It is again pertinent to note that after making partial cross examination from Smt. Laxmi Devi PW-1 on 20.10.2010, an adjournment application by the appellants was moved on 20.10.2010 and her cross examination was deferred to 2.12.2010. It is further evident from testimony of this PW-1 that there were many counsel for different appellants in this case and when she was present in the court for cross examination on 2.12.2010, all the counsel for the appellants did not cross examine and did not cooperate through out the day inspite of fixing the case for cross examination at different intervals. It was on 2.12.2010 at 3.50 P.M. the opportunity of the appellants to cross examine PW-1 had to be closed. Thereafter Smt. Laxmi Devi PW-1 was recalled on the application moved on behalf of the appellants and she was cross examined on 12.1.2011, wherein she stated that she was a domestic lady, doing her household work and her husband used to do farming. Her Dewar deceased Uday Pal @ Bhura used to reside separately in his house.
39. Smt. Laxmi Devi PW-1 candidly and sincerely disclosed that there was no duel or any kind of quarrel between the deceased Uday Pal @ Bhura and appellants regarding illicit and intimate relationship with Km. Vijay. Even after disclosure of illicit relationship between them, Uday Pal @ Bhura used to visit the house of the appellants including Ramesh Pal Singh and there was no objection to the continuation of the illicit relationship between them from the side of the appellants. This PW-1 has clearly deposed that she was not witness of the fact of disappearance of Uday Pal @ Bhura and Km. Vijay. On 13.11.2008, she did not witness the duo going together. PW-1 has honestly deposed that on the day of the incident when her husband was being taken away by the appellants, it was dark and due to darkness, she could not see anyone taking her husband away. Just at the relevant time the witness was told by several persons that the assailants or miscreants were taking her husband away, then she immediately rushed to the place making search for her husband. She witnessed that the appellants murdered her husband Satya Bhan Singh, Uday Pal @ Bhura and Km. Vijay in her presence in the jungle. It is pertinent to note here that at the stage of cross examination, the witness tried to resile from prosecution story and also from the part of the evidence given by her in the court. Subsequently she tried to give a go by to the prosecution case and also tried to exonerate the appellants in the case of murder of her own husband, Dewar and one innocent girl Km. Vijay. She tried to state that the appellants were not amongst the murderers of three deceased. Prior to this part, she in her upper part of the evidence fully supported the prosecution version showing involvement of the appellants in dragging and taking away her husband to the place of murder where two other deceased namely Uday Pal @ Bhura and Km. Vijay were lying tied under thickly covered dried leaves of sugarcane/Patel. While resiling from first part of her evidence, she has deposed that she came to know on the following morning only that three dead bodies were lying in the jungle.
40. Smt. Laxmi Devi PW-1 also supported the version narrated by her in her FIR that the appellants committed murders of three deceased persons by making indiscriminate firing from their respective licenced rifles and other firearms. On 14.11.2008 at 1.00 a.m. at the place of incident, the three dead bodies were found by the police which swung into action immediately after lodging of the first information report. She tried to help the appellants in deposing that written report of the incident was dictated to her Nandoi Man Pal Singh by Darogaji. She subsequently deposed that appellants did not commit the said murders. Smt. Laxmi Devi PW-1 is first informant of this case also.
41. Smt. Laxmi Devi PW-1 was again recalled on the application of the A.D.G.C. (Crl.) and permitted to be cross examined by the learned A.D.G.C. (Crl.), then she deposed whatever evidence she gave in support of first information report in the court, she gave at the instance of the police and villagers. No pressure was exerted or no threat was given to her by the appellants. She was not interrogated by the Investigating Officer after lodging of the first information report. The police suo moto started the proceedings. When the witness was asked question by the court, the witness deposed that she always speaks truth, and whatever evidence she gave in the court, the same is correct and truthful.
42. Km. Arti aged about 14 years, PW-2 was also examined in the court. According to evidence of Km. Arti PW-2, she along with her mother went to the court for evidence. The witness was tested by the trial court about the nature of understanding and answering the facts. This PW-2 has clearly deposed that one sometime speaks truth, sometime also tells a lie, when some constraints or compulsion would come then one should tell a lie. Repeating the stand, she told couplet of Saint Kabir (SANCH BARABAR TAP NAHI ......). On this point, the witness has replied that sometimes such compulsions or constraints come in the life of a person when he has no option but to tell a lie. After testing this PW-2, she was found to be competent witness by the court to give evidence and then her evidence was recorded. According to her testimony, on the day of the incident, her father Satya Bhan Singh and uncle Uday Pal @ Bhura went to the agricultural plot and she on that day was in her Nanihal in village Narjita, District Hamirpur where she was telephonically informed about murders of her father and uncle by some miscreants. According to her, she did not witness the said murders. One girl of the same village Km. Vijay was also murdered. She has also denied to have seen someone taking Km. Vijay away and murdering her. When she came back to her house from Nanihal, she found dead body of her father and uncle at her house.
43. When Km. Arti PW-2 did not support the prosecution story, she was declared hostile at the request of the A.D.G.C. (Crl.) and then she was cross examined by him. According to her cross examination, she was not interrogated by Investigating Officer about the incident. She also denied any statement under Section 161 Cr.P.C. having been given by her to the Investigating Officer. The witness was quite oblivious of any kind of illicit relationship between her uncle Uday Pal @ Bhura and Km. Vijay. She also denied a part of the story that Uday Pal @ Bhura eloped with Km. Vijay, 15 days prior to the incident of murder. She further denied the fact of forcibly taking away her father Satya Bhan Singh from the house and further denied the three murders having been committed by the appellants by making the firing near the field of Narendra Singh.
44. Km. Arti PW-2 was subjected to cross examination on behalf of the appellants, then she deposed that she held talks with her mother about the said murders after coming from Nanihal to her house. She was told by her mother that her father Satya Bhan Singh and uncle Uday Pal @ Bhura were murdered by miscreants in the night and her mother did not tell that the appellants committed the said murders. In the court questioning, she deposed that she was studying in class 8th at that time, her Nanihal was 400 Km. away from the village and she was in Nanihal for more than 15 days prior to this incident. After the incident, the witness left the school and started to study at home.
45. All the eye witnesses namely Desh Raj Singh PW-3 close relative of the deceased Satya Bhan Singh, Narendra Pal Singh PW-4, Vinod Kumar PW-5, Lakhan Singh PW-6, Smt. Bitta, PW-7 wife of Kanchi Singh, Kanchi Singh PW-8, Smt. Manju PW-9, Smt. Phool Bano PW-10, Smt. Shanti PW-11 examined by the prosecution have turned hostile by completely giving a go by to the prosecution.
46. Desh Raj Singh PW-3 was Sadhu of the deceased Satya Bhan Singh. According to his evidence, he received information of the murder of Satya Bhan Singh and Uday Pal @ Bhura on his mobile from Jeth of Smt. Laxmi Devi. Even after hearing about the murders, this PW-3 preferred to stay at his house and did not go to the village Pilkhatra. According to him, he did not give any statement under Section 161 Cr.P.C. to the Investigating Officer and he denied his statement having been recorded by the Investigating Officer. Hearing news about the murders, the witness developed a complaint of chest pain and became ill.
47. Narendra Pal Singh PW-4 resident of the same village at the time of the incident was at his house and he heard about the said murders committed by unknown persons next day. He denied to have witnessed the said incident. He had no knowledge about the illicit relationship of Km. Vijay with Uday Pal @ Bhura. Thus the witness expressed his ignorance about of the facts of the prosecution case. Prosecution witness nos.3 to 11 deposed that they heard about the said murders committed by unknown persons and they had not seen the appellants taking the deceased persons away and committing their murders. They further deposed that they did not give any statement under Section 161 Cr.P.C. to the Investigating Officer. Thus these witnesses have denied their statements having been recorded by the Investigating Officer under Section 161 Cr.P.C.
48. Lakhan Singh PW-6 is elder brother of Kanchi Singh PW-8 and Kanchi Singh was Bahnoi of the deceased Satya Bhan Singh and Uday Pal @ Bhura. According to the evidence of this Lakhan Singh PW-6, when Uday Pal @ Bhura and Satya Bhan Singh came to the house of the witness with Km. Vijay, the witness was not present at his house and he came to know subsequently that Satya Bhan Singh, Uday Pal @ Bhura, and Km. Vjay were murdered in the village Pilkhatra. The witness also denied arrival of the appellants at his house and also denied dragging of trio (deceased persons) from his house by the appellants.
49. Smt. Bitta PW-7, wife of Kanchi Singh is sister of the deceased Satya Bhan Singh and Uday Pal @ Bhura. The witness knew the appellants prior to the incident as there was her parental house in the village Pilkhatra. According to the prosecution case, the appellants went to Sasural of the witness and forcibly taken her real brothers Satya Bhan Singh and Uday Pal @ Bhura and Km. Vijay by terrorizing with firearms from her Sasural. The witness denied this fact and preferred to become hostile.
50. Likewise Kanchi Singh PW-8 who is husband of Smt. Bitta PW-7 also denied the part of the prosecution story. He also denied arrival of the appellants with firearms at his house and forcibly taking away of three deceased persons by the appellants from his house.
51. Smt. Phool Bano PW-10 according to the prosecution was witness of the fact. Her house was near the house of Lakhan Singh. At the relevant time, 10-12 miscreants did not come to the house of Lakhan Singh in Bolero and motrocycle and did not forcibly take away two persons and a girl. The witness denied this fact. The evidence of Smt. Shanti PW-11 is also to the same effect.
52. Now we deal with the contentions raised by Sri P.N. Misra learned Senior Counsel appearing for the appellants. The first contention of the learned counsel for the appellants is that this is a case of single testimony of Smt. Laxmi Devi PW-1 and she cannot be said to be wholly reliable witness as she supported the prosecution story in her examination-in-chief but subsequently turned hostile during cross examination.
53. In the case in hand, three persons were brutally and diabolically murdered in the odd hours of the night. Smt. Laxmi Devi PW-1 is wife of one of the deceased Satya Bhan Singh and Bhabhi of the deceased Uday Pal @ Bhura. It is established from her testimony that prior to the incident of this triple murder, there was illicit intimacy between the deceased Uday Pal @ Bhura (Devar of PW-1) and one Km. Vijay who was daughter of the accused-appellant Ramesh Pal Singh. It is also established from evidence on record that about 15 days prior to the incident, Km. Vijay eloped with Uday Pal @ Bhura, when both came back next day, the appellants threatened to exterminate family members of PW-1. This evidence has been given by PW-1 regarding origin or genesis of the incident and motive culminating into murder of her husband Satya Bhan Singh, Devar Uday Pal @ Bhura and a girl Km. Vijay.
54. Sri Misra taking us through testimony of Smt. Laxmi Devi PW-1 pointed out that she in her examination-in-chief supported the prosecution story in its entirety as narrated in the first information report lodged by her. According to her evidence, when the appellants were taking her husband Satya Bhan Singh from her house in the evening of 13.11.2008, her 14 years old daughter Km. Arti and other villagers entreated to the appellants to leave Satya Bhan Singh but the appellants did not pay any heed to their request. Satya Bhan Singh was taken towards the place where Uday Pal @ Bhura and Km. Vijay were lying tied under thick cover of the dried leaves of the sugarcane/Patel and they were also taken out in the intervening night of 13/14.11.2008 at 1:00 O' clock. PW-1 further supported the prosecution story by deposing that duo Uday Pal @ Bhura and Km. Vijay were taken out from heap of Patel and trio Satya Bhan Singh, Uday Pal @ Bhura and Km. Vijay were taken by the appellants on Kachcha road near field of Narendra Singh where trio were murdered by the appellants by making indiscriminate firing with their respective firearms including the licenced weapons. This ghastly and barbaric incident of triple murder was alleged to be seen by Smt. Laxmi Devi PW-1. Not only this, PW-1 went to the nearby village while weeping bitterly for help but due to terror of the appellants, none from the village came forward to help her and then she had to go to her own village Pilkhatra from where also she could not get any help. The helpless and poor lady leaving with no alternative tried her best to seek help from both these villages. On the following morning, the appellants created terror in the village and scared everyone in the village warning to meet the same fate if anyone dared to depose against them. It was around 7:30 a.m. when Man Pal Singh, Nandoi of PW-1 reached her village, she left her village for Police Station with her relative Man Pal Singh at 7:30 a.m. She got the report of the incident scribed through Man Pal Singh (Nandoi) and handed over the written report at Police Station on 14.11.2008 at 9:35 a.m. then the first information report was, accordingly, lodged naming the appellants as culprits.
55. It is necessary to mention here that Smt. Laxmi Devi PW-1 after commission of murder of her husband and Devar was alone and inspite of her best efforts, nobody came to help her. She had to wait in the village. When her relative Man Pal Singh reached her village around 7:30 a.m. then she lodged the first information report. The distance from the place of the occurrence to Police Station was 20 Kilometers. The first information report of the incident of triple murder was lodged with delay of eight and half hours by covering distance of 20 kilometers. The names of the appellants with the weapons used by them and role played by them were clearly mentioned in the first information report promptly lodged by her. There appears to be no chance of any prior deliberations or consultations with anyone. The relevant details of the incident were also clearly mentioned by Smt. Laxmi Devi PW-1 who proved the report Ext. Ka-1 as having been written according to her dictation by her Nandoi Man Pal Singh.
56. Smt. Laxmi Devi PW-1 gave her evidence in the trial court on 6.10.2010. She was to be cross examined on behalf of the appellants. She was so much traumatized and terrorized that feeling insecure, she fell down on the earth inside the court room and was helped by the orderly and other litigants present inside the court room. She was partly cross examined after a gap of 14 days where she also reiterated the fact of illicit intimacy between her Devar Uday Pal @ Bhura and Km. Vijay and the said intimacy between the two deceased was very close and deep. When Smt. Laxmi Devi PW-1 did not buzz even an inch during her cross examination inspite of terror or undue pressure exerted upon her by the appellants, an adjournment application was moved by the appellants on 20.10.2010 then her cross examination was allowed to be deferred by the trial court to 2.12.2010. Thus her cross examination was deferred for a period of one and half months at the request of the learned counsel for the appellants. Even on 2.12.2010 when Smt. Laxmi Devi PW-1 was present for cross examination in the trial court inside the court room, she was not cross examined on behalf of the appellants and their counsel did not cooperate. The trial court being left with no other alternative had to close opportunity of cross examination from PW-1 Smt. Laxmi Devi. The appellants adopted delaying tactics on the one hand and on the other hand tried to influence PW-1 and they did not cooperate in the trial court till she became hostile. Ultimately, the appellants in a designed way subsequently succeeded in making her hostile. The appellants after being ensured that Smt. Laxmi Devi PW-1 had become hostile, moved an application for recalling her in the trial court which was allowed. She was recalled and cross examined on 12.1.2011. Ultimately, all these facts find place in the order sheet of the trial court of the relevant dates.
57. It is evident from testimony of Smt. Laxmi Devi PW-1 that she supported and proved the prosecution story and the first information report in her examination-in-chief and part of the cross examination on 6.10.2010 and 20.10.2010. When she appeared for cross examination on 2.12.2010, she was not cross examined and the appellants allowed the opportunity of cross examination from PW-1 to be closed and they succeeded in getting the opportunity of cross examination closed and the same was availed by the appellants when they were quite sure that Smt. Laxmi Devi PW-1 would not further depose against the appellants. All the aforesaid facts reflect that the conduct of the appellants was not proper during proceeding of the trial court.
58. Perusal of the testimony of Smt. Laxmi Devi PW-1 makes it evident that up to 14 pages of her testimony, she remained intact throughout in support of the prosecution version disclosed in the first information report promptly lodged by her. When she after appearing in the trial court for cross examination on many dates, was not cross examined due to the adamant attitude of the appellants or their counsel, then her cross examination was closed because of non-cooperative attitude of the appellants and their counsel. When she was cross examined on behalf of the appellants, at the end of 14 pages of her evidence, she deposed that on 13.11.2008, her husband Satya Bhan Singh was called by some persons from outside the gate of the house and she did not open the doors of the house and told that her husband was not inside the house. She further deposed that at the instance of many villagers and under the pressure of police, she earlier deposed in the trial court that the appellants came in search of her husband with firearms. She further deposed that when her husband was taken away from her house on 13.11.2008 by some persons, it was quite dark and she could not witness the persons who were taking her husband from her house. She was told by some persons that her husband was being taken away by some miscreants. When her husband was taken away from her house on 13.11.2008 by some persons, she went to the place of the incident in search of her husband and found that her husband Satya Bhan Singh, her Devar Uday Pal @ Bhura and Km. Vijay were murdered on the same place of the incident by unknown persons.
59. While giving a turn to the prosecution case, Smt. Laxmi Devi PW-1 further deposed that the appellants were not present on the place of the incident when she reached there. It is further evident from subsequent part of her cross examination that she came to know in the morning that three dead bodies were lying in the jungle and when she was dictating report of the incident to her Nandoi Man Pal Singh, Daroga Ji came there and report of the incident was lodged at the instance of Daroga Ji. She was so much terrorized and under pressure of the appellants in the circumstances as stated above, she had to say that the appellants did not commit the aforesaid triple murders.
60. We have deeply, cautiously, carefully and being cautious of the fact that ten accused persons have been sentenced to death in this case of triple murders by the trial court, gone through the whole testimony of Smt. Laxmi Devi PW-1. It is evident that her husband Satya Bhan Singh was taken on 13.11.2008 from her house to the place of the murder. She went to the place of murder in search of her husband and when she reached there she found the dead bodies of her husband Satya Bhan Singh, Uday Pal @ Bhura and Km. Vijay on the place of incident which was jungle and pathway near field of Narendra Singh. According to her, three dead bodies were found on the same place where the prosecution alleged triple murders in the intervening night of 13/14.11.2008 at 1:00 O' clock. So far as dictation of the first information report at the instance of Daroga Ji is concerned, the police came into action only after the first information report of the incident was lodged by Smt. Laxmi Devi PW-1 on 14.11.2008 at 9:35 a.m. PW-1 along with Man Pal Singh (Nandoi) covered distance of 20 Kilometers, got prepared written report and gave it at Police Station. Only thereafter, S.H.O. Sri N.K. Chaudhary PW-14 rushed to the place of the incident. All the appellants were named in the first information report lodged promptly by Smt. Laxmi Devi PW-1, assigning their specific role and the firearms used.
61. Testimony of Smt. Laxmi Devi PW-1 is further supported by recovery of licenced rifle of Rakesh @ Bhola with three live cartridges on 17.11.2008, recovery of countrymade pistol 315 bore along with three live cartridges from appellant Ramesh Pal Singh on 2.12.2008, recovery of licenced rifle at the pointing out of the appellant Tejpal @ Mukhiya on 2.12.2008 and recovery of the licenced rifle 315 bore from Ajay Pratap @ Pappu on 30.11.2008.
62. Apart from testimony of Smt. Laxmi Devi PW-1 and recovery of the aforesaid firearms, there was recovery of 15 empty cartridges from place of the occurrence vide Ext. Ka-19 and the empty cartridges were tallied with the aforesaid firearms recovered at the pointing out of the aforesaid appellants. As per report of Forensic Science Laboratory, the said cartridges were fired from the same firearms recovered from the aforesaid appellants. Thus it is fully proved that the aforesaid firearms were used by the appellants in committing these three murders.
63. Apart from above evidence, conduct of the appellants is that the accused-appellant Ramesh Pal Singh had neither lodged any first information report regarding murder of his own daughter Km. Vijay nor made any such statement. After the incident, all the appellants absconded. The appellants failed to indicate/suggest any circumstances leading to their false implication.
64. The above evidences are further corroborated by medical evidence namely post mortem reports of the three deceased persons which support eyewitnesses account. In the facts and circumstances of the case and nature of evidence, testimony of Smt. Laxmi Devi PW-1 cannot be thrown away just on the ground of testimony of single witness. She has supported the prosecution version in her testimony in the trial court and proved the first information report promptly lodged by her. The settled law on this point is that natural and creditworthy testimony of any eyewitness cannot be disbelieved on the ground of the testimony of solitary witness. The testimony of single witness is to be tested from all angles giving due consideration to the facts and circumstances of the case and nature of the evidence.
65. The submission of Sri Misra, learned Senior Counsel for the appellants that testimony of Smt. Laxmi Devi PW-1 does not appear to be credible, is not acceptable to us in the light of the above evidence.
66. The second contention of Sri Misra, learned Senior Counsel for the appellants is that there is no mention of empty cartridges found on the spot in the first information report and there is also no mention of ante mortem injuries in the first information report and the same makes the prosecution story unnatural and unreliable. Since there is reliable and cogent evidence on record that Investigating Officer inspected the place of the incident of murders within 15 minutes after arrival of the Sub Inspector who prepared inquest and 15 empty cartridges were found on the place of murders by the Investigating Officer. Non-mention of the said details in the first information report does not create any doubt in the veracity of the prosecution story.
67. The third contention of Sri Misra, learned Senior Counsel for the appellants is that material exhibits were neither produced before the court nor any link evidence was adduced by the prosecution to prove that empty cartridges recovered from the place of murders were sealed on the spot and firearms including licenced firearms allegedly recovered from the aforesaid appellants were sealed at the relevant time and the same were sent to Forensic Science Laboratory for examination.
68. Per contra learned AGA taking us through evidence of S.S.I. Sri Chandra Sen Malik PW-12 and S.H.O. Sri N.K. Chaudhary PW-14 has submitted that material exhibits were proved by all these witnesses. On perusal of evidence of these witnesses, it transpires that relevant exhibits have been proved by these witnesses and the witnesses also proved memos thereof. These witnesses were not cross examined by the learned counsel for the appellants on this points though ample opportunity of cross examining them was given to the counsel for the appellants. These witnesses also proved that the said articles were recovered and their memos were prepared after sealing the same. The report of Forensic Science Laboratory dated 31.7.2009 available on record clearly depicts that the relevant articles in sealed condition were received on 9.4.2009. This report of Forensic Science Laboratory clearly establishes that empty cartridges recovered from the place of murders were fired from firearms including the licenced firearms by the appellants in committing these murders. Thus this contention of Sri Misra is of no help to the appellants.
69. Next contention raised by learned counsel for the appellants is that there is no corroboration of the testimony of Smt. Laxmi Devi PW-1 by medical evidence namely post mortem reports of the three deceased persons.
70. We have thoroughly discussed the testimony of PW-1 in upper part of this judgment. As per prosecution story, the appellants committed three murders by making indiscriminate firing from their respective firearms including licenced firearms. According to the post mortem reports of the deceased persons, the deceased Satya Bhan Singh sustained one firearm wound of entry near abdomen with exit wound on chest and also one crush injury over whole skull and face, both eyes were damaged. His skull and both jaws were fractured. The deceased Km. Vijay sustained four firearm wound of entry with three exit wounds. Her skull, ribs of both sides and upper jaw were fractured. The deceased Uday Pal @ Bhura sustained three firearms wounds of entry with two exit and crush injury over whole skull and face. His skull bones, ribs and both jaws were fractured.
71. The case of the prosecution is that one deceased Satya Bhan Singh was forcibly taken and dragged from his house to the jungle, remaining two deceased persons namely Uday Pal @ Bhura and Km. Vijay were made to disappear on the previous day and just before commission of three murders, they were found lying tied under thick cover of the dried sugarcane leaves and were taken out at the time of murders at 1:00 O' clock. At the same place, these three persons were murdered by the appellants by making indiscriminate firing from their firearms. Just on the basis of presence of cursh injury each on the whole skull and face of both the deceased (real brothers), there cannot be said to be any kind of contradiction between ocular testimony and medical evidence. Smt. Laxmi Devi PW-1 is witness of the some specific facts and she is not witness of any kind of cruelty or torture caused to the deceased real brothers. The extent of retaliating or revengeful attitude of the appellants is quite clear from injuries found on the dead body of the deceased persons. All these three deceased persons were murdered by the appellants in a cruel, barbaric and diabolic manner. Both eyes of elder brother of lover were damaged by the appellants. Their skulls, jaws and ribs were also fractured as a result of giving severe beating to them. After weighing evidence available on record, we are of the firm view that there is no contradiction between ocular evidence and medical evidence. We are unable to accept the submission of the learned counsel for the appellants.
72. Sri Misra learned counsel for the appellants has also submitted that recoveries of firearms from the appellants were made in absence of public witness. We have considered this submission. No recovery can be said to be doubtful just on the ground that no public witness was available or associated.
73. Next contention of Sri Mira, learned Senior Counsel for the appellants is that contents of the report of the Ballistic Laboratory were not put to the accused persons when they were examined under Section 313 Cr.P.C., hence the impugned judgment and order of conviction and sentence are perverse.
74. Learned AGA on this point has submitted that it is not always necessary that adverse inference should be drawn and circumstance/inculpatory material which has not been put to them under Section 313 Cr.P.C. is not to be considered. It is a question of fact and it has to be shown by the accused persons that they have seriously been prejudiced. Further more in the present case, the accused persons failed to show any prejudice. They have never challenged that the conclusions mentioned in the Ballistic Report are faulty or incorrect.
75. Hon'ble Apex Court in the case of Yuvaraj Ambar Mohite Vs. State of Maharashtra (2006) 12 SCC 512 in paragraph nos.28 and 29 observed as follows:
"28. It may be true that the attention of the appellant had not been drawn to the contents of the reports of the forensic laboratory but the same does not vitiate the judgment of conviction and sentence as he was not prejudiced thereby.
29. In State (Delhi Admn.) v. Dharampal this Court opined: (SCC pp.376-77, para 13) "13. Thus it is to be seen that where an omission, to bring the attention of the accused to an inculpatory material has occurred, that does not ipso facto vitiate the proceedings. The accused must show that failure of justice was occasioned by such omission. Further, in the event of an inculpatory material not having been put to the accused, the appellate court can always make good that lapse by calling upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against the accused but not put to him."
76. We asked Sri Misra to show what explanation the appellants have as regards the circumstances established against them but not put to them. Sri Misra has not been able to show any circumstance that the appellants have been prejudiced by omission to mention the contents of Forensic Report to them during their examination under Section 313 Cr.P.C. It is thus evident that the appellants have not been prejudiced by this omission and no failure of justice has been occasioned to them. This contention is also of no help to the appellants.
77. In the present case, there is ample evidence to show that Smt. Laxmi Devi PW-1 is a reliable witness and circumstances in which she was forced to take turn in her cross examination are obvious and available on record and have been appreciated by learned trial court in the impugned judgment.
78. Learned AGA has placed reliance on a catena of decisions of Hon'ble Apex Court in the cases of Khujji @ Surendra Tiwari Vs. State of M.P. 1991 SCC (Crl.) 916, Koli Lakhmanbhai Chanabhai Vs. State of Gujarat (1999) 8 SCC 624, Nisar Khan @ Guddu and others Vs. State of Uttaranchal (2006) 9 SCC 386 and Himanshu @ Chintu Vs. State (NCT of Delhi) (2011) 2 SCC 36. In the aforesaid cases, most of the eyewitnesses were declared hostile. In the case of Khujji (supra), one eyewitness supported the prosecution case in examination in chief but in his cross examination, he expressed his doubt. Hon'ble Apex Court relied upon testimony of such witnesses and also upon recovery of weapon of crime on the pointing out of the accused persons.
79. Smt. Laxmi Devi PW-1 has no earthly reason to falsely implicate the accused persons and it does not appeal to reason that she will exonerate the real culprits who killed her own husband and Devar and innocent girl and will falsely implicate the innocent persons. Her presence at the time of the incident at about 6:00 p.m. at her house, when her husband was taken away from her house is quite natural. She is housewife and is supposed to be present at her house at that time, when her husband was taken away by the appellants. The incident of murder had taken place in the dead hours of the night at about 1:00 O' clock. She had seen the assailants armed with firearms, heard gun shots and seen the incident of killing. She might have been there at some distance. In absence of proper source of light, she could not have probably seen that portion of assault in which crush injury was caused to her husband and Devar (deceased persons). In these circumstances, there is no conflict between her evidence and medical evidence, on the other hand had she been a got up witness, she would have lodged the first information report ante timed. Seeing position of the dead bodies, she would have very well stated and explained crush injury also in the first information report itself. In fact she mentioned only that part of the incident which she had really seen and observed. Thus omission with regard to crush injury guarantees truthfulness of her version.
80. Per contra learned AGA has placed reliance on a decision of Hon'ble Supreme Court in the case of Jai Prakash Singh Vs. State of Bihar and another 2012 Crl.L.J. 2101 wherein it has been observed by Hon'ble Supreme Court that the FIR in criminal case is a vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question.
81. In the case of Sat Paul Vs. Delhi Administration (1976) 1 SCC 727, Hon'ble Supreme Court observed in paragraph no.52 that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. It the judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the judge should, as a matter of prudence, disregard his evidence in toto.
82. So far as contention of Sri Misra learned Senior Counsel for the appellants with regard to recoveries of weapons is concerned, the said recoveries were made after taking the accused persons on police remand. Most of the weapons are licenced weapons and there was no such application that these weapons had been taken away by police from their house and had not been recovered at the time and date alleged by the prosecution and not at their pointing out. The ballistic report supports the prosecution case that empty cartridges recovered from the scene of murders on the very same day after lodging of the first information report, were sealed on the spot and also were found to be fired from those respective weapons, which were recovered from the accused persons, belonged to them. It is also relevant to mention here that recovery memos were signed by the accused persons and they had not challenged the recovery of firearms. As per ballistic report when the weapons were received by the laboratory, the seal was intact. Apart from that, appellants had accepted genuineness of the charge sheet submitted under Arms Act.
83. This is a case of honour killing of three innocent persons. Uday Pal @ Bhura, young boy and Km. Vijay young girl were murdered by the appellants in a most cruel and barbaric manner. Satya Bhan Singh, elder brother of the lover was also murdered at the same date, time and place by the appellants. Before committing their murders, lover and beloved both were made to disappear from village on the previous day of their murders and were tortured and tied down then covered under big and large heap of dried leaves of sugarcane. Satya Bhan Singh was also dragged around 6:00 O' Clock in the evening from his house by the appellants terrorizing him with firearms and around 1:00 O' Clock in the night, they were made to assemble at the place of murder and before committing their murders, they were severely beaten by the appellants causing several fractures. Thereafter all the trio were brutally murdered by the appellants by way of firing at them, resulting into their instant death on the spot. It is a case of honour killing as both the parties are resident of the same village. One of the appellants Ramesh Pal Singh was father of innocent young girl and other appellants are his sons, brothers and other family members including two friends.
84. Hon'ble Supreme Court in the case of Bhagwan Dass Vs. State (NCT) of Delhi AIR 2011 Supreme Court 1863 has recently observed that prosecution witness who was mother of the accused told the Investigating Officer that her son has told her that he killed the deceased, but when she was confronted with her statement in the court she resiled from her earlier statement and was declared hostile, Hon'ble Apex Court held that in such circumstances, her subsequent denial in court is not believable because she obviously afterthought wanted to save her son (accused) from punishment. It has been further held that statement to the Police made by eyewitness can be taken into consideration in view of the proviso to Section 162 (1) Cr.P.C. It is duty of Court to separate grain from chaff because maxim "falsus in uno is falsus in omnibus" has no application in India. In the reported judgment of honour killing prosecution witnesses resiled from statement and became hostile, Hon'ble Apex Court has further observed that disclosure evidence namely statement given by the accused led to discovery of certain incriminating articles was admissible as evidence under Section 27 of Indian Evidence Act. The reported judgment of honour killing was based on circumstantial evidence where motive played very important role, the deceased daughter was living in adultery with her uncle when her father accused felt humiliated, he murdered her. The motive was to avenge family honour, omission by the accused to inform the police about death of his daughter depicts unnatural conduct on his part.
85. Hon'ble Apex Court in the case of Bhagwan Dass (supra), in paragraph no.8 observed as follows:
" The circumstances which connect the accused to the crime are:
(i) The motive of the crime which has already been mentioned above. In our country unfortunately 'honour killing' has become common place, as has been referred to in hour judgment in Arumugam Servai v. State of Tamil Nadu Criminal Appeal No.958 of 2011 (@ SLP (Crl) No.8084 of 2009) pronounced on 19.4.2011 (reported in AIR 2011 SC (1859).
Many people feel that they are dishonoured by the behaviour of the young man/woman, who is related to them or belonging to their caste because he/she is marrying against their wish or having an affair with someone, and hence they take the law into their own hands and kill or physically assault such person or commit some other atrocities on them. We have held in Lata Singh v. State of U.P. & Anr. (2006) 5 SCC 475: (AIR 2006 SC 2522 : 2006 AIR SCW 3499), that this is wholly illegal. If someone is not happy with the behaviour of his daughter or other person, who is his relation or of his caste, the maximum he can do is to cut off social relations with her/him, but he cannot take the law into his own hands by committing violence or giving threats of violence."
86. Hon'ble Apex Court in the case of Lata Singh Vs. State of U.P. and Another AIR 2006 SC 2522 has also observed that there is nothing honourable in honour killing and they are nothing but barbaric, brutal murder by bigoted person with feudal minds.
87. Hon'ble Apex Court in the case of State of U.P. Vs. Krishna Master and others AIR 2010 Supreme Court 3017 while deciding the case of honour killing has deprecated practice of cross examination of witness for days together to confuse him and in such a case where a witness is subjected to grueling cross examination for many days then inconsistencies are bound to occur in his evidence. The first information report of honour killing of six persons was lodged promptly when Hon'ble Apex Court ruled out possibility of false implication just on the ground that no motive was mentioned in the first information report.
88. Hon'ble Apex Court in the case of Paramjeet Singh @ Pamma Vs. State of Uttarakhand (2010) 10 SCC 439 while dealing with case of murder of three persons and three injured persons with gun observed that the appellant of the case being denied his share in the immoveable property by his father committed murder of three persons and caused injuries to three others. All the prosecution witnesses turned hostile then it was held that the prosecution witnesses have no regard for truth and concealed material facts from court in order to protect the appellant by resiling from their original stand for the reasons best known to them, such unwarranted attitude of the eyewitnesses disentitles any benefit to appellant who committed a serious crime. The conviction of appellant was upheld considering the said points, evidence and also recovery of gun used in the crime at the appellant's behest. In that judgment, certain questions were not put to the appellant under Section 313 Cr.P.C. then Hon'ble Apex Court further held that it did not materially prejudice the appellant because the first information report was lodged promptly naming the appellant as person who committed murder and inspite of extensive cross examination of the Investigating Officer, defence could not elicit anything to discredit his deposition, the same was supported with medical evidence. All eyewitnesses including the injured witnesses before turning hostile attributed commission of offence only to the appellant in their statements under Section 161 Cr.P.C. It has been further held that the complainant and eyewitnesses could not have falsely named the appellant as being responsible for offence at initial stage itself. Conviction was confirmed by Hon'ble Apex Court.
89. Hon'ble Apex Court in the case of Waman and others Vs. State of Maharashtra 2011 Crl.L.J. 4827 (SC) has held that ordinarily, the prosecution is not obliged to explain each injury sustained by the deceased or accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworty then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case.
90. From the above analysis, complicity of the appellants in committing these three murders is fully established. For the above discussed reasons, we are satisfied that the prosecution has succeeded in establishing its case against the appellants beyond reasonable doubt and the appellants are clearly guilty of offences punishable under Sections 148 and 302/149 IPC. The appellants have rightly been convicted by the trial Judge and findings recorded in the impugned judgment are based on proper appreciation of evidence on record and we fully agree with those findings.
91. However more important question in this case is whether sentence of death awarded by the trial court under Section 302/149 IPC should be maintained or should it be substituted with sentence to imprisonment for life.
92. Four mitigating circumstances mentioned in paragraph 204 by the Constitutional Bench in Bachan Singh Vs. State of Punjab (1980) 2 SCC 684 are as follows:
"(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. It 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."
93. Hon'ble Apex Court in the case of Dilip Premnarayan Tiwari and another Vs State of Maharashtra (2010) 1 SCC 775 while dealing with case of honour killing of three persons and two injured persons held that all murders are foul, however, the decree of brutality, depravity and diabolic nature, differ in each case. It has been held in the earlier decisions of this Court which we may not repeat that the circumstances under which the murders took place, differ from case to case and there cannot be a straitjacket formula for deciding upon the circumstances under which the death penalty is a must. The disturbed mental feeling or the constant feeling of injustice has been considered by this Court as a mitigating circumstance in Om Prakash v. State of Haryana where the accused had committed the murder of seven persons. That is also an indicator to the fact that mere number of persons killed is not by itself a circumstance justifying the death sentence. In a death sentence matter, it is not only the nature of the crime but the background of the criminal, his psychology, his social conditions and his mindset for committing the offence are also relevant.
94. Weighing all the circumstances particularly mindset of the appellants for their cruel acts when they became victim of their own wrong, Uday Pal @ Bhura was already married to Smt. Sunita, anyhow developed intimacy and illicit relation with the deceased Km. Vijay and he continued to his illicit relation with girl, the death sentence in our considered opinion is not justified in this case. It is not possible to say that it is the "rarest of rare cases" which may warrant the imposition of the sentence of death for the occurrence. Considering overall facts and circumstances of the case, nature of evidence, we think that in the present appeals also, the interest of justice would be met if sentence of death awarded to the appellants be substituted with a sentence of imprisonment for whole of the remaining natural life of the appellants, subject however to the condition that prisoners would be eligible to any commutation and remissions that may be granted by the President and the Governor under Articles 72 and 161 of the Constitution of India or of the State Government under section 433-A of the Code of Criminal Procedure for good and sufficient reasons.
95. Consequently, conviction of the appellants recorded by the trial court is hereby upheld and sentence of death awarded to the appellants is substituted with a sentence of imprisonment for whole of the remaining natural life as stated above. The appeals are partly allowed. The reference for confirming the death sentence is, accordingly, rejected.
Dt 19.10.2012 rkg