Patna High Court
State Of Bihar vs Ram Anup Singh And Anr. on 5 October, 2001
Equivalent citations: 2002CRILJ4468
Author: B.N.P. Singh
Bench: B.N.P. Singh
JUDGMENT R.N. Prasad, J.
1. Death reference and the criminal appeal arise out of the judgment and order dated 3-3-2000/9-3-2000 passed by 4th Additional Sessions Judge, Motihari in Sessions Trial No. 319/33 of 1997. They have been heard together and are being disposed of by this judgment.
2. The appellants Babban Singh and Lallan Singh have been convicted for the offence under Section 302 of the Indian Penal Code and sentenced to death. Appellant Ram Anup Singh has been convicted for the offence under Sections 302/34 and 302/109 of the Indian Penal Code and has been sentenced to death. The appellants have further been convicted for the offence under Section 27 of the Arms Act but no separate sentence has been awarded. The appellants have preferred the appeal for setting aside the judgment under appeal whereas reference has been made for confirmation of death sentence awarded by the trial Court.
3. Babu Nand Dubey, the informant, of village Jamunia Jasauli gave his fardbeyan on 27-3-1997 at about 8.15 a.m. at the house of his Samdhi, Madan Singh, in village Dilman Chapra before the Officer Incharge of Kesaria police station that about 15 years ago he got his son Shambhu Saran Dubey married, with the only daughter of Madan Singh, namely, Sita Devi. Madan Singh had no son and as such he executed deed of gift of his share i.e. nine Bigha land in favour of his son-in-law, Shambhu Saran Dubey and daughter, Sita Devi. His son, Shambhu Saran Dubey with his wife, Sita Devi was living at the village Dilman Chapra to serve his father-in-law and mother-in-law. There was dispute between Madan Singh and his brother Ram Anup Singh with respect to the aforesaid land. Panchayati was fixed on 27-3-1997 and as such he, his son Rabindra Dubey, Bhagya Narain Dubey, Shivji Dubey, Dwarika Singh, Mahendra Singh, Nawal Kishore Dubey of his village Jamunia Jasauli had gone to village Dilman Chapra at about 6 a.m. At about 6.30 a.m. Babban Singh, Lallan Singh both sons of Ram Anup Singh with Nalkatua and Ram Anup Singh with licensed gun came near the Kirana Shop of Bhagheshwar Raut and Ram Anup Singh fired a shot from his gun in the air. He and the aforesaid persons concealed themselves hither and thither and he saw that they caught his son Shambhu Saran Dubey and started assaulting him. Ram Anup Singh ordered to kill him and members of his family on which Babban Singh threw his son, Shambhu Saran Dubey, on the ground and fired on his chest. His son, Shambhu Saran Dubey, died then and there. The aforesaid accused persons proceeded to the house of his Samdhi, Madan Singh. His daughter-in-law on hearing sound of firing came out from her house. Lallan Singh caught her and fired on her head due to which his daughter-in-law, Sita Devi died then and there. His Samdhi, Madan Singh, and his Samdhini, Sheoji Devi, came out from their house. Babban Singh caught Madan Singh and fired causing his death instantly, Lallan Singh caught Sheoji Devi and fired on her head due to which she died near the door of her house. The occurrence was witnessed by many persons of village Dilman Chapra.
4. On the aforesaid fardbeyan, Ext. 8, a formal first information report, Ext. 11, was registered, investigation was taken up, on completion of investigation charge sheet was submitted against the appellants in the Court, the Court took cognizance and committed the case to the Court of Session for trial. The trial Court on conclusion of trial convicted the appellants, as indicated above.
5. The defence of the appellants was that dacoity was committed in the night of 26/ 27-3-1997 in the house of Madan Singh in which Madan Singh, his wife Sheoji Devi, his son-in-law Shambhu Saran Dubey and his daughter Sita Devi were killed. They were innocent and were falsely implicated in the case.
6. The prosecution in support of its case examined 12 witnesses. P. W. 1, P. W. 2, P. W. 8 and P. W. 9 are eyewitnesses to the occurrence. P. W. 3 is also an eyewitness to the occurrence and witness to the inquest. P. W. 10 is informant and is eyewitness to the occurrence. P. Ws. 4, 5, 6 and 7 held postmortem over the dead bodies of Madan Singh, Sita Devi. Sheoji Devi and Shambhu Sharan Dubey respectively. P. W. 11 has proved the deed of gift, Ext. 1/1 executed by Madan Singh and his wife Sheoji Devi in favour of Shambhu Sharan Dubey and Smt. Sita Devi, P. W. 12 is Investigating Officer.
7. The defence also examined four witnesses in support of its defence to prove that dacoity was committed in the night of 26-3-1997 in which Madan Singh and his family members were killed. Out of them D. Ws. 1 and 3 were resident of Dilman Chapra, D. W. 2 was resident of village Jamunia Jasauli and D. W. 4 was an Advocate Clerk, who proved memo No. 3166 dated 3-11-1998.
8. In the incident four persons, namely, Madan Singh, his wife Sheoji Devi, his daughter Sita Devi and his son-in-law Shambhu Sharan Dubey were killed. Madan Singh, his wife Sheoji Devi and his daughter Sita Devi were killed near about their house and his son-in-law Shambhu Sharan Dubey was killed near the Chowk which is at a distance of 150 yards from his house. The incident took place on 27-3-1997 at about 6.30 a.m. Fardbayan of Babunand Dubey was recorded at 8.30 a.m. at the house of Madan Singh in village Dilman Chapra. Informant ..Babunand Dubey is Samdhi of Madan Singh and father of Shambhu Sharan Dubey. He is resident of village Jamunia Jasauli which is at a distance of about 1/2 K.M. from the place of occurrence. P. Ws. 1, 2, 3, 8 and 9 are also resident of village Jamunia Jasauli, the village of the informant. P. W. 8 is son and P.W. 9 is full brother of the informant. According to the prosecution case there was land dispute as Madan Singh and his Wife Sheoji Devi, the deceased had executed a deed of gift of their share, i.e. 9 bighas of land in favour of their son-in-law Shambhu Sharan Dubey and their daughter Sita Devi, the deceased and as such there was Panchayati to be held in the morning of 27-3-1997. The witnesses had gone there for Panchayati but instead of Panchayati the occurrence took place. No witness of Oilman Chapra has been examined and the witnesses examined are of village jamunia Jasauli. Some of them are related to the informant/the deceased and as such their evidence has to be considered with care and caution.
9. P.W. 10 is the informant. He is Samdhi of deceased Madan Singh and father of deceased Shambhu Sharan Dubey. His evidence is that his son, Shambhu Sharan Dubey was married with Sita Devi the only daughter of Madan Singh of village Oilman Chapra at about 15-16 years ago. Madan Singh had no son. He had 9 Bighas of land in his share. Madan Singh and his wife Sheoji Devi had executed deed of gift of, their entire land in favour of their son-in-law, Shambhu Sharan Dubey and their daughter Sita Devi. Shambhu Sharan Dubey used to live at Dilman Chapra with his wife to look after in-laws and the cultivation. They used to come to Jamunia Jasauli also. Appellant Ram Anup Singh is own brother of Madan Singh, the deceased. Appellants Baban Singh and Lallan Singh are sons of Ram Anup Singh. They were separate from Madan Singh, the deceased. Since the time of marriage of Sita Devi with Shambhu Sharan. Dubey, the appellants were annoyed due to execution of deed of gift by Madan Singh and his wife Sheoji Devi in favour of their son-in-law and their daughter. They were pressing them to cancel the deed of gift and to remove their son-in-law arid the daughter from their house. Prior to the incident also Panchayatis were held but the decision of the Panchayati was not accepted by the appellant, Ram Anup Singh. To decide the land dispute Panchayati was fixed on 27-3-1997. Ram Singh and Madan Singh had knowledge about the date and time of Panchayati. They themselves had agreed for Panchayati. On the date of occurrence i.e. 27-3-1997 at about 6.30 a.m. he was near the shop of Bhageshwar Raut situated at the chowk in the village Dilman Chapra. P.Ws. 1, 2, 3, 8, 9 and Bhagya Narain were also there. They had reached the village at about 6 a.m. He sent his son, Rabindra Dubey, to give message to Ram Anup Singh and Madan Singh that they had come for Panchayati. Rabindra Dubey returned and informed that Madan Singh was coming to attend the Panchayati but Ram Anup Singh was very much angry and abused him. Soon thereafter they heard sound of firing coming from the side of the house of said Ram Anup Singh. They got surprised. Ram Anup Singh with double barrel gun, Babban Singh and Lallan Singh with Nalkatua i.e. country made pistol came at the Chowk. Ram Anup Singh fired from his gun in the air. Shambhu Saran Dubey, his son, came on hearing the sound of firing at the Chauraha. Appellants Babban Singh and Lallan Singh started scuffling with Shambhu Saran. Appellant Ram Anup Singh exhorted them to kill and finish his entire family. Accused Babban Singh thereupon fired which hit on the left side of the chest of Shambhu Saran Dubey. He fell down and died at the spot. Appellants thereafter proceeded towards the house of Madan Singh. He and the witnesses also followed them. His daughter-in-law, Sita Devi, came out from her house. Lallan Singh caught her by hair and dragged her in the field of Jamun Paswan and fired which hit in her right temporal region. She died at the spot. Thereafter, Madan Singh and his wife Sheoji Devi came out from their house. Babban Singh caught Madan Singh and Lallan Singh caught Sheoji Devi. Babban Singh fired causing injury to Madan Singh and he died. Lallan Singh fired causing injury on the left temporal region of Sheoji Devi and she died then and there. The appellants thereafter ran away towards their house. Shambhu Saran Dubey had no issue from Sita Devi, the deceased, and as such he was married with the daughter of Chhabilal Singh of village Belliah Basant with the consent of Sita Devi. Shambhu Saran Dubey had a son and a daughter from the second wife. However, Sita Devi was carrying pregnancy of one and half months at the time of occurrence. Both wives of Shambhu Saran Dubey were maintaining good relation. The second wife used to come to Dilman Chapra to meet Sita Devi and her family members. However, the second wife died on 11-4-1997 as she refused to take meal on being aggrieved at the death of her husband. The police came at about 8.15 a.m. and recorded his fardbeyan. He put his signature over the same in presence of the witnesses. He had filed protest petition, Ext. 6. One of the deeds of gift has already been marked as Ext. 1. Second deed of gift was executed by Madan Singh and Sheoji Devi in favour of their son-in-law and their daughter on 16-10-1987, Ext. 1/1. In cross-examination the witness stated that Panches were neither his enemies nor friends. They were always behind the accused persons at a safe distance. Madan Singh and his wife Sheoji Devi, the deceased were leading saint life. Since 1983 he was advising Madan Singh to get the dispute settled with his brother Anup Singh amicably. Pahchayatis were held earlier in which he and other persons had participated. He, named the Panches, who participated in the Panchayati. No article of the house of Madan Singh, was taken away by the culprits. He did not go to the police station. Sub-Inspector of Police himself arrived at the place of occurrence. He denied that Sita Devi had filed Misc. Case No. 16 of 1991 against her husband. Shambhu Saran Dubey. However, the witness admitted that one title suit was filed by Madan Singh, his wife Sheoji Devi and their daughter Sita Devi against Shambhu Saran Dubey at the instigation of the appellants. The suit was dismissed against which they preferred Title Appeal No. 93 of 1992 at the instigation of the appellants. However, the appeal was compromised. Even after compromise of title appeal the dispute for land between the appellants and the prosecution party was going on. The appellants cut the trees over the land of Madan Singh but no case was instituted. Madan Singh and Sheoji Devi executed the deed of gift out of their free will. The deeds of gift were executed about ten years before the second marriage of Shambhu Sarah Dubey with Uma Devi, the daughter Of Chhabila Singh, who was mechanic: and a poor man. He denied that Chhabila Singh was not in good term with Madan Singh and his family members. He also denied that Sita Devi and Uma Devi were not in good term. He denied that he wanted to kill Uma Devi. Madan Singh had not taken loan from any person. He had sold five kathas of land for construction of the house; On 24-3-1997 he met with Madan Singh. He told about the Panchayati. He asked to come at 6 a.m. on 27-3-1997 to village Dilman Chapra for Panchayti. He also asked the Panches to come. It was neither cold nor hot on the day of occurrence. He informed the Panches one day before in the evening. He did not remember that he had mentioned in the first information report or protest petition that he had informed the Panches one day before in the evening. He did not give statement before the S. P. or Dy. S. P. on the day of occurrence. He was not acquainted with the Sub-Inspector of Police, who had recorded his fardbeyan. About two thousand people assembled there. The people assembled near the dead body one hour after the occurrence. He identified Deep Raj Ojha, Raghunath dubey, Ram Babu Singh, Jamuna Singh, Vakil Yadav, Nagina Singh, Rajendra Singh, Rabindra Singh, Lal Babu Prasad, Sudarshan Singh in the crowd. He had no talk with them about the occurrence but they Were knowing about the occurrence. The people of Dilman Chapra were not in the crowd. The house of Jogindra Mukhiya was at a distance of 40-50 Laggis from the place of occurrence where the dead body of Shambhu Sharan Dubey was lying. He did not call the Mukhiya. When police came he was near the dead body of Shambhu Sharan Dubey. He was conscious but he was in shock and frightened. When firing was made he did not conceal himself in the village. He did not mention in the first information report that on second firing he hid himself in the village. He did not remember that he stated before the police that Panches hid themselves in the village. He stated before the police that Babban Singh had caught hold of his son Shambhu Sharan Dubey and fired from country made pistol on his chest. He had seen the appellants coming near the shop of Bhageshwar. He and the witnesses were 10-15 steps east of the Chowk and the appellants were 10-15 steps north at the time of second firing. The appellants did not fire on them. Adjacent south of the shop of Bhageshwar there were a brick built road and houses of Harijans. In the east there was house of Gulten Mahto. There were houses of Nunia community and Kurmi community. He was standing in the south of Gulten Mahto's house where from a road goes to Jamunia. When they reached Dilman Chapra no elderly person of the village met with them. After the occurrence he met with Bhageshwar Raut and Jogindra Singh at about 9 a.m. Appellants, Ram Anup Singh and his sons fired shot neither on him nor his son Rabindra. Lallan Singh and Babban Singh caught of Shambhu. After catching hold of him they were scuffling and they also slapped him. He cannot say as to who was catching hold of his hand. He did not see arms in their hand at that time. They had kept weapon in their pocket. Shambhu Sharan Dubey tried to flee away but he did not succeed. The occurrence of catching hold and assault continued for about one-two minutes. Ram Anup Singh had ordered to kill. When his two sons were catching hold of his son Shambhu he tried to save him. Nawal Kishore Dubey caught hold of him and Sheojee Dubey caught hold of his younger son Rabindra. In the meantime, Shambhu was murdered. He was about 10-15 steps east from the place where Shambhu was shot at. Firing on Shambhu was made from a distance of 2 to 2 1/2 ft. The dead body of Madan Singh was lying near the door of his house. The appellants did not attempt at him or his son Rabindra. He and Panches had seen the occurrence. He did not enter the house. The articles of the house were not scattered. He had seen Lallan Singh catching hold of hair of Sita Devi. He dragged her in the land of Jamuna Paswan and threw her on the ground and shot at her. At the time of firing at Sita Devi, Madan Singh and his wife Sheoji Devi were in the house. He stated before the police that he and the witnesses were behind the appellants. Madan Singh was a lame person. He used to move with the help of a stick. When Madan Singh came out he was shot at. When Sheoji Devi came out she was also shot at. The entire occurrence took place near the house of Madan Singh within 10-12 minutes. He did not remove the dead bodies. He did not go with the dead body to Motihari as the police did not allow him to accompany the dead body. The other persons were not allowed to go with the dead body. He signed the fardbeyan. There was no murmuring in the crowd about the dacoity. His statement was not recorded after receipt of the postmortem. The statement of the Panches were recorded at the place of occurrence at Dilman Chapra and thereafter he and Panches returned to their house. He stated before the police that he had sent Rabindra Dubey to inform Ram Anup Singh and Madan Singh and on return he disclosed that Madan Singh was coming and Ram Anup Singh was very much angry and abused him. He stated before the police that Lallan Singh had caught hold of hair of his daughter-in-law dragged her to the field of Jamun Paswan and fired on her temple from close range. The occurrence took place at about 6.30 a.m. to 6.45 a.m. The witness denied the suggestion that dacoity was committed in the night and dacoits killed Madan Singh, his wife, his son-in-law and his daughter. He denied the suggestion that no date of Panchayti was fixed on the day of occurrence.
10. P.W. 8 is son of the informant, P.W. 10. His evidence is that the deceased Shambhu Sharan Dubey was his elder brother. Marriage of Shambhu Sharan Dubey was solemnised with Sita Devi, daughter of Madan Singh, the deceased, of Dilman Chapra about 15-16 years ago. Madan Singh had no son. He had only daughter, namely, Sita Devi, Sheoji Devi, the deceased was his wife. Madan Singh was living separately from his brother, the appellant Ram Anup Singh, Madan Singh and Sheoji Devi gifted their land in favour of their daughter, Sita Devi and their son-in-law, Shambhu Sharan dubey, after marriage. His brother Shambhu Sharan Singh and his Bhabhi Sita Devi were living at the house of Madan Singh in Dilman Chapra for cultivation and to look after their in-laws. Babban Singh and Lallan Singh were nephew of Madan Singh, the deceased. Due to execution of deed of gift Ram Anup Singh was annoyed with Madan Singh. The appellants were pressing him to get the deed of gift cancelled and to remove his daughter and son-in-law from his house but Madan Singh did not agree. The appellants used to quarrel with Madan Singh due to the aforesaid reason. On the relevant day of the occurrence he had gone to Dilman Chapra and reached Dilman Chapra at about 6 a.m. Panchayti was to be held with respect to the land dispute between Madan Singh and Ram Anup Singh. The shop of Bhageshwar Raut was situated near the chowk. The witnesses and Bhag Narain Dubey had also gone for Panchayti and were present at the time of occurrence. His father, P.W. 10 had asked him to inform Madan Singh and Ram Anup Singh that they had come for panchayti. He went to inform Madan Singh where his brother Shambhu Sharan Dubey met. He was taking biscuit. He told that he was coming after taking biscuit. He went to inform Ram Anup Singh who became furious to see him.. He and his sons abused him. He returned to Chowk and informed his father accordingly. When he reached the Chowk he heard sound of firing from the direction of Ram Anup Singh's house. The appellants thereafter came near the Chowk. Ram Anup Singh fired in the air at the chowk. His brother Shambhu Sharan Dubey came on hearing the sound of firing. He was caught by Babban Singh and Lallan Singh who started assaulting him with fists and slaps. Appellant, Ram Anup Singh ordered to kill and eliminate his entire family on which Babban Singh fired from country made pistol which hit on the chest of Shambhu Sharan Dubey. He fell down and died at the spot. The appellants thereafter moved towards the house of Madan Singh. He and the witnesses followed them. Sita Devi came out from her house. Lallan Singh caught her by hair in front of her house and dragged her and fired from country made pistol which hit on her right temple. She died then and there at the spot. Madan Singh came out from his house. Babban Singh caught him and fired from country made pistol causing injury on his head. Madan Singh died at the spot. Sheoji Devi came out from her house. Lallan Singh caught her and fired from country made pistol which hit on her head. She died at the spot. The entire occurrence took place between 6.30 a.m. to 6.45 a.m. His Bhabhi, Sita Devi, was carrying pregnancy of about one and half months on the day of occurrence. After occurrence the appellants ran away. He used to go to the house of Madan Singh. Madan Singh and his family members used to take meal at night in late hour. His statement was recorded by the police on the day of occurrence itself. Ram Anup Singh was carrying double barrel gun and Babban Singh and Lallan Singh had country made pistol. He used to come to Motihari. In Dilman Chapra there were 100-150 houses. People of different castes were living at Oilman Chapra. The flour mill of Bhageshwar was very old. The flour mill was in the east of the road and its opening was in the west. There were houses on both sides of the road. The houses were of Harijan community. The road goes to north and terminates at the Hanuman temple, which is at a distance of less than one K.M. Ram Kishore Singh, Jogindra Singh, Uma Kant Singh, Dwarika Singh and others are among the persons whose houses were situated in between the Hanuman temple and the shop of Bhageshwar. The houses of the aforesaid persons were at a distance of 50 steps from the Chowk. He met Jogindra Singh at. about 9 a.m. on the day of occurrence. Houses were also situated on both sides of the road which goes towards west from the said chowk. I had met Bhageshwar on the day of occurrence. 1 did not meet any other person of the village Dilman Chapra on the day of occurrence. He did not ask Mukhiya or Bhageshwar to inform the police. He had visited the house of Madan Singh 4-5 days before the occurrence. His brother, Shambhu Sharan Dubey had another wife, namely, Uma Devi, the daughter of Chhabiia Singh of village Bettiah Basant. His brother, Shambhu Sharan Dubey had a son and a daughter from his second wife, Uma Devi. She used to live at his house. Uma Devi had seen the dead body when it was brought at the house in the night. He was not aware of the fact that Madan Singh, Sheoji Devi and Sita Devi had filed title suit No. 315/89 against his brother, Shambhu Sharan Dubey. He passed matriculation examination in the year 1988. He had no share in the land covered under the deeds of gift executed by Madan Singh in favour of his brother, Shambhu Sharan Dubey. He was not aware that Title Appeal No. 93 of 1992 was preferred against the judgment in the aforesaid title suit. Madan Singh had one more house situated near the house of Ram Anup Singh but Madan Singh and his family were not living there. He had not attended any Panchayti earlier. His father, P.W. 10, had asked to attend the Panchayti. He did not say to attend panchayti with fire arm. All the Punches proceeded together. On way near cattle shed of Kishuri Das, we met Lal Ojha, Jhagru Das and Adalat Das. No one was present at the shop of Bhageshwar when he and P.Ws. reached there at about 6 a.m. The mill was closed. The Sub-Inspector of Police had recorded his statement. Dy. S. P, and S. P. did not record his statement. S. P. and Dy. S. P. had visited the place of occurrence on the day of occurrence. Sub-Inspector of Police prepared seizure list. Jogindra Mukhia was talking with the Dy. S. P. Many people were present when S. P. and Dy. S. P. reached the place of occurrence; About two thousand people assembled at the place of occurrence. He had talk with them. He and his father left the place of occurrence in the evening. The Punches were present at the place of occurrence whose statement was recorded in his presence. No One was saying in the crowd that dacoity was committed. The witness denied the suggestion that dacoity was committed in which many persons were killed. There was land dispute between Ram Anup Singh and Madan Singh. They were not on visiting term. Madan Singh had got sold five kathas of land by his son-in-law and daughter about two months ago of the occurrence. The land was sold for constructing house and not for purchase of vehicle. His brother used to live at his Sasural and some time he and his wife used to visit his house also. Uma Devi, the second wife of his brother never claimed share in the land of Sita Devi, his first wife. There was cordial relation between Sita Devi and Uma Devi. Madan Singh and Shambu Saran Dubey had no dispute with the parents of Uma Devi, the second wife. Uma Devi died of shock caused by death of her husband, Shambhu Sharan Dubey. The witness denied the suggestion that Uma Devi got dacoity committed. Punches belonged to his village. He had no enmity with the Punches. The Punches used to do Panchayti and as such they were called for Panchayti. Nawal Kishore Dubey was not his co-sharer, Bhag Narain Dubey and Sheoji Dubey were his co-sharers but they were living separate since long. He saw the appellants coming with weapon in their hand but they did not fire on him or his father. At the time of firing Shambhu Sharan Dubey was at a distance of 2 1/2 ft. from the assailant. The witness has given boundry of the places where Shambhu Sharan Dubey was lying dead in the evidence. Blood was oozing out from the injury on the chest. Blood was also coming from month. At the time of occurrence Shambhu Sharan Dubey was wearing trousers and shirt. Sita Devi was shot at from close range. She was dragged and then shot at. She died on receipt of fire arm injury. He and the witnesses reached at the Darwaza of Madan Singh after the accused persons had run away. No person of the village was present at that time. He had stated before the police that he and others followed the appellants while they were going to the house of Madan Singh. He had stated before the police that Ram Anup Singh had fired in the air. The articles of the house of Madan Singh were not scattered. There was no dacoity. The witness refused that he heard hulla of dacoity.
11. P. W. 9 is brother of the informant, P.W. 10. He was separate from his brother since 25-30 years. P.W. 10 got his son Shambhu Sharan Dubey married with Sita Devi, the daughter of Madan Singh about 15-16 years ago. Madan Singh had no son. He had only daughter, Sita Devi. Madan Singh and his wife Sheoji Devi had executed deed of gift of their entire land i.e. nine Bighas in favour of their daughter and their son-in-law. Shambhu Sharan Dubey was living with his wife at Dilman Chapra to look after the cultivation and his in-laws. They also used to come Jamunia. The appellant, Ram Anup Singh was full brother of Madan Singh. Babban Singh and Lallan Singh were nephew of Madan Singh. Madan Singh and Ram Anup Singh were living separately even before marriage of Shambhu Sharan Dubey. Appellant, Ram Anup Singh was annoyed with Madan Singh because of execution of deed of gift in favour of his son-in-law and daughter. The appellants were pressing to turn out Sita Devi and Shambhu Sharan Dubey and also to cancel the deed of gift. Panchayati was held for the dispute earlier but Ram Anup Singh was not accepting the decision of Panchayati. On the relevant day and time of occurrence he was near the shop of Bhageshwar Raut situate at the chowk. The witnesses i.e. P.Ws. 10, 8, 1, 2, 3 and Bhagya Narain were present at the relevant time. We had gone for Panchayati. Panchayati was to be held with respect to the land dispute between Madan Singh and Ram Anup Singh. They reached at the chowk at about 6 a.m. P.W. 10 sent his son, P.W. 8, to call Madan Singh and Ram Anup Singh. P.W. 8 returned and informed that Madan Singh was coming. Ram Anup Singh and his sons were very angry and abused him. Soon after return he heard sound of firing. The appellants came at the chowk. Appellant Ram Anup Singh fired in the air as soon as he reached at the chowk from his licensed gun. The appellants Babban Singh and Lallan Singh were armed with country made pistols. Shambhu Sharan Dubey came on hearing the sound of firing. Babban Singh and Lallan Singh caught him and assaulted. Ram Anup Singh ordered to kill him and eliminate his entire family, Babban Singh fired causing injury on the left side of the chest of Shambhu Sharan Dubey. He fell down and died. The appellants thereafter proceeded to the house of Madan Singh. He and the witnesses also followed. Sita Devi came out from her house. Lallan Singh caught her by hair and dragged her and fired from his country made pistol which hit on her right temporal region. She died at the spot. Madan Singh and his wife Sheoji Devi came out from the house hearing the sound of firing. Babban Singh caught hold of Madan Singh and Lallan Singh caught hold of Sheoji Devi. Babban Singh fired at Madan Singh causing injury on the head and Lallan Singh fired at Sheoji Devi causing injury on the left side of the temple. Madan Singh and' Sheoji Devi died then and there. The appellants thereafter ran away. Shambhu Sharan Dubey had no issue from the first wife Sita Devi and as such he solemnised 2nd marriage with Uma Devi, daughter of Chabila Singh of Bettiah Basant. He had a son and a daughter from the second wife Uma Devi. At the time of occurrence Sita Devi was carrying pregnancy of about two months. There was cordial relation between Sita Devi and Uma Devi, both wives of Shambhu Sharan Dubey. Uma Devi used to visit Dilmah Chapra also. The witness in cross-examination admitted that informant, P.W. 10, was his brother. He was not aware of the fact that Sita Devi had filed case No. 16 of 1991 against Shambhu Sharan Dubey. He was not aware that Madan Singh and Sheoji Devi had filed Title Suit No. 315 of 1989. His house is at a distance of 1/2 K.M. west from the house of Madan Singh. On 24-3-1997 Madan Singh had told him to come for Panchayati on 27-3-1997. P.W. 10 told him on 26-3-1997 also at about 5 p.m. He, P.W. 10, his son P.W. 8 and other panches proceeded for Dilman Chapra; He did not hear any sound of firing before he proceeded for Panchayati. There was no rumour that dacoity and murder had been committed. He met the people of his village at Dilman Chapra on the day of occurrence. The police had reached the place of occurrence at about 8.15 a.m. He recorded his statement at about 4.30 p.m. He was present throughout at the place of occurrence. Many persons had assembled at the place of occurrence. Dy. S. P. and S. P. had also reached at the place of occurrence. He returned to his house after sun set and had gone for cremation of the dead bodies. P.W. 10 and P.W. 8 were also at the cremation ground. After cremation he returned to his house at about 1-1.30 a.m. in the night. The dead body was brought to the village at about 7-7.30 p.m. from Motihari. Cremation ground was situated 1/2 mile from the village. People of the village were present at the cremation ground. He and the Panches did not run away from the Chowk on hearing the sound of firing. The witnesses were present at the time of firing at the Chowk. The appellants had no dispute for land with the informant, P.W. 10. The land dispute was between Madan Singh and the appellant. Ram Anup Singh. The appellants were annoyed due to the execution of deed of gift by Madan Singh. The appellants did not abuse P.W. 10 and his son on their arrival at the Chowk. Shambhu Sharan Dubey had reached the Chowk after an interval of 1-2 minutes of the first firing at the Chowk. He did not tell before the police that all the appellants started assaulting. Shambhu Sharan Dubey rather he stated that Babban Singh and Lallan Singh caught Shambhu Sharan Dubey and they assaulted him with fists and slaps and on the order of Ram Anup Singh, Shambhu Sharan Dubey was fired at and he died at the spot. Firing was made from a distance of 2 and 2 1/2 ft. He did not get time to prevent firing. He and the Panches were following the appellants maintaining some distance. When the accused persons ran away he and the Panches went to the house of Madan Singh. There was no crowd at that very time. The witness has given details of the occurrence in the evidence and stated that crowd assembled at the place of occurrence. Blood had fallen from the injuries of the dead bodies. The house of Bacha Singh was situated near the house of Madan Singh. The house of Madan Singh was thatched with straw. He had not seen the empty cartridges near the dead body. Lallan Singh fired on Sita Devi. The informant and his son, Rabindra were weeping. He did not discuss anything with the Panches. The people of the village ran away after the occurrence. When they were following the appellants, the appellants were threatening. He did not discuss to go to the police. No one was saying that dacoity was committed. The crime was committed within fifteen minutes. There was cordial relation between both the wives of Shambhu Sharan Dubey. The second wife of Shambhu Sharan Dubey, namely, Uma Devi, died due to shock caused by death of her husband. The witness denied the suggestion that there was dispute between second wife of Shambhu Sharan Dubey and Madan Singh with respect to the property and dacoity was committed in the night. He denied the suggestion that Madan Singh, his wife, his son-in-law and his daughter were killed in dacoity.
12. P.W. 1 is co-villager of P.W. 10, the informant. His evidence is that at the relevant time of occurrence he, P.W. 10, P.W. 8, P.W. 9, P.W. 2, P.W. 3 and Bhag Narain Dubey were present near the shop of Bhageshwar situated at the Chowk at Oilman Chapra. They had gone there for Panchayati to settle the land dispute between Madan Singh and Ram Anup Singh. P.W. 10 was father-in-law of the daughter of Madan Singh. Madan Singh had no son. He had only daughter, Sita Devi, Sita Devi was married with Shambhu Sharan Dubey, son of P.W. 10. Madan Singh and his wife Sheoji Devi gifted nine Bighas of their land to their daughter and son-in-law. Ram Anup Singh was not in good term with Madan Singh due to execution of the deed of gift. Ram Anup Singh was pressing them to cancel the deed of gift. They had gone for Panchayati for settlement of the said land dispute. Ram Anup Singh with double barrel gun, his sons Babban Singh and Lallan Singh with country made pistol came near the shop of Bhageshwar, Ram Anup Singh fired in the air with his gun. Son-in-law of Madan Singh, namely, Shambhu Sharan Dubey came there on hearing sound of firing. Babban Singh and Lallan Singh caught hold of him and started assaulting. Ram Anup Singh ordered to kill and eliminate his entire family. Babban Singh fired from his country made pistol which hit on the left side of the chest of Shambhu Sharan Dubey. He fell down and died at the spot. The appellants proceeded to the house of Madan Singh. He and Panches also followed concealing themselves. Sita Devi came out from her house. Lallan Singh caught her by hair, dragged her and first causing injury on the right side of the temple. Sita Devi died at the spot. Madan Singh and his wife, Sheoji Devi, came out from their house on hearing sound of firing. Lallan Singh fired from country made pistol which hit on the head of Sheoji Devi and she succumbed to the injuries at the spot. Babban Singh fired from country made pistol which hit on the head of Madan Singh and he died at the spot. Sita Devi fell down in front of the house in the field of Jamun Paswan. Madan Singh fell down at the door of his house, Sheoji Devi fell down west of her house. His statement was recorded by the police. The Panches, who had come for Panchayati also witnessed the occurrence. The appellants were armed with fire arm and as such no body dared to catch them. Madan Singh and Sehoji Devi had executed a deed of gift on 7-10-1983 in favour of their daughter. Sita Devi with respect to 1 Bigha 12 Kathas and 17 1/2 Dhura of land. He had signed the deed of gift as witness. Madan Singh and Sheoji Devi signed the deed of gift, Ext. 1. The distance of Bettiah Basant from the place of occurrence was one mile and Jamunia Jasauli, his village, was 1/2 K.M. Kesaria Police Station is at a distance of 12-13 K.M. from the place of occurrence. Lallan Singh son of Banaras Singh of Dilman Chapra was his relative. Dilman Chapra is a densely populated village. About four hundred families were living there. Joginder Singh was Mukhiya. He participated in Panchayati where he was called. He had not participated in Panchayati out side the jurisdiction of his police station. Licence of Public Distribution System was in his name. He was acquainted with Madan Singh for about twenty years and was in visiting term. He was also acquainted with the family of Madan Singh. He had invited him for execution of deed of gift. There was no written information with respect to the Panchayati on the day of occurrence. There was verbal information. The information was given on 24-3-1997 in the morning. Babu Nand Dubey and other witnesses were also informed about the Panchayati. Madan Singh had sent information that Panchayati was to be held on 27-3-1997 and he was to attend Panchayati. On way to Dilman Chapra, he met the people of his village. All the Panches were present at the Chowk when he "reached there. Shops on the Chowk were not open. Madan Singh was informed. S. P. and Dy. S. P. had visited the place of occurrence. Sub-Inspector of Police of Kesaria Police Station reached at the place of occurrence at 8 O'clock. People had assembled at the place of occurrence. Photographer also took photograph of the dead bodies. The police recorded the statement of the witnesses at the place of occurrence. The police had recorded the statement of Joginder Singh, Bhageshwar and Uma Kant Rai. Dy. S. P. had also recorded his statement at about 12 O'clock at the place of occurrence at the door of Madan Singh. He denied the suggestion that he stated before the police that he did not know anything about the occurrence. About one thousand people assembled at the place of occurrence. At the time of recording his statement, Sri Narayan. Sharma, Advocate, was also present. People of Dilman Chapra were also present but none of them gave statement. Many people ran away out of fear. No one was saying that dacoity was committed in the house of Madan Singh. The house of Madan Singh was situated at a distance of 300 yards to the south-west of the house of appellant, Ram Anup Singh. There is a local road which goes to Jamunia from Dilman Chapra. There were houses on both sides of the road. Ram Anup Singh was not a very old man. Ram Anup Singh fired two shots in the air. Flour mill of Bhageshwar was adjacent north of the shop. The mill was not running at the relevant time. House of Gulten Mahto was at a distance of two Laggis east from the shop of Bhageshwar. There were houses of many people of different castes. Harijan Toli was situated near the shop of Bhageshwar. Panches did not run away hearing the sound of firing. On hearing sound of second firing, they had concealed themselves. No other persons of Dilman Chapra were present at the time of second firing. Third firing was made on Shambhu Sharan Dubey. Three firings were made thereafter. He concealed himself behind the heap of leaves. Dwarika Singh was also there with him. Panches were hiding at different places near the place of occurrence. He and Panches were present at the time of occurrence when Sub-Inspector of Police had reached. Firing on Shambhu Sharan Dubey was made from a distance of 3 ft. while he was standing. He did not disclose place of hiding before the police. The Panches were also witnessing the occurrence from the place of hiding. No other persons were present when he and Panches reached the house "of Madan Singh. He stated before the police that Babban Singh caught hold of Madan Singh and fired. Lallan Singh caught hold of Sheoji Devi and fired. He stated before the police that Sita Devi received injury on the right temple and sheoji Devi received injury on the head. The witness denied the suggestion that he did not see the occurrence. He also denied the suggestion that he had old relationship with Madan Singh.
13. P.Ws. 2 and 3 were co-villagers of P.W. 10, the informant. Their evidence is that at the relevant time they along with Rabindra Dubey, P.W. 8; Babu Nand Dubey, P.W. 10; Shivji Dubey. P.W. 9; Mahendra Singh, P.W. 1; and one Bhag Narayan Dubey were present near the shop of Bhageshwar situated near the Chowk of village Dilman Chapra. Madan Singh had called them for Panchayati. There was land dispute between Madan Singh and his brother Ram Anup Singh, Madan Singh had no son, Babu Nand Dubey, P.W. 10, got his son, Shambhu Sharan Dubey, married with Sita Devi, the only daughter of Madan Singh. Madan Singh and his wife, Sheoji Devi, executed deed of gift of their landed property in favour of their daughter, Sita Devi and their son-in-law Shambhu Saran Dubey. Shambhu Sharan Dubey was living at his Sasural with his wife to look after his in-laws and cultivation. Ram Anup Singh, the brother of Madan Singh, was annoyed due to the execution of deed of gift and was pressing them to cancel the deed of gift and remove Sita Devi and Shambhu Sharan Dubey from their house. Panchayati was to be held with respect to the land dispute between Madan Singh and Ram Anup Singh. On the day of occurrence at about 6.30 a.m. appellants Ram Anup Singh with double barrel gun, his sons, Babban Singh and Lallan Singh with country made pistol came near the Chowk. Ram Anup Singh fired in the air from his gun. Shambhu Sharan Dubey came there. He was caught and was assaulted. The appellant, Ram Anup Singh ordered to kill him and finish his family on which Babban Singh fired with country made pistol which hit on the chest of Shambhu Sharan Dubey. He fell down and died. The appellants thereafter proceeded towards the house of Madan Singh. They followed them concealing themselves. Sita Devi came out from her house hearing the sound of firing. Lallan Singh caught her by hair and dragged her in the field and fired which hit on temporal region. She fell down and died in the field. Hearing the sound of firing Madan Singh and Sheoji Devi came out from their house. Babban Singh caught Madan Singh and fired causing injury on the head and he died at the door of the house. Lallan Singh caught Sheoji Devi and fired causing injury on the head. She fell down by the side of her house and died. Panches had also seen and had followed them. The police came and recorded their statement. After the occurrence the appellants ran away towards their house. P.W. 3 is also a witness to the inquest and stated that inquest reports of the dead bodies were prepared in his presence and he signed the inquest reports and proved his signature over the inquest reports. He is also witness to the seizure of blood and the empty cartridges found near the dead body of Shambhu Sharan Dubey. He put his signature over the seizure list and proved his signature over the same. He is also a witness to the seizure of blood from the place where the dead bodies were lying. He proved his signature over the seizure list. The witnesses in their cross-examination stated that Dilman Chapra is a big village and have given details of place of occurrence. He stated that Shambhu Sharan Dubey was killed near the Chowk on the order of appellant. Ram Anup Singh and rest of the three i.e. Sita Devi, Madan Singh and Sheoji Devi were killed near their house. The witnesses deposed that Madan Singh had called them for Panchayati on the day of occurrence. Babu Nand Dubey, P.W. 10, had also asked them for Panchayati and to reach in the morning on 27-2-1997 near the Chowk of village Dilman Chapra. They admitted the relationship between Madan Singh and Babu Nand Dubey and also stated that Babban Singh and Lallan Singh were sons of appellant, Ram Anup Singh. No one had come till the second firing was made by Ram Anup Singh at the Chowk. The witnesses stated that after committing murder of Shambhu Sharan Dubey at the Chowk the appellants proceeded towards the house of Madan Singh and they followed them concealing themselves. In their cross-examination the witnesses stated that Babban Singh fired at Shambhu Sharan Dubey. Lallan Singh fired at Sita Devi when she came out from her house. Babban Singh fired on Madan Singh and Lallan Singh fired on Sheoji Devi. Firing was made from a close range. Before firing on Shambhu Sharan Dubey, he was assaulted by Babban Singh and Lallan Singh with fists and slaps. The witnesses stated that S. P. and Dy. S. P. had also come at the place of occurrence. Their statement was recorded by the police at the place of occurrence. The witnesses denied that dacoity was committed in the house of Madan Singh in which Shambhu Sharan Dubey, Madan Singh, Sheoji Devi and Sita Devi were killed. The witnesses in their cross-examination also gave details of manner of occurrence and stated that they returned to their house in the evening.
14. P.W. 11 proved deed of gift executed by Madan Singh and his wife. Sheoji Devi, in favour of Shambhu Sharan Dubey and Smt. Sita Devi, Ext. 1/1. The witness stated that he signed the deed of gift as witness. The deed of gift was executed in his presence.
15. P.W. 4 is a doctor, who held postmortem over the dead body of Madan Singh on 27-3-1997 at 4.50 p.m. He found two injuries one on right side of scalp, wound of entry and another on left side of upper part of the neck, wound of exit. On dissection he found semi digested food in the stomach. He opined that death was due to injuries caused by fire arm on the person of the deceased which were sufficient to cause death in natural course. Injuries were caused by fire arm and firing was from close range. Time elapsed since death was 12 hours. In cross-examination the witness stated that there may be two hours more or two hours less than 12 hours.
16. P.W. 5 is a doctor, who held postmortem over the dead body of Sita Devi on 27-3-1997 at 4.30 p.m. He found two injuries on the person of the deceased. One was wound of entry and another was wound of exit. Wound of entry was found on the right side of the neck and wound of exit was found near the left ear. On dissection he found semi digested food in the stomach. Cause of death was shock and haemorrhage due to the injuries found on the person of the deceased. The injuries were caused by fire arm. Time elapsed since death was within 12 hours. The witness in cross-examination stated that he did not find any sign of pregnancy.
17. P.W. 6 held post-mortem over the dead body of Sheoji Devi on 27-3-1997 at 3.50 p.m. He found charring injury with inverted margin over left temporal region. On dissection he found fracture of occipital bone in many pieces and one bullet which he recovered from the wound. He found semi digested food in the abdomen. Death was due to the injuries found on the person of the deceased. Time elapsed since death was within 12 hours. In cross-examination the witness stated that time elapsed since death may be 2/3 hours more or less. The bullet recovered was kept in jar.
18. P.W. 7 held post-mortem over the dead body of Shambhu Sharan Dubey on 27-3-1997 at 4.10 p.m. He found two injuries on the person of the deceased. One was wound of entry and another was wound of exit. Wound of entry was oval in shape with inverted margin with charring around the wound on the left side of chest. Wound of exit was everted margin on the back of left side of the chest. On dissection semi digested food was found in the abdomen. The injuries were caused by fire arm. The death was due to shock and haemorrhage. Time elapsed since death was within 12 hours. In cross-examination the witness stated that such injuries were possible in standing condition. Time elapsed since death may be 2/3 hours more or less.
19. From the scrutiny of the oral evidence of the witnesses it is evident that the evidence of the witnesses is consistent on all material points. The witnesses have categorically stated that marriage of Shambhu Sharan Dubey, the son of P.W. 10 was solemnised with Sita Devi, the only daughter of Madan Singh. After marriage Madan Singji and his wife executed deed of gift in favour of Sita Devi and Shambhu Sharan Dubey of their landed property for which appellant, Ram Anup Singh was annoyed and there was land dispute between them. They had gone for Panchayati but instead of Panchayati occurrence took place in which Madan Singh, his wife, Sheoji Devi, his son-in-law Shambhu Sharan Dubey, and his daughter Sita Devi were killed. The witnesses categorically stated about the place where the aforesaid four persons were killed. Their evidence is also consistent with respect to manner of occurrence and participation of the appellants in commission of crime. Their statement was also recorded on the same day at the place of occurrence. In cross-examination nothing cogent could be elicited to doubt their testimony. No doubt, the witness are either relations Or co-villagers of the informant. Informant is related with the deceased, Madan, Singh and his family. However, on close scrutiny as discussed above I find no defect in the evidence of eye witnesses rather their evidence is consistent on all material points and is trustworthy and as such evidence cannot be discarded merely on the aforesaid ground.
20. P.W. 12, is investigating officer. His evidence is that on 27-3-1997 he heard rumour that in Dilman Chapra there was firing due to the land dispute in which some persons had been killed. He entered Sanha Entry No. 452 dated 27-3-1997 and proved ' the Sanha Entry Ext. 7. He and the police force proceeded to village Dilman Chapra. He found two male dead bodies and two female dead bodies lying in pool of blood. He recorded fardbeyan of Babu Nand Dubey, PW 10, Ext. 8. He proved the endorsement of Mahendra Paswan, Ext. 10 and first information report, Ext. 11. He prepared inquest reports of the dead bodies in presence of the witnesses and proved inquest reports of Shambhu Sharan Dubey, Sita Devi, Madan Singh and Shejoi Devi Exts. 2, 2/1, 2/2 and 2/3 respectively. Photographs of the dead bodies were also taken and they Were produced and marked for identification. He sent the dead bodies for postmortem, inspected the place of occurrence and stated that first place of occurrence was near the house of Bhagirath Paswan. The dead body of Shabhu Sharan Dubey was lying on the road by the side of the house of the aforesaid person. He found blood near the dead body and projectile of 3.15 cartridges. He seized blood stained earth and projectile and prepared Seizure list, Ext. 3. Projectile was produced in the Court as material Ext. X/1. From the said place a road goes east to Bettiah Basant village. In the west Dilman Ghapra was situated. In the north there was mill of Bhageshwar Raut. In the east there was house of Gulten Mahto, In the northwest corner there was shop of Bhageswar Raut: The second place of occurrence was at a distance of 150 yards from the first place of occurrence. The second place of occurrence was filed of Jamun Paswan, which is in the north of the house of Madan Singh. He found the dead body of Sita Devi in the western side of the field. He found copious blood near the body. He seized blood stained earth and prepared seizure list. Ext. 3/1. Third place of occurrence was west of the house of Madan Singh. It is at. a distance of 15 steps from the second place of occurrence where he found dead body of Sheoji Devi. He found copious blood near the dead body. He seized blood standard earth and prepared seizure list Ext. 3/2. Fourth place of occurrence was door of the house of Madan Singh where he found dead body of Madan Singh. He found copious blood near the dead body. It was at a distance of five steps from the third place of occurrence. He seized blood stained earth and prepared seizure list Ext. 3/3 in presence of the witnesses. He recorded further statement of P.W. 10, the informant. He also recorded the statement of Bhag Narayan Dubey, Rabindra Dubey, P.W. 8; Sheoji Dubey, P.W. 9; Dwarika Singh, P.W. 2; Mahendra Singh, P.W. 1; Nawal Kishore Dubey, P.W. 3; and Madan Upadhay all residents of Jamuna Jasauli, Bhageshwar Raut of village Dilman Chapra and also Uma Shankar Yadav of village Bettiah Basant. He went to Jamuna Jasauli and recorded the statement of Bhatisari Devi. Thereafter, he returned to police station and received one projectile sealed in a jar which was recovered during the postmortem. He tried to record the statement of the people of village Dilman Chapra but they were not ready to give their statement. During the investigation he also took the documents from the informant, P.W. 10 and took step for cancellation of licence of the gun of Ram Anup Singh. The distance between the house of the informant and the place of occurrence was 1/2 k.m. He got information that second wife of Shambhu Sharan Dubey also died due to shock caused by death of her husband, Shambhu Sharan Dubey. In cross examination the witness stated that the police station is at a distance of 12 k.m. from the place of occurrence . He and the officers had gone to the place of occurrence by their motor cycles. When he reached the place of occurrence he found P.W. 10, P.W. 8, P.W. 9 and people of their village near the dead body of Shambhu Sharan Dubey. He took the statement of the witnesses at about 4.30 P.M. He was not knowing the witnesses from before. S.P. and Dy. S.P. reached the place of occurrence at about 10 a.m. He had talk with them. No people of Dilman Chapra met him. No one was present at the place of occurrence and disclosed that dacoity was committed in the night. Females were present but they did not disclosed the name of their husband. Information was not given by the Dafadar or the Chaukidar at the police station. He denied the suggestion that Dafadar and Chaukidar disclosed that dacoity was committed in which some persons were killed. He prepared sketch map of the place of occurrence. From the place of occurrence one road goes towards east. There were huts near the place of occurrence. The witnesses concealed themselves behind the huts and saw the occurrence. The witnesses did not disclose before him the place where they concealed themselves and saw the occurrence. However, they stated that they concealed themselves behind the huts and saw the occurrence. The statement of Rabindra Dubey, P.W. 8 was recorded at 4.30 p.m. He recorded the statement of the witnesses at the place of occurrence. Nawal and Uma Shankar put their signature over the inquest reports. No one was saying in the crowd that dacoity was committed. No one in the crowed was ready to give statement. He returned to Kesaria police station at 11 a.m. He denied the suggestion that the diary was written after one month. He denied the suggestion that people of the village were saying that dacoity was committed. He found hole on the shirt of Shambhu Sharan. Projectile and the blood seized were not sent for chemical examination. The witnesses stated about the Panchayati but no document was produced. The document with respect to land in dispute was produced but he did not make enquiry about the same. P.W. 1 stated before him that Babban Singh caught Madan Singh and fired. He stated before him that Lallan Singh caught wife of Madan Singh. He did not say before him that Lallan Singh caught her by hair and threw her on the ground and fired. The witness did not say before him that Babu Nand Dubey had called him for Panchayati. The witness stated before him that firing hit on the temporal region of Sita Devi. The witness stated before him that firing hit on the head of Sheoji Devi. P.W. 2 did not say before him that he was called by Madan Singh for Panchayati. The witness did not say before him that Shambhu Sharan Dubey was living with his wife in his Sasural and appellant, Ram Anup Singh, was annoyed due to the aforesaid action. PW 3 did not say before him that Ram Anup Singh fired twice. He did not say before him that on hearing the sound of firing he concealed. The witness did not say before' him that he followed the appellants. PW 8 did not say before him that when he went to the house of Madan Singh, he met Shambhu Sharan Dubey, who was taking biscuit. PW 9 did not say before him that he was at a distance of 10/15 steps from the appellants. He did not say before him that Ram Anup Singh was annoyed due to the execution of deed of gift in favour of the daughter and son-in-law and he was pressing to oust the daughter and son-in-law. PW 10 did not say before him that he informed the Panches in the previous evening. He did not say before him that he followed the appellants. He did not say before him that Ram Anup Singh was annoyed due to execution of deed of gift and was pressing to cancel the deed of gift. He did not say before him that he had sent Rabindra Dubey, PW 5 to inform Madan Singh and Ram Anup Singh. The omission as has been pointed out in the evidence of the witnesses by the investigating officer. PW 12, is flimsy in nature and it would not affect the prosecution case in view of the fact that the evidence of the witnesses on all material points are consistent.
21. The oral evidence of the witnesses is also corroborated by the evidence of the doctors, who held postmortem over the dead bodies. They found injuries cause by fire arm as alleged by the prosecution witnesses. The doctors held postmortem on the same day and had opined that time elapsed since death was within 12 hours which fits in with the prosecution case and supports the manner of occurrence as alleged by the prosecution. The oral evidence is also supported by the evidence of the investigating -officer, who prepared inquest reports and seizure lists of the blood stained earth seized from the place where the dead bodies were lying. The investigating officer stated that he recorded the statement of the witnesses at the place of occurrence. Therefore, objective finding by the investigating officer at the place of occurrence supports the prosecution case with respect to place of occurrence and other material points.
22. Learned counsel for the appellants contended that story of Panchaity as has been stated by the prosecution witnesses is cock and bull story and it has been introduced only to show that they were present at the place of occurrence which is evident from the fact that no person of village Dilman Chhapra was Panch in the Panchaity. In this connection it would not be out of place to mention herein that evidence on record cannot be ignored merely on hypothesis. PW 10 is the informant. His son Shambhu Sharan Dubey was married with Sita Devi, the only issue of Madan Singh, the deceased. Madan Singh and his wife Sheoji Devi had executed deed of gift in favour of their daughter Sita Devi and their son-in-law Shambhu Sharan Dubey, the deceased, Exts. 1 and 1/1, with respect to their entire landed property. The execution of deed of gift is not in dispute. Madan Singh and Ramanup Singh, the appellant, were brother is also not in dispute. Ramanup Singh, was not happy with the execution of deed of gift and living of Shambhu Sharan Dubey at his sasural for cultivation and service to his mother-in-law and father-in-law which has been stated by all the PWs. It has come in evidence of PW 10 that Madan Singh, his wife and their daughter Sita Devi filed a Title Suit against. Shambhu Sharan Dubey at the instigation of appellant Ramanup Singh. The suit was dismissed against which they preferred Title Appeal at the instigation of the appellants. However, the appeal was compromised but even after compromise the dispute for land between the appellants and Madan Singh was continuing. Panchaity was held earlier also for resolving the dispute between the appellants and deceased Madan Singh but it could not take final shape. The witness also stated in his cross-examination that on 24-3-1997 appellant Madan Singh met him and he informed about the Panchaity to be held on 27-3-1997 in the morning. PW 1 also stated in his evidence that he was informed about the panchaity on 24-3-1997. Other panches were also informed. PW 2 stated that he was informed by PW 10 that panchaity was to be held on 27-3-1997 in the morning. PW 3 in his evidence disclosed that Madan Singh had invited him for the panchaity which was to be held on 27-3-1997 in the morning. Similarly PW 9 disclosed in his evidence that on 24-3-1997 Madan Singh had informed him about the panchaity. PW 8, son of PW 10, stated that his father had asked him to attend Panchaity which was to be held in the morning on 27-3-1997. Witnesses, who were panches were called by Madan Singh for panchaity, accordingly they reached at the chowk of village Dilman Chhapra at about 6 a.m. on 27-3-1997. The evidence of witnesses that they reached at Dilman Chhapra at the aforesaid time is consistent to each other. In cross-examination nothing could be elicited to doubt aforesaid piece of evidence of the witnesses. More over, PW 12 the Investigating Officer has categorically stated in his evidence that he tried to record the statement of people of village Dilman Chhapra but no one was ready to give any statement before him. Therefore, on the basis of material available on the record it cannot be said that story of panchaity on the relevant date of occurrence was a cock and bull story. Learned counsel for the appellants, however, pointed out that PW 1 had not stated before the Investigating Officer, PW 12, that he was called by PW 10 for panchaity. The aforesaid piece of evidence is not contradiction as PW 1 had stated in his evidence that Madan Singh had sent information for panchaity. Similarly PW 2 had not stated before PW 12 that Madan Singh called him for panchaity but P.W. 2 in his evidence categorically stated that he was informed for panchaity by PW 10. Thus, in my view, there is no contradiction and even if it is taken as a contradiction it is not very material as the witnesses categorically stated that they got information either from Madan Singh, the deceased, or from PW 10 to come for panchaity to Dilman Chapra near the chowk. Therefore, on consideration I do not find any substance in the submission of learned counsel for the appellants.
23. Learned counsel for the appellants next contended that evidence of Doctors who held postmortem over the dead bodies falsifies the prosecution case as the evidence of witnesses is that the deceased were caught and fired on causing their death but the Doctor did not find injury caused by firing from close range. Moreover, the Doctors have found semi digested food in the stomach of the deceased persons. In this connection it would be relevant to mention herein that PW 4 held postmortem over the dead body of Madan Singh. PW 5 held postmortem over the dead body of Sita Devi. PW 6 held postmortem over the dead body of Sheoji Devi and PW 7 held postmortem over the dead body of Shambhu Sharan Dubey. The consistent evidence of eye witnesses is that when Madan Singh came out from his house he was caught by the appellant. Babban Singh, and thereafter he was shot dead. PW 4 in his evidence has categorically stated that he found fire arm injuries on the person of deceased Madan Singh and the fire arm was used from close range. The consistent evidence of the eye witnesses is that when Sita Devi came out from her house she was caught by Lalan Singh and dragged in the field and thereafter she was shot dead. There is no evidence on the record that while she was being dragged firing was made. PW 5, who held postmortem over the dead body, has found fire arm injury on the person of deceased Sita Devi. He, however, stated that ' firing was made by fire arm having short barrel. It is consistent evidence of eye witnesses that when Sheoji Devi came out from her house she was caught by Lalan Singh and shot dead. The Doctor, PW 6, who held postmortem over the dead body has found injury caused by firm arm on the person of the deceased and stated that he found charring injury with inverted margin over the left temporal region. The bullet was also recovered from the injury. The injury found on the person of the deceased clearly indicates that firing was made from close range. Similarly, consistent evidence of witnesses is that when Shambhu Sharan Dubey reached near the chowk of village Dilman Chhapra he was caught and was assaulted and thereafter on the order of appellant Ramanup Singh he was shot dead. Doctor, PW 7, who held postmortem over the dead body has found fire arm injury on the person of the deceased. The witness has categorically stated that he found fire arm injury oval in shape with inverted margin with charring around the wound. The evidence of the witness suggests that firing was made from close range. Therefore, from the discussion as indicated above it is obvious that the Doctor has found fire arm injuries consistent to the oral evidence of witnesses which were caused from firing made by close range. However, the Doctors who held postmortem over the dead bodies have stated that they found semi digested food on dissection of the dead bodies. PW 8 has categorically stated in his evidence that he used to visit the house of Madan Singh and he found that they used to take meal in the late hours of the night. Nothing has come in the evidence as to when deceased had taken meal on the alleged date of occurrence. In such a situation the finding of semi-digested food in the stomach of the deceased would not suggest that no occurrence took place at about 6.30 a.m. to 6.45 a.m. It has already been stated that on close scrutiny of evidence of eye witnesses it appears to the Court that their evidence is consistent and worthy of reliance. Moreover, in the case of Punjab Singh v. State of Haryana AIR 1984 SC 1233 : 1984 Cri LJ 921, the Apex Court has held that medical evidence cannot override direct evidence when it is found satisfactory and reliable. Therefore, on consideration as discussed above I do not find any substance in the submission of learned counsel for the appellants.
24. The defence of the appellants was that in the night of 26/27-3-1997 there was dacoity in the house of Madan Singh in which Madan Singh, his wife, daughter and son-in-law Shambhu Sharan Dubey were killed. In support of the defence four witnesses were examined. DW 1 is resident of village Dilman Chhapra. He in his evidence stated that dacoity was committed in the house of deceased Madan Singh in which Madan Singh and his family members were killed and the witness admitted in his evidence that many people assembled at the time of dacoity but no one not even the Mukhia, had gone to inform the police. However, subsequently, he stated that Jagarnath Rai, Chaukidar had informed the police. Chaukidar Jagarnath Rai was not examined in support of defence. D.W. 2 is resident of village Jamunia Jasauli. The witness stated that dacoity was committed in the house of Madan Singh, in which his family members were killed. He stated in his evidence that he had constructed Baithka at village Dilman Chhapra and he was at Dilman Chhapra in the night of occurrence but in cross-examination the witness stated that he had no document to show that he purchased the land at Dilman Chhapra or constructed Baithka at Dilman Chhapra. No other defence witness stated that he was on the relevant date at Dilman Chhapra. The witness stated that he was called to depose by appellant Ramanup Singh and Baban Singh. He admitted that no case of dacoity was registered. D.W. 3 is resident of village Dilman Chapra. The witness stated that he heard that dacoity was committed in the house of Madan Singh in which Madan Singh and his family members were killed. The witness stated that his brother was killed for which S.T. No. 88/75 was registered. Suggestion was given to the witness that since appellant Ramanup Singh and DW 1 were witnesses in the murder case of his brother and as such he had come to depose in favour of the appellants which he denied. However, the witness did not say that any case of dacoity was lodged. D.W. 4 is Advocate clerk. He has proved memo No. 3166 dated 30-11-1998. The witness, however, stated that said memo was not written in his presence nor he had knowledge about the contents of the aforesaid memo. On consideration of evidence as discussed above, it is manifest that though they have deposed that dacoity was committed in the house of Madan Singh in which Madan Singh and his family members were killed yet surprisingly, No. one had gone to the police for giving information about dacoity or any case of dacoity was registered. Appellant Ramanup Singh is brother of deceased Madan Singh but there is nothing on the record to show that he either went to the Police Station or sent any information to the police with regard to commission of dacoity. The prosecution witnesses categorically stated that no dacoity was committed, no other person whispered that dacoity was committed in the house of Madan Singh. PW 12, Investigating Officer, has stated that no one in the crowd assembled at the place of occurrence stated or whispered that dacoity was committed in the house of Madan Singh in which he and his family members were killed. Moreover, the witnesses for the first time in the Court have come to depose that dacoity was committed. In such a situation the defence of the appellants does not appear to be probable rather the evidence of witnesses appears not worthy of reliance.
25. Learned counsel for the appellants lastly raised the question with regard to quantum of punishment and pointed out that according to the prosecution case there was land dispute between the parties. In such a situation, it would not be safe to award death sentence. In this regard it would not be out of place to mention that earlier sentence of death or imprisonment for life was normal sentence in the case of murder and certain other offences under the Indian Penal Code. However, Section 354(3) of the Code of Criminal Procedure indicates change in legislative policy. The aforesaid section says that when conviction is for the offence punishable with death or in the alternative with imprisonment for life, the judgment shall state reasons for the sentence awarded, and, in the case of sentence of death special reason, for such sentence be recorded. Thus it is evident that in case of murder and other capital offences under the Indian Penal Code normal punishments imprisonment for life and death sentence is an exception. Death sentence must be confined to the "rarest of rare cases.". Learned counsel for the appellants, however, relied upon a decision in the case of Panchhi v. State of U.P. (1998) 7 SCC 177 : 1998 Cri LJ 4044. In the aforesaid case the Apex Court has held "brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the "rarest of rare cases." In the instant case the incidents which happened on earlier occasions between members of the two rival families are indicative of the intensity of the bitterness which prevailed between them. It was a thirst for retaliation which became the motivating factor. Attacks and counter-attacks between them were frequent events during the preceding days. Six days before the occurrence, two elderly persons of the deceased family attacked a young female member of the accused family. The brutality with which the murders were committed by the assailants which include two ladies makes one think that more skirmishes would have happened prior to the incident which would have escalated the simmering thirst for vengeance to reach a boiling point. Therefore, the case cannot be treated as one of the "rarest of rare cases" where the lesser sentence is not at all adequate."
26. In the instant case no doubt there was dispute between Madan Singh and the appellants with regard to execution of deed of gift by Madan Singh and his wife in favour of their daughter and son-in-law but there is no evidence on the record to show that earlier there was attack and counter attack between them frequently, nor there is evidence on the record to show that a few days prior to the occurrence any incident had taken place in which any member of the deceased family had attacked the family members of the appellants. There is nothing on the record to show that murder was committed out of retaliation. Thus, in my view, the decisions relied upon by the learned counsel for the appellant is not applicable in the facts and circumstances of the case. However, the aforesaid case was considered in the case of Suresh v. State of U.P. AIR 2001 SC 1344 : 2001 Cri LJ 1462 and in similar facts and circumstances of the case the Apex Court confirmed the death sentence.
27. In the instant case it is categorical evidence of eye witnesses that they had assembled at the chowk of village Dilman Chhapra on the relevant date of occurrence for panchaity with respect to the dispute between the appellants and Madan Singh, the deceased. There is nothing on the record . to show that there was any attack and counter attack earlier by the side of the appellant or by the side of the deceased. However, when Shambhu Sharan Dubey came near the chowk he was assaulted by appellant Babban and Lalan and on the order of appellant Ramanup Singh, Babban Singh fired causing death of Shambhu Sharan Dubey at the spot. Thereafter, the appellants proceeded towards the house of deceased Madan Singh. When Sita Devi came out of her house on hearing sound of firing Lalan Singh dragged her in the field and fired causing her death. When Madan Singh came out from the house he was fired at by Babban Singh causing his death. When Sheoji Devi wife of Madan Singh came out Lalan Singh fired causing her death. Obviously Babban Singh killed Shambhu Sharan Dubey and Madan Singh and Lalan Singh killed Sita Devi and Sheoji Devi. There is nothing on the record to show that there was any quarrel between them at that very moment or there was any attack from the side of the prosecution earlier or at the alleged time of occurrence. The manner in which four persons including two ladies were killed indicates that Babban Singh and Lalan Singh acted in desperate manner and took lives of four persons i.e. killed entire family of Madan Singh without any immediate cause and as such I am of the view that the instant case certainly comes within the ambit of "rarest of rare cases" and in such case extreme penalty of death against Babban Singh and Lalan Singh would be wholly justified as they have in fact finished the entire family of Madan Singh. Therefore, conviction and sentence of appellants Babban Singh and Lalan Singh as have been awarded by the trial Court is fully justified and it does not require any interference.
28. However, in my view, the case of appellant Ramanup Singh is quite different from the case of appellants Babban Singh and Lalan Singh. No doubt that this appellant gave order on which four persons were killed by appellants Babban Singh and Lalan Singh. However, this appellant had gun in his hand but there is no evidence on the record to show that he committed murder of any person or he fired on any of the deceased. In that view of the matter, in my view, the conviction of the appellant as has been held by the trial Court is justified but sentence of death awarded by the trial Court is not commensurate with the act done by appellant Ramanup Singh. Accordingly, while maintaining conviction of appellant Ramanup Singh, the sentence of death awarded to him is reduced to imprisonment for life.
29. Thus, on consideration as discussed above, the conviction of appellants Babban Singh and Lalan Singh and sentences of death as awarded to them by the trial Court are confirmed and sentence of death awarded to appellant Ramanup Singh is reduced to imprisonment for life. In the result, the appeal is dismissed with modification as indicated above and Death reference is ordered accordingly as indicated above.
B.N.P. Singh, J.
30. I agree.