Allahabad High Court
Sattan Alias Satyendra And Ors. Etc. vs State Of U.P. on 18 October, 2000
Equivalent citations: 2001CRILJ676
Author: J.C. Gupta
Bench: J.C. Gupta, U.S. Tripathi
JUDGMENT J.C. Gupta, J.
1. Appellants Sattan alias Satyendra, Upendra alias Guddu, Haripal son of Kiran Singh and Haripal son of Ram Charan have been convicted and sentenced to 2 years R.I. each under Section 148 I.P.C. and to ten years R.I. under Section 307 read with Section 149 I.P.C. Both the sentences have been ordered to run concurrently. They have been sentenced to death under Section 302 read with Section 149 I.P.C. Appellants of Criminal Appeal No. 2237 of 1999 Kripal, Brij Pal, Ram Pal and Devendra have been convicted and sentenced to life imprisonment under Section 120B I.P.C.
2. Along with Sattan, Upendra, Haripal son of Kiran Singh and Haripal son of Ram Charan, appellants in criminal appeal No. 2140 of 1999, accused Mukesh Dhirendra alias Dheeraj, Rakesh, Naresh and Pappu alias Amarjeet were also tried and charges under Section 148, 307/149 and 302/149 were framed against them also. Out of them accused Pappu alias Amarjeet and Naresh died during the pendency of trial while accused Mukesh, Rakesh and Dhirendra alias Dheeraj absconded hence their trial was separated. Accused Rajveer of second set, Who was charged along with appellant Kripal and others under Section 120B I.P.C. also died during the pendency of trial.
3. By means of the above mentioned appeals the appellants have challenged the judgment and order dated 15-8-1999 passed by Shri Shiv Charan, the then I Addl. Sessions Judge, Ghaziabad in Session Trial Nos. 375 of 96 and 376 of 96. The learned Sessions Judges, Ghaziabad has also made a reference to this Court for confirmation of death sentence of appellants of criminal Appeal No. 2140 of 1999.
In a gruesome and horrendous incident occurring in the night between August 30 and 31, 1994 at about 12.30 in the house of Sheo Pal Singh in village Saloni within the area of police station Bahadur Garh, Ghaziabad, five persons of Sheo Pal's family were gunned down and four others injured, out of whom Neetu also succumbed to his injuries later on. This massacre was reported at the police station on the same night at 2.55 a.m. by one of the survivors, Smt. Bala P.W. 1, widow of deceased Shiv Singh. With the registration of case police came into action and the Investigating Officer promptly rushed to the place of occurrence and recorded the statements of Smt. Bala, Neetu and Km. Guddi who all had received injuries in the course of ghastly incident. Inquest proceedings were held in respect of dead bodies of five persons, namely, Sheo Pal Singh, Smt. Kunti Devi, Shiv Singh Manjeet and Khushal who were reported to have been shot dead by the assailants while asleep inside their house. Their dead bodies were sent for post mortem examination. The Investigating Officer Shri Ram Babu Tiwari, P.W. 9 also prepared site plan, Ex. Ka 48 after making spot inspection of the place of occurrence. Injured Neetu was sent for medical examination. Under the order of the Investigating Officer S.I. Shri D.K. Sharma collected samples of blood through memo Ex. Ka-26 from near the dead body of Kunti Devi. Similarly samples of blood were collected from near the dead bodies of other deceased persons through memos Ex. Ka-27 to Ex. Ka-30. The bed sheet lying on the cot of deceased Shiv Singh was also taken into possession through memo Ex. Ka.3. the electric bulbs which are alleged to be giving light at the time of incident were also inspected and memo Ex. Ka-32 was prepared. The Kurti of injured Guddi which was stained with blood and had pellet marks was taken into possession through memo Ex. Ka-33. The pieces of blood stained bandh of cot of deceased Manjeet and Khushal were also taken into possession through memo Ex. Ka-34. The Investigating Officer also found empty cartridges, bullet and wads at the scene of occurrence. They were also taken into police custody through Ex. Ka- 35. He also interrogated Madhu and Rikku and other villagers. A raid was made on the houses of accused Mukesh, Sattan and Guddu but they were not found. During investigation complicity of appellants - second set also came to light that they had hatched conspiracy for the commission of the crime in question. Some of the accused persons were arrested while others surrendered in Court and after completion of investigation charge sheet was prepared against all the accused persons who had been either arrested by him or had surrendered in Court and also against Upendra alias Guddu, Pappu, Dheeraj and Devendra who were then still absconding. Later on accused Pappu alias Amarjeet and Rajveer were also arrested. It was also revealed that accused Upendra alias Guddu was in jail after having been arrested in a case under Gangster Act. Similarly accused Dheeraj was in jail in connection with case crime No. 628 of 1993 under Section 307 I.P.C.
4. Smt. Bala P.W. 1 who is alleged to have herself received injuries during the course of incident got the first information report Ex. Ka-1 scribed by Km. Guddi, her niece. Km. Guddi is also alleged to have sustained injuries during the course of the same incident but she was murdered before she could be examined in the trial Court as a witness.
5. The case as set out in the first information report in short was that some incident had occurred in the year 1986 between family members of complainant and accused Mukesh and Guddi, sons of Rajveer and the matter was reported at the police station from complainant's side. A case was proceeding in Court at Hapur sometime before the present incident and the police had raided the house of accused Mukesh. Mukesh and Guddu, came to the house of Sheo Pal Singh and gave threatening to them saying that they had not done good by getting his house raided. The accused persons were thus bearing enmity with Sheo Pal and others.
6. It was further alleged in the report lodged by Smt. Bala that in the night between 30/31 August, 1994 at about 12.30 a.m. Mukesh and Guddu of her own village carrying country made pistols with them and accused Sattan of village Lohari also having a country made pistol along with 4-5 unknown persons who were also having weapons like pistols, Balkati, lathi etc. entered into her house. At that time electric bulbs were emitting light inside and outside the house. The family members of her Jeth, Sheo Pal Singh were sleeping on cots outside the house. She herself (Smt. Bala) was resting inside the house, while her husband Shiv Singh was sleeping on the roof. The accused persons after making entry into the house immediately started extending abuses by name to her Jeth Sheo Pal Singh saying that he was acting as an informer to police hence he and his family would be eliminated completely. Hearing it Sheo Pal got up and started running but he was chased by accused Mukesh and Sattan and was shot dead in the Gher of Devendra. Mukesh and Sattan then said that entire family be finished and thereafter accused person killed Kunti Devi, wife of Sheo Pal, Khushal son of Sheo Pal and Manjeet son of Shiv Singh. They also injured Neetu son of Sheo Pal, Guddi, daughter of Sheo Pal Singh and baby Kapil about 3 years old son of Shiv Singh. Mukesh and Sattan with his associates climbed over the roof and murdered her husband Shiv Singh on the cot on which he was sleeping. On hearing the sound of firing, villagers were awakened and when they tried to came near the first informant's house accused persons made indiscriminate firing and said that if any one dared to come nearer he would be shot dead and further that if anyone of them would give evidence he would meet the same fate as that of deceased persons. On the threats given by accused persons villagers retreated to their houses and closed their doors. The firing incident caused a panic in the village and the miscreants left the scene of occurrence brandishing their weapons.
7. Before adverting further it may be relevant to place the following pedigree in order to show that all the deceased and injured persons were members of same family :
HUKUM SINGH |
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Sheo Pal (45) Shiv Singh (35)
(Deceased) (Deceased)
Wife Kunti Devi (35) Wife Smt. Bala (P.W. 1)
(Deceased) (Injured)
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| Manjeet (7) Kapil (3)
| (Deceased) (Injured)
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Khushal (18) Guddi (17) Neetu (14)
(Deceased) (Injured) (Injured and died later on)
From the above pedigree it would be evident that all the nine members of family of Hukum Singh were present and sleeping in their house when this ghastly incident occurred. Four were of Shiv Singh's family and rest belonged to Sheo Pal's family. All of them sustained injuries. Smt. Bala, baby Kapil and Km. Guddi survived but before statement of Guddi could be recorded at the trial she was also murdered. Baby Kapil was a child of about 3 years old. Thus the prosecution was left with no alternative except to examine at the trial Smt. Bala, the sole surviving members of the above two families.
8. At the trial from the prosecution side in all nine witnesses were produced. P.W. 1 Smt. Bala widow of deceased Shiv Singh corroborated the facts stated by her in the F.I.R. and further added that the assailants were ten in number, out of whom she identified Mukesh, Guddu, Rakesh, Naresh, Pappu, Sattan, Haripal son of Kiran Singh, Haripal son of Ram Charan, Dhirendra alias Dheeraj. She further stated that Rakesh and Dhirendra were having Balkati and rest country made pistols. She also testified that Sheo Pal, his wife Kunti Devi, his son Khushal, her husband Shiv Singh and her son Manjeet were murdered on the spot by the assailants with their respective weapons, Neetu son of Sheo Pal, Km. Guddi, baby Kapil and she herself also suffered injuries at the hands of the accused persons. She further stated that had the matter between accused and deceased persons been not got compromised by accused Kripal, Rajveer, Devendra, Brijpal and Rampal, the incident in question would not have occurred. In this way it was suggested that the aforesaid accused persons hatched a conspiracy with the actual assailants to get the entire family of Sheo Pal and Shiv Singh wiped out. She is the only eye witness examined at the trial.
9. P.W. 2 is Dr. Harish Chandra Saxena. He had examined the injuries of Baby Kapil, Km. Guddi and Smt. Bala on 31-8-1994 between 8.00 a.m. to 9 a.m.
10. On the person of Baby Kapil following injuries were found.
11. Tatooing on right side face, front and lateral aspect right upper arm, 1/3rd middle, and 1/3rd right forearm, upper 1/3rd chest. In the opinion of the doctor injury was simple and caused by firearm. Its duration was fresh. Injury report of Baby Kapil is Ex. Ka-2.
12. Km. Guddi, who was medically examined by Doctor Saxena on the same morning at 8 a.m. had following injuries :
1. Lacerated wound 3.3 cm. x 1 cm. x skin deep, on front of right shoulder, margins blackish.
2. Tattooing on left side face, left side neck upper 1/3rd chest and right forearm.
3. Complain of pain on left hand.
13. Nature of injuries were simple and they were caused by firearm, their duration was fresh.
14. Injury report of Km. Guddi is Ex. Ka. 3. Smt. Bala was also examined by Dr. Saxena on the same day at 9 a.m. and following injuries were found.
1. Complain of pain over abdomen. No injury seen.
2. Contusion 7 x 1.5 cm, upper 1/3rd lateral aspect of left upper arm.
3. Contusion 9x2 cm. front of mid 1/3rd left forearm.
15. Injuries were simple, caused by hard and blunt object and their duration was fresh. Injury report of Smt. Bala is Ex. Ka. 4.
16. P.W. 3 Dr. S.P. Garde proved the post mortem report of Neetu as Ex. Ka. 5. Post mortem examination was done on 31-8-1994 at 2 p.m. Deceased Neetu son of Shiv Pal was aged about 14 years and following ante mortem injuries were found:
1. Incised wound 7 x 2 cms x bone deep, bone cut, on left side of skull, 5 cms above left ear, obliquely placed, left parietal bone was fractured;
2. Gun shot wound of entry 5 x 4 cm x bone deep, on left eye, left eye ball missing. Blackening and tatooing present;
3. Gun shot wound of exit 2.5 x 2.5 cm. x bone deep, on left temporal region, 2 cm. above Jeff ear, left temporal bone fractured;
4. Gun shot wound of entry 1 x 1 cm. x chest cavity deep on left lateral side of chest, 18 cm. below left axilla. Blackening around the wound present.
5. Gun shot wound of exit 3 x 2 cm. on left side of back, 19 cm. below right axilla.
6. Gun shot wound of entry 1.5 x 1.5 cms. x muscle deep, on left side of middle of upper arm, outer aspect. Blackening and tattooing present. One metallic piece recovered from, the muscle.
7. Gun shot wound of entry 2.5 x 2.5 cm. x cavity deep on back lower part of right scapula. Blackening and tattooing present in an area of 4 cms. around wound. One metallic piece recovered from the right lung, which was lacerated.
8. Gun shot wound of entry 2.5 x 2 cm. x chest cavity deep, on back of right side and 3 cm. away from injury No. 7. Blackening and tattooing present in an area of 4 cm. around the wound. One metallic piece recovered from the right lung, which was lacerated.
9. Gun shot wound of entry 1.5 x 1.5 cm. x chest cavity deep on left side of back in the middle, 3 cm. away from mid line. Blackening and tattooing present around the wound.
10. Gun shot wound of exit 2.5 x 2.5 cm. on left lateral side of chest, 10 cms. below left axilla.
17. Left temporal, left parietal and left frontal bones were fractured. Both right and left lungs were lacerated. Peritoneum, stomach and liver had also lacerated.
18. Cause of death was due to shock and haemorrhage as a result of ante-mortem injuries.
19. It wound thus be seen that in addition to one incised injury, Neetu sustained as many as six gunshot entry wounds and all the wounds were surrounded with blackening and tattooing which indicates that the shots were fired from a close range.
20. P.W. 4 Dr. P.P.L. Sharma had performed autopsy on the dead bodies of Sheo Pal, Manjeet, Khushal, Smt. Kunti and Shiv Singh on 31-8-1994 at 6.45 p.m., 8 p.m., 8.30 p.m., 7.30 p.m. and 9 p.m. respectively.
21. Post mortem report of Sheo Pal is Ex. Ka. 6. Deceased Sheo Pal was aged about 45 years and following ante-mortem injuries were found :
1. Firearm wound of entrance 9 cm. x 6 cm. x bone deep on right side of face on forehead (right side), right eye, right cheek up to 2 cm. away from right angle of mouth, margin inverted and lacerated, underlying frontal, socket of eye, maxilla fractured into pieces, right eye ball, muscles of eyes partially were missing. Tissues and muscles were stained with blackening.
2. Fire arm wound of entrance 1.5 cm. x 1.5 cm. x chest cavity deep on right side chest 6 cm. from right nipple at 11 o'clock position, margins inverted and lacerated, underlying 3rd rib fractured on anterior side. Blackening present around the wound in an area of 10 cm. x 10 cm.
3. Fire arm wound of exit size 3 cm. x 2.5 cm. through and through of injury No. 2 on right side middle of back, 6 cm. below inferior angle of scapula, margins everted and lacerated.
4. Firearm wound of entrance 1.5 cm. x 1.5 cm. x chest cavity deep on left scapular region middle 4 cm. away from mid line, margins inverted and lacerated with abraded collar. Blackening present around the wound in an area of 11 cm. x 10 cm.
5. Firearm wound of exit 2.5 cm. x 2.5 cm. through and through of injury No. 4 left side of chest, 4 cm. medial to nipple at 9 o'clock position, margins everted and lacerated, 4th rib fractured underneath.
22. In the internal examination frontal bone of skull was found fractured so also anterior fossa. In the opinion of the doctor, death was due to shock and haemorrhage as a result of ante-mortem injuries From the post mortem report it is thus evident that deceased Sheo Pal had sustained three firearm wounds of entry and all of the them had blackening around the wound.
23. Postmortem report of Manjeet is Ex. Ka. 7. Deceased Manjeet was aged about 7 years and the Doctor found following antemortem injuries during the postmortem examination :
1. Incised wound 15 cm x 2 cm. x bone deep on right side face and head from right of nose to temporal region, underlying temporal, maxilla, nasal bone cut and fractured.
2. Incised wound 17 cm. x 2.5 cm. x brain cavity deep on left side face and head, 4 cm. anterior to top of left ear to middle of head, underlying frontal, temporal and parietal bones were found cut and fractured.
3. Firearm wound of entrance 1.5 x 1.5 cm. x chest cavity deep on left scapular region outer aspect, margins inverted with abraded. Collar Blackening and tattooing present around the wound.
4. Firearm wound of exit 3 cm. x 3 cm. x through and through of injury No. 3 outer aspect of left side chest, 2 cm. below maxilla, margins everted and lacerated.
5. Incised wound 6 cm. x 2 cm. x bone deep on left side of upper part of chest and clavicular region, 5 cm. above nipple, underlying left clavicle sternum cut and fractured, muscle also cut underneath.
24. In the opinion of Doctor death was due to shock and haemorrhage as a result of ante-mortem injuries.
25. It is thus clear from the post mortem report that deceased Manjeet had sustained three incised and one fire arm injuries.
26. Post mortem report of Khushal son of Sheo Pal is Ex. Ka. 8. Deceased was aged about 18 years. Ante-mortem injuries which were found on his dead body are noted below :
1. Contused traumatic swelling 7 cm. x 5 cm. on left for head including left eye.
2. Incised wound 5 cm. x 2 cm. x bone deep on right side of head, 10 cm. above right eyebrow, oblique, frontal and parietal bone cut and fractured.
3. Incised wound 9 cm. x 2.5 cm. x bone deep on right tempora perietal region, 5 cm. above right ear, oblique, right temporal and parietal bones were cut and fractured.
4. Incised wound 7 cm x 2 1/2 cm. x brain deep on right side back of head, 5 cm. behind injury No. 3, brain was coming out of the wound. Occipital bone was cut and fractured.
5. Abrasion 3 cm. x 2 cm. on medical aspect of right elbow.
27. Doctor opined that death of Khushal was due to shock and haemorrhage as a result of ante mortem injuries.
28. Post mortem on the dead body of Smt. Kunti Devi wife of Sheo Pal was performed at 7.30 P.M. on 31-8-1994 and her post mortem report is Ex. Ka. 9. She was aged about 35 years and following antemortem injuries were found:
1. Gutter shaped fire arm wound 17 cm. x 4 cm. x bone deep on right side face from middle of chin to 2 cm. behind right ear lobule, margins of anterior half are inverted with abraded collar with blackening and tattooing while margins of posterior half of wound are inverted and lacerated, underlying lower jaw fractured into pieces.
2. Incised wound (two in number) 7 cm. x 2 cm. x bone deep horizontally placed on upper part of both side of middle of neck 8 cm. below chin. Underlying muscles, trachea, oesophagus; great vessels of neck cut through and through with cut fracture of cervical with another incised wound 5 cm. x 1 cm. trachea, 2 cm. below it.
3. Firearm wound of entry 2 cm. x 1 cm. x chest cavity deep on middle of chest 3 cm. below supersternal notch, margins inverted with abraded collar, underneath sternum fractured.
4. Firearm wound of exit 2.5 cm. x 2.5 cm. through and through of injury No. 3 on post axillary line 4 cm. below axilla left side. Margins everted and lacerated.
5. Multiple contusions in an area of 30 cm. x 25 cm. on both sides of buttocks.
6. Contusion 6 cm. x 5 cm. on middle of back of chest.
7. Contused swelling 15 cm. x 10 cm. on outer aspect of upper thigh.
29. In the opinion of the doctor, death was due to shock and haemorrhage as a result of ante-mortem injuries.
30. Post mortem report indicates that deceased Kunti Devi had sustained two firearm, one incised and rest blunt object injuries.
31. Post mortem report of Sheo Pal, son of Hukum Singh is Ex. Ka. 10. Deceased was aged about 35 years and Doctor found following ante-mortem injuries :
1. Incised wound 13 cm. x 1 1/2 cm. x bone deep on left side of head parietal region, 3 cm. above left ear oblique with another incised wound of the size of 7 cm. x 1.5 cm. x bone surrounding, underlying parietal bone was cut and fractured.
2. Firearm wound of entry 1 1/2 cm. x 1 1/2 cm. x bone deep on right upper neck 4 cm. below right ear margins inverted with abraded collar.
3. Firearm wound of exit 2 1/2 cm. x 2 1/2 cm. x through and through injury No. 2 on left temporo-parietal region, 2 cm. anterior to injury No. 1 margins inverted and lacerated with a hole on temporal bone oval shaped. Brain matter coming out.
4. Contusion 2 cm. x 2 cm. on left eyebrow. Doctor opined that cause of death was due to shock and haemorrhage as result of ante-mortem injuries. The post mortem report indicates that the deceased suffered one fire-arm, one incised and one blunt object injury.
32. P.W. 5 is sub inspector B.S. Chahar who proved inquest reports of deceased Kunti Devi and Manjeet.
33. P.W. 6 S.I. - R.K. Choudhary was posted at police station Babu Garh. He stated that on 31-8-1994 he along with Station Officer Ved Pal Singh Solanki, S.I. S.P. Gautam and Constable Nain Kumar, Sanjeev Kumar, Ram Singh and others went to arrest the accused persons who were reported to be present in the Gher of Pappu accused and found that accused Dhirendra, Rakesh, Naresh, Mukesh, Amarjeet alias Pappu Guddu Sattan and Har Pal were sitting on cots. The other Har Pal was also sitting on a different cot. When they tried to arrest the accused persons they opened fire whereupon police party had to take shelter. Accused persons succeeded in running away leaving their weapons. The police party recovered one 315 bore country made pistol and a knife from cot No. 1, a 12 bore country made pistol, one 315 bore pistol and one bandolier having few cartridges of 12 bore from cot No. 2, two pistols of 315 bore from cot No. 3 and two pistols of 315 bore from cot No. 4. When the police party entered into the room they found Seema wife of accused Amarjeet and his sister present there. One country made pistol of 315 bore and one 12 bore pistol were recovered from the possession of the aforesaid women. Nine pants and 10 shirts were taken into possession from the said room which were stained with blood. Three pairs of shoes of accused persons were also found near the cot. The examination of recovered firearms revealed that they had been used recently. Recovery memos were prepared and the recovered articles were put under seal on the spot.
34. P.W. 7 S.I. Dinesh Kumar Sharma was also posted at P.S. Bhadur Garh. He had conducted inquest proceedings on the dead bodies of Shiv Singh and Sheo Pal. He further stated to have collected empty cartridges tikli, blood stained and plain earth as well as the bandh of cots of deceased persons and blood stained piece of dutai. The electric bulbs were also taken into possession. He proved the various recovery memos prepared on the spot.
35. P.W. 8 is H.C. Rohtash, he was posted as Head Moharrir and he stated that on the basis of written F.I.R. Ex. Ka. 1 of Smt. Bala Devi, he prepared check F.I.R. Ex. Ka 6 and registered the case in the General Diary at serial No. 4 at 2.55 a.m. This copy had been proved as Ex. Ka. 41. He further stated that report was sent on the same morning with a constable Maya Pandey, reference to which was made at serial No. 8 in the General Diary.
36. P.W. 9 is Sub Inspector Ram Babu Tiwari who was posted as Station Officer of P.S. Bhadur Garh. He took up the investigation and reached the place of occurrence immediately after the case was registered. After he reached the place of first recorded the statement of injured Neetu and thereafter interrogated Smt. Bala and Km. Guddi. In the presence of Smt. Bala he made inspection of the place of occurrence and prepared site plan Ex. Ka. 48. Injured Neetu was sent to Garh Hospital and inquest proceedings were got conducted through S.I. H.C. Chahar and S.I. D.N. Sharma under his order and direction. S.I. - D.K. Sharma also collected blood etc. from the scene occurrence. Kurti which Guddi was wearing was also taken into possession through memo Ex. Ka. 33 as the same was stained with blood and had holes of pellets. Other villagers were also interrogated. A raid was made at the houses of accused Mukesh, Sattan, and Guddu but they were not found present. On 1-9-1994 he received post mortem reports of Sheo Pal, Shiv Singh, Smt. Kunti, Neetu, Manjeet and Khushal. On the same day he also received injury reports of Kapil, Guddi and Smt. Bala Devi. Houses of accused persons were again searched on 1-9-1994 but still they were not found present. He thereafter obtained warrants of attachment against accused Mukesh, Guddu and Sattan and their properties were attached. Accused persons were still not found on 2-9-1994 when their houses were raided. From police station Babu Garh he received copy of F.I.R. of a case registered against accused persons. It came to his knowledge that accused Harendra had been killed in an encounter which fact has been verified on examination of record of Police Station Vijay Nagar. On 4-9-1994 he arrested accused Ram Pal, Kripal and Brij Pal interrogated them. Accused Hari Pal son of Ram Charan was arrested on 5-9-1994 by police of Police Station Gulawati. He went to police station Gulawati and interrogated accused Hari Pal son of Ram Charan. Devendra was arrested on 8-9-1994, on the same day he came to know that accused Rakesh has been arrested in a case under Section 25 Arms Act by police of police station Krishna Nagar. On 14-9-1994 Investigating Officer came to know that accused Mukesh has been sent to jail in another case and accused Naresh also had surrendered before Special Judge, (Gangsters Act) where a case under the said Act was pending against him. Other accused persons were either arrested or surrendered in Court. After completion of investigation charge sheets were submitted against the accused persons.
37. Accused persons denied the prosecution allegations. Accused Upendra alias Guddu stated that in the case of assault Sheo Pal, Shiv Singh and their brother Krishan Pal had filed compromise in the Court as the said case was got registered under suspicion on the mere saying of villagers. Accused Sattan stated that he has been falsely implicated due to partyfaction. Accused Briji Raj stated that since he is son-in-law of Rajveer he has been falsely implicated. Accused Ram Pal stated that he was living in Uttar Kashi with his son for the last number of years and he has been falsely implicated as he is son-in-law of Rajveer. Accused Haripal son of Ram Charan and other Haripal son of Kiran stated that they have been falsely implicated under suspicion. Accused Devendra stated that he is uncle of accused Mukesh against whom complainant and her family members bore enmity hence he has been falsely implicated in connivance with police. Accused persons, however, did not examine any witness in defence.
38. The learned Sessions Judge on appraisal of evidence has found that the incident had occurred in the night between 30/31-8-1994 in the house of Shiv Singh and Sheo Pal as alleged by the prosecution in which five persons namely, Sheo Pal, Shiv Singh, Smt. Kunti Devi, Manjeet, and Khushal were shot dead on the spot while Neetu died later on; that in the same incident Smt. Bala Devi P.W. 1 Baby Kapil and deceased Guddi also sustained injuries; that presence of Smt. Bala P.W. 1 at the time of occurrence is fully established beyond reasonable doubt; that evidence of Smt. Bala P.W. 1 is wholly reliable and trustworthy; that the first information report was registered with promptness and that the incident had occurred in the manner as alleged by the prosecution. With these findings the learned Sessions Judge has convicted and sentenced appellants Sattan, Upendra alias Guddu, Haripal son of Ram Charan and Haripal son of Kiran Singh to death. The learned Sessions Judge has also found appellants Kripal, Brij Pal, Ram Pal, Devendra guilty of the offence of criminal conspiracy and sentenced each of the them to imprisonment for life.
39. Shri G.S. Chaturvedi, Sr. Advocate, appearing for the appellants and the learned A.G.A. for the State have been heard at length.
40. We first take up the case of appellants Kripal, Brijpal, Rampal and Devendra of criminal appeal No. 2237 of 1999. These appellants have been convicted under Section 120B of India Penal Code for having hatched a criminal conspiracy for the commission of crime in question. Learned counsel for the appellants submitted before us that there was absolutely no evidence on record to support the finding of guilt recorded by the learned Sessions Judge so far as these appellants are concerned. On examination of record we find that this submission of the learned counsel carries weight. There is not an iota of substantive evidence or other material whatsoever to connect these appellants with the offence of criminal conspiracy. To be honest the finding of the learned Sessions Judge is based on surmises and conjectures. The charge framed by the learned Sessions Judge against these appellants was that prior to incident dated 31-8-1994 at about 12.30 a.m. in the vicinity of village Saloni P.S. Bahadur Garh District Ghaziabad, they made a criminal conspiracy with the accused persons, namely, Mukesh, Upendra alias Guddu, Sattan alias Satyendra, Dhirendra alias Dheeraj, Rakesh, Naresh, Papuu alias Amarjeet, Haripal son of Kiran Singh, Harendra, now dead, and Haripal son of Ram Charan for doing an illegal act i.e. to commit the murders of Sheo Pal, Shiv Singh, Kunti Devi, Manjeet, Khushal, Neetu and for causing injuries to Kapil, Smt. Bala and Km. Guddi and were in agreement with them to commit the murder of the above persons and cause injuries to others. It would thus be found that the details of alleged agreement were missing in the charge as to when and where the said offence of criminal conspiracy was committed or agreement was entered into. The only witness produced at the trial to prove this charge against these appellants was Smt. Bala P.W. 1. In her main statement she merely made a bald statement that these appellants had conspired in the commission of murders in question. In crossexamination initially she admitted that she did not know when, where and in what manner the conspiracy was hatched by these appellants but in next breath she stated that it was hatched at the house of Devendra, and this fact was told to her by Siv Singh and Sheo Pal but did not remember as to when they told this fact to her. She then stated that she had come to know of this conspiracy only about 5-6 days prior to the occurrence but the matter was not reported to the police. She further stated that talks of compromise were going on for about one and half months before the incident. The matter was settled and compromise was filed in court but the same was not accepted by the Court. All that she could state was that before the present occurrence she had seen Devendra, Ramjee, Rampal, Kripal and Brijpal holding a meeting in Devendra's house. This meeting was held 5-6 days before the present incident. She claimed that she had told this fact to the investigating officer but no such fact is found in her statement recorded by the Investigating Officer as admitted by the Investigating Officer himself. The fact of holding meeting in Devendra's house was also not disclosed by her in the F.I.R. Nothing more has come in her statement as to for what purpose the alleged meeting was held or what was actually transacted therein. Even assuming for the sake of argument that the aforesaid appellants had assembled at the house of Devendra 5-6 days before incident in question, from that fact alone it cannot be inferred by any standard that aforesaid accused persons had met there to hatch a criminal conspiracy for getting murders committed by other appellants. The Investigating Officer also did not take pains to collect any material or evidence in support of the suspicion of the first informant that the murders have been committed in collusion with these appellants. It is well settled that essence of the offence of conspiracy is the agreement of two or more persons to do an illegal act or an act which is legal by illegal means. The agreement may be express or implied but the same is the rock bottom of the offence of criminal conspiracy. It is equally true that direct evidence to prove conspiracy is seldom available and it is usually proved by circumstances but before guilt of the accused is to be inferred it is necessary for the prosecution to prove and establish such circumstances which would only unmistakenly lead to the conclusion of criminal conspiracy and if they are compatible with the innocence of accused the prosecution will fail. Though, in most cases proof of conspiracy is largely inferential but the inference must be founded on solid facts. In order to succeed, prosecution must bring on record the complete chain and circumstances so as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.
41. In the present case we find that excepting a suspicion which first informant was having in her mind there is neither any direct nor circumstantial evidence whatsoever to hold appellant Kripal, Brijpal, Rampal and Devendra guilty for the offence of criminal conspiracy and therefore, their conviction under Section 120B I.P.C. is not sustainable.
42. The case of appellants of criminal appeal no. 2140 of 1999 is now taken up for discussion.
43. Factum of incident at the time and place as alleged by the prosecution has neither been challenged nor disputed before us by the learned counsel for the appellants. Homicidal death of Sheo Pal, Shiv Singh, Smt. Kunti, Khushal Manjeet and Neetu has also not been disputed nor challenged. Similarly it was also not disputed that Km. Guddi and baby Kapil had also sustained firearm injuries in the same incident in which the aforesaid deceased persons met with their homicidal deaths. Even otherwise also from the various post mortem reports of the deceased persons and the statement of P.W. 2 Dr. Harish Chandra, P.W. 3 Dr. S.P. Garde, P.W. 4 and Dr. P.P.L. Sharma, P.W. 1 Smt. Bala and the Investigating Officer, it is firmly established beyond doubt that an incident had occurred in the midnight of 30/31-8-1994 in the house of Sheo Pal in village Saloni within the area of police station Bahadur Garh wherein five persons, namely, Sheo Pal Singh, his wife Smt. Kunti Devi, his son Khushal, his brother Shiv Singh and his nephew Manjeet son of Shiv Singh were done to death on the spot while Neetu another son of Sheo Pal aged about 14 years sustained serious injuries, who also later on died on account of those injuries. Km. Guddi daughter of Sheo Pal Singh, Smt. Bala P.W. 1 and baby Kapil infant child of Shiv Singh also suffered fire arm injuries as is evident from the injury reports and the statement of the medical officer who had medically examined them.
44. To unfold the truth the prosecution had with them two injured persons, namely, Km. Guddi and Smt. Bala wife of Shiv Singh. Unfortunately Km. Guddi who was aged about 17 years was also killed before her statement could be recorded before the trial Court. The prosecution was thus left with only one inmate of the house as eye witness, namely, Smt. Bala wife of Shiv Singh and she was examined before the trial court as P.W. 1. The entire prosecution case centres around her testimony. According to prosecution story she was present in the house at the time of alleged incident and she her-self sustained injuries at the hands of the assailants during the course of incident. Thus, according to the prosecution case, her presence at the scene of occurrence is doubtless. However Shri G.S. Chaturvedi learned counsel for the appellants has seriously challenged the presence of Smt. Bala P.W. 1 on many scores. It was submitted that it was highly doubtful if she herself suffered any injury at the hands of assailants during the course of ghastly incident because the manner in which she is alleged to have received injuries is most unrealistic and absurd. Further submission of the learned counsel was that it was inconceivable that the miscreants who had shot dead five persons including young children would have spared Smt. Bala with friendly and superficial injuries so that she could depose against them. It was also submitted that the first information report is highly suspicious and it is doubtful that it had come into existence at the time it purports to have been made and, therefore, no weight should be attached to it. Learned counsel urged that the circumstances appearing in the case indicate that most likely unknown persons had intruded and ransacked the house of deceased and committed the crime in darkness and when the news of this horrendous incident flashed Smt. Bala, who was away at her parent's house, was called and she arrived at the scene of occurrence in the morning along with her father and only thereafter the F.I.R. was prepared with consultation and manipulation with the help of police. It was further submitted by the learned counsel for the appellants that at any rate conviction of Haripal son of Kiran Singh and Haripal son of Ram Charan is not sustainable as their names were altogether absent in the F.I.R. which was a lengthy document and the explanation given by the first informant Smt. Bala for this omission is most unreasonable and should not be accepted. As against this the learned A.G.A. submitted that the presence of Smt. Bala P.W. 1 in her own house at the odd hours of night was most natural and probable and since she herself had sustained injuries in the course of incident, her presence cannot be doubted. It was also submitted that why Smt. Bala was not shot dead and left alive, this question can be answered only by the assailants and it was not possible for the prosecution or the investigating agency to read the mind of the assailants at the time of commission of crime and, therefore, for the simple reason that Smt. Bala was left with minor injuries would not lead to a conclusive inference that she was not present in her house at the time of incident. Learned A.G.A. advanced further submission that the very fact that the incident was reported in writing at the police station with utmost promptness within two and half hours of the incident goes a long way to support the claim of Smt. Bala of her being present at the time of occurrence., because had she been not present there it was not humanly possible for her to have lodged first information report within such a short period giving a vivid account of the incident.
45. It is true that in this case only one witness of fact could be examined by the prosecution on account of the fact that out of the two other survivors, one Km. Guddi was murdered before her deposition could be recorded in the trial Court and the other was a child of about 3 years of age. There is no rule of law that conviction cannot be based on the testimony of a single witness and the law in this regard is well settled in the case of Chuhar Singh v. State of Haryana 1975 All Cri C 282 : (AIR 1977 SC 386), the Apex Court observed :
The fact that the prosecution has been able to examine but one eye-witness to the occurrence cannot detract from the strength of its case. What is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of the evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt.
46. Similarly in another decision in Jagdish Prasad v. State of M.P. 1995 SCC (Cri) 160 : (AIR 1994 SC 1251), the Apex Court held that as a general rule Court can convict an accused on the testimony of a single witness though uncorroborated provided the testimony is found reliable.
47. From the aforesaid decisions it follows that there is no legal impediment to base conviction on the testimony of single witness provided the same is found trustworthy and reliable and in order to test the worth and reliability of evidence of such a witness, prudence requires a cautious and careful scrutiny. It is the quality and not quantity of evidence which is material for judging the question of guilt or otherwise of an accused.
48. Bearing in mind the above principle of appreciation of evidence, we now proceed to analyse the evidence of P.W. 1 Smt. Bala in a careful manner as success or failure of the prosecution case wholly depends upon her evidence. Admittedly she is wife of Shiv Singh, deceased and mother of Manjeet deceased, who was a child of about 7 years of age. She was also related to deceased Sheo Pal and his family members because undisputedly Sheo Pal was elder brother of deceased Shiv Singh. At the trial Smt. Bala stated that a criminal case was pending against Mukesh and others. In that case Mukesh, Rajveer and Guddu had to remain in jail. Mukesh, his father Rajveer, Kripal, Brijpal and Rajpal made an offer to settle the matter about one and half months before the incident in question. The matter was settled and compromise was filed but the same was not accepted by the Court. The police raided the house of accused persons whereupon accused Mukesh and Guddu made their escape good after making firing on police party. Mukesh and Guddu suspected Sheo Pal's hand in the said police action. It was argued by the appellant's counsel that the motive as stated by this witness was most inadequate and insufficient and according to him this could hardly be the reason for the killing of as many as six persons. It is now well nigh settled that absence or inadequacy of motive relating to the cause of attack cannot adversely affect the prosecution case and the prosecution will not fail on that score, for the simple reason that motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution in every case to explain what actually prompted or excited the accused to take a particular course of action. The alleged motive may be meagre and ostensible in some case there may not be any motive but for that reason alone the prosecution case cannot be thrown out as false or rendered as improbable or suspicious, if the evidence adduced in support the charge made against the accused is sufficiently clear. The following passage of the decision in State of Himachal Pradesh v. Jeet Singh (1999) 2 JT (SC) 99 : (AIR 1999 SC 1293) may be quoted :
No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an offender towards the person whom he offended." The following observations of the Apex Court in S.C. Bahri v. State of Bihar AIR 1994 SC 2420 in para 21, are also worth mentioning :
At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore, motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view to achieve that intention. In a case where there is clear proof of motive for the commission of the crime it affords added support to the finding of the Court that the accused was guilty of the offence charged with. But it has to be remembered that the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to a certain course of action leading to the commission of the crime.
49. We cannot forget that it is generally a difficult area for prosecution or investigating agency to bring on record as to what was in the mind of the accused and why he chose to act in a particular manner, because it is not easy to read the human nature being what it is. A man's passion may arouse at any time on some very trifling issue. The motive of man is often so deep seated as to be almost unfathomable. Only he is in know of the feelings which he may be having against a particular person. On the other hand there are persons who are so indolent and tolerant that they do not react even on much more serious incidents. Man's behaviour and reaction differ from person to person and by no scale is measurable.
50. Therefore, the evidence of Smt. Bala P.W. 1 will not be weakened or considered untrustworthy only for the reason that the motive alleged by the prosecution is not so strong as to impel the accused persons to eliminate almost the entire family of Sheopal. If her evidence is found reliable or trustworthy the insufficiency or inadequacy of motive will pale into insignificance and recede behind curtain.
51. P.W. 1 Smt. Bala wife of deceased Shiv Singh has given a vivid eye-witness account of the incident. She stated before the trial Court that in the night of the incident her husband Shiv Singh was sleeping on the roof while her 'Jeth' (elder brother of her husband) Sheo Pal along with his wife Smt. Kunti and children Guddi, Neetu, Manjeet and Kapil were sleeping in courtyard adjoining the verandah in east. She herself was sleeping along with her infant child in the inner verandah situated to the west of the room. At about mid night about ten miscreants entered into her house. They were Mukesh, Guddu, Rakesh, Naresh, Pappu, Sattan, both Haripal, Hirendra and Dhirendra. They all were having country made pistols excepting Rakesh and Harendra, who were having Balkati with them, accused persons stated abusing Sheo Pal saying that as he was passing on information to police they would kill him. Sheo Pal got up and ran towards the Gher of Devendra. He was chased by Sattan and Mukesh and was killed there. They came back and started firing, others also fired which resulted into the death of Smt. Kunti, Manjeet and Khushal. Her husband Shiv Singh who was sleeping on the roof was also not spared and was murdered there. She herself was also given a beating by the assailants. Similarly, Km. Guddi, Neetu and baby Kapil also sustained injuries, of whom Neetu also succumbed to his injuries before he could be given any medical aid. It has also been stated by her that when accused persons left the scene of occurrence she got first information report Ex. Ka. 1 scribed by her niece Km. Guddi who herself had sustained injuries. The F.I.R. was then carried to the police station by her and lodged there at 2.55 a.m. Her statement was also recorded by the Investigating Officer on the same night. In cross-examination she stated that there were four rooms in the ground floor in her house. Sheo Pal, his wife Kunti and others were sleeping near the main gate. When accused persons had broken the house and started firing she woke up and saw the incident in electric light. It has also been stated by her that she was also assaulted by Kicks and fists by accused Naresh and Mukesh. According to her she remained only for a while in front of the miscreants and thereafter she took shelter in the 'Bonga' of fodder. Learned counsel for the parties admitted before the trial Court that 'Bonga' is a place meant to keep fodder and covered by a wooden plank. At the time of incident this 'Bonga' was empty and therefore, she concealed herself inside that 'Bonga' and remained there for about 5-10 minutes and witnessed the entire incident from there. She came out of 'Bonga' only when the assailant had left her house. The 'Bonga' was placed at a distance of 8-10 paces from her verandah. 'Bonga' has been shown by letter 'F' in the site plan. According to the site plan, the distance between this 'Bonga' and the verandah where Smt. Bala was sleeping was about 25 paces. She also stated that police had arrived at the scene of occurrence before dawn. She was unable to specify the number of shots that were fired upon Sheo Pal nor could tell how many miscreants actually fired upon Sheo Pal. She was also unable to state if Sheo Pal died in the first round of firing or in the subsequent firing. She admitted that when she was raising cries miscreants did not fire upon her and she was given only a simple beating and during the course of beating she was being asked to tell where the gun of Sheo Pal was placed. She guessed that perhaps for that reason she was not fired at. She also stated that she had carried with him baby Kapil and Yogesh alias Rinku along with her when she concealed herself in the fodder 'Bonga'. From perusal of her statement it would thus appear that she has supported the prosecution case on material particulars and her statement gets corroboration from the first information report which she had lodged at the police station within a short period. Her presence at the scene of occurrence was most natural and probable.
52. Learned counsel for the appellants strenuously attacked the prosecution claim of Smt. Bala's presence at the time of occurrence. It was submitted that her presence at the scene of occurrence and of her receiving injuries is highly doubtful for the following reasons :
1. that though the first information report is a lengthy document yet the fact that Smt. Bala was herself assaulted or had sustained injuries is not disclosed therein.
2. that the fact that she had run away and had taken shelter under the fodder bonga is also not mentioned in the first: information report,
3. that only two confusions are reported to have been found on her person as per the injury report Ex. Ka-4 which were undisputedly not caused by fire arm and according to her she was assaulted with kicks and fists only. As per her own admission she was sleeping inside the house in verandah and on seeing attack on other family members she started raising cries, therefore, in such a situation it is beyond comprehension that the assailants would have left her with only simple and friendly injuries and they would not use fire arm upon her, particularly when the assailants were so desperate that they did not even leave minor children and infants.
4. that the theory that Smt. Bala concealed herself in fodder Bonga besides being a development at the trial is wholly absurd and unbelievable. It was argued that had it been a fact it could not have escaped from being mentioned in the F.I.R.
53. So far as omission in the F.I.R. regarding Smt. Bala having been assaulted and receiving injuries is concerned, it has been explained by Smt. Bala in her deposition that on account of the ghastly incident she was wholly nervous and perturbed and the report was dictated by her hurriedly. The explanation given by the witness in our view is most lucidious. While judging her explanation we cannot overlook the situation with which she was confronted with in an incident where five persons had been killed on spot including her own husband and one minor son one can easily visualize her mental condition. She must have been greatly shocked and stupefied. She thus could not be expected to act as a computer. It may also not be forgotten that the first information report was scribed by Km. Guddi niece of Smt. Bala who was a girl of 17 years of age and had herself sustained injuries. She must have been also frightened and horrified besides being shocked and grieved having been confronted with a series of murder being perpetuated within her sight. It will be against human conduct to expect in such a situation that she would be having a normal and cool mind. Injuries of Smt. Bala were of minor nature and she was an illiterate lady. There was thus nothing unusual if she did not make a mention in the report of the fact of she herself receiving injuries particularly when the report was dictated hurriedly in a tense and grief stricken atmosphere. She was not a skilled draft person. At the trial Smt. Bala stated that she had told Guddi about her own injuries but she could not say why that fact was not mentioned by Km. Guddi in the report. On account of death of Km. Guddi before her production in the trial Court, she could not be examined as a witness to explain the said omission. As already pointed out above Km. Guddi was a minor girl and in the situation in which she was placed she could not be expected to be having a balance of mind and therefore it could be possible that while writing report she might have missed to mention the fact of assault made on Smt. Bala in the course of incident it is pertinent to point out here that, presence of Smt. Bala in her house was specifically mentioned in the report, therefore, merely on the basis of the above omission, presence of Smt. Bala at the time of occurrence cannot be doubted. At odd hours of night her presence in her own home was most natural and probable.
54. Learned counsel for the appellants tried to make such capital out of that part of the statement of Smt. Bala P.W. 1 wherein she stated that when she was confronted with the assailants in the verandah she was given only one or two kicks on her hands and no assailant fired upon her. If was argued by Shri Gopal Chaturvedi, learned counsel for the appellants that when assailants had come well prepared with a pre-planning to liquidate the entire family including minor and infant children it seems highly unnatural that Smt. Bala would have been spared by the assailants to depose against them. As against this it was argued by learned A.G.A. for the State that why the assailants left Smt. Bala with minor injuries, only the assailants could answer and it would be a different area for the prosecution to bring on record what was in the mind of the assailants at that particular moment in leaving Smt. Bala with minor injuries. It was further argued that it is in her evidence that she only once faced assailants and on receiving minor injuries she succeeded in removing herself from the scene by concealing herself in fodder bonga. The argument of the learned counsel for the appellants at the first blush may appear to be forceful but when the statement of Smt. Bala is examined in the light of circumstances appearing in the case this submission will carry no weight. It has come in the evidence that Smt. Bala was having 8-10 months child who was also sleeping with her by her side. She was also having another infant child baby Kapil aged about 3 years old. It was suggested to her from the defence side that she was not present at the time of occurrence as she had gone to her parent's house. It seems highly improbable that she would have gone to her parents home leaving behind her infant children in the house for whole of the night. Noteworthy, it was not suggested to Smt. Bala that she had carried with her infant children to her parent's home. The fact that baby Kapil himself received fire arm injuries during the course of incident establishes his presence at the scene of occurrence. Therefore, the presence of Smt. Bala in her own house at odd hours of night is not open to doubt. It is further fortified from the fact that the first information report had come into existence almost within two hours of the incident. Had she been not present in her home, the F.I.R. could not have been lodged at the police station within that short period of time specially when the police station was removed by about 14 kms. from the place of occurrence. Once her presence at the time of occurrence is established, the so-called unnaturality in her receiving only minor injuries at the hands of the assailants is of no significance. It is true that five persons were killed on the spot in a gruesome and horrendous incident yet why Smt. Bala was not killed and left with minor injuries, only the assailants could tell. Human conduct is very tricky and though science and technology has advanced to a great extent yet no balance has yet been invented to measure up the conduct and behaviour of a person in a given situation. We have come across cases where the assailants had behaved in a most unusual, unlikely and unexpected manner while committing crime. What exactly was in the mind of an accused while achieving a particular mission cannot be known to others and it is only the accused who can account for as to why he acted in a particular manner. It is almost an impossibility for the prosecution to unravel the full dimension of the mental disposition of an accused. It is not possible to measure up the extent of feelings, sentiments and desire and say as to in what exact manner he would behave at a particular time while committing crime Smt. Bala was a young woman and was having 8-10 months old infant in her lap, who knows that this could be a reason for the assailants not to kill her another reason of her non-killing could be that she had concealed herself in the fodder bonga. We cannot lose sight of the fact that on account of animosity the main target of the assailants was Sheo Pal and as it would appear from the facts of the case that almost entire family of Sheo Pal was liquidated in the said incident which included his wife Kunti, and two sons Neetu and Khushal. Shiv Singh was real brother of Sheo Pal and, therefore, he was also killed. Manjeet Son of Shiv Singh met with the same fate but he is alleged to be sleeping along with Sheo Pal and others and it could be that he was killed under a mistaken identity. Not only Smt. Bala was left alive but Km. Guddi and baby Kapil were also left alive. The fact that she concealed herself in bonga fodder cannot be considered to be a circumstance incongruous with her presence at the spot specially in the wake of mass killing. Every person is mindful of his/her own life. She could therefore naturally expect that if she would jump into the fray to save other members of the family she would meet the same fate. She carried with her two sons in the fodder bonga and thus was able to save their lives. This was the most natural conduct of a mother. We, therefore, do not find that she committed any serious error of judgment or acted imprudently in concealing herself from the view of assailants by hiding in the fodder bonga along with her two infant children whose lives she was able to save. It may be that in a zeal to support the prosecution case she exaggerated her statement by saying that she continued to raise cries even after she had concealed herself in the fodder bonga but merely on that score, her presence cannot be doubted. After having examined her statement minutely in the light of attending circumstances appearing in the case we find no plausible and sufficient reason to discard her testimony and hold that she was present at the time of incident and had seen the assailants committing crime in the electric light available at that hour of incident. It is pertinent to point out that the Investigating Officer, who had reached the place of occurrence before dawn, had inspected the electric bulbs and the same were found in working condition. This source of light was also disclosed in the F.I.R. which was lodged with all promptness.
55. It was also submitted by the learned counsel for the appellant that the manner of incident given by Smt. Bala does not coincide with the medical evidence. It was pointed out that according to her, at the first instance Sheo Pal was attacked when he got up and after making attack on Sheo Pal, her husband Shiv Singh was killed where he was sleeping. She had stated that Sheo Pal was attacked by country made pistols and Gandasa while Shiv Singh by country made pistols only. The post-mortem report of Sheo Pal shows that he had sustained only fire arm injuries and no Gandasa injury was found during the post-mortem examination. Similarly post-mortem report of Shiv Singh indicates that he had suffered one incised bone deep injury whereas according to Smt. Bala he was attacked with country made pistols only. So far as Shiv Singh is concerned it is in her evidence that he was sleeping on top of the roof whereas this witness was sleeping on the ground floor in the inner verandah. According to her Shiv Singh was killed on the roof itself. She must have heard sound of firing but certainly was not in a position to see the actual killing of Shiv Singh being perpetuated on the roof. If any assailant who was armed with sharp edged weapon had also inflicted injury from that weapon it could not have been noticed by Smt. Bala even if she was present in her house at the time of occurrence because she did not claim to have gone on the roof at the time when attack was being made on her husband by the assailants. With regard to injuries of Sheo Pal it is also in her evidence that when assailants broke in house, who were ten in numbers, they started abusing Sheo Pal. Whereupon, Sheo Pal woke up and ran towards the Gher of Devendra. He was chased by the assailants and murdered there. What actual weapons were used during the course of attack on Sheo Pal thus could not have been seen by this witness who was present inside her house and thereafter had concealed herself in the fodder bonga. We also cannot lose sight of the fact that the incident had occurred at about mid night wherein six murders were committed one after the other. In such circumstances it is practically not possible for any witness to give a meticulous account of the nature or number of shots fired upon the deceased nor of the kind of weapon with which blows were given. In an incident where disorderly killing of so many persons was made it would be very difficult for a witness to remember with precision the kind of weapon used in the killing of a particular deceased specially when the assailants were ten in number. Thus in our view the testimony of this witness is not liable to rejection on the so-called medical discrepancy.
56. On a careful examination of her evidence in the light of circumstances appearing in the case, we could find no good and sufficient reason to discard her evidence so far as it goes being of unimpeachable character and the same inspires confidence even if we exclude the exaggerations made by her at the trial.
57. The defence suggested to Smt. Bala that a dacoity was committed at her house and all the killings were made by dacoits. The learned Sessions Judge has ruled out the possibility of commission of dacoity and in our opinion rightly so. During the spot inspection no signs of dacoity, whatsoever, could be found by the investigating officer. It is also notworthy that all the deceased had sustained injuries on upper part of their body which rules out the possibility that they were shot when they were putting resistance. If the object of miscreants was merely to commit dacoity killing of as many as six persons was expected only when some resistance was offered. Moreover had it been a case of dacoity minor children and infants would not have been attacked as they could not be expected to put any resistance to the dacoits. It is also pertinent to note that no property was removed from the house. It was most unlikely that the dacoits would commit murders of as many as six persons without even removing any booty from the house which they ransacked.
58. We have already pointed out above that the first information report of the present case which was a written document scribed by Km. Guddi on the dictation of Smt. Bala P.W. 1 was lodged at the police station at 2.55 a.m. the distance of the police station being 14 kms. from the place of occurrence. It has also come in the statement of the Investigating Officer, P.W. 9-Ram Babu Tewari that information of this incident was flashed on R.T. set to Senior Officers at 3.15 a.m. This information was transmitted to Head Quarter through Hapur control room as there was no direct link between police station Bahadur Garh and District Head Quarter. He has further stated that he had received the copy of Chik F.l.R. at 3.15 a.m. and special report was despatched from police station in the morning of 31-8-1994. His statement shows that Circle Officer had reached the place of occurrence at 5.30 a.m. while S.S.P. Ghaziabad had also reached the spot at about 7 a.m. All these circumstances support the claim of the prosecution that first information report had come into existence before the police reached the place of occurrence. There is no sufficient material on the basis of which authenticity of the first information report could be doubted and there is no material to hold that the first information report was ante timed. The first information report thus carries a great corroborative value.
59. For the above reasons and discussion, we find the evidence of P.W. 1 Smt. Bala was wholly reliable and trustworthy as far as appellants Sattan alias Satyendra and Upendra alias Guddu are concerned. Prosecution case against these appellants has thus been fully established beyond any reasonable doubts. Though Smt. Bala P.W. 1 has also named Haripal son of Kiran Singh and Haripal son of Ram Charan amongst the assailants in her statement made before the trial Court but as an abundant caution we feel it safe and prudent to extent benefit of doubt to these appellants. These appellants were not named by Smt. Bala P.W. 1 in the first information report Ex. Ka 1 which was dictated by Smt. Bala herself. Though Smt. Bala tried to explain this important omission by stating that she was not in full senses when she dictated the report but we are not prepared to accept that she would forget to disclose the names of these two appellants who were well known to her from before the incident. It is true that on account of ghastly and horrified incident she was under a great shock and grief but if she was able to give a vivid account of incident while dictating the report, it is beyond our comprehension that she would have missed to name these appellants who were no strangers to her. She named only three persons in her report and they were Sattan alias Satyendra, Upendra alias Guddu and Mukesh, the absconding accused, amongst the assailants and specifically mentioned that the other associates of the named accused were unknown to her. Had both these appellants been amongst the miscreants there was no question of her mentioning that the associates of Sattan, Guddu and Mukesh were not known to her. We, therefore, find it highly unsafe to hold these appellants guilty for the offences with which they have been charged particularly when even at the trial no specific or overt act has been subscribed to these appellants by the sole witness Smt. Bala in her statement given before the Court. These appellants are, therefore, given benefit of doubt and accordingly acquitted.
60. The next question that arises for consideration is whether the sentence of death awarded to the remaining appellants namely, Sattan alias Satyendra and Upendra alias Guddu is appropriate.
61. Learned counsel for the appellants submitted before us that after recording conviction of these appellants under Section 302 read with Section 149. I.P.C. the learned Sessions Judge imposed death sentence on the same day without giving a real and effective opportunity of hearing on the question of sentence as envisaged by Section 235(2), Cr.P.C. A perusal of the judgment under appeal would show that these appellants were brought in custody before the Court when the order of conviction was pronounced against them. The learned Sessions Judge thereafter observed that hearing on the question of sentence shall be held on the same day. Thereafter taking into consideration aggravating circumstances appearing against these appellants the learned Sessions Judge has imposed extreme penalty of death upon these appellants. In our opinion the learned Sessions Judge has not made due compliance of the provisions of Section 235(2), Cr.P.C.
62. In modern penology sentencing a guilty person is a sensitive exercise of discretion. The discretion has to be exercised cautiously, scrupulously and conscientiously in a judicial manner. Element of arbitrariness should never be allowed to creep in. On one hand the Court has to consider the aggravating circumstances, but at the same time it must also consider the mitigating and extenuating circumstances and thereafter taking an over all view of the situation should select a sentence which maybe just and appropriate. This task assumes even greater proportion and becomes much more important when the Court is called upon to select one of the two alternative sentences like death penalty and life term. Under the Code of Criminal Procedure death sentence was a general provision and alternative sentence of life term was awardable in exceptional cases, for special reasons to be recorded in writing. The new Code has completely reversed the situation. Now a sentence of imprisonment for life has been made the rule and the Capital sentence is an exception to this general rule. It has further been made mandatory that when the Court proposes to award a death sentence it is obligatory on the part of the Court to record special reasons as to why only that alternative has been chosen. The discretion of the Court to select either of the two penalties is no more wide and death penalty can only be awarded when alternative option of lessor sentence is altogether foreclosed. By virtue of Sub-section (3) of Section 354, Cr.P.C. it has been made obligatory for the Court to assign reasons in support of the sentence awarded to the convict for an offence and it further ordains that if Judge awards the extreme penalty of death he shall record special reasons for doing so. Under the old Criminal Procedure Code there was no provision for hearing the accused on the matter of sentence and the Courts were generally guided by the evidence brought on record from the prosecution side. At pre-conviction stage the accused was neither expected to nor could bring on record material having a bearing on the question of senfence and since there was no post. Conviction or pre-sentence hearing it was felt there was deficiency in the system. The Law Commission in its 48th report pointed out this deficiency in sentencing procedure as under :
It is how being increasingly recognised that a rational and consistent sentencing policy requires the removal of several deficiencies in the present system. One such deficiency is the lack of comprehensive information as to characteristics and background of the offenders.
The aims of sentencing :- Themselves obscure become all the more so in the absence of information on which the correctional process is to operate. The public as well as the Courts themselves are in the dark about judicial approach in this regard.
We are of the view that the taking of evidence as to the circumstances relevant to sentencing should be encouraged and both the prosecution and the accused should be allowed to co-operate in the process.
63. The Legislature accepting the recommendation of the Law Commission enacted Section 235(2), Cr.P.C. in relation to Sessions trials and Section 248(2), Cr.P.C. in relation to warrant trials.
64. The question as to what is the import and meaning of expression "hear the accused on the question of sentence" occurring in Sections 235(2) and 248(2), Cr.P.C. is no more a debatable one and the same has been answered in a catena of decisions of the Supreme Court. In Santa Singh v. State of Punjab AIR 1976 SC 2386 it was held that this new provision is in consonance with the modern trend in the penology and sentencing procedure. It was held that the hearing on the question of sentence would be rendered devoid of all meaning and content and would become an idle formality if it were to be confined merely to hearing oral submission without giving an opportunity to the parties and particularly to the accused to produce material in regard to various factors bearing on the question of sentence and if necessary, to lead evidence for the purpose of placing such material before the Court. It was also held therein that Section 235(2) enjoins on the Court that after passing judgment of conviction, the Court should stay its hand and hear the accused on the question of sentence before passing the sentence in accordance with law, which obviously postulates that the accused must be given an opportunity of making his representation only regarding the question of sentence and for this purpose he should be allowed to place such material on record as he may think fit, but which may have bearing on the question of sentence.
65. In another decision in Allauddin Mian v. State of Bihar 1989 SCC (Cri) 490 : (AIR 1989 SC 1456) the apex Court further explained the importance of this right of accused which is enshrined in Section 235(2), Cr.P.C. and laid down certain guidelines for the trial Courts to follow before sentencing an accused. It was observed :
The requirement of hearing the accused is intended to satisfy the rule of natural justice. It is a fundamental requirement of fair play that the accused who was hitherto concentrating on the prosecution evidence on the question of guilt should, on being found guilty, be asked if he has anything to say or any evidence to tender on the question of sentence. This is all the more necessary since the Courts are generally required to make the choice from a wide range of discretion in the matter of sentencing. To assist the Court in determining the correct sentence to be imposed the legislature introduced Sub-section (2) to Section 235. The said provision, therefore, satisfies a dual purpose; it satisfies the rule of natural justice by affording to the accused an opportunity of being heard on the question of sentence and at the same time helps the Court to choose the sentence to be awarded. Since the provision is intended to give the accused an opportunity to place before the Court all the relevant material having a bearing on the question of sentence there can be no doubt that the provision is salutary and must be strictly followed. It is clearly mandatory and should not be treated as a mere formality....
... In a case of life or death as stated earlier, the presiding officer must show a high degree of concern for the statutory right of the accused and should not treat it as a mere formality to be crossed before making the choice of sentence. If the choice is made, as in this case, without giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc. before the Court, the Court's decision on the sentence would be vulnerable. We need hardly mention that in many cases a sentencing decision has far more serious consequences on the offender and his family members than in the case of a purely administrative decision; a fortiori, therefore, the principle of fair play must apply with greater vigour in the case of the former than the latter. An administrative decision having civil consequences, if taken without giving a hearing is generally struck down as violative of the rule of natural justice. Likewise a sentencing decision taken without following the requirements of Sub-section (2) of Section 235 of the Code in letter and spirit would also meet a similar fate and may have to be replaced by an appropriate order. The sentencing Court must approach the question seriously and must endeavour to see that all the relevant facts and circumstances bearing on the question of sentence are brought on record. Only after giving due weight to the mitigating as well as the aggravating circumstances placed before it, it must pronounce the sentence.
We think as a general rule the trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender.
66. A Division Bench of this Court (of which I was a member) in Criminal Appeal No. 124 of 1988 (sic) connected with Criminal Appeal No. 125 of 1998 and 132 of 1998 decided on 6-9-99 deprecated the manner in which this salutary provision of sentencing procedure is being followed by subordinate Courts in a routine and casual manner without giving accused a real and effective opportunity of hearing at the pre-sentence stage. In that decision for the guidance of subordinate Courts the procedure for hearing the accused on the question of sentence has been simplified and explained.
67. In the present case we are unable to find either from the judgment or from the record that there has been due compliance of the provisions of Section 235(2), Cr.P.C. and since death penalty has been awarded to the appellants, we feel it appropriate to give that opportunity to the appellants here in this Court.
68. For the reasons assigned above criminal appeal No. 2237 of 1999 filed by Kripal, Brij Pal, Ram Pal and Devendra is allowed and their conviction and sentence of life imprisonment under Section 120B, I.P.C. are set aside and they are acquitted. They are on bail, they need not surrender, their bail bonds are cancelled and sureties discharged.
69. As far as Criminal Appeal No. 2140 of 1999 is concerned, the conviction and sentence of death of appellants Har Pal son of Kiran Singh and Hari Pal son of Ram Charan are set aside and the said appellants are acquitted of the offences charged for. They are in jail, they shall be released forthwith unless required to be detained in connection with any other case.
70. So far as Sattan alias Satyendra and Upendra alias Guddu are concerned, their conviction under Section 302 read with Section 149, under Section 307 read with 149 and under Section 148, I.P.C. are maintained. However, sentences shall be passed after they are heard on the question of sentence as per the requirement of Section 235(2), Cr.P.C. Let they be called from jail to appear before this Court on 31-10-2000 for hearing on the question of sentence and they shall be at liberty to produce evidence/material having a bearing on the question of sentence.