Patna High Court
Sunil Tirkey Alias Sunit Tirkey And Ors. vs State Of Bihar on 8 February, 1998
Equivalent citations: 1998(3)BLJR1916
JUDGMENT Loknath Prasad, J.
1. The Death Reference No. 2/97 (R) and the Criminal Appeal No. 103/97 (R) we taken up together as both relate to a judgment of conviction both recorded by Sri Pradeep Kumar, Addl. Sessions Judge, Gumla, in Sessions Trial No. 177 of 1995 and thereby and thereunder Sunil Tirkey and Benjamin Minj were found guilty under Section 302/34 of the Indian Penal Code and as against them a death sentence was awarded and similarly these two appellants were found guilty also under Sections 396, 120-B and 201, IPC, but no separate sentences were, awarded under these counts. Appellant Prakash @ Kahto Oraon, Julius Bara and Sunil Minj were found guilty under Section 302/34 and also under Section 396, IPC and they were sentenced to undergo imprisonment for life under both the counts separately, but no separate sentence was recorded under Section 201, IPC and it was ordered that both the sentences will run concurrently. For the reason that aforesaid two appellants were awarded death sentence, so a reference was made by the trial Court for confirmation of their death sentence by this Court. This common order will dispose of this death sentence reference and also the appeal preferred by these five appellants.
2. The prosecution case, in short, is that in Pinjra Deepa there was establishment of a Church and also the missionaries used to run a school with provision for residential hostel for the students known as St. Joseph School which is at a distance of 5 kms. from Palkot police station. In that very premises, the Priests connected with the Mission also used to reside and also sisters managing the school got their residentiaf accommodation. It has been alleged that in the night of 1/2 September, 1994 at about 12.45 a.m., the cook of the school Sushnna Baghwar and an employee Kalyan Minj informed Sister Anjela that some dacoits in that night entered in the dwelling premises of father Lawrence Kujur. Father Joseph Dungdung and Brother Anup Amar Indwar and committed their murder. Immediately on getting this information, the informant along with other sisters had gone to the residential place of these Fathers and Brother and found the main door fastened with grill open and some of the panes broken and when they entered, they found a box of Brother Anup Amar Indwar open and all the articles were scattered here and there. In the meantime some of the students residing in the hostel also came and when they entered in the uarandah, they found the dead body of senior Father Lawrence Kujur and Brother Anup Amar Indwar lying on the ground in a pool of blood and when they entered into the connected room, they found the articles scattered and dead body of another Father Joseph Dungdung was lying there in a pool of blood. They also detected two live bombs in that very bungalow at two different places and the Yamaha motorcycle belonging to the senior Father was missing and it was suspected that the dacoits had taken away this motorcycle besides other articles. On inquiry from the students and the employees, the informant could learn that about 10-12 dacoits came in the night and they exploded bombs and they also heard the sound of the Fathers and they also heard a vehicle escaping away immediately after the commission of the dacoity. However, the informant Sister also alleged in the FIR hat on previous day, that is, on 31.8.1994 one Ajit Kiro who was a student of the school was continuously absenting for about two months. So there was a meeting in which all the three deceased Father and Brother participated and it was decided that he should be expelled from the school and he will not be allowed to remain in the Hostel. This caused annoyance to Ajit Kiro and he was very angry for his expulsion.
3. In that very night, the officer-in-charge attached to Palkot Police Station came to the P.O. on getting rumour about this occurrence and recorded the fardbeyan of the informant Sister Anjela at about 4.30 a.m. and immediately took up investigation. The inquest of all the three deceased were prepared and blood-stained earth, live bombs and some incriminating articles were seized on the spot and seizure list was prepared and a case under Section 396, 1PC was instituted as against unknown.
4. Initially as nobody had seen the occurrence, so only there was suspicion that outsider dacoits in order to have gains committed this heinous offence. But as there was some suspicion as against Ajit Kiro due to his expulsion from the school, a day before the occurrence the police on suspicion apprehended Ajit Kiro on 5.9.1994 and then on 6.9.1994 another appellant Sunil Tirkey was apprehended and he made a confession that as many as 7 persons participated in this occurrence and on his confessional statement, blood-stained cloths were recovered from his house. In due course, the other appellants were also apprehended and from their confessional statements, blood-stained clothes, the weapons used and concealed by the accused persons were also recovered in presence of the witnesses and further when the investigation proceeded in that line, then some of the school students residing in the hostel and, particularly, in Room No. 1 of the hostel, also gave statements showing the participation of some of the appellants in this occurrence. The police after completing the investigation submitted charge-sheet as against all these five appellants and one Ajit Kiro and further one of the suspects Bandhu Thakur could not be apprehended and so he was declared as absconder.
5. During trial, the main accused Ajit Kiro escaped from the jail custody, but he was apprehended by public at large while he was escaping after commission of a road hold-up and due to beating given by the public he died. For that Gumla P.S. Case No. 150/96 was instituted. In the circumstance, the proceeding against this accused Ajit Kiro was dropped. But trial proceeded as against these five appellants and all of them claimed themselves innocent and they have totally denied about their participation in this occurrence and recovery of any incriminating articles and they set up a defence that they have been falsely implicated in this case only out of suspicion. The trial Court believed the prosecution story and convicted all these appellants in the manner indicated above and as it was a gruesome murder according to the trial Court shocking the conscience of the people at large of this locality and the main part was played by the appellants Sunil Tirkey and Benjamin Minj along with accused deceased Ajit Kiro so a death sentence was awarded as against Sunil Tirkey and Benjamin Minj and all others appellants were sentenced to undergo imprisonment for life. So a reference was made for confirmation of the death sentence of two of the appellants; whereas all the five appellants preferred Criminal Appeal No. 103/97(R) as against the order of conviction and sentences awarded by the trial Court on various grounds.
6. At the very outset it can be said that the alleged occurrence which took place in the night of 1/2 September, 1994 within the Mission Campus of Karaundabera Pinjra Deepa where a church is situated and missionaries are also running a school known as St. Joseph school, is not specifically challenged by the defense and the defence has simply denied their participation. Moreover there is ample evidence on the record, that is, the evidence of PW 7 Sister Anjela who is the informant of this case and a school teacher and residing in that very campus and that of PW 9 Sister Olieve, PW 17 Kalyan Minj and several students of the hostel, that is, PWs 10, 11, 12, 13 to prove that in the night of 1/2 September, 1994 all of them heard explosion of bomb and screaming sound of the Fathers from the Father's bungalow of the Mission and also heard sound of vehicle escaping away and first of all PW 17 Kalyan Minj and a lady Sushma Banghwar came out and informed Sister Anjela and other Sisters, then they had gone to the bungalow where these three Fathers and Brother were residing and found the main door open and the articles scattered here and there and dead body of Father Lawrence Kujur and Anup Amar Andwar were lying in a pool of blood in the verandah where dead body of Joseph Dungdung was also found in the room. The first I.O., that is, Officer-in-charge Palkot police station also arrived at the spot immediately after the occurrence in that very night and recorded a fardbeyan of the informant at 4.30 a.m. and visited the Father's bungalow and prepared inquest of two Fathers and a Brother as mentioned above with multiple sharp cutting injuries. The sign of explosion of bomb was also found and the I.O. also found two live bombs there and articles scattered here and there and a Yamaha motorcycle belonging to the senior Father and some articles belonging to the Fathers were missing.
7. From the evidence of PW 5 Doctor Thomas Justin Minj Civil Surgeon of Gumla and that of the evidence of PW 2 Dr. Mani Bhusan Prasad, PW 3, Dr Krishna Prasad, PW 4, Dr. Anoop Kumar Gupta, this fact is well proved that a team of four doctors was constituted and autopsy of all the three dead bodies were held by them one after another between 8.30 p.m. to 10.45 p.m. on 2.9.1994. From the evidence of these doctors coupled with the post-mortem report, it can be said that the dead bodies of all the Fathers and Brother had multiple incised injuries on vital parts of the body and several blows were given by sharp-cutting weapons, such as sword, bhujali, balwa. etc. which resulted in the instantaneous death of all the deceased in the night of 1/2 September, 1994. So the factum of dacoity coupled with murder of two Fathers and a Brother of a Mission situated at Karaundabera Pinjra Deepa within Palkot police station, is well proved.
8. Now the main question for consideration before us is if these appellants in pursuance of their conspiracy committed the dacoity in the Fathers' bungalow of Karaudabars Mission where a school run by the Missionaries is also situate and in course of dacoity they committed the murder of two Fathers and a Brother and also in order to screen themselves from legal punishment, destroyed some evidences. Admittedly, initially the case was instituted as against unknown and only some suspicion was cast as against two accused Ajit Kiro and admittedly there is no eye-witness to the occurrence and at the first instance two employees of the Mission and one PW 50 got up due to explosion of bomb and screaming sound of the Fathers and then they could detect about the murder of two Fathers and a Brother as mentioned above. But by that time, the dacoits had escaped away. The bell of the church began to ring not for any ceremonial purpose for which the bell is used, but only to give information to the inmates of the Mission and that of locality about the tragedy that has happened in a perish. So in absence of any eye-witness to the occurrence, the investigation task was really difficult to bring home the guilt the actual culprits and in the case in hand the prosecution to bring home the guilt against the appellants, has solely relied upon the circumstantial evidence, the genesis of trouble and also recoveries of some incriminating articles.
9. In order to connect the complicity of the appellants, a prosecution story was built up during investigation that Ajit Kiro who was a student of St. Joseph school managed by the Missionaries and controlled by the deceased Fathers and Brother, was expelled from the Institution for his misconduct and long absence in the school. On this point there is ample evidence and even not challenged by the defence. PW 7 Sister Anjela, the informant, and a teacher of the school, PW 8, Sister Josfa (sic), the mother superior, PW 24 Sister Felesita the headmistress of the school and several students of the school, that is, PW 10 Ignecious Kulu, PW 17 Kalyan Minj, PW 1 Pius Kerketta and several others clearly stated that Ajit Kiro was not having a good moral character and his conduct was questionable and further he was continuously absent in the school for two months. So initially on 30.8.1994 when he came he was asked to come with his father on the next day and on the next day on 31.8.1994 a meeting was held in which all the three deceased Father participated along with brother and a decision was taken that he will be expelled from the school and he was asked to vacate the hostel because he was also occupying Room No. 1 of the hostel which caused annoyance to Ajit and he threatened the Principal and others with dire consequences and left the premises. So this fact is well proved that just prior to occurrence, the main accused Ajit hatched up a plan to commit dacoity and murder of the three clergymen only out of revenge and annoyance. It has also come in evidence that said Ajit in order to make his plan successful took the help of his hostel room mate Sunil Tirkey and Benjamin Minj and other three appellants and also one Bandhu Thakur, now an absconder.
10. PW 10 Patrik Kulu had stated that he was the student of the school and was living in the hostel in Room No. 1 in which the iappellant Benjamin Sunil and prior to that Ajit was also living and in the night of 1.9.1994 Ajit came and called Benjamin and Sunil and said that now they will kill the Fathers Benjamin and Sunil took out sword, bhala and bhujali which they had concealed in that very room near a box and left the hostel along with Ajit. Immediately after that they heard explosion of bomb and Ajit, Benjamin and Sunil came in the hostel and they silently slept in their cot. It is also his statement that prior to leaving the room along with Ajit, they threatened all the room- mates not to disclose about all these facts otherwise they will be killed and so they kept silent. It is also his evidence that immediately they heard escaping of the dacoits and the employee of the Church Sushma PW 7 and another Sister began to raise alarm and they had gone to the Fathers' bungalow where they had seen the dead bodies of two Fathers and Brother in a pool of blood.
11. Similar is the evidence of PW 11 Pius Kerketta, PW 12 Premchand Oraon, PW 13 Premchand Lakra. PW 16 Ram Kumar Baraik, PW 17 Kalyan Minj and PW 18 Ignecious Kulu. All these students had got no previous animosity as against any of the appellants and it is not expected from them to depose falsely as against the appellants, that too, at the instance of the school authorities. These witnesses identified sword, balua, bhujaii which had been subsequently recovered during investigation as pointed out by some of the appellants to be discussed later on, that is, the Material Exhibit Nos. IV, V and VI and some of the students witnesses also identified these material exhibits before the B.D.O. in the T.I. Parade and it was claimed that these weapons were concealed by the appellants Sunil Tirkey and Benjamin Minj in Room. No. 1 of the hostel and were taken out when Ajit came and called them to be used in this occurrence. The post-mortem report, that is, Exts. 2 to 2/2 also indicate that sharp cutting weapons such as swords, bhujali and balua were used for committing the murder of two Fathers and a Brother in this case.
12. It was contended on behalf of the defence by his learned Advocate that PW 10 Patrik Kulu has stated in his cross-examination that at the time of T.I. Parade, there was only one bhujali, sword and balua. In that view of the matter, the T.I. Parade was not conducted properly and the incriminating articles were not mixed with several other similar articles. So no reliance can be placed in the identification of these material exhibits in the T.I. Parade. But from the evidence of other witnesses, that is, PW 12 Premchand Oraon, PW 13 Premchand Lakra PW 16 Ram Kumar Baraik, it is clear that several similar balua, sword and bhujali were kept at the time of T.I. Parade. In that view of the matter, it can be said that the statements, made by PW 10 that only single sword, bhujali and balua were there at the time of T.I. Parade was made inadvertently and as he identified only once bhujali, sword and balua, so he made such statements, thus it can be said that T.I. Parade was also conducted properly and these material exhibits were mixed with several similar articles and were identified by several student witnesses to be the articles belonging to the appellants Sunil Tirkey and Benjamin Minj and they used the same when the main accused came and look them for commission of the offence.
13. Learned Counsel for the appellant also vehemently criticised the evidence of these student-witnesses who were sharing Room No. 1 of the hostel along with appellants Sunil Tirkey and Benjamin Minj mainly for the reason that the occurrence took place in the night of 1.9.1994 and it has come in evidence that all these witnesses assembled at. the time after the occurrence and had gone to P.O. and they met the informant and other sisters of the School and even a protest procession was held after the occurrence and some of these student-witnesses had taken part in that procession, but still they did not disclose anything either to the school authorities or to general public or to the police regarding participation of Ajit, Sunil or Benjamin in the manner alleged or use of the weapons by them. Moreover, the statements of these witnesses were recorded after several days of the occurrence by the police officer and, thus, it was contended that subsequently these witnesses were turned for making out a case against the appellants.
14. Though from the very face of the submission it appears that the statements of these witnesses were recorded at a belated stage, but from deep inquiry and surrounding circumstances it can be said that all these students are of tender age and they are villagers and tribals and it has come in evidence that the main accused Ajit or even Sunil and Benjamin were desperate students and they used to keep weapons, etc. in the hostel and they had also threatened these students not to disclose anything otherwise they will be murdered and they had also seen the dead bodies of as many as three priests. In that view of the matter, they were definitely terrified and afraid of disclosing all these facts immediately to the authorities. So far recording of their statement after some delay, there is ample explanation on the record. First of all, nobody had seen the occurrence and the manner the occurrence took place gave rise to a suspicion that professional dacoits committed the dacoity and murder, and nobody suspected that some of the students of the hostel had also taken part.
However, from the statement of the Investigation Officer, it can be said that when Ajit was first of all apprehended and subsequently other appellants were apprehended, then they disclosed the entire story and after that on their confessional statements, recoveries of the weapons and incriminating articles were made and so the entire investigation had taken a different shape and, thus the examination of the hostel students was found to be necessary. Moreover, it has also come in evidence as stated by the headmistress and other sisters of the school and also admitted by the I.O. that immediately after the occurrence, the hostel was closed and all the students were asked to leave the hostel. So this is also strong circumstances to show that hostel students immediately after the occurrence left for their respective houses and, thus they were not in a position to disclose the participation of some of the appellants.
15. Furthermore the evidence of these witnesses also finds corroboration for the reason that S.I. Ramesh Purti on 4.10.1994 made a search in Room No. 1 of the hostel and seized several shirts, half pants and full pants in all 16 clothes which are Material Exhibit Nos. IX to IX/XV and a lathi, that is Material Ext. VIII. The clothes were containing blood mark and these clothes belonged to Sunil Tirkey and Benjamin Minj. It has come in evidence that for the first time this room was opened on 4.J0.1994 and search and seizure was made and immediately after the occurrence this room was duly closed by the school authorities as blood-stained clothes were also found in that very room which clearly indicate that the appellants Sunil Tirkey and Benjamin Minj occupants of that room participated in this occurrence with their weapons at the instance of Ajit Kiro.
16. Thus it can be said that immediately prior to the occurrence at about 10.30 or so Ajit due to his annoyance with the Fathers and Brother for his expulsion took these two students Sunil Tirkey and Benjamin Minj and they willingly accompanied Ajit and took the weapons with them through which the murder of three priests were committed. Immediately after the occurrence and after the explosion of bomb Sunil and Benjamin came to hostel and surreptitiously slept in their cot and furthermore on the confessional statements of accused persons, sword, balua and bhujall were recovered and the blood-stained clothes of these appellants were also recovered from the hostel room. So the participation of these two appellants along with Ajit in this very occurrence is definitely well proved and their participation is further proved as some other incriminating articles were also recovered by the police officer in presence of the witnesses as pointed out by them to be discussed below.
17. First of all, as early as on 3.9.1994, the stolen motor-cycle belonging to a Father Bearing No. BIN 6798, that is, Yamaha motor-cycle was recovered in Simra forest and Ext. 21/3 was prepared by the police officer S.K. Lai who has figured as PW 53. PW 53, is the first. I.O. Of this case and he immediately came to the P.O. on getting information and in that very night recorded fardbeyan of the informant and proceeded with the investigation. The motorcycle was seized in presence of PW 38 Krishna Singh and PW 39 Bijal Singh and from their evidence it can be said that the number plate of the motor-cycle was missing and admittedly the number plate was recovered subsequently on the confession of the appellant Julius Bara in presence of PW 35 Dasai Oraon and PW 36 Baiju Gope and seizure list that is Ext. 24/1 was prepared by the 1.0. of this case, that is, PW 52 M.A. Fatmi. The number plate clearly indicates the number as BIN 6798 which was concealed in Bandadih hill and as pointed out by Julius Bara, it was recorded in his presence and he also put his signature in the seizure list. The recovery is also well proved from the two attesting witnesses as mentioned above. From the evidence of M.V.I. who examined the seized motor-cycle that is PW 59 it can be said that the stolen motor-cycle was abandoned because of the overflow of the oil in the carburator and to destroy the evidence, the number plate was removed and as the number plate has been recovered duly concealed in a place pointed out by Julius Bara, one of the appellants, which clearly indicate that the motor-cycle was stolen away after commission of the dacoity by those appellants and Julius Bara also participated. From the house of Julius Bara on 13.9.1994 one bag used in the commission of the offence had also been recovered by the I.O. Fatmi as evident from Ext. 24/4.
18. So far Ajit Kiro is concerned, from his house one black colour full pant and a banian containing blood mark were recovered in presence of PW 30 Lilua and one Karma Oraon. Similarly from Ext. 22/1 it can be said that the police officer recovered one rescine bag alleged to have been used in commission of the offence and it was containing bomb from the house of Bandhu Thakur who is now absconding and as pointed out by the dead accused Ajit Kiro, these recoveries were made in presence of PW 44 Gandur Singh, PW 45 Sheo Narayan Prasad and those witnesses also testified the recovery of these articles from the house of Ajit Kiro and as admitted by him, one pistol and two DCM Soap were recovered in presence of Bhubneswar Sah, PW 33 and Bigal Kharia PW 34 and Ext. 29/1 had been prepared on 14.9.1994. From the house of Ajit on that very date, as evident from Ext. 29/2, one black Full Pant had also been recovered. Similarly from the house of Benjamin Minj as confessed by him one terripolyster cream colour half bush shirt and one black coloured terricotton full pant had been recovered in presence of witness Ram Baraik and Ext. 21 was prepared on 13.9.1994. Ram Baraik also justified about these recoveries and it has been alleged that there was blood-stained mark on all these clothes.
19. Similarly so far the appellant Prakash is concerned, the I.O. Fatmi on 13.9.1994 as pointed out by Prakash, appellant himself, recovered in village Karaundabara duly concealed in boulder one polythine bag containing one ring with key and also two other rings of Yamaha motor cycle and the sefzure list was prepared in presence of PW 35 Dassi Oraon which contained signature of the witnesses and also Prakash and seizure list is Ext. 24. Similarly from the house of Prakash on that very day one Push button transistor of two bands which is one of the stolen properties had been recovered in presence of PW 35 Dasai and Baiju, Dasai also testified about these recoveries as pointed out by Prakash and these seizure lists also contained the signature of Prakash. This Bush Button transistor was regularly used by one of the deceased Father, that is, Father Lawrence Kujur and similarly one of the rings is of stolen Yamaha motor-cycle and on 13.9.1994 T.I. Parade was held in which the ring containing the keys of the motor-cycle number plate of the motor-cycle and the two band Bush transistor being used by one of the deceased Father were duly identified by the witness Sister Phalecits, the lady headmistress of the school, teacher-sister Anjala, an employee of the Mission Ignecious Kulu and they are competent witnesses to identify these articles as they used to live in the same campus and thus, they had the occasion to see that these articles were used by the deceased-priest. The two DCM Shop alleged to have been stolen away in this occurrence and belonging to one of the Fathers had also been recovered as mentioned above and also identified in the T.I. Parade.
20. So far the appellant Sunil Minj is concerned on 13.9.1994 the I.O. M.A. Fatima as pointed out by this appellant recovered as blood-stained sword in presence of PW 26 Birbal Nagesia and Jaleswar Singh and prepared the seizure list, that is, Ext, 24/3 and the appellant also put his signature which indicate that the recovery was made in his presence as pointed out by him. On that very date also one red full shirt containing blood mark was also seized from the house of this appellant Sunil Minj in presence of PW 29 Bhusan Minj and PW 30 Pate Oraon. On that very date the I.O. Fatima recovered a Khukhri containing blood mark duly concealed near a Jarrxun tree in a bushy place near block office Palkot and this weapon had been recovered in presence of Dasai PW 35 and Baiju PW 36 and as pointed out by Sunil himself and Sunil Minj also put his signature. Thus it can be said that these articles were recovered by the main I.O. in presence of Sunil, appellant, himself on 13.9.1994.
21. The khukhri and sword containing blood mark are material exhibits along with Bhujali and PWs 10, 12, 15, 16 and 17 identified these material exhibits, which are weapons used, in the Court and also in the T.I. Parade and claimed that these weapons were taken away by Sunil Tirkey and Benjamin Minj from Room No. 1 when Ajit the main accused came and called them for commission of the offence. So the recovery of these incriminating articles, that too, from the possession of all the appellants as pointed out by them and these articles also contained blood as found by the scientific officers being discussed later on and further taken out immediately, prior to the occurrence for use by Sunil Tirkey and Benjain Minj coupled with the post-mortem report which indicate that such weapons were used, clearly prove the complicity of all these appellants alongwith Ajit, who is dead, or rather killed by a mob when he escaped from the jail and after committing road hold-up loot he was apprehended by the general public and done to death by beating.
22. The prosecution also led evidence to show that prior to the occurrence and that too on the day time of the same day, that is, on 1.9.1994, these accused persons were seen together in suspicious circumstances. On this point PW 22 Stephen Minj who was working as an employee of the Mission has also stated that on 1.9.1994 at about 1.30 p.m. he had gone to Palkot market and near the bus stand he had seen the main accused Ajit who is dead, Julius and Sunil Minj along with 2 or 3 unknown students were talking together. Similarly PW 27 Dhrub Sahu who got the cycle repairing shop near Palkot bus stand has claimed that Sunil and Julius, both appellants came together along with Ajit and got their cycle repaired. PW 28 Banshidhar Sah also claimed that on 1.9.1994 he had seen main accused Ajit and absconding accused Bandhu Thakur along with two other unknown persons in the market and PW 45 a nurse working in Palkot Primary Health Centre had also seen Ajit, Bandhu and other boys talking together. Thus it was contended on behalf of the prosecution that during day time of the date of occurrence, the appellants were seen in Palkot market in a suspicious circumstance which indicates that they hatched up a plan for committing the dacoity and murder of these three priests, that too, at the instance of Ajit Kiro.
23. Furthermore, from the evidence of the I.O. and that of PW 57 Dhrub Nath Tewari Sr. Scientific Officer attached to Forensic Science Laboratory, Ranchi, it can be said that material exhibits such as sword, Pharsa, balua, handle of Bhujali and cloths, etc. along with blood stains seized at the P.O., that is, blood stains of all the three deceased were sent to the Laboratory for examination and on examination it was found to be human blood on all these weapons including some of the clothes at various places, and serologist report also indicate that all these articles bear Group B and Group AB and similarly the blood found at the P.O. near the dead body of the deceased are of Group B and Group AB. Thus the chemical examination along with serologist report clearly indicate that the deceased were in the blood Groups A and AB and the incriminating articles, that is, the weapons seized as pointed out by the appellants mentioned above and some of the clothes recovered from their possession also contain human blood of the same group. This is also strong circumstance to prove the participation of these appellants along with weapons seized and it indicates that the appellants committed the murder of all the three priests at the time of commission of dacoity.
24. During the course of argument, learned Counsel for the appellants submitted that from the FIR itself it can be said that the dacoits used Jeep and Maruti car and the witnesses heard the noice of these vehicles immediately after the occurrence and the contents of the FIR indicate that the allegation was made to show that unknown outsider, professional criminals committed the occurrence. In that view of the matter, it was contended that because of the suspicion the Missionaries got against Ajit, the friends of Ajit were implicated in this case. In this connection, it can be said that nobody had seen the occurrence and the manner in which the occurrence was committed gave an impression that professional criminals committed the occurrence. But subsequently the investigation had taken a concrete shape after the confessional statement of the appellants and recovery of various incriminating articles. Moreover, from the evidence of I.O., that is Fatmi, it can be said that the matter was investigated and it was found that one Jeep belonging to the Education Department near about the time of occurrence passed from the place of occurrence. So that was one of the reasons that by mere guess the informant and other witnesses thought that the vehicle was used by the criminals. Thus this fact that a Jeep was used by the criminals had been properly explained during the course of investigation.
25. It was also submitted by the learned Counsel for the appellants that some letters, liquor bottles and other articles were recovered at the P.O. which clearly indicates the character of one of the deceased brother, that is, Anup Amar lndwar very much questionable, and that may be a reason that some unknown persons committed such heinous offence only to take revenge of their annoyance. At the very outset, it can be said that PW 56 Kameswar Pd. Singh, the ASI of Police made a detailed inquiry about the conduct and character of Brother Anup Amar Indwar, but he found nothing against him. It is quite possible that some liquor bottles may be there and some letters may be there, but for that reason it cannot be said that the murder of the Priests were committed by some unknown criminals when there is overwhelming evidence to connect the complicity of the appellants. On the other hand, the defence has also not challenged the testimonies of the reliable witnesses in their cross-examination and the appellants in their statements before the trial Court have not taken up any specific defence for their false implication. Thus the false implication can be safely ruled out.
26. Learned Counsel for the appellants also submitted that the entire prosecution case is suspicious and liable to be rejected for the reason that PW 46 Rimon Ekka stated that in the night of 1/2.9.94 at 1.30 a.m. he had gone to the Mission on getting alarm and had also visited the Fathers' bungalow and he took the Sister Anjela and Sister Josepha in the Mission Jeep to Palkot police station and informed about the occurrence to the officer-in-charge and O.C. came to the P.O. in that very Jeep immediately. On the other hand PW 53 S.K. Lai who is the First I.O. and at that time O.C. Palkot has stated that he got a rumour about the murder in Pinjra Deepa Mission and so he made a station diary entry on 2.9.1994 and proceeded to Pinjra Deepa Mission and then recorded the fardbeyan at the P.O. of Sister Anjela at 4.30 a.m. on 2.9.1994. Thus it was contended that actually the first information was lodged at the Police Station itself by two sisters and PW 46 at about 2 a.m. or so on 2.9.1994 but that has not been brought on the record; rather Ext. 2 which was recorded at the P.O. at 4.30 a.m. was treated as FIR and thus it can be said that the entire version was changed. From the evidence of PW 46 and that of O.C, that is, PW 53 only this much can be said that PW 46 along with two sisters of the Mission simply had gone to the Police Station and informed vaguely about the occurrence and so PW 53 had not drawn any FIR or recorded a fardbeyan and only made a station diary and proceeded to the P.O. immediately in that very Jeep. In all probability to verify the allegation and then to record the fardbeyan. If only cryptic information was given and the police officer thought it fit to come to P.O. and then to record FIR or fardbeyan, then it cannot be said that the first cryptic information given by PW 46 is to be treated as FIR. In that view of the matter, it cannot be said that the earlier version given by PW 46 to the police is to be treated as FIR and apparently no illegality was committed by the officer in-charge, that is PW 53, by recording the fardbeyan at the P.O. itself.
27. So on a careful consideration of the entire evidence on record, as discussed above, this fact is well proved that the main accused Ajit Kiro was woefully annoyed with the Priests and the Principal of the School situated at Karaundabera Pinjra Deepa due to his expulsion on a day prior to this occurrence and he hatched up a conspiracy with other appellants including one Bandhu Thakur who is absconding and, thus, took the appellants Sunil Tirkey and Benjamin Minj from Room No. 1 of the hostel and they accompanied Ajit with some weapons for taking part in this occurrence. Some of the stolen articles and the weapons used by the appellants including their blood-stained clothes were recovered during the investigation and these articles were recovered as pointed out by all the appellants as discussed above and on various articles human blood of the same groups as that of the deceased were found. So the participation of all these appellants along with Ajit and Bandhu Thakur is well proved.
28. As the prosecution has been able to bring home the guilt and proved the participation of the appellants in the ghastly murder and dacoity of three priests, the trial Court found the appellant Sunil Tirkey and Benjamin Minj guilty under Section 302/34 and also under Sections 396, 120-B and 201, IPC and for the reason assigned awarded death sentence as against these two appellants under Section 302/34, IPC and made a Reference under Section 366 of the Cr PC for confirmation of the death sentence as awarded against them. Similarly the other three appellants were also found guilty under Sections 302/34 and 396, IPC and they were sentenced to undergo rigorous imprisonment for life. But no separate sentence was awarded under Section 201, IPC. However, they were also not found guilty under Section 120-B of the IPC.
29. At the very outset, it can be said that evidence as discussed above clearly prove that all the appellants participated in this crime, that is, of dacoity and in course of dacoity murder of three priests were committed. Though admittedly there is no direct evidence, but from ample circumstantial evidence including recovery of weapon and stolen articles, it can be said that murder of three priests were committed in the same transaction and also dacoity was committed and some articles were looted away. In such situation, if murder and dacoity were committed simultaneously and the participation of more than five persons, then in that view of the matter, Section 396, IPC is attracted and, thus, conviction and sentence of the appellants under Section 302, IPC in any view of the matter appears to be surpluses because if murder is committed in course of dacoity, then Section 396, IPC is applicable and punishment under Section 396, IPC and that of Section 302, IPC is the same. The Supreme Court in a case reported in 1997 Vol. 2 Eastern criminal Cases 166 (Mukchund @ Kunda Mishra and Anr. v. State of M.P.) clearly held that if the prosecution can successfully prove that the offence of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, then, the Court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In the instant case, the dacoity and murder were committed in the same transaction and immediately after the occurrence, weapons used in this occurrence and stolen properties were recovered from the possession of the appellants, as discussed above. In that view of the matter, all the appellants are guilty under Section 396, IPC and recording of conviction and sentence separately under Section 302/34, IPC is definitely unwarranted and surpluses and as such it is hereby set aside. But the conviction of all the appellants under Section 396, IPC is hereby confirmed and maintained, as recorded by the trial Court.
30. Similarly all the appellants are equally guilty under Section 201, IPC because knowing fully well that they committed the offence deliberately, they concealed some weapons or the stolen properties only to destroy evidence. The trial Court also recorded an order of conviction though no sentence was awarded under Section 120-B as against only two appellants that is, Sunil Tirkey and Benjamin Minj. The offence of dacoity as defined under Section 391, IPC clearly says that when five or more persons conjointly commit or attempt to commit robbery or where the whole number of persons conjointly committed or attempted to commit robbery and persons present and aiding such commission or attempt amounts to five or more, every person so committing, attempting or aiding is said to commit, dacoity. So definition of this offence is quite extensive and even presence of a person at the time of dacoity will attract equally against him, and it also includes conspiracy, planning to commit such dacoity. In that view of the matter, the conviction of two of the appellants Sunil Tirkey and Benjamin Minj under Section 120-B, IPC is also unwarranted and surpluses and, thus, it is set aside.
31. So far the conviction of the appellant Prakash @ Kahto Oraon, Julius Bara and Sunil Minj are concerned, the trial Court sentenced them to undergo rigorous imprisonment for life under Section 396, IPC and no separate sentence was awarded under Section 201, IPC. So the sentence as against these three appellants does not require any interference and as such it is hereby confirmed and maintained. Consequently the appeal preferred by them is hereby dismissed.
32. Regarding the appellant Sunil Tirkey and Benjamin Minj who were awarded death sentence and for that a Reference has been made for confirmation, this much can be said that after coming into force of the Cr PC of 1973, that too, provision of Section 354(3), now the trial Court has to assign a special reason and to make out a case for awarding death sentence and prior to that where that death sentence was prescribed for any offense along with life imprisonment, than the situation was wholly otherwise and awarding of the death sentence was the rule and life sentence was the exception. But now in view of the legislative change, the duty is cast upon a Court to make out a case for awarding this extreme punishment of death. The Apex Court has considered the question of sentence, more particularly, the death sentence on various occasions and it was held that provision of death penalty is an alternative punishment in Penal Code is not unconstituted and it is in the public interest and it was held that in a sense to kill is to be cruel and all murder, and cruel, but such cruelty may vary in its degree and culpability and it is only when the culpability assumes the proportion of extreme deprivation, that special reason can legitimately be said to exist. Their Lordships after taking into consideration various factors including the age, mitigating circumstances, manner in which the offence was committed, came to the conclusion and laid down certain principles that only in rarest of rare case death sentence can be awarded.
33. The trial Court assigned special reason and an opinion was expressed that these two appellants first of all accompanied the main accused Ajit with weapons and they played a leading role and pre-planned murder Was committed in a ghastly manner and three clergies discharging the services to the society at large were done to death with such a cruelty that the conscience of the people of the locality was shocked and as such in such cases deterrent punishment is necessary and, thus, recommended for death sentence.
34. No doubt, all the murders are cruel some and because as many as three persons were done to death, this is not only the only, circumstances which requires death punishment. There are various mitigating circumstances and firstly these two appellants namely Sunil Tirkey and Benjamin Minj are of tender age and they were school students and further the main accused was Ajit Kiro himself who got a grudge against three Fathers because of his expulsion from the school for his misconduct and he was instrumental and persuaded and compelled these two appellants to accompany them. Actually these two appellants had got no grudge or grievance against the deceased Father. If that is so, Alit was mainly instrumental and responsible and he was leading the gang but, he too got a punishment of death, but in another way, because when he escaped from Jail custody, he was apprehended by the people at large and was done to death. Furthermore there is no direct evidence to show that these two appellants against whom the death sentence was awarded actually killed the three Fathers and only there is a circumstantial evidence and there is ample evidence that they simply accompanied the main accused Ajit and Ajit compelled them to take part in this occurrence. The Apex Court in a case reported in Machi Singh and Ors. v. State of Punjab , laid down some specific principle for awarding death sentence and it was held that before opting for the death penalty, the circumstances of the offender also require to be taken into consideration along with circumstances of the crim'e and the life imprisonment is the rule and the death sentence is exception and death sentence must be imposed only when life imprisonment appears to be altogether inadequate punishment having regard to the relevant circumstance of the crime.
35. The Supreme Court in another case reported in Jashuba Bharatsinh Gohil and Ors. v. State of Gujarat , held that the provision of Section 354(3), Cr PC makes it obligatory in cases of conviction for offence punishable with death or imprisonment for life to assign reason in support of the sentence awarded to the convict and only the rare cases for special reason to be recorded, such extreme sentence can be rewarded after giving due weight to the mitigating as well as aggravating circumstances and question of sentencing must be considered carefully and in a fit and proper case, the death sentence is also necessary to make the commission of such offence deterrent.
36. No doubt the trial Court for awarding death sentence relied upon a decision of the Apex'Court in Gentel Vijayavardhan Rao and Anr. v. State of A.P. 1996 Vol. 6 SCC 241. but that was a road robbery and it was committed with extreme brutality as the culprits set fire on a bus in order to commit robbery of the articles of the passengers and as many as 23 persons died for burn injuries in this road hold-up case and several sustained burn injuries and there was direct evidence about the participation of the appellants there. So that was definitely a case which comes under the purview of rarest of rare cases. But in the instant case, there is no direct evidence as against the appellants that they committed the murder of three priests; rather there is circumstantial evidence only and the evidence is otherwise that the main accused was Ajit Kiro and he was the ring leader and he got annoyance as against the deceased.
37. Considering all these facts including the tender age of these two appellants, I am of the opinion that this case does not come within the purview of rarest of rare cases and does not deserve death sentence. In that view of the matter, the death reference made under Section 366, Cr PC by the trial Court as against the appellants Sunil Tirkey and Benjamin Minj is hereby rejected and these appellants are found guilty under Section 396, IPC as recorded by the trial Court and their death sentence is hereby commuted to that of rigorous imprisonment for life. Similarly, these two appellants are also found guilty under Section 201, IPC but no separate sentence is awarded as held by the trial Court. For the reasons mentioned above, the other three appellants, namely, Prakash @ Kahto Oraon Julius Bara @ Madan and Sunil Minj are also found guilty under Section 396, IPC and sentenced to rigorous imprisonment for life as awarded by the trial Court, is hereby confirmed and maintained. These appellants are also found guilty under Section 201, IPC as found by the trial Court, but no separate sentence is awarded.
38. In the result, the Death Reference as made by the trial Court is hereby rejected and accordingly the Criminal Appeal No. 103 of 1997 (R) is hereby also dismissed with modification in sentence as discussed above. The trial Court will immediately send a modified warrant of conviction as against all the appellants to the Jail Superintendent concerned where they are confined.