Jharkhand High Court
The State Of Jharkhand vs Kailash Sao And Birendra Ram Alias ... on 12 October, 2017
Equivalent citations: 2018 (1) AJR 318, (2018) 2 JLJR 457
Author: H.C. Mishra
Bench: H.C. Mishra, Ananda Sen
1 Death Reference No.3 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Death Reference No.3 of 2013
With
Cr. Appeal (DB) No.708 of 2013
With
Cr. Appeal (DB) No.775 of 2013
With
Cr. Appeal (DB) No.931 of 2013
With
Cr. Appeal (DB) No.966 of 2013
(Against the Judgment of conviction dated 12 th July 2013 and Order of sentence
dated 17.7.2013 passed by the 4th Additional Sessions Judge-cum-Special
Judge, Vigilance, Hazaribagh, in S.T. No.40A of 2002, S.T. No.234 of 2004 and
S.T. No.380 of 2004)
The State of Jharkhand Vs. 1. Kailash Sao
2. Birendra Ram @ Birodhi Ram
[Parties in Death Reference No.3 of 2013]
Jagarnath Sao
@ Jagganath Sao Vs. The State of Jharkhand
[Parties in Cr. Appeal (DB) No.708 of 2013]
Birendra Ram
@ Birodhi Ram Vs. The State of Jharkhand
[Parties in Cr. Appeal(DB) No.775 of 2013]
Kailash Sao Vs. The State of Jharkhand
[Parties in Cr. Appeal (DB) No.931 of 2013]
Chetlal Prajapati
@ Master Vs. The State of Jharkhand
[Parties in Cr. Appeal (DB) No.966 of 2013]
PRESENT
HON'BLE MR. JUSTICE H.C. MISHRA
HON'BLE MR. JUSTICE ANANDA SEN
.....
For the Appellants : M/s A.K. Kashyap, Arwind Kumar,
A.K. Chaturvedy and Jitendra Shankar,
(Advocates in respective cases)
For the State : M/s Satish Keshri, Vinay Kumar Tiwary
Awnish Shankar
(APPs in respective cases)
Reserved on: 29.8.2017 Pronounced on: 12.10.2017
H.C. Mishra, J.:- Heard learned counsels for the respective appellants and learned
counsels for the State in all the aforesaid matters. As this death reference and all
these appeals arise out of the common Judgment of conviction and Order of
sentence, they were heard together and are being disposed of by this common
Judgment.
2 Death Reference No.3 of 2013
2. The instant death reference and these four criminal appeals arise out of
the Judgment of conviction dated 12 th July 2013 and Order of sentence dated
17.7.2013passed by the learned 4 th Additional Sessions Judge-cum-Special Judge, Vigilance, Hazaribag, in S.T. No.40A of 2002, S.T. No.234 of 2004 and S.T. No.380 of 2004, whereby all the appellants have been found guilty and convicted for the offences under Sections 302, 302/149, 342/149, 436/149, 452/149 and 120B of the Indian Penal Code, whereas the appellants Kailash Sao and Chetlal Prajapati have also been found guilty and convicted for the offence under Section 27 of the Arms Act. Upon hearing on the point of sentence, the appellant Jagannath Sao and Chetlal Prajapati have been sentenced to undergo imprisonment for life, which shall not be less than thirty years excluding all the remissions, for the offence under Section 302/34 of the IPC read with Section 120-B of the IPC. Appellants Kailash Sao and Birendra Ram @ Birodhi Ram were sentenced to death, and they were directed to be hanged by neck till their death, for the offence under Sections 302/34 of the IPC read with Section 120-B of the IPC. All the appellants were also sentenced to undergo imprisonment for life under Sections 436/34 of the IPC and R.I. for seven years for the offence under Sections 452/34 of the Indian Penal code. No separate sentence was awarded under Section 342/149 of the Indian Penal Code. The appellant Kailash Sao and Chetlal Prajapati, who were also found guilty under Section 27 of the Arms Act, have been sentenced to undergo R.I. for seven years for the said offence and all the sentences were directed to run concurrently. In the facts of this case, the appellants were also directed to pay Rs.1,00,000/- as compensation and it was directed that if the amount was realized, the same be paid to the legal heirs of all the deceased in the case.
3. Aggrieved by the said Judgment of Conviction and Order of sentence, the appellants have preferred their respective appeals separately, whereas the death reference is made by the Trial Court below for confirmation of the death sentence imposed upon the two appellants, namely, Kailash Sao and Birendra Ram @ Birodhi Ram.
3 Death Reference No.3 of 2013
4. This case relates to the gruesome murder of 14 persons, including the unfortunate death of a girl child aged about 1½ years, who died due to suffocation, when her house was burnt. The other victims were gruesomely butchered by the members of the extremists group belonging to M.C.C. party. It may be stated at the very outset that another set of accused persons were put to trial separately and by the common Judgment of conviction and Order of sentence dated 16.6.2003, passed by the learned 6 th Additional sessions Judge, Hazaribagh, in S.T. Nos. 40 of 2002, 225 of 2002, 132 of 2002 and 239 of 2002, 23 of them were convicted and sentenced by the Trail Court for the same offence arising out of the same occurrence. Three of them, namely, Hiraman Sao, Hani Mian and Suresh Sao were awarded death sentence by the Trial Court below. The Death Reference No.4 of 2003 was answered in negative by a Division Bench of this Court by common Judgment delivered on 21.7.2004, in the said Death Reference No.4 of 2003 and the connecting appeals filed by the convicts, whereby sentence of death awarded to those appellants were altered into imprisonment for life, mainly on the ground that there was nothing to show that they were leading the mob of the extremists, or there was any specific overt act against them. Some of those appeals were also allowed and the appellants of those appeals were acquitted by the Division Bench of this Court, in State of Jharkhand Vs. Hani Mian & Ors., reported in 2004 (3) East Cr C 438 (Jhr).
5. The prosecution case was instituted on the basis of the fardbeyan of one Baleshwar Sao (PW-7) recorded on 14.4.2001 at about 11:00 AM, in village Beltu, P.S. Keredari, District Hazaribag, wherein the informant stated that in the night between 13 / 14.4.2001, while he was sleeping in his house, he woke up at about 2:00 AM, on the sound of firing in the village, he came out of his house and found the area commander of MCC, Kailash Sao, who was of his own village, and another 36 named members of MCC, including the appellants Birendra Ram @ Birodhi Ram and Jagarnath Sao, and 20-25 unknown members of MCC, variously armed with rifles, guns, farsa, garasa, sword and lathi, etc. As soon as the informant came out, he was assaulted by the members of the extremists group and they asked about the whereabouts of the members of Gram Raksha 4 Death Reference No.3 of 2013 Dal. As he pleaded ignorance, he was tied by the extremists and brought to the house of Parmeshwar Sao, a member of Gram Raksha Dal, where about 50 to 60 extremists were present variously armed with guns, rifles, farsa, garasa, sword and lathi etc., out of whom he identified about 19 members of the extremist group, who were named in the fradbeyan. The extremists were firing guns and hurling bombs on the house of Parmeshwar Sao and they were forcing Parmeshwar sao to come out of the house. When Parmeshwar Sao did not come out of the house, Kailash Sao, Birendra Ram and other extremists put his house to fire. When the house started burning, eleven named members of Gram Raksha Dal came out of the house, who were apprehended by the members of the extremist group and they were badly assaulted by the extremists. They were all tied by the members of the extremists group. Parmeshwer Sao did not come out of the house, who died in the house as his entire house was burnt and the nearby houses were also burnt. Thereafter the extremists came to the house of one Sattar Mian, where, three persons were kept confined by the accused persons, who were also about 40 to 50 in number and variously armed with guns, rifles and sharp cutting weapons, in which the informant had named about 15 members of the extremists group, including one Chetlal Mahto. (It is not clear from the material on record, whether this Chetlal Mahto is the appellant Chetlal Prajapati or not). About 25 to 30 extremists were asking Sattar Mian to open the door and when he did not open the door, they started firing guns and hurling bombs on his house and Kailash Sao, Birodhi Ram and other extremists put his house also on fire. When the house started burning, Sattar Mian came out of his house, who was apprehended by the extremists, including Kailash Sao, Birendra @ Birodhi Sao, and he was butchered near his house by sword cutting his neck. He was also assaulted by bhala and he died at the spot. By that time, the day broke. All the apprehended persons were brought to Ghorchari agriculture field and all 11 members of Gram Raksha Dal, namely, Kamdeo Thakur, Brahamdeo Sao, Shiv Tahal Sao, Ram Briksh Sao, Guru Dayal Sao, Bansi Sao, Nepali Kandu, Munsi Ram, Jeevlal Ram, Prayag Sao and Dukhi Sao, were butchered to death by the extremists. 5 Death Reference No.3 of 2013 Kailash Sao had cut the legs and hands of Kamdeo Thakur by garasa and thereafter he was beheaded. Similarly Brahamdeo Sao and other members of the Gram Raksha Dal were also cut, butchered and beheaded by Kailash Sao, Birendra Ram and another extremists. Thereafter Kailash Sao, Birodhi Ram and Prakash Ram threatened by shouting that any one, who would oppose the MCC group, shall face the same consequences and thereafter they went away shouting the slogan 'MCC Zindabad'. The daughter of Sattar Mian had died in the burnt house, due to suffocation. The informant has stated that the occurrence had been committed by about 400 members of extremists group, apart from the persons named, and they were aged between 15 years to 60 years. At the time of occurrence, the extremists had bolted the houses of the villagers from outside. On the basis of the fardbeyan of the informant, Keredari P.S. Case No. 21 of 2002, corresponding to G.R. N. 874 of 2001, was instituted for the offences under Sections 147, 148, 149, 302, 307, 452, 323, 324, 342, 436, 120B of the IPC, Section 27 of the Arms Act, Sections 3 / 5 of the Explosive Substance Act and Section 17 of the CLA Act, and investigation was taken up. After investigation, the police submitted the charge-sheet in the case.
6. After apprehension of these appellants, cognizance was taken against them and the case was committed to the Court of Session. After commitment of the case to the Court of Session, the charge was framed against all the appellants for the offences under sections147, 148, 302/149, 302, 307/149, 436/149, 452/149, 342/149, 323/149, 120-B of the Indian Penal Code, Sections 3 and 5 of the Explosive Substance Act, Section 27 of the Arms Act and Section 17 of the CLA Act, and upon the accused persons' pleading not guilty and claiming to tried, they were put to trial.
7. In course of trial, 41 witnesses have been examined in this case by the prosecution, out of whom PW-18 Govind Prajapati, PW-24 Janki Sao, PW-26 Sibu Sao and PW-28 Babu Rana have turned hostile and have not supported the prosecution case. Out of the remaining witnesses, PW-7 Baleshwar Sao, the Informant himself, PW-1 Bhikhan Sao, PW-2 Usman Mian, PW-3 Hariman Mian, PW-4 Banshi Sao, PW-9 Barun Kumar Mishra, PW-11 6 Death Reference No.3 of 2013 Yasoda Devi (wife of one of the deceased Prayag Sao), PW- 19, Md. Farooque, PW-20 Chhakan Sao, PW-21 Sukar Bhuiyan, PW-23 Kaitha Sao, PW-25 Bhuneshwar Sao, PW-27 Iswar Dayal Pandey @ Mishra, PW-30 Chandradeo Sao and PW-41 Sanju Devi (wife of one of the deceased Jeeblal Ram), though supported the occurrence by the extremists in their village, yet they have either turned hostile on the point of identification of the accused persons, or have stated that they had not seen the extremists. The case is supported mainly by the widows and relatives of some of the victims.
8. PW-7 Baleshwar Sao, the informant of the case, has only supported the incident that had happened in the night of 13/14.4.2001 in his village, in which several persons were killed, but he turned hostile on the point of identification of the accused and he neither named any of the culprits nor identified them in the Court. His evidence is not of much importance, except for the fact that he has supported the occurrence, naming the deceased persons, and he has admitted to have given the fardbeyan before the police on the day of occurrence itself, on which he has identified his signature, which was marked Exhibit-6.
9. PW-10 Bandhani Devi is the wife of the deceased Parmeshwar Sao, whose burnt dead body in the form of bundle of flesh, was found in his burnt house. Her father-in-law and brother-in-law were also butchered in the occurrence. This witness has stated that in the night of occurrence, she was present in the house along with her husband Parmeshwar Sao, her father-in-law Dukhi Sao, her brother-in-law Prayag Sao and other family members. 20 to 25 extremists scaled over the tiled roof of her house and started firing bullets in her house, and they also put fire in the house. Her husband was hit by bullets. Thereafter they came out of the house and her father-in-law Dukhi Sao and brother-in-law Prayag Sao were tied by rope by the extremists and they took them away with them along with this witness. They took them to an agriculture field, where other extremists were also present and other villagers were also kept by the extremists. The extremists severed the heads of her father-in-law Dukhi Sao, brother-in-law Prayag Sao and other villagers Ram Briksh Sao, Guru Dayal Sao, Shiv Tahal Sao, Bramhdev Sao, Bansi Sao, Jeevlal Ram, 7 Death Reference No.3 of 2013 Munshi Ram, Nepali Kandu, by sword, tangi etc., and thereafter they started playing football with their heads and they also drank their blood. Her husband was burnt in the house itself after being killed by bullet. She has stated that after the occurrence, she was given Government job. She has identified all the four accused appellants in the Court and has stated that these appellants and the other culprits had committed the offence. In her cross-examination on behalf of the accused Chetlal Prajapati, she has stated that this accused is not her co-villager and she does not know his father's name and she has no knowledge whether he teaches the children. She has also stated that this accused had assaulted her husband by firearm and other three accused were also involved in it. She has also stated that her husband had received bullet injuries in his neck and stomach and this part of the occurrence was not seen by the villagers. She has stated that after the occurrence, she had became senseless and she remained senseless for about one month, but she has again stated that after four to five hours of the occurrence, her statement was recorded by the police. In her cross-examination on behalf of the other accused persons, she supported the case and she has stated to have seen the occurrence. She has denied the suggestion to have given false evidence.
10. PW-14 Danhi Mosmat @ Dahni Devi, is the mother-in-law of PW-10 Bandhani Devi, wife of the deceased Dukhi Sao and mother of the deceased Parmeshwar Sao and Prayag Sao. This witness has also fully supported the prosecution case and stated that when she was sleeping in the house with her family members, she heard the sound on the door, whereupon she asked, who were there, and she got the reply that they were MCC people, whereupon his son Parmeshwar Sao told the family members to bring a ladder, so that they can flee through the roof. Thereafter the extremists stated that they were already on the roof and put fire to the house. The roof started falling down and in the meantime, her son Parmeshwar Sao was hit by bullet and he died at the spot. Thereafter they came out of the house crying, when she identified some of the extremists including Kailash Sao, Birendra Ram, Chetlal Prajapati and other extremists about 100-150 in number. All of them tied her husband Dukhi Sao, her son 8 Death Reference No.3 of 2013 Prayag Sao, Ram Briksh Sao, Guru Dayal Sao, Nepali Kandu, Munshi Ram, Jeevlal Ram, Bansi Sao, Ramdev Sao, Tahal Sao by rope. She fell on the feet of Kailash Sao to save the life of other persons, but she was pushed away abusing her in filthy language and all of them were taken to Ghorchari agriculture field, where the extremists butchered the apprehended persons by sword, tangi, farsa, etc. They also played football with the heads of the deceased and they also drank their blood. She has stated that her entire house was burnt. She identified all the four accused persons in the Court. This witness was also put to extensive cross-examination on behalf of the accused persons, but there is nothing of much importance in her cross-examination.
11. PW-34 Om Prakash Sao is the son of the deceased Parmeshwar Sao. He has stated that on the date of occurrence, he was present in the house along with his father Parmeshwar Sao, uncle Prayag Sao, grandfather Dukhi Sao and his grandmother, mother and other family members. At about 3:00 AM in the night, there was sound on the door of the house, whereupon his grandmother asked as to who were there, they replied that they were MCC people. Thereafter his father Parmeshwar Sao asked to bring the ladder, whereupon the extremists stated that they were on the roof also, and they started firing indiscriminately. They were asking the inmates of the house to come out of the house, but when they did not come out, the extremists resorted to indiscriminate firing and they also put the house to fire. One bullet hit his father Parmeshwar Sao and he died at the spot. When the fire spread in the house, all the family members and members of the Gram Raksha Dal, who were present in the house, came out of the house, whereupon Kailash Sao, who was area commander of MCC, asked his associates to tie all of them, whereupon all of them were tied by the extremists. They were also assaulted badly on the orders given by Kailash Sao. The ladies of the house were falling on the feet of Kailash Sao, asking for sparing the other persons, but all of them were brought to Ghorchari and thereafter they were butchered one by one by the extremists. The extremists cut the hands and feet of Kamdev Thakur and after about ten minutes, he was beheaded. Brahamdeo Sao was also butchered in the same manner. Dukhi Sao was also 9 Death Reference No.3 of 2013 assaulted in the neck. This witness has named all the members of the Gram Raksha Dal, who were butchered by the extremists. He has stated that all the eleven persons were killed on the orders given by Kailash Sao. Thereafter the extremists also put the house of Sattar Mian to fire causing the death of his daughter, who was aged about four years. Sattar Mian was also apprehended. He was killed on the road by slitting his neck. The extremists were armed with rifles, stengun, machinegun, sword, farsa, danda etc. This witness has stated that three members of his family were killed, but he cannot say as to which of the extremists had killed his father. His grandfather was killed by Kailash Sao by kulhari and his uncle was assaulted and killed by sword. His house was burnt and the dead body of his father was also burnt in the house. This witness has identified the accused Kailash Sao, Birendra Ram, Jagarnath Sao and Chetlal present in the Court and has stated that there were about 2000 other extremists also and they had surrounded the entire village. In his cross-examination on behalf of accused Jagarnath Sao and Birendra Ram, this witness has stated that he had not seen them assaulting the deceased. This witness was also cross-examined on behalf of Kailash Sao and has stated that this accused is also his co-villager. He denied the suggestion that he had not seen any occurrence. In his cross-examination on behalf of Chetlal Prajapati, he has stated that he had seen the occurrence.
12. It may be stated that one more witness of this family, namely, PW-11 Yasoda Devi, who is the wife of the deceased Paryag Sao, was examined by the prosecution. Though this witness has supported the occurrence, but she has turned hostile on the point of identification of the accused persons. Similarly, PW-41 Sanju Devi, who is the wife of the deceased Jeeblal Ram, though has supported the occurrence, but she has also turned hostile on the point of identification of the accused persons.
13. PW-15-A Sakina Bano @ Khatoon is the wife of the deceased Sattar Mian. She has also supported the prosecution case stating that the occurrence had taken place on 14 th April 2001 at about 4:00 AM, while she was sleeping in her house with her husband and children. She heard the sound on 10 Death Reference No.3 of 2013 the door, whereupon she asked as to who was there, and she was replied that they were MCC people. Out of fear, they did not open the door of the house and the MCC people put the house on fire. When the house started burning, her husband tried to flee away, the extremists started firing. She identified Kailash Sao, who was along with several persons. Her husband was injured by bullet and he fell down. Thereafter, the accused persons assaulted her husband by tangi and farsa on his neck causing his death on the road, in front of the house. She has stated that she had a daughter Anjum, aged about 1½ years, who died in the house being suffocated by gas. Her entire house was burnt. She has stated that some other persons of her village were also killed by the extremists at Ghorchari. She has identified the accused Kailash Sao in the Court. She has not identified the other three accused persons in the Court. In her cross-examination on behalf of Kailash Sao, she has stated that she could not see, as to who fired the bullet which hit her husband. She has stated that Kailash Sao is her co-villager, whom she knew from before the occurrence.
14. PW-36 Md. Hafiz, is the neighbour of the deceased Sattar Mian. This witness has stated that on the date of occurrence, in the early morning, he was going to offer Namaz, when he heard the sound of firing. He tried to open the door of his house, but he found the door bolted from outside. He woke up his family members and they stopped him from going out. He has stated that by the side of his house, is the house of late Sattar, and some people were calling Sattar. When Sattar did not open the house, his house was put to fire and when Sattar came out, he was killed by the extremists on the road slitting his neck. When Sattar died, Kailash Sao told his people that the work had been done and thereafter they went away. Thereafter this witness came out of the house and found that other persons were also killed by the extremists at Ghorchari and about 13 persons were killed belonging to Gram Raksha Dal. One child Anjum Ara also died due to burn, who was brought out of the house in burnt condition. This witness has stated that the entire occurrence had taken place under the leadership of Kailash Sao and other extremists were also there. He has named the persons belonging to Gram Raksha Dal, who were killed in the 11 Death Reference No.3 of 2013 occurrence. He has identified the accused Kailash Sao, Birodhi Ram and Jagarnath in the Court and has not identified one accused Chetlal Prajapati. In his cross-examination on behalf of the defence, he has stated that at the time of occurrence, he was confined in the house and he had not seen the occurrence.
15. PW-6 Smt. Munwa Devi is the wife of the deceased Shiv Tahal Sao. This witness has stated that at the time of occurrence, Kailash Sao took her husband Shiv Tahal Sao from her house to the agriculture field, where the occurrence had taken place. She also followed her husband and at the place of occurrence, there were six to seven hundred extremists present, variously armed. She has stated that apart from her husband, other persons of the village were brought there, who were Paryag, Parmeshwar, Nepali Kandu, Guru Dayal Sao, Sattar, Bansi Sao, Barhamdeo and daughter of Sattar, etc. The house of Parmeshwar Sao was burnt and Parmeshwar Sao was also burnt along with the said house. She also stated that Parmeshwer was also assaulted by firearm by Kailash Sao. House of Sattar was also burnt and the daughter of Sattar died in the burning house. Sattar was killed in front of the house. The house of Sattar was put on fire by Kailash Sao. She has stated that at the place of occurrence, the accused Kailash Sao, Birendra Ram, Chetlal, Jagarnath and other extremists butchered the persons, who were apprehended. Her husband Shiv Tahal was cut by Kailash Sao by gaita. Brahmdeo, Bansi Saw and Nepali Kandu were also butchered by Kailash Sao, Birodhi Ram, and Chetalal by farsa, garasa and sword. Their heads were severed. Kailash Sao also drank their blood. She has stated that in all 14 to 15 persons were killed by the extremists. Thereafter the accused persons fled away. The dead bodies were collected and all of them were cremated in the village itself. She has identified all the four accused persons in the Court. In her cross examination on behalf of the accused persons, this witness has stated that before the police, she had given the statement that the extremists had searched her husband, but they returned, not finding her husband, and she concealed herself near her house and when in the morning, she went to the place of occurrence, she found all the 14 persons dead. She stated that the accused persons Kailash Sao and Jagarnath Sao are her 12 Death Reference No.3 of 2013 co-villagers. She has stated that earlier also, she had deposed in the Court, but she did not remember as to whom she had named in that trial. She has also stated that the accused Birendra Ram is also her co-villager. She has denied the suggestion to have given false evidence.
16. PW-8 Smt. Piyaso Devi is the wife of the deceased Brahm Deo Sao. Her Father-in-law and husband were killed in the occurrence. This witness has stated that in the night at about 1:30 AM of 13/14.4.2001, the accused persons, including Kailash Sao and Jagarnath Sao, Chetlal Prajapati, and Birendra Ram @ Birodi Ram and other accused entered into her house damaging the roof. They captured her father-in-law Banshi Sao and uncle-in-law Munshi Sao and they tied them. They were taken to the place where other persons had assembled and the members of Gram Raksha Dal were brought by the extremists. Her husband Brahm Deo Sao was also a member of Gram Raksha Dal and he was present in the house of Parmeshwar Sao and they were also brought there. The house of Parmeshwar Sao was burnt and Parmeshwar Sao was also burnt along with the house. The other persons were brought to Ghorchari agriculture field and all of them were butchered, cutting their heads and legs. Her husband was killed in the same manner and her father-in-law was also murdered, but her uncle-in-law was left after assaulting him. This witness has stated that the house of Sattar Mian was also put to fire and the daughter of the Sattar Mian died in the house. Sattar was killed outside of his house. The occurrence had been committed by the accused Kailash Sao and other extremists named by this witness, including Birendra Ram, Jagarnath Sao and Chetlal Prajapati. She has stated that in all about four hundred persons were there. She has identified the accused persons present in the Court. She was put to extensive cross-examination by the defence, but there is nothing of much importance in her cross-examination, except that she has denied the suggestion given on behalf of the accused Chetlal Prajapati, that he is working as a teacher.
17. PW-5 Munshi Sao is an injured eyewitness to the occurrence and his brother Banshi Sao and nephew Brahamdeo Sao were killed in the occurrence. This witness has stated that he was also taken by the extremists from his house.
13 Death Reference No.3 of 2013 The extremists had surrounded the entire village and had murdered 12 persons. The houses of Sattar Mian and Dukhi Sao were burnt. The daughter of Sattar had died in the burning house. The extremists had shot Parmeshwar Sao and his house was burnt, in which Parmehswar Sao was also burnt. The father of Parmeshwar Sao was also killed by the extremists. This witness along with Banshi Sao, Bhikan Sao and Lahe Sao and other persons had been badly assaulted by the extremists and he has identified the accused Kailash Sao to be one of the persons, who had assaulted him. This witness has stated that Gram Raksha Dal was constituted for the safety of the village and the members of Gram Raksha Dal were apprehended and killed by the extremists, by cutting their hands and feet and thereafter beheading them. The extremists were also playing football with the heads of the deceased persons. He has also given the details as to how the deceased were killed by the extremists. He has identified the accused Kailash Sao, Jagarnath Sao and Birendra Ram in the Court, but he has not identified the accused Chetlal Prajapati in the Court. He has stated that all the accused persons, identified by him, are his co-villagers. In his cross-examination on behalf of the defence, he has stated that he had deposed in the Court earlier also, but these accused were not facing the trial in that case and nothing was asked about these accused in that trial. He has stated in his cross-examination that on the order given by Kailash Sao, Manager Sao cut the neck of Banshi Sao and Brahamdeo Sao's neck was cut by Birendra Ram. Kamdeo Thakur's neck was cut by Kailash Sao and in similar manner, other persons were also killed. He has denied the suggestion to have given false evidence.
18. PW-12 Gudiya Devi is the wife of the deceased Ram Briksh Sao, PW-15 Bimli Devi is the wife of the deceased Nepali Kandu, PW-16 Baro Devi is the wife of the deceased Munshi Ram and PW-17 Malo Devi is the wife of the deceased Guru Dayal Mahato, and these witnesses have also fully supported the prosecution case and they identified all the four accused persons in the Court. However, PW-16 Baro Devi has not named the accused Chetlal Prajapati in the Court, but she has identified the accused by face in the Court. PW-13 Masomat Chinta Devi is the wife of the deceased Kamdeo Thakur and she has also 14 Death Reference No.3 of 2013 supported the case stating that the accused Kailash Sao killed her husband. This witness however, has not identified the other three accused persons in the Court.
19. PW-29 Sakal Dev Thakur is the nephew of the deceased Kamdeo Thakur. He has also supported the prosecution case and has identified the accused Kailash Sao to be present in the occurrence, but he has stated that he identified the accused Jagarnath and Birendra being his co-villagers, but he had not seen them during the occurrence. He has also not identified the accused Chetlal Prajapati in the Court. Similarly PW-31 Pankaj Sao has also supported the prosecution case stating that the extremists had committed the brutal murder of fourteen villagers. This witness along with his brother Rabindra Kumar and his uncle Munshi Sao were also apprehended by the extremists, but they were left after the occurrence. He has stated that the occurrence was committed by the group of Kailash Sao under his leadership. He has identified the accused Kailash Sao and Chetlal Prajapati in the Court, but he has stated that Jagarnath Sao and Birendra Ram were not present at the time of occurrence. Similarly, PW-37 Kuleshwar Sao and PW-38 Deepu Rana have also supported the prosecution case and these witnesses have identified Kailash Sao, Birendra Ram and Jagarnath in the Court, but they have not identified Chetlal Prajapati in the Court. PW-37 Kuleshwar Sao has admitted in his cross-examination that he had not seen the occurrence.
20. Dr. Chandra Prakash Choudhary, who appears to have been examined twice in the Court inadvertently, as PW-22 and PW-35, and PW-39 Dr. Dasrath Prasad Mandal, had conducted the post-mortem examinations on the dead bodies of the deceased persons in the village itself. Dr. Chandra Prakash Choudhary had conducted the post-mortem examinations on the dead bodies of Dukhi Sao, Jeeblal Ram, Kamdeo Thakur, Bansi Sao and Munshi Ram, whereas PW-39 Dr. Dasrath Prasad Mandal had conducted the post-mortem examinations on the dead bodies of Sattar Mian, Parmeshwar Sao, Braham Deo Sao and Baby Anjum. The medical officers conducting the post-mortem examinations on the other deceased were not examined in the 15 Death Reference No.3 of 2013 Court. Both these witnesses have given the details of their findings, which need not be discussed in detail, except mentioning that the deaths were caused due to shock and haemorrhage due to ante-mortem injuries caused by sharp cutting weapons and in some cases the dead bodies were found to be beheaded. The dead body of Parmeshwar Sao was found to be badly burnt, only the head and some parts of muscles were left. The body looked like a bundle of muscles. The cause of death of baby Anjum was found to be asphyxia due to suffocation. Both these witnesses have proved the post-mortem reports to be in their hand writing and signatures, which were marked exhibits. They have stated that on the order of the D.C., Hazaribag, the post-mortem was conducted in the village itself, in the open field. Dr. Chandra Prakash Choudhary has also stated that one Dr. Parnay Mohan was also conducting the post-mortem examination separately.
21. PW-32 Hari Lal Yadav, is the Inspector of Police, who was posted as Officer-In-charge of Keredari Police Station on 14.4.2001. He had recorded the fardbeyan of the informant Baleshwar Sao at the place of occurrence on 14.4.2001 at about 11:00 AM and he had taken up the charge of investigation. He has proved the fardbeyan, which was marked Exhibit-7. He has also proved the formal FIR, which was marked Exhibit-8. This witness has stated that the first place of occurrence is an agriculture field at Ghorchari, at about 1000 yards from the village, where he found the dead bodies of the members of Gram Raksha Dal, who were, Munshi Ram, Nepali Kundu, Gurudayal Sao, Dukhi Sao, Jeeblal Sao, Banshi Sao, Shiv Tahal Sao and in the adjacent agriculture field, he found the dead bodies of Kamdev Thakur, Prayag Sao and Ram Briksh Sao. In another adjacent agriculture field, he found the dead body of Brahamdeo Sao and there was lot of blood on those places. The dead bodies were badly mutilated. The second place of occurrence was the thatched mud built house of Parmeshwar Sao in village Beltu, where he was informed that members of Gram Raksha Dal were also sleeping and when the house was burnt, they came out. There were two holes on the wall, which were made by the extremists, through which, the extremists were firing, by which Parmeshwar Sao was hit by bullet and he died at the spot and in the same house, his burnt dead body in the form of 16 Death Reference No.3 of 2013 bundle of flesh and bones was found. There were lot of bullet marks on the walls and the entire house was burnt. The adjacent houses were also found burnt partially. The third place of occurrence is the house of deceased Sattar Mian in the village, which was also a mud built thatched house. On the walls of this house also, the bullet marks were found and the house was burnt. When Sattar came out of house, he was killed by the extremists. His dead body was found on the village road at about fifty yards from his house with lot of blood. The dead body of baby Anjum was also found in the house. This witness has stated that the inquest reports of the dead bodies were prepared, which he has proved as Exhibit-9 series. He has also stated that post-mortem examinations of the deceased were done at the place of occurrence itself, by a team of Doctors of Sadar Hospital, Hazaribagh. He also recorded the statements of the witnesses and prepared memos for the injury reports of the injured witnesses, which this witness has proved as Exhibit-10 series. He also received the injury reports of the injured persons, as also the post-mortem reports of the deceased. He has stated that on his transfer from Keredari Police Station, he handed over the charge of investigation. In his cross-examination, this witness has stated that he had not arrested any accused. He has also stated that the Commissioner, D.C., SP., DIG, etc., all the senior officers had visited the place of occurrence and on their directions, post-mortem examinations of the deceased were done at the place of occurrence itself. He has denied the suggestion of making faulty investigation.
22. PW-33 Satish Chandra Jha, is the Police Officer who had arrested Chetlal Prajapati and had submitted the charge-sheet against him. In this cross-examination, this witness has stated that some of the witnesses had taken the name of Chetlal Prajapati. PW-40 Karmpal Uraon had also made part investigation in the case.
23. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., in which they have denied the evidence against them. The accused Birendra Ram @ Birodhi Ram has stated that on the date of occurrence, he was in his in-laws' place at Sila Ichak. The accused Jagarnath Sao has stated 17 Death Reference No.3 of 2013 that he was at Delhi on the date of occurrence. Accused Chetlal Prajapati has stated that he was in Orissa, engaged in manufacturing of tiles. However, no defence witness had been examined on behalf of the accused persons. It may be stated that from the suggestions given on behalf of the accused Chetlal Prajapati to PW-8 Smt. Piyaso Devi and PW-10 Bandhani Devi, it appear that the defence of Chetlal Prajapati, is that he was a school teacher. During the course of arguments also, learned counsel appearing for this accused has submitted that he is a school teacher, who has been falsely implicated in this case, but the fact remains that no evidence was adduced to show that this accused is a school teacher, rather in his statement under Section 313 of the Cr.P.C., he stated that he was in Orissa, engaged in manufacturing of tiles. This clearly belies his defence.
24. Learned counsels appearing for the appellants Jagarnath Sao and Chetlal Prajapati have submitted that the prosecution has failed to bring home the charges against the appellants beyond all reasonable doubts, in as much as, the informant of the case, PW-7 Baleshwar Sao has turned hostile on the point of identification and has not identified any accused. It has also been submitted by learned counsels that the person named as Chetlal Mahto in the FIR is not the present appellant Chetlal Prajapati. Learned counsel also submitted that most of the witnesses have turned hostile, at least on the point of identification and the case is supported only by the interested witnesses, who are the wives and the relatives of the deceased. Learned counsels have also tried to take help of some discrepancies in evidence of the witnesses, wherein some witnesses have stated that Sattar Mian was also brought to the agriculture field, where other members of the Gram Raksha Dal were murdered, and on the basis of such discrepancies, they tried to submit that the witnesses supporting the prosecution case are not reliable witnesses. Learned counsel for the appellant Chetlal Prajapti also submitted that Chetlal Prajapati is actually a school teacher, but only inadvertently this fact could not be proved by the defence, and he was not involved in the occurrence, nor he was named in the FIR. Learned counsels have also submitted that all the accused persons have been acquitted for the 18 Death Reference No.3 of 2013 offences under Sections 307 /149, 123/149, Sections 4 / 5 of the Explosive Substance Act and Section 17 of the CLA Act and they have been convicted only for the offences under Sections 302, 302/149, 342/149, 436/149, 452/149 read with Section 120-B of the Indian Penal Code and Section 27 of the Arms Act. It has been submitted that no conspiracy has been proved in the case and this is a fit case, in which all the appellants ought to have been given the benefits of doubt.
25. Learned counsels appearing for the appellants Kailash Sao and Birendra Ram @ Birodhi Ram, both of whom have been awarded death sentence, have also adopted the same arguments of the learned counsels for the other appellants, but they have mainly confined their arguments on the point of sentence, submitting that the death sentence was not at all warranted in the present case, as this is not a case, which comes within the expression 'rarest of the rare cases' and it is a fit case, at least, in which, their death sentences be commuted to the life imprisonment. In support of their contentions, learned counsels have placed reliance upon the decisions of the Hon'ble Supreme Court of India in Bachan Singh Vs. State of Panjab, reported in (1980) 2 SCC 684 and Machhi Singh & Ors. Vs. State of Panjab reported in (1983) 3 SCC 470, and submitted that the cases of these appellants do not fall within the aggravating circumstances for awarding death sentence, detailed in these decisions of the Apex Court. Learned counsels have also placed reliance upon a decision of the Supreme Court of India in Vyas Ram & Ors. Vs. State of Bihar reported in (2013) 12 SCC 349, which relates to the infamous gruesome carnage of 35 persons of a particular community in village Bara in the district of Gaya in the State of Bihar. It has been submitted by the learned counsels that in the said case, the death sentence of the accused persons, awarded by the Trial Court and confirmed by the High Court, was commuted to life imprisonment by the Apex Court. Learned counsels have submitted that though some of the witnesses have stated that the occurrence was led by Kailash Sao and though it is stated by some witnesses that after committing murder of the deceased persons, these appellants were playing football with their heads and also drinking their blood, but 19 Death Reference No.3 of 2013 there is no such allegation in the FIR, nor any such statement was given by the witnesses before the police. It is submitted that it is for the first time before the Trial Court, that such statements have been made by the witnesses. Learned counsels have submitted that these facts of treating the dead bodies in such inhuman manner, had also not come in the earlier trial, in which some other accused persons had faced the trial arising out of the same occurrence. It is submitted that out of the total accused persons put to trial, about 40 persons have been acquitted by the Courts. Learned counsels accordingly, submitted that since the facts that the accused persons were playing with the heads of the deceased as football and were also drinking the blood of the deceased, are only improvements made by the witnesses in the Trial Court, the same cannot be taken into consideration and the cases of these appellants are also at par with the other co-accused persons, who have been awarded life imprisonment only. Learned counsels, however, agreed that there is no cross-examination of the witnesses on these points by the defence side and that was a big lapse on the part of the defence, but the same cannot be taken as an excuse for depriving the life of the appellants. Learned counsels accordingly, submitted that this is a fit case, in which, at least, the death sentence of the appellants Kailash Sao and Birendra Ram @ Birodhi Ram be commuted to imprisonment for life.
26. Learned counsels for the State on the other hand have submitted that the prosecution has been able to bring home the charges against all the accused persons beyond all reasonable doubts and though the informant has turned hostile in this case on the point of identification, but the fact remains that the FIR cannot be treated as an evidence, nor it is an encyclopedia of the prosecution case. The sum and substance of the FIR have also been supported by several witnesses including the informant, but they have turned hostile only on the point of identification. The injured witnesses, and the wives and the relatives of the deceased persons have fully supported the prosecution case stating that all the fourteen unarmed persons, were brutally massacred by the accused persons and most of the witnesses have named all the four accused persons. Some of the witnesses have stated that the occurrence had taken place under the leadership 20 Death Reference No.3 of 2013 of the accused Kailash Sao and they have given the gruesome details of the occurrence, stating that after beheading the deceased, the appellants were playing with the heads as football and they also drank the blood. It has been submitted by learned counsels that no cross-examination, whatsoever, has been made on behalf of the defence of any of these witnesses and at this stage, it cannot be said that this is only an improvement over the prosecution case. Learned counsels submitted that all the deceased victims were the members of Gram Raksha Dal and the carnage was done only to create terror and liquidate them, and they were gruesomely massacred, when they were sleeping in the house of Parmeshwar Sao, from where they were taken into captivity and brought to the agriculture field, where they were cut into pieces one by one. Learned counsels have also placed reliance upon the aggravating circumstances detailed in Bachan Sings's case (supra) and has submitted that the case of the appellants squarely come within the aggravating circumstances and it is a fit case, in which, the appellants Kailash Sao and Birendra Ram @ Birodhi Ram be awarded death sentence as their cases come within the expression of 'rarest of rare cases'. Learned counsels also submitted that there is no illegality in the conviction and sentence of the appellants Jagarnath Sao and Chetlal Prajapati also, and as such, there is no illegality in the impugned Judgment of conviction and Order of sentence. Learned counsels for the State have placed reliance upon the decision of the Supreme Court in Sonu Sardar Vs. State of Chhattisgarh reported in (2012) 4 SCC 97, wherein where five members of a family, including the minor children were ruthlessly killed, the accused persons were awarded death sentence, which was upheld up to the Supreme Court.
27. Having heard learned counsels for both the sides and upon going through the record, we find that these cases relates to gruesome massacre of 14 persons at the hands of the extremists. The manner, in which the occurrence had taken place, shakes the conscience. In Ramesh Singh Vs. State of Haryana, reported in (2017) 1 SCC 529, the Hon'ble Supreme Court of India has noted that the culture of compromise has developed in the criminal cases, and the present case also appears to have been suffering from same culture of compromise, as many 21 Death Reference No.3 of 2013 of the important witnesses, including the informant, have either turned hostile not supporting the case, or though they have supported the prosecution case, but they have turned hostile on the point of identification and have not identified the accused persons in the Court, nor named them in the evidence, for the obvious reasons. However, fortunately there are some witnesses, may be interested ones, but the fact remains that they are the victims in the case, in as much as, they were also assaulted, or they are the wives and relatives of the deceased persons. The presence of these witnesses at the place of occurrence cannot be denied and they have fully supported the prosecution case and the manner in which, fourteen persons were done to death by the extremists in the village. Their ocular evidences are also supported by the evidence of the I.O., PW-32 Hari Lal Yadav, who found the mutilated dead bodies at the place of occurrence, and has stated that on the orders of the higher officials, the post-mortem examinations were done at the place of occurrence itself, by the team of doctors from Sadar Hospital, Hazaribag. Dr. Chandra Prakash Choudhary and Dr. Dasrath Prasad Mandal, who are examined as PW 22, 35 and 39, had conducted the post-mortem examinations on some of the deceased and have proved the post-mortem reports of those deceased, fully corroborating the prosecution case. Though it is submitted on behalf of the appellant Chetlal Prajapati that he is a school teacher and has been falsely implicated in this case and he was not named either in the FIR or in the statements before the police, but the fact remains that no defence evidence was adduced in the case to prove this fact, and his claim that he is working as a teacher is belied by his own statement, recorded under Section 313 of the Cr.P.C., wherein, he has stated that on the date of occurrence, he had gone to Orissa and was engaged in manufacturing of tiles. PW-33 Satish Chandra Jha, who is one of the investigating officers in the case, had arrested Chetlal Prajapati and he has stated that the witnesses had named this accused also. Though it is a fact that it is doubtful, whether this accused is named in the FIR, as there is nothing on the record that the accused Chetlal Mahato named in the FIR is the same accused Chetlal Prajapati, but the fact remains that this accused has been named by the 22 Death Reference No.3 of 2013 witnesses before the I.O., as also he has been named by some witnesses examined in the present case also, stating that he was also actively participating in the occurrence. On the basis of the evidence on record, we are of the considered view that the prosecution has been able to prove the fact that in the carnage, which had taken place at the hands of the extremists in large numbers, all these four accused appellants, had taken active part.
28. As regards the submission for the learned counsels for the appellants that there are discrepancies in the evidence of the witnesses, we are of the considered view that the discrepancies, if any, are only minor in nature, which, in the facts of the present case, are only natural, in as much as, the occurrence had taken place in the night hours, when the entire village was sleeping and the manner in which the occurrence had taken place, the witness must have been terror stricken and traumatized, and as such, some minor discrepancies in their evidences as to the role to the particular accused in the occurrence, are bound to be there, which are only to be ignored in the facts of the present case.
29. However, the fact remains that in the FIR, it is not alleged that the occurrence was led by the appellant Kailash Sao, nor it is alleged that at the time of occurrence, the accused persons were playing football with the heads of the deceased and were drinking the blood. Though some of the witnesses have stated these facts against the appellants and they have not been cross-examined on this point, but for the ends of justice, and since it is a case where death sentence has been awarded, we looked into the case diary also, to find out whether such statements were made by any witness before the police. We find from the case diary that no such statement was made by any witness before the police and these statements have been made for the first time during the trial in this case by the witnesses. Though these witnesses have not been cross-examined on this point and this is a great lacuna on the part of the defence in examination of the witnesses, we are of the considered view that in the interest of justice, these aggravating circumstances cannot be taken into consideration against any of the appellants. Playing football with the heads and drinking blood of the deceased persons are such horrifying facts, that no witness could have 23 Death Reference No.3 of 2013 lost sight of these facts and these facts, if true, must have come in the FIR and in the statements of the witnesses recorded by the police. These facts are conspicuously absent from both these places and we are of the considered view that these are the improvements made by the witnesses during trial for projecting the occurrence as more shocking.
30. The fact remains that in Vyas Ram's case (supra), which related to gruesome carnage of 37 persons in Bara village, in the State of Bihar, belonging to a particular community, the accused persons, who were awarded death sentence, and was also confirmed by the High Court, but their death sentence were commuted to life sentence by the Hon'ble Apex Court. In the present case also, the other co-accused, who had faced the trial separately and some of whom, were awarded death sentence by the Trial court, their death sentence were converted into life imprisonment by this court in Death Reference No. 4 of 2003 and connected criminal appeals, reported in 2004 (3) East Cr C 438 (Jhr), mainly on the ground that there was nothing to show that they were leading the mob of the extremists, or there was any specific overt act against them. In the present case also, sans the evidence that the mob was led by the accused Kailash Sao and that the accused were playing football with the heads and drinking blood of the deceased persons, the evidence against all the accused appellants are almost the same, and we are of the considered view that law of parity demands that for the same occurrence when the co-accused persons, who were awarded death sentence, and their death sentences have been converted into life imprisonment, the appellants Kailash Sao and Birendra Ram @ Birodhi Ram also deserve the same benefit.
31. For the foregoing reasons, the death reference No.3 of 2013, is hereby, answered in negative and the death sentence awarded to the appellants Kailash Sao and Birendra Ram @ Birodhi Ram, is hereby commuted to imprisonment for life, which shall mean the imprisonment for rest of their natural life. In the facts of this case, the life imprisonment awarded to the other two appellants also, namely Chetlal Prajapati and Jagarnath Sao shall also mean the same, i.e. the imprisonment for life, which shall mean for the rest of their natural 24 Death Reference No.3 of 2013 life, as was awarded by the Hon'ble Apex Court in Vyas Ram's case (supra). All the appellants are already in custody and they shall serve the sentence imposed upon them by the Trial Court below for rest of their natural life, without any remission.
32. Except for the above, we do not find any illegality in the impugned Judgment dated 12th July 2013 and Order dated 17.7.2013 passed by the learned 4th Additional Sessions Judge-cum-Special Judge, Vigilance, Hazaribag, in S.T. No.40A of 2002, S.T. No.234 of 2004 and S.T. No.380 of 2004, convicting and sentencing the accused appellants, which we hereby, affirm.
33. Consequently, the Cr. Appeal No.775 of 2013 and Cr. Appeal No.931 of 2013 are allowed in part, where as Cr. Appeals No.708 of 2013 and Cr. Appeal No.966 of 2013, are hereby, dismissed, being bereft of any merits. Let the Lower Court Records be sent back forthwith, along with a copy of this Judgment.
(H.C. Mishra, J.) Ananda Sen, J.:-
(Ananda Sen, J.) Jharkhand High Court, Ranchi Dated, the 12th of October, 2017. R. Kumar/NAFR