Allahabad High Court
Gambhir Singh vs State Of U.P. on 9 January, 2019
Equivalent citations: AIRONLINE 2019 ALL 119
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Judgment reserved on : 26.10.2018
Judgment delivered on : 09.01.2019
Reference No. 07 of 2017
In
Case :- CAPITAL CASE No. - 1900 of 2017
Appellant :- Gambhir Singh
Respondent :- State Of U.P.
Counsel for Appellant :- From Jail,Dharmendra Singh (AC), Brijesh Sahai
Counsel for Respondent :- G.A.
Connected With
Case :- GOVERNMENT APPEAL No. - 3574 of 2017
Appellant :- State Of U.P.
Respondent :- Smt. Gayatri
Counsel for Appellant :- G.A.
Counsel for Respondent :- Hitesh Pachori,Hitesh Pachuri
Hon'ble Sudhir Agarwal,J.
Hon'ble Om Prakash-VII,J.
(Delivered by Om Prakash-VII, J.)
1. Present reference under Section 366 Cr.P.C. and Capital Case under Section 374(2) Cr.P.C. have arisen assailing judgment and order dated 20.03.2017 passed by Additional Sessions Judge, Court No. 10, Agra in Session Trial No. 502 of 2012, whereby accused-appellant Gambhir Singh has been convicted under Sections 302 read with 34 IPC and 404 IPC. Considering the case to be rarest of rare, accused-appellant was awarded death sentence under Section 302 read with 34 IPC with a fine of Rs. 50,000/- and in default of payment of fine, he has to undergo one year additional imprisonment. Further under Section 404 IPC, he was sentenced to undergo three years imprisonment with a fine of Rs. 10,000/- and in case of default in payment of fine, he has to further undergo three months additional imprisonment. It was further directed that all sentences shall run concurrently.
2. Vide impugned judgment and order dated 20.03.2017 passed by Trial Court in Sessions Trial No.502 of 2012, accused Smt. Gayatri was acquitted of charge under Sections 302 read with 34 IPC and 404 IPC. Against her acquittal, an Appeal on behalf of the State, being Government Appeal No.3574 of 2017, has been preferred, which is connected with this Capital (Criminal) Appeal.
3. Since both the connected cases arise out of same judgment and order, it were heard together and are being disposed of by this common judgment and order.
4. Prosecution story, in brief, as unfolded in written report (Ex.Ka.1) is as follows :
Informant (P.W.1) Mahaveer son of Balveer Singh resident of Village Ardaya, Police Station Achhnera, District Agra moved written report (Ex.Ka.-1) dated 09.05.2012 at Police Station Achhnera mentioning therein that marriage of informant's sister Pushpa was solemnized 12 years back with Satyabhan son of Shiv Singh resident of Turkiya. Out of wedlock, three daughters namely, Aarti, Mahla and Gudia and one son Kanhaiya were born. Gambhir, younger brother of informant's brother-in-law, bore enmity with them due to partition of land. On 08.05.2012, Gambhir Singh was staying along with his friend Abhishek at the house of informant's sister. On 09.05.2012 at 6:30 in the morning, informant received information that his sister, brother-in-law, nephew and nieces i.e. whole family have been done to death. On information, informant and his family along with villagers reached village Turkiya and saw all dead bodies lying there. On inquiry being made, it is revealed that yesterday evening, Gambhir along with his friend Abhishek and sister Gayatri was seen going from village Turkiya in bewildered condition. Informant believed that Gambhir and his friend have murdered his sister Pushpa, brother-in-law Satyabhan and their four children with some sharp edged weapon.
5. On the basis of written report Ex.Ka.-1, chik first information report (hereinafter referred to as "F.I.R.") No. 105 of 2012 (Case Crime No.329 of 2012) Ex.Ka.-18, was registered against accused Gambhir, Abhishek and Smt. Gayatri under Section 302 IPC at Police Station Achhnera, District Agra by P.W.11 Constable Sunil Kumar. He also made entry in General Diary, certified copy whereof is Ex.Ka.-19 on record.
6. Investigation of the case commenced. During investigation, Investigating Officer copied the chik and G.D. in case diary and recorded the statement of informant and also proceeded to the place of occurrence along with police personnel. He also deputed two Sub Inspectors to prepare the inquest report. Inquest report of the dead body of Gudia as Ex.Ka.-10, Satyabhan as Ex.Ka.-7, Kanhaiya as Ex.Ka.-6, Priyanka as Ex.Ka.-8, Pushpa as Ex.Ka.-11 and Arti as Ex.Ka.-9 were prepared along with relevant documents i.e. letter to C.M.O., letter to R.I., letter to C.M.S., photo nash, form 13 etc.
7. Dead bodies were kept in sealed cloths preparing sample seals and were dispatched through Constables for postmortem.
8. P.W. 8 Dr. Vinod Kumar conducted post-mortem on dead body of Satyabhan on 09.05.2012 at 5:00 PM. On external examination, Doctor found him of average built body. Rigor mortis was passed of. Eyes and mouth were half opened. P.W. 8 found following ante mortem injuries on his person:
"(i) Incised wound 17 x 2 cm. on the head and forehead in semi lunar shaped. Frontal bone cut.
(ii) Incised wound 10 x 1 cm. on the upper part of front of neck.
(iii) Oesophagus and trachea cut. Major veins cut and muscles also cut. (iv) Stab wound 2.5 x 1 cm. on the right side of lower part of chest."
9. On internal examination, membranes were found cut; trachea was also found cut; both lungs were congested; both chambers of heart were empty; stomach contained pasty food and mucus membrane was congested; small intestine containing semi digested food particles was congested and large intestine containing faecal matter was congested; liver was congested and gall bladder was punctured; spleen and both kidneys were congested; urinary bladder was empty. In the opinion of Doctor about 3/4 day had passed since the death. Cause of death was due to coma, shock and haemorrhage as a result of ante mortem injuries. Postmortem report prepared by P.W.8 is Ex.Ka.12.
10. At the time of postmortem, viscera of deceased Satyabhan was preserved which is as follows:
Jar A - Stomach and its content.
Jar B - (i) Piece of liver and gall bladder
(ii) One kidney
(iii) Whole spleen
(iv) Piece of small intestine Jar C - Saturated Saline and preservative
11. P.W. 8 Dr. Vinod Kumar examined dead body of deceased Kanhaiya on same day i.e. 09.05.2012 at 4:50 PM. According to him, deceased was aged about 5 years. On external examination, Doctor found him of average built body. Eyes and mouth were half opened. Following ante mortem injuries were found on the body of deceased Kanhaiya by P.W.8 :
(i) Incised wound 5 x 3 cm. x muscular deep, neck muscles and trachea cut.
(ii) Abrasion 3 x 1 cm. left side of front of left shoulder.
(iii) Stab wound 2.5 x 1.5 cm. on the right side of upper part of abdomen.
(iv) Stab wound 2.5 x 1 cm. in mid line of upper part of abdomen 7 cm. above the umbilical.
(v) Contusion Traumatic swelling 5 x 4 cm. on the inner side of right knee.
12. On internal examination, deep cut was present in trachea; both chambers of heart were empty; two stab wounds were found present in abdomen; peritoneum cut at places; stomach was empty and paled; small intestine contained semi digested food and was pale and large intestine contained faecal matter and was pale; liver was pale and gall bladder was full; spleen and both kidneys were congested; urinary bladder was empty. In the opinion of Doctor about 3/4 day had passed since the death. Cause of death was due to shock and haemorrhage as a result of ante mortem injuries. Postmortem report prepared by Doctor is Ex.Ka.13.
13. At the time of postmortem, viscera of deceased Kanhaiya was also preserved which is as follows:
Jar A - Stomach and its content.
Jar B - (i) Piece of liver and gall bladder
(ii) Whole spleen
(iii) One kidney
(iv) Piece of small intestine Jar C - Saturated solution of common salt used as preservative.
14. Dr. Vinod Kumar (P.W.8) conducted autopsy on body of deceased Priya on 09.05.2012 at 5:20 PM. According to him, deceased was aged about 5 years. On external examination, Doctor found her of average built body. Rigor mortis was passed of. Eyes and mouth were closed. Following ante mortem injury was found on the body of deceased :
(i) Incised wound 14 x 4 cm. on the front of neck. Muscles of neck, trachea, veins and oesophagus cut.
15. On internal examination, cut was present in trachea; both chambers of heart were empty; stomach contained pasty food and mucus membrane was congested; semi-digested food was present in small intestine and mucus membrane was pale; faecal matter was present in large intestine and mucus membrane was pale; liver was pale and gall bladder was half full; spleen was congested; urinary bladder was empty. In the opinion of Doctor, about 3/4 day had passed since the death. Cause of death was due to shock and haemorrhage as a result of ante mortem injuries. Postmortem report prepared by Doctor is Ex.Ka.14.
16. At the time of postmortem, viscera of deceased Priya was preserved which is as follows:
Jar A - Stomach and its content.
Jar B - (i) Piece of liver and gall bladder
(ii) One kidney
(iii) Whole spleen
(iv) Piece of small intestine Jar C - Saturated saline as preservative.
17. On the very same day i.e. 09.05.2012 at 6:00 PM, postmortem on the body of deceased Pushpa was conducted by P.W.8 Dr. Vinod Kumar. According to him, deceased was aged about 30 years. On external examination, Doctor found her of average built body. Rigor mortis was passed of. Eyes and mouth were closed. Cut was present in anus and there was white discharge in vagina. Following ante mortem injuries were found on the person of deceased Pushpa :
(i) Incised wound 12 x 5 cm. on the front of neck. Muscles of neck, veins, trachea and oesophagus cut.
(ii) Incised wound 3 x 1 cm. on the right side of upper part of abdomen.
(iii) Incised wound 3 x 1.5 cm. on the left side of upper part of abdomen.
(iv) Incised wound 3.5 x 1 cm. on the left side of lower part of chest.
(v) Incised wound 3 x 1 cm. on the front aspect of right index finger.
(vi) Incised wound 1.5 x 1 cm. on the front aspect of right middle finger.
(vii) Incised wound 3.5 x 2 cm. on the anus.
18. On internal examination, cut was present in trachea; both chambers of heart were empty; cut was present in peritoneum; stomach was empty and congested and cut was present; semi-digested food was present in small intestine and it was pale; faecal matter was present in large intestine and cut was present; there was cut in liver and gall bladder was half full; both kidneys and spleen were congested; urinary bladder was empty; uterus was enlarged and fetus of 1.5 cm. x 1.5 cm. size was found present. According to Doctor about 3/4 day had passed since the death. Cause of death was due to shock and haemorrhage as a result of ante mortem injuries. Postmortem report prepared by Doctor is Ex.Ka.15.
19. At the time of postmortem, viscera of deceased Pushpa was preserved which is as follows:
Jar A - Stomach and its content.
Jar B - (i) Piece of liver and gall bladder
(ii) Whole spleen
(iii) Whole kidney
(iv) Piece of small intestine Jar C - Saturated saline as preservative.
20. After taking vaginal swab, same was sent to Forensic Science Laboratory (hereinafter referred to as "F.S.L.") for chemical and spermatozoa examination.
21. On 09.05.2012 at 5:30 PM, postmortem on the body of deceased Arti was also conducted. According to Doctor, deceased was aged about 5 years. On external examination, Doctor found her of average built body. Rigor mortis was passed of. Eyes and mouth were half opened. Cut of 2.5 cm. was present on anus. Following ante mortem injuries were found on the person of deceased Arti :
(i) Incised wound 17 x 3 cm. on the front of neck. Muscles of neck, veins, trachea and oesophagus cut.
(ii) Incised wound 5 x 3 cm. on the front of left shoulder.
(iii) Stab wound 3 x 2 cm. x cavity deep on the upper part of abdomen. Omentum coming out of the wound.
(iv) Blood in vagina present. Vaginal swab taken and slide prepared.
(v) Incised wound 2.5 x 1 cm. on the anus. Anal swab taken and slide prepared.
22. On internal examination, cut was present in trachea; both chambers of heart were empty; cut was present in peritoneum; blood was present in cavity; stomach contained pasty food and mucus membrane was congested; semi-digested food was present in small intestine and it was pale; faecal matter was present in large intestine containing paleness; liver was contested and gall bladder was half full; spleen was congested and urinary bladder was empty. According to Doctor about 3/4 day had passed since the death. Cause of death was due to shock and haemorrhage as a result of ante mortem injuries. Postmortem report prepared by P.W.8 is Ex.Ka.16.
23. At the time of postmortem, viscera of deceased Arti was also preserved which is as follows:
Jar A - Stomach and its content.
Jar B - (i) Piece of liver and gall bladder
(ii) One spleen
(iii) One kidney
(iv) Piece of small intestine Jar C - Saturated saline as preservative.
24. Dr. Vinod Kumar (P.W.8) also conducted autopsy on body of deceased Gudia on 09.05.2012 at 5:40 PM. According to him, deceased was aged about 3 years. On external examination, Doctor found her of average built body. Rigor mortis was passed of. Eyes and mouth were closed. Cut was present on anus and bleeding present in vagina. Following ante mortem injuries were found on the body of deceased :
(i) Incised wound 6 x 2 cm. on the upper part of neck. Muscles of neck, veins and trachea cut.
(ii) Stab wound 3 x 2 cm. on the upper part of abdomen.
(iii) Bleeding from vagina present. Vaginal swab taken and slide preserved.
(iv) Incised wound 1.5 x 1 cm. on the anus.
25. On internal examination, cut was present in trachea; both chambers of heart were empty; cut was present in membranes and in peritoneum; stomach was empty and mucus membrane was congested; semi-digested food was present in small intestine and it was pale; faecal matter was present in large intestine containing paleness; gall bladder was half full; spleen was congested and urinary bladder was empty. According to Doctor about 3/4 day had passed since the death. Cause of death was due to shock and haemorrhage as a result of ante mortem injuries. Postmortem report prepared by P.W.8 is Ex.Ka.17.
26. At the time of postmortem, viscera of deceased Gudia was preserved which is as follows:
Jar A - Stomach and its content.
Jar B - (i) Piece of liver and gall bladder
(ii) Whole spleen
(iii) One kidney
(iv) A piece of small intestine Jar C - Saturated saline as preservative.
27. After taking vaginal swab, same was sent to F.S.L. for chemical and spermatozoa examination.
28. During postmortem on all dead bodies, videography was also done. Preserved viscera and video cassettes were also handed over to concerned police officials.
29. P.W.12 Inspector Tasleem Ahmad, the Investigating Officer, on information regarding presence of accused-persons, proceeded to Eidgah Railway Station and arrested the accused-appellant Gambhir, co-accused Abhishek (trial separated) and Smt. Gayatri (acquitted). Investigating Officer also recovered pair of kundal - golden colour, two bichhua - white colour, one metallic ring - white colour and two ghungaroo - white colour from the possession of accused-appellant. It is also the case of prosecution that one passbook of State Bank of India of deceased Satyabhan numbered as 30722071514 and its cheque book having leaflets from serial no.541296 to 7385 were said to be recovered from possession of co-accused Smt. Gayatri. Identity card of deceased Satyabhan and Pushpa and also Rs.200/- were recovered from possession of co-accused Smt. Gayatri.
30. Since clothes and shoes worn by accused-appellant Gambhir and co-accused Abhishek were blood stained, same were also taken into custody by the police and keeping them in sealed cloths and also preparing sample seal relevant details were mentioned in Ex.Ka.-22, the recovery memo mentioned above.
31. It appears that on disclosure statement of accused, they were taken to the place of occurrence. Weapons kulhari and katari said to have been used in commission of crime were also recovered on pointing out of accused-appellant Gambhir Singh (kulhari) and co-accused Abhishek (katari) in presence of witnesses from the house of deceased persons in a room where chaff was kept. Both weapons were found blood stained and were taken into custody and keeping them in sealed cloths and preparing sample seal, recovery memo Ex.Ka.-2 was prepared. Investigating Officer has also taken blood stained and simple soil from the place of occurrence and keeping it in sealed boxes and preparing sample seal, recovery memo Ex.Ka.-3 was prepared. Similarly, one videocon TV was also taken into possession and keeping the same in sealed cloth and also fulfilling formalities, recovery memo Ex.Ka.-4 was prepared. Investigating Officer has also taken in possession bread, pulse, three glasses and one steel bowl and keeping it in sealed cloth and also preparing sample seal, recovery memo Ex.Ka.-5 was prepared.
32. It further appears that during investigation, slides prepared after postmortem as well as articles and weapons recovered from the place of occurrence including blood stained soil and clothes were sent by the Investigating Officer for chemical examination to F.S.L. Viscera preserved at the time of postmortem of dead bodies were also sent for chemical examination.
33. Record reveals that in slides of swab, no spermatozoa were found. Poison was also not found in any of the viscera sent for chemical examination. Blood was found on clothes and shoes taken from the body of accused-persons, as is clear from Ex.Ka.-20. Blood was also found on weapon kulhari and katari. Ex.Ka.-25 shows that on the weapon kulhari, human blood was found on chemical examination, but the blood found on katari could not be analyzed, as blood was disintegrated. Blood stains were also found over the earth picked up from the place of occurrence, which was also human blood. Ex.Ka.-24 is related to chemical examination report of articles sent by the Investigating Officer taken during investigation from the place of occurrence.
34. Investigating Officer, after fulfilling entire formalities and completing the investigation, submitted charge-sheet against accused Gambhir, Abhishek and Smt. Gayatri (Ex.Ka.-23).
35. Cognizance was taken by Magistrate concerned. Case, being exclusively triable by the Sessions Court, was committed to the Court of Sessions.
36. Accused appeared. Prosecution opened its case describing all evidence collected during investigation and proposed to be adduced during trial. Trial Court also heard accused side and framed charge for offence under Sections 302/34 and 404 IPC mentioning all details on 30.07.2013. Charges were read over to accused to which they denied and pleading not guilty claimed their trial. It also appears that during trial, on 23.11.2016, missing details in the charge have also been added modifying the charge already framed.
37. It is also evident that an application was moved on behalf of accused Abhishek for declaring him juvenile, on which Sessions Court directed the Juvenile Justice Board to enquire his case. On 18.04.2013, accused Abhishek was declared juvenile in conflict with law. On 10.07.2014, his case was sent to Juvenile Court and thus only against accused Gambhir Singh and Smt. Gayatri Singh trial continued.
38. In order to prove its case, prosecution has examined 13 witnesses in total. Out of them, P.W.1 Mahaveer is the informant, who reached on spot in the morning after receiving information, P.W.2 Bahadur Singh and P.W.3 Shiv Ram Singh, have also reached on spot from their village to the place of occurrence in the morning of incident. They are witnesses of circumstances and recovery. P.W.3 Shiv Ram Singh, P.W.4 Mahtab Singh and P.W.5 Raju have also reached at the place of occurrence after receiving information in their village and they are witnesses of inquest proceedings. P.W.6 Dashrath and P.W.7 Kedar Singh are witnesses of circumstances. P.W.8 Dr. Vinod Kumar has conducted postmortem on dead bodies of deceased persons along with the Panel of Doctors. P.W.9 S.I. Raj Bahadur and P.W.10 S.I. Sitaram Saroj have prepared inquest reports and other relevant documents. P.W.11 Constable Sunil Kumar is the chik writer, who has also prepared the G.D. P.W.12 Inspector Tasleem Ahmad is the first Investigating Officer who is also witness of recovery of weapons, clothes, ornaments etc. He has also prepared other relevant documents as well as site plan and also recorded the statement of witnesses. P.W.13 Inspector Rajeev Yadav is the second Investigating Officer who has submitted charge-sheet after fulfilling entire formalities.
39. In documentary evidence, prosecution has proved Ex.Ka.-1 written report, Ex.Ka.-2, 3, 4 & 5 recovery memos, Ex.Ka.-6 to 11 inquest reports, Ex.Ka.-12 to 17 postmortem reports and papers relating to inquest reports as Ex.Ka.-12Ka/1 to Ex.Ka.-17/7, Ex.Ka.-18 chik F.I.R., Ex.Ka.-19 copy of G.D. Entry, Ex.Ka.-20 & 21 site plan, Ex.Ka.-22 recovery memo, Ex.Ka.-23 charge-sheet and material exhibits 1 to 10.
40. On closure of prosecution evidence, statement of accused-appellant Gambhir Singh as well as statement of co-accused Smt. Gayatri were recorded under Section 313 Cr.P.C. in which accused-appellant has denied the facts mentioned in written report and has stated that P.W.1 and P.W.2 have made false statement. Attention of accused was also drawn by Trial Court towards the question put under Section 313 Cr.P.C. regarding the statement of prosecution witnesses and exhibits proved by those witnesses and then accused-appellant has specifically stated that witnesses have made false statement. Nothing was stated by him regarding inquest reports and other police papers. Trial Court has also drawn attention of accused-appellant towards statements of P.W.5, P.W.6 and P.W.7, on which he stated that these witnesses have also made false statement. Nothing was stated by him in regard to postmortem conducted by P.W.8 on dead body of deceased persons. He also stated that P.W.9, P.W.10 and P.W.11 have also made false statements and have wrongly proved the police papers. When attention of accused was drawn by the Trial Court towards statement of P.W.11, accused specifically stated that P.W.11 has wrongly registered the chik F.I.R. Ignorance was shown regarding the statement of P.W.12 Inspector Tasleem Ahmad, the Investigating Officer, who prepared site plan and made recovery of weapons on pointing out of accused as well as recovery of clothes of accused. He also specifically stated that charge-sheet was submitted on the basis of false facts. In his additional statement recorded on 01.03.2017, chemical examination reports submitted by F.S.L. as Ex.Ka.-24, 25, 26, 27 and 28 were said to be false, but he denied to adduce any evidence in his defence. Similar is the statement of co-accused Smt. Gayatri (acquitted).
41. Trial Court after hearing parties and appreciating the evidence was of the view that prosecution was able to bring home the guilt of accused-appellant for offence under Sections 302/34, 404 IPC beyond reasonable doubt and convicted him for the aforesaid offence. Finding the present case in the category of "rarest of rare" cases, Trial Court has also imposed death penalty for offence under Section 302 IPC to accused-appellant Gambhir Singh. Hence, present reference was submitted by the Trial Court and Appeal has been preferred by accused-appellant. It is also evident that the Trial Court vide impugned judgment and order itself has acquitted Smt. Gayatri from all charges, therefore, Government Appeal has been filed by State.
42. We have heard Sri Brijesh Sahai, Advocate (amicus curiae) for appellant assisted by Sri Dharmendra Singh, Advocate (amicus curiae) and Sri Bhavya Sahai, Advocate and Sri Syed Ali Murtaza, learned AGA for State in Capital Case No. 1900 of 2017 (Reference No. 07 of 2017) as well as Sri Syed Ali Murtaza, learned A.G.A. and Sri Hitesh Pachori, Advocate in connected Government Appeal No.3574 of 2017.
43. Learned Amicus Curiae appearing for appellant assailed the judgment and contended that prosecution was not able to prove its case beyond reasonable doubt. It is purely a case of circumstantial evidence. None of witnesses examined in the matter had seen accused-persons at any point of time at the place of occurrence or along with deceased. F.I.R. lodged in this case was not in existence at the time mentioned therein. It is an ante-timed document. At this stage, learned Amicus Curiae referred to chik F.I.R. as well as statements of P.W.1 and P.W.11 and argued that it appears improbable and unbelievable that within 30 minutes informant reached at police station concerned after preparing written report. Thus, it was argued that F.I.R. was lodged in the matter with an afterthought in consultation with the police. He also referred to statement of P.W.2 and specifically emphasized that police had already reached the place of occurrence before reaching of witnesses. This fact also supports the contention raised on behalf of appellant on point of F.I.R. It was further argued that mandatory provisions provided under Section 313 Cr.P.C. have not been followed. All incriminating materials relied upon by the Trial Court in impugned judgment and order have not been put before accused-appellant in detail as required under law. Thus, prejudice has been caused to accused-appellant in defending his case. At this stage, learned Amicus Curiae also referred to statement of accused-persons recorded under Section 313 Cr.P.C. It was next argued that there is contradiction in the statement of prosecution witnesses on point of arrest of accused, taking of clothes worn by accused and also recovery of weapons. Next submission is that it appears improbable and unbelievable that incident took place in the night and accused-persons wearing blood stained clothes were present on next day at 1:00 P.M. at Railway Station. Referring to this fact, it is urged that arrest of accused-persons from the place shown in prosecution evidence is doubtful. Recovery of clothes from body of accused is also doubtful particularly keeping in view the statement of P.W.2. It was next contended that motive is not established in this case. It is further argued that there is chance of false implication of accused-appellant. Prosecution did not disclose name of villagers, who had seen accused-persons in the house of deceased persons in the night of incident. Chain of circumstantial evidence is not so linked with each other to form a complete chain and on that basis presumption against accused-appellant cannot be drawn. Findings of the Trial Court are perverse and illegal. Medical evidence is also against oral version. Time of death of deceased differs with oral version. To substantiate this argument, at this stage, learned Amicus Curiae referred to the statement of P.W.8 Dr. Vinod Kumar. Blood found on weapon kulhari was not matched with the blood group of deceased, therefore, recovery cannot be used against accused-appellant. Next contention was that accused were implicated in this case on the basis of suspicion only. Prosecution witnesses examined in the matter are closely related to deceased and they are not reliable witnesses. Since they were procured by the police during investigation, therefore, discrepancies in prosecution evidence have occurred on material points. P.W.6 and P.W.7 both are unreliable witnesses. It is further argued that since arrest of Smt. Gayatri was found doubtful, hence entire prosecution case against appellant also collapsed. Thus referring to entire evidence it was urged that findings of the Trial Court in the impugned judgment and order are based on conjecture and surmises against appellant, which need interference by this Court. In support of his contention, reliance was also placed by learned Amicus Curiae on following case laws :
(i) Badam Singh v. State of M.P., (2003) 12 SCC 792.
(ii) State of Orissa v. Babaji Charan Mohanty & Another, (2003) 10 SCC 57.
(iii) Bhimapa Chandappa Hosamani & Others v. State of Karnataka, (2006) 11 SCC 323.
(iv) Dhan Raj alias Dhand v. State of Haryana, (2014) 6 SCC 745.
(v) Sahadevan & Another v. State of Tamil Nadu, (2012) 6 SCC 403.
(vi) State of Rajasthan v. Talevar & Another, (2011) 11 SCC 666.
(vii) Anter Singh v. State of Rajasthan, (2004) 10 SCC 657.
(viii) Brajendra Singh v. State of Madhya Pradesh, (2012) 4 SCC 289.
44. On other hand, learned A.G.A. argued that prosecution was able to prove its case beyond reasonable doubt. P.W.1 to P.W.5 had reached at the place of occurrence in the morning after receiving information. Distance between the place of occurrence and village of these witnesses is only 6 - 7 Kms. Therefore, existence of F.I.R. on the date and time mentioned therein is possible one. F.I.R. is not an ante-timed document nor it is based on due consultation or an afterthought. What information was received by P.W.1 from the villagers, he mentioned the same in written report (Ex.Ka.-1). Motive attributed to accused-appellant has been proved beyond reasonable doubt. Deceased Satyabhan and accused-appellant Gambhir Singh both were real brothers and also involved in committing murder of their mother. Immovable property owned by accused-appellant was sold for the expenses to obtain bail in that criminal case and it was purchased by deceased Satyabhan himself in the name of his wife. Accused-appellant Gambhir Singh always insisted for return of his land and quarrel took place between them. He also threatened deceased of dire consequences and due to that reason, present offence was committed by him along with his companion. Learned A.G.A. also argued that recovery has been proved beyond reasonable doubt and blood was found on the weapon kulhari said to have been used in commission of crime. Trial Court has rightly relied upon the recovery of weapon "axe" and clothes. Prosecution has also proved recovery of ornaments. There is no chance of false implication as motive to commit the present offence is against accused-appellant because he will inherit the immovable property of deceased. Arrest of accused-persons is also not doubtful and statement of prosecution witnesses cannot be thrown out on point of recovery and arrest merely on the ground of some exaggerations or contradictions. It was further contended that contradictions, exaggerations or laches on part of the Investigating Officer do not go to the root of the case. F.I.R. was lodged against accused-persons on the basis of cogent evidence. Findings of the Trial Court regarding guilt of accused-appellant in the impugned judgment and order are not perverse. Chain of circumstances are linked with each other supported by recovery of weapon. Therefore, Trial Court has rightly held guilty to accused-appellant for charges levelled against him. Referring to postmortem reports, it was further argued that manner in which deceased persons were done to death clearly demonstrates that accused-appellant along with his companion have committed murder of deceased persons causing extreme brutality. All family members have been eliminated. This fact itself shows the premeditated plan of accused. Thus the Trial Court has rightly held this case in the category of "rarest of rare" cases. Burden to prove its case beyond reasonable doubt has been discharged by the prosecution. Referring to the finding regarding acquittal of co-accused Smt. Gayatri, it was further argued that although nothing has been recovered on her pointing out yet she was also arrested along with accused-appellant Gambhir Singh. Passbook and other documents relating to deceased Satyabhan were also recovered from her possession. Circumstantial evidence adduced by prosecution also clearly demonstrate her involvement in this matter. Trial Court finding on point of her acquittal is not based on correct appreciation of facts and evidence.
45. Learned counsel appearing for co-accused Smt. Gayatri (acquitted) argued that nothing is on record to connect Smt. Gayatri with present matter nor any test identification parade was arranged nor any incriminating material was recovered on her pointing out to connect her with this matter. Motive is also not attributed to her. Therefore, Trial Court has rightly acquitted her from all charges. There is no illegality or infirmity in the impugned judgment and order on point of acquittal of co-accused Smt. Gayatri.
46. We have considered the rival contentions raised by learned counsel for the parties and have gone through entire record carefully and cautiously.
47. Finding of Trial Court recorded in the impugned judment and order are as follows :
(i) F.I.R. lodged in the matter is a genuine document and it is not an ante-timed document.
(ii) Date, time and place of occurrence have been proved by prosecution from its evidence beyond reasonable doubt.
(iii) Although P.W.6 and P.W.7 are not reliable witnesses, yet prosecution was also able to prove recovery of axe on pointing out of accused-appellant as well as clothes worn by accused-appellant at the time of committing the offence on which blood stains were found.
(iv) Prosecution was also able to connect the recovery of axe and clothes recovered from accused-appellant through F.S.L. report with present offence.
(v) Arrest of accused-appellant is not doubtful.
(vi) Medical evidence fully supports the oral version.
(vii) Prosecution was also able to prove motive against the accused-appellant to commit present offence.
(viii) Chain of circumstantial evidence has been established by prosecution firmly and cogently from its evidence and same is linked with each other to form unerringly a conclusion regarding guilt of accused-appellant in committing present offence.
(ix) Trial Court was also of the view that present case comes under the category of "rarest of rare" cases, thus has imposed death penalty upon accused-appellant.
48. Trial Court while acquitting co-accused Smt. Gayatri was of the view that motive established by prosecution is not attributable to co-accused Smt. Gayatri (acquitted). Nothing has been recovered on her pointing out to connect her with this case. No benefit could derive by her from the pass-book etc. said to have been recovered from her possession. Thus, Trial Court, extending the benefit of doubt, has acquitted co-accused Smt. Gayatri from all charges.
49. First of all Court proceeds to deal with submissions raised on point of F.I.R. lodged in this matter. Offence is said to have been committed in the intervening night of 08/09.05.2012 in Village Turkia, Police Station Achhnera, District Agra. Entire family members were done to death. No one in the family was spared to lodge the F.I.R. It appears that some villagers have informed P.W.1, who is brother-in-law (sala) of deceased Satyabhan, in the morning of 09.05.2012 at about 6:00 - 6:30 AM about this incident. Thereafter he along with other villagers came to the concerned village, which was about 7 - 8 Kms. away from his village. It also appears that after reaching the place of occurrence, P.W.1, on the basis of information gathered from the villagers, although their names have not been disclosed by prosecution, prepared written report through scribe, went to police station and lodged the F.I.R. at 8:00 AM. Distance between police station and the place of occurrence is 7½ Kms. If statements of P.W.1, P.W.2 and PW.3 are taken into consideration on this point in consonance with the submission raised by learned Amicus Curiae, it is evident that information to P.W.1 was received at 6:00 to 6:30 AM. He proceeded immediately to the concerned village and reached there at about 7:30 AM. P.W.2 at one point of time has stated that when he reached at the place of occurrence, police personnel were present there. Referring to this fact, it was emphasized that prosecution did not explain as to how and under what circumstances police reached the place of occurrence before reaching of witnesses and it was also argued that this fact itself shows that F.I.R. is ante-timed document. If submissions raised by learned Amicus Curiae are minutely analyzed with statements of P.W.1, P.W.2, P.W.3 and P.W.9 to P.W.12, it clearly emerges that aforesaid statement made by P.W.2 to this extent cannot place the prosecution case doubtful. No question was put to P.W.2 that police personnel present at the place of occurrence before reaching of P.W.2 were the police actually proceeded from the police station concerned after registering the case or they belong to patrol party. If such was the position, submission raised by learned Amicus Curiae doubting the existence of F.I.R. at the time mentioned therein cannot be accpeted. F.I.R. could come in existence at the time mentioned in it. It may also be mentioned that F.I.R. is not the result of afterthought or consultation. If contents of F.I.R. i.e. written report are taken into consideration in the light of entire evidence, there was no chance to falsely implicate accused-persons in this matter on the basis of due consultation or an afterthought. It is also noteworthy that F.I.R. is not an Encyclopedia. All necessary details required to set the law in motion have been mentioned in written report (Ex.Ka.-1). If for the sake of argument or for a moment submission raised by learned Amicus Curiae on point of F.I.R. is taken into consideration then also entire prosecution case if proved from other evidence cannot be disbelieved on the point of ante-timing of F.I.R. In present matter, six persons were done to death. P.W.1 is brother-in-law (sala) of deceased Satyabhan. His sister, nephew (bhanja) and nieces (bhanjis) were also done to death brutally. As per human behaviour / conduct, as soon as P.W.1 received information about the incident, he rushed to the place of occurrence. Keeping in view the distance between the place of occurrence and the village of P.W.1, if he reached at about 7:30 AM at the place of occurrence, it is not unnatural or improbable. Time of receiving of information and reaching the place of occurrence of witnesses shown in prosecution evidence is not based on exact recording of time, but is based on assumption. Written report is briefly stated document. It could be prepared within few minutes and thus on this point, existence of F.I.R. cannot be doubted. Therefore, in our considered view, finding of the Trial Court regarding existence of F.I.R. in this matter cannot be termed to be illegal, rather it is based on correct appreciation of facts, evidence and law. No interference is required in finding of the Trial Court on this point.
50. Since emphasis has been laid by learned Amicus Curiae about non-compliance of mandatory provisions provided under Section 313 Cr.P.C., therefore, we proceed to deal with the submission raised on this issue. Before dealing with facts and evidence of present matter, we would like to refer the settled legal proposition on this point.
51. In Nar Singh Versus State of Haryana, (2015) 1 Supreme Court Cases 496, Court after setting aside judgment of Trial Court as well as High Court remitted the matter back to Trial Court for formulating correct questions and putting same before accused-appellant observing that prejudice is caused to accused-appellant on account of omission to put the question as to the opinion of the Ballistic Expert, which was relied upon by Trial Court as well as by High Court. Court also held that accused is not entitled to acquittal on the ground of non-compliance with the mandatory provisions of Section 313 Cr.P.C. Court has also discussed the ratio laid down in Paramjeet Singh alias Pamma v. State of Uttarakhand, (2010) 10 SCC 439; Basava R. Patil & Ors. v. State of Karnataka & Ors., (2000) 8 SCC 740, Avtar Singh & Ors. v. State of Punjab, (2002) 7 SCC 419; Wasim Khan v. The State of Uttar Pradesh, AIR 1956 SC 400; Bhoor Singh & Anr. v. State of Punjab, AIR 1974 SC 1256; Santosh Kumar Singh v. State through CBI, (2010) 9 SCC 747; State of Punjab v. Hari Singh & Ors. (2009) 4 SCC 200; Kuldip Singh & Ors. v. State of Delhi (2003) 12 SCC 528 and Alister Anthony Pareira v. State of Maharashtra (2012) 2 SCC 648 wherein it has been held that Trial Court is under a legal obligation to put incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the Court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration.
52. It has also been held that statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case.
53. In Santosh Kumar Singh (supra), Court has also held that omission to put any material circumstance to the accused does not ipso facto vitiate trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him.
54. Thus it is evident that any inadvertent omission on the part of Court to question accused on an incriminating circumstance cannot ipso facto vitiate trial unless it is shown that some material prejudice was caused to accused by the omission of Court.
55. In Nar Singh (supra), in para 20, Court has observed as follows :
"20. The question whether a trial is vitiated or not depends upon the degree of the error and the accused must show that non-compliance of Section 313 CrPC has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning under Section 313 Cr.P.C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him under Section 313 Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused.
56. Court in Nar Singh (supra), in para 30, summarized the recourses available to Court when such plea is raised in appeal and prejudice has occasioned as follows :
30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:
30.1. Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;
30.2. In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
30.3. If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 CrPC and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;
30.4. The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.
57. If ratio laid down in aforesaid decisions are taken into consideration, then in the facts and circumstances of the case, this Court has to see what sort of incriminating evidence adduced by prosecution in its evidence have not been put to accused-persons and how prejudice is caused to them. It is also to be seen whether on account of failure of putting incriminating circumstances, trial is vitiated and prejudice is caused to accused-persons.
58. In present matter, if the aforesaid legal proposition are taken into consideration in the light of submissions raised by learned Amicus Curiae appearing for appellant as well as learned counsel for co-accused Smt. Gayatri (acquitted), it is evident that all incriminating materials were placed before accused, which have been relied upon by the Trial Court in the impugned judgment and order. None of the evidence, which have been relied upon by Trial Court, have been left over to be placed before accused in statement recorded under Section 313 Cr.P.C. If the manner of answer given by accused-persons in statement under Section 313 Cr.P.C. are taken into consideration, it clearly emerges that they were fully aware about entire evidence including incriminating material / evidence adduced by prosecution in its evidence and they have given answer on every such facts e.g. when in additional statement recorded on 01.03.2017, chemical examination reports submitted by F.S.L. through Ex.Ka.-24 to Ex.Ka.-28 were put to them, they specifically stated that facts mentioned in reports are false. Meaning thereby, they were fully aware about contents of aforesaid exhibits. Similar answers have been given by accused-persons in the statement recorded on 19.10.2016. All exhibits and statements made by prosecution witnesses were referred to them and they have made answer that witnesses have made false statement. It also shows that they were fully aware about the statement made by witnesses. Question no.7 put to accused-appellant Gambhir Singh under Section 313 Cr.P.C. about statement of P.W.6 Dashrath and Question no.8 about statement of P.W.7 Kedar Singh were put to them, then accused-persons stated that these two witnesses have made false statement. Answer given by accused also shows that they were fully aware about statement of prosecution witnesses. Thus if the amended provision of Code of Criminal Procedure to record the statement of accused under Section 313 Cr.P.C. about the manner of preparation of questions and discussions made here-in-above on this point in light of aforesaid legal proposition are taken into consideration, in our considered opinion, all incriminating materials / evidence relied upon by Trial Court in impugned judgment and order were put to accused-persons and they were fully aware about the same and have also given answer thereto. No prejudice is caused to them, as they have specifically stated that they will not adduce any evidence in their defence. It is not a case in which incriminating materials, which have been relied upon by Trial Court, were not put to accused in the statement under Section 313 Cr.P.C. If such was the position, we are also of the view that submission raised by learned Amicus Curiae on this point cannot be accepted and prosecution case is not vitiated on this ground. No prejudice is caused to accused persons. Mandatory provisions of Section 313 Cr.P.C. have been followed literally.
59. Now we come to deal with motive part. It is true that motive is an essential ingredient to commit an offence. Nothing specific was mentioned by P.W.1 in Ex.Ka.-1 on this point as has been stated before the Court. It is evident that when he was interrogated by the Investigating Officer and examined before Court on oath, has stated that there was enmity regarding land dispute between accused-appellant and deceased Satyabhan. It has also been stated that deceased Satyabhan and accused-appellant both were involved in murder of their mother. They were in jail. Satyabhan was released on bail and later on accused-appellant was also granted bail. Huge amount was incurred / spent by accused-appellant in contesting his case due to which one bigha agricultural land was sold by him to the wife of deceased Satyabhan. When accused-appellant released on bail, he insisted to return the said land and due to that reason, on several occasions, hot talks / altercation took place between them. It has also come that accused-appellant used to extend threat to kill. Other witnesses examined in the matter also belong to village of P.W.1 Mahaveer and some of them are closely related to him, but their statement on point of motive has no relevance. If the cross-examination of P.W.1 is taken into consideration, nothing has come out to impeach the statement made by P.W.1 in examination-in-chief on point of motive. Murder of mother of accused appellant and deceased Satyabhan has not been disputed nor statement regarding transfer of immovable property in the name of wife of deceased Satyabhan by accused-appellant was specifically challenged in cross-examination. As regards non-production of documentary evidence to prove motive is concerned, it is noteworthy that a fact may be proved by oral or documentary evidence. Statement referred here-in-above on this issue will certainly come in the category of direct evidence and same has not been specifically impeached in cross-examination and nothing is on record to disbelieve the statement of P.W.1 on point of motive. Thus, we are of the view that submission raised by learned Amicus Curiae on this point cannot be accepted. It may be mentioned here that after the death of entire family members of Satyabhan, accused-appellant will inherit the property owned by Satyabhan, as no one was left in the family to inherit property of Satyabhan except accused-appellant. So far as motive against accused Smt. Gayatri (acquitted) is concerned, she will not inherit the property of deceased Satyabhan nor documents said to have been recovered from her possession will benefit her in any way. If such was the position, finding recorded by Trial Court on the point of motive cannot be termed to be illegal. Non-mentioning of this fact in written report (Ex.Ka.-1) will also not render the statement of P.W.1 made before Court on oath for the reason discussed here-in-above unbelievable. Thus, it can safely be held that finding recorded by Trial Court on point of motive in impugned judgment and order needs no interference and same is based on correct appreciation of facts and evidence. Accused-appellant had motive to commit this offence.
60. So far as medical evidence adduced by prosecution in this matter is concerned, six persons namely, Satyabhan, Pushpa, Arti, Priya, Gudia and Kanhaiya were done to death in the intervening night of 08/09.05.2012 in the house of deceased Satyabhan. Postmortem was conducted on 9.5.2012 in between 4:50 PM to 6:00 PM. In all postmortem reports, time of death of deceased persons has been shown as 3/4 day old. Injuries found on body of deceased persons are incised and stab wounds.
61. Postmortem report (Ex.Ka.-17) of deceased Gudia, aged about 3 years, reveals that first injury is on neck in the form of incised wound. Second injury is stab wound on abdomen. One incised wound was also found on anus.
62. Similarly, in postmortem report (Ex.Ka.-16) of deceased Arti, aged about 5 years, incised wounds were found on neck, shoulder and anus and stab wound was found on abdomen. Other injuries were also found on her body.
63. So far as postmortem report (Ex.Ka.-15) of deceased Pushpa, aged about 30 years, is concerned, incised wounds were found on neck, upper part of abdomen, chest and fingers. Some injuries were also found on other part of her body.
64. On dead body of deceased Priya, aged about 5 years, during postmortem (Ex.Ka.-14), one incised wound was found on neck.
65. Postmortem report (Ex.Ka.-13) of deceased Kanhaiya, aged about 5 years, shows an incised wound on neck and stab wounds on abdomen.
66. As per postmortem report (Ex.Ka.-12) of deceased Satyabhan, incised wounds were found on head, forehead and neck. Oesophagus and trachea both were found cut. One stab wound on the right side of lower part of chest was also found.
67. In the opinion of the Doctor, cause of death of all deceased persons was due to coma, shock and haemorrhage as a result of ante-mortem injuries. When P.W.8 Dr. Vinod Kumar was examined before the Court on oath, he stated that vaginal smear and contents of stomach, kidney and intestine were also preserved and same were sent for chemical examination. Although in F.S.L. Report, neither spermatozoa nor any poison was found in it, yet in the cross-examination, P.W.8 has specifically stated that time of death of deceased persons was 3/4 day old. Postmortem was conducted by a Panel of Doctors and this witness has proved the signature of Doctors, who were in Panel. Video recording was also made and CD was also handed over to the police concerned. If statement of P.W.8 is compared in light of statement of other prosecution witnesses examined in the matter, it is clear that all deceased persons were done to death in the intervening night of 08/09.05.2012 within a few minutes. Accused-persons used same weapon in committing murder of all deceased persons. It is also evident from record that injuries found on body of deceased persons can be caused with the weapon "axe" said to have been recovered on pointing out of accused-appellant. Postmortem report also reveals that accused-persons while committing murder of deceased tried to behead deceased persons, as incised wounds have been found on neck of all dead bodies. Thus, in our considered view, in instant case, prosecution was able to prove date and time of death of deceased persons.
68. Incident took place in the month of May. Symptom of Rigor Mortis shown in postmortem report of all deceased persons is probable and possible one, as it was extreme hot season. Prosecution was also able to prove the manner in which deceased were done to death and has connected the weapon "axe" used by accused-appellant in committing present offence. Thus, finding recorded by Trial Court in the impugned judgment and order on point of medical evidence, in our considered opinion, is also in accordance with facts and evidence which needs no interference by this Court. It may also safely be held in this matter that medical evidence is not contrary to oral version of prosecution.
69. So far as recovery of weapon and clothes as well as reports submitted by F.S.L. are concerned, incident took place in the intervening night of 08/09.05.2012. None of witnesses examined by prosecution were aware about commission of offence till P.W.1 received information in the morning of 09.05.2012. P.W.1 and other witnesses have reached the place of occurrence immediately in the morning itself and thereafter F.I.R. was lodged by P.W.1. It is also evident that on the basis of F.I.R., local police immediately proceeded to the place of occurrence. P.W.12 Tasleem Ahmad has stated that after reaching the place of occurrence and deputing police personnel for arranging the inquest proceeding of dead bodies, he went in search of accused-persons, as F.I.R. was lodged against known accused. Arrest and recovery memo (Ex.Ka.-22) also reveals that accused were arrested at about 1:00 PM on same day at Eidgah Railway Station. On inquiry made by P.W.12 and other police personnel, arrested accused disclosed their names as Gambhir Singh (accused-appellant), Abhishek (trial separated) and Smt. Gayatri (acquitted). Some ornaments belong to deceased Pushpa were also said to be recovered from possession of accused-persons as well as passbook and cheque book said to be belonging to deceased Satyabhan and identity card of deceased Pushpa. P.W.12 has also stated that when accused-appellant was arrested, clothes and shoes worn by him were found blood stained. Ornaments recovered from his possession and clothes of accused-appellant were taken into possession by concerned police and thereafter recovery memo Ex.Ka.-22 was prepared keeping articles in sealed cloth preparing sample seal. As per this witness, on interrogation of accused-persons, they disclosed that they have hidden the weapon used in commission of crime in the house of deceased Satyabhan itself. P.W.12, on the basis of disclosure statement made by accused-appellant Gambhir Singh and co-accused Abhishek (trial separated), took them for recovery of weapon and on pointing out of accused-appellant, as per recovery memo Ex.Ka.-2, weapon "axe" was recovered from the room in the house of deceased. If statements of P.W.1 Mahaveer, P.W.2 Bahadur Singh and P.W.3 Shiv Ram Singh are taken into consideration along with statements of P.W.12 and other police witnesses, who were accompanying P.W.12 at the time of recovery of "axe", cumulatively, recovery of weapon "axe" on pointing out of accused-appellant Gambhir Singh from the husk in the room situated in the house of deceased Satyabhan has been proved by prosecution from its evidence beyond reasonable doubt. Recovery of blood stained cloths, ornaments and weapon said to have been used in commission of crime could not be doubted only on the basis that P.W.2 at one point of time, during examination before the Court, has stated that when accused-appellant was making recovery of weapon, clothes worn by him were blood stained. Aforesaid statement made by P.W.2 Bahadur Singh might be result of exaggerations, which does not demolish the statements made by P.W.1, P.W.3 and P.W.12 as well as other police witnesses on point of recovery of "axe". Even P.W.2 has also supported the factum of recovery of "axe" on pointing out of accused-appellant Gambhir Singh. It is also noteworthy that "axe" said to have been recovered on pointing out of accused-appellant was sent for chemical examination and report submitted by F.S.L. (Ex.Ka.-25) clearly shows that blood was found on "axe" at the time of chemical examination, which was human blood. Thus, findings recorded by the Trial Court on issue of recovery of "axe" on pointing out of accused-appellant Gambhir Singh need no interference by this Court and same are based on correct appreciation of facts and evidence. Accused-appellant was arrested from the place mentioned in Ex.Ka.-22 and clothes worn by him were blood stained and same were taken into custody by police. Thereafter, accused-appellant Gambhir Singh and co-accused Abhishek (trial separated) were taken by concerned police for recovery of weapon used in crime, as there was disclosure statement made by them. Thus, recovery of "axe" said to have been made in the matter could safely be used as a piece of evidence to connect accused-appellant Gambhir Singh with present offence. As far as recovery of documents said to have been made from possession of co-accused Smt. Gayatri (acquitted) is concerned, since motive attributed in present matter cannot be a ground to commit present offence by this accused, no benefit could be taken by her with the said documents i.e. passbook, cheque book etc. of deceased Satyabhan or other documents, hence, in our considered view, recovery said to have been made from co-accused Smt. Gayatri (acquitted) cannot be used against her as a piece of evidence to hold her guilty for committing present offence. It is also noteworthy that only on this ground that arrest and recovery made from co-accused Smt. Gayatri have not been relied upon by Trial Court, same cannot be a ground to disbelieve the recovery against accused-appellant. Finding of Trial Court on this point is also based on correct appreciation of evidence as well as criminal jurisprudence.
70. As far as truthfulness of statements of P.W.1, P.W.2 and P.W.3 is concerned, certainly they are closely related to each other as also with deceased persons, yet their statements, only on this basis, cannot be discarded. None of them are eyewitness account. What information was gathered by P.W.1 at the place of occurrence in the morning of 09.05.2012, he reduced the same in writing and moved to police station concerned. Distance between the place of occurrence and village of witnesses is less than 10 kilometers. Their close relatives were done to death. Entire family was eliminated. Therefore, their presence at the place of occurrence at the time stated by them cannot be doubted. Their statements made before the Court can also not be doubted on this ground that there are contradictions and exaggerations in their statements on some points. If their statements are scrutinized cumulatively in its entirety, there is no contradiction in their statements on point of recovery of dead bodies at the place of occurrence, taking of blood stained and plain earth and other articles from the place of occurrence, which were sent to F.S.L. for chemical examination and also on point of recovery of weapon "axe". Exaggerations and contradictions said to have been occurred in their statements, as has been elucidated during course of arguments on behalf of accused-appellant, in our considered view, do not go to the root of the case and do not demolish prosecution evidence on material points. Statement of P.W.1, P.W.2 and P.W.3 can also not be disbelieved on the ground of their being close relatives.
71. It is settled that the testimony of an eye-witness merely because he happens to be a relative of the deceased cannot be discarded as close relatives would be the last one to screen out the real culprit and implicate innocent person. [vide : Dilip Singh Vs. State of Punjab AIR 1953 S.C. 364]. This aspect of the mater has further been clarified by the Court in the case of Dharnidhar Vs. State of Uttar Pradesh (2010) 7 SCC page 759 as follows:
"12. There is no hard-and-fast rule that family members can never be true witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, this Court had occasion to consider whether the evidence of interested witnesses can be relied upon. The Court took the view that a pedantic approach cannot be applied while dealing with the evidence of an interested witness. Such evidence cannot be ignored or thrown out solely because it comes from a person closely related to the victim."
72. Thus, in our considered view, statements of P.W.1, P.W.2 and P.W.3 on material points are fully reliable. Trial Court, while passing impugned judgment and order, has rightly placed reliance on their statements and finding recorded by Trial Court on this issue needs no interference.
73. As far as statements of P.W.6 and P.W.7 are concerned, Trial Court itself has disbelieved their statement on the ground that time about last seen of accused-persons stated by these two witnesses does not tally with facts and circumstances of the case and statements made by P.W.1, P.W.2 and P.W.3. If statements made by P.W.6 and P.W.7 are scrutinized in light of finding of Trial Court, we are also of the view that statements made by P.W.6 and P.W.7 could not be relied upon.
74. As regards laches occurred on part of the Investigating Officer is concerned, the Arresting Officer has not specified in the arrest memo whether after taking possession of clothes worn by accused-appellant Gambhir Singh, he was offered other clothes or not. Investigating Officer also did not procure independent witnesses at the time of recovery, but omissions / laches on part of the Investigating Officer said to have been elucidated by learned Amicus Curiae during course of argument, in our considered view, also do not go to the root of the case and do not affect the prosecution case. It may be mentioned that since no prosecution case is free from shortcomings, therefore, recovery on the ground that it is not supported by any independent evidence cannot be disbelieved. In the instant case, recovery of weapon "axe" is supported by statements of P.W.1, P.W.2 and P.W.3, who were also present at the place of occurrence.
75. Further, if the prosecution case is established by the evidence adduced, any failure or omission on the part of the Investigating Officer cannot render the case of the prosecution doubtful [vide : Amar Singh vs. Balwinder Singh, AIR 2003 SC 1164, Sambu Das vs. State of Assam, AIR 2010 SC 3300].
76. In the case of State of U.P. Vs. Krishna Master and others; 2010 Cri. L.J. 3889 (SC) Court has held that "prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof." Further, Court in Sampath Kumar vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124 has also held that minor contradictions are bound to appear in statements of truthful witnesses as memory sometimes plays false and sense of observation differs from person to person.
77. Hence, the submission made by the learned counsel for appellant in this regard cannot be accepted and the finding recorded by the Trial Court on this point is not liable to be interfered with.
78. No we come to see evidence regarding involvement of accused-appellant in commission of crime and nature of evidence adduced by prosecution. Certainly, it is a case of circumstantial evidence, thus we have to see whether circumstances established by prosecution against accused-appellant are sufficient to sustain conviction of accused-appellant for offence under Sections 302/34 and 404 IPC. Before dealing with aforesaid question, it will be useful to quote settled proposition of law on point of circumstantial evidence.
79. In paras 27, 28 and 29 of the judgment in Brajendra Singh (supra), Court observed as under :-
27. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis, i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
28. Furthermore, the rule which needs to be observed by the Court while dealing with the cases of circumstantial evidence is that the best evidence must be adduced which the nature of the case admits. The circumstances have to be examined cumulatively. The Court has to examine the complete chain of events and then see whether all the material facts sought to be established by the prosecution to bring home the guilt of the accused, have been proved beyond reasonable doubt. It has to be kept in mind that all these principles are based upon one basic cannon of our criminal jurisprudence that the accused is innocent till proven guilty and that the accused is entitled to a just and fair trial. [Ref. Dhananjoy Chatterjee v. State of West Bengal, JT 1994 (1) SC 33; Shivu v. High Court of Karnataka, (2007) 4 SCC 713; and Shivaji v. State of Maharashtra, AIR 2009 SC 56].
29. It is a settled rule of law that in a case based on circumstantial evidence, the prosecution must establish the chain of events leading to the incident and the facts forming part of that chain should be proved beyond reasonable doubt. They have to be of definite character and cannot be a mere possibility.
80. In present case, none of the witnesses examined in the matter are eye account witnesses of the incident. It is also evident that incident took place in the intervening night of 08/09.05.2012 at the time and place mentioned in chik F.I.R. and stated by prosecution witnesses. Medical evidence also supports prosecution version. Entire family members (six persons) were done to death. Prosecution was able to prove motive against accused-appellant to commit present offence. On 09.05.2012 at about 1:00 PM, when accused-appellant was arrested, clothes worn by him were found blood stained and this fact was proved by prosecution from F.S.L. Report. Weapon "axe" said to have been used in commission of crime was also made recovered by accused-appellant from the house of deceased itself. Thus, in our considered view, what evidence have been made available by prosecution during trial are sufficient to connect accused-appellant with the present matter. Accused-appellant and deceased both were also accused in murder of their mother. To incur expenses for obtaining bail, accused-appellant had spent a huge amount and for which he sold out his immovable property, as disclosed here-in-above, to wife of deceased Satyabhan. When accused-appellant was released in that case, he again and again insisted for return of said land. Quarrel took place between them on many occasions. Threat had also been extended by accused-appellant to deceased Satyabhan. Incident took place inside the house. All family members were done to death. Circumstances established by prosecution are firm, cogent and believable. Chain of events are completed and linked with each other. There is no chance of false implication of accused-appellant. All circumstances including motive and previous conduct of accused-appellant as well as recovery of weapon "axe" said to have been made on his pointing out cumulatively point towards the guilt of accused-appellant. It is also noteworthy that the best evidence which could be available in the facts and circumstances of the case were proved by the prosecution. Thus, on the basis of evidence available on record, one and only one hypothesis can be drawn that accused-appellant along with his companions has committed present offence in which he has eliminated entire family of his brother. If the ratio laid down in cases relied on by the appellant is compared with the evidence available in the matter, we are of the view that Trial Court has rightly held guilty to accused-appellant for committing offence under Sections 302/34, 404 IPC. Finding of Trial Court about the guilt of accused-appellant for aforesaid offences is based on correct appreciation of facts and evidence which needs no interference by this Court.
81. As far as punishment imposed upon accused-appellant is concerned, Trial Court in its wisdom has imposed death punishment finding the present case in the category of "rarest of rare" cases. Six persons were done to death. All of them were belonging to same family. Four children were less than the age of 5 years. Accused-appellant is brother of deceased Satyabhan. Medical evidence adduced by prosecution clearly shows that accused-appellant by cutting neck of all deceased persons ensured their death.
82. Aggravating and mitigating circumstances in the present matter can be summarized as under :-
Aggravating Circumstances
(a) Offence in the present case was committed in an extremely brutal, grotesque, diabolical, revolting and dastardly manner so as to arouse intense and extreme indignation of society;
(b) Offence was also committed in preordained manner demonstrating exceptional depravity and extreme brutality;
(c) Extreme misery inflicted upon his own brother, his brother's wife and minor children less than the age of 5 years;
(d) Helpless children were done to death by cutting their neck;
(e) Brutality and premeditated plan of accused-appellant also find support from his act as he ensured the death of all deceased by cutting their neck;
(f) Act of accused-appellant is shocking not only to the judicial conscience but also to the Society as he has eliminated entire family of his brother only to grab the property of deceased;
(g) act and conduct of accused-appellant itself shows that there is no chance of reformation and he is menace to the Society; and
(h) it is a cold-blooded murder without provocation.
On the other hand, Mitigating Circumstances, as emerged, are
(a) age of the convict i.e. 30 years at the time of recording of statement under Section 313 Cr.P.C.;
(b) he belongs to village background and offence was committed due to property dispute;
(c) none left to look after the surviving member of accused-appellant's family;
(d) chance for reformation and rehabilitation.
83. Now the question before us is whether death penalty in the present case is justified. Before looking to the facts of present case on the question of sentence, it would be appropriate to advert to judicial authorities on the matter throwing light and laying down principles for imposing penalty, in a case, particularly death penalty.
84. One of the earliest case, in the matter is Bachan Singh v. State of Punjab, (1980) 2 SCC 684. In para 164, Court said that normal rule is that for the offence of murder, accused shall be punished with the sentence of life imprisonment. Court can depart from that rule and impose sentence of death only if there are special reasons for doing so. Such reasons must be recorded in writing before imposing death sentence. While considering question of sentence to be imposed for the offence of murder under Section 302 IPC, Court must have regard to every relevant circumstance relating to crime as well as criminal. If Court finds that the offence is of an exceptionally depraved and heinous character and constitutes, on account of its design and the manner of its execution, a source of grave danger to the society at large, Court may impose death sentence.
85. Relying on the authority in Furman v. Georgia, (1972) SCC OnLine US SC 171 Court noted the suggestion given by learned counsel about aggravating and mitigating circumstances in para 202 of the judgement in Bachan Singh (supra) which read as under :-
"202. ... 'Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code."
86. Thereafter in para 203, Court said that broadly there can be no objection to the acceptance of these indicators noted above but Court would not fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other. Thereafter in para 206 of judgment in Bachan Singh (supra), Court also suggested certain mitigating circumstances as under :-
"206. ... 'Mitigating circumstances.--In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy conditions (3) and (4) above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.''
87. Again in para 207 in Bachan Singh (supra), Court further said that mitigating circumstances referred in para 206 are relevant and must be given great weight in determination of sentence. Thereafter referring to the words caution and care, in Bachan Singh (supra) Court observed that it is imperative to voice the concern that Courts, aided by the broad illustrative guidelines, will discharge onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.
88. Then in Machhi Singh v. State of Punjab, (1983) 3 SCC 470 stress was laid on certain aspects namely, manner of commission of murder, motive thereof, antisocial or socially abhorrent nature of the crime, magnitude of crime and personality of victim of murder. Court culled out certain propositions emerging from Bachan Singh (supra), in para 38 and said as under :-
"The following propositions emerge from Bachan Singh case:
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.
(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.
(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."
89. The three-Judges Bench in Machhi Singh (supra) further said that following questions must be answered in order to apply the guidelines :-
"(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence"
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"
(Emphasis added)
90. In Haresh Mohandas Rajput v. State of Maharashtra, (2011) 12 SCC 56, after referring to Bachan Singh (supra) and Machhi Singh (supra), Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh (supra) to cases where the "collective conscience" of community is so shocked that it will expect the holders of judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining the death penalty, such a penalty can be inflicted. Court, however, underlined that full weightage must be accorded to the mitigating circumstances of the case and a just balance had to be struck between the aggravating and the mitigating circumstances.
91. In para 20 of the judgment in Haresh Mohandas Rajput (supra), Court observed that the rarest of the rare case comes when a convict would be a menace and threat to the harmonious and peaceful coexistence of society. The crime may be heinous or brutal but may not be in the category of "the rarest of the rare case". There must be no reason to believe that the accused cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. The accused may be a menace to the society and would continue to be so, threatening its peaceful and harmonious coexistence. The manner in which the crime is committed must be such that it may result in intense and extreme indignation of the community and shock the collective conscience of the society. Where an accused does not act on any spur of the momentary provocation and indulges himself in a deliberately planned crime and meticulously executes it, the death sentence may be the most appropriate punishment for such a ghastly crime. The death sentence may be warranted where victims are innocent children and helpless women. Thus, in case the crime is committed in a most cruel and inhuman manner which is an extremely brutal, grotesque, diabolical, revolting and dastardly manner, where his act affects the entire moral fibre of the society, death sentence should be awarded.
92. In Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220, Court opined that imposition of appropriate punishment is the manner in which Courts respond to the society's cry for justice against the criminals. Justice demands that Courts should impose punishment befitting the crime so that Courts reflect public abhorrence of the crime. Courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate punishment.
93. A three-Judge Bench in Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767, in para 43 of the judgment, said :-
"43. In Machhi Singh the Court crafted the categories of murder in which `the Community' should demand death sentence for the offender with great care and thoughtfulness. But the judgment in Machhi Singh was rendered on 20-7-1983, nearly twenty-five years ago, that is to say a full generation earlier. A careful reading of the Machhi Singh categories will make it clear that the classification was made looking at murder mainly as an act of maladjusted individual criminal(s). In 1983 the country was relatively free from organised and professional crime. Abduction for ransom and gang rape and murders committed in the course of those offences were yet to become a menace for the society compelling the Legislature to create special slots for those offences in the Penal Code. At the time of Machhi Singh, Delhi had not witnessed the infamous Sikh carnage. There was no attack on the country's Parliament. There were no bombs planted by terrorists killing completely innocent people, men, women and children in dozens with sickening frequency. There were no private armies. There were no mafia cornering huge government contracts purely by muscle power. There were no reports of killings of social activists and 'whistle blowers'. There were no reports of custodial deaths and rape and fake encounters by police or even by armed forces. These developments would unquestionably find a more pronounced reflection in any classification if one were to be made today. Relying upon the observations in Bachan Singh, therefore, we respectfully wish to say that even though the categories framed in Machhi Singh provide very useful guidelines, nonetheless those cannot be taken as inflexible, absolute or immutable. Further, even in those categories, there would be scope for flexibility as observed in Bachan Singh itself."
(Emphasis added)
94. After referring to earlier authorities including Bachan Singh (supra) and Machhi Singh (supra), Supreme Court in Ramnaresh and others v. State of Chhattisgarh, (2012) 4 SCC 257 tried to lay down a nearly exhaustive list of aggravating and mitigating circumstances and in para 76 said as under :-
"Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions.
(2) The offence was committed while the offender was engaged in the commission of another serious offence.
(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person.
(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.
(5) Hired killings.
(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.
(7) The offence was committed by a person while in lawful custody.
(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 of the Code of Criminal Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.
(9) When murder is committed for a motive which evidences total depravity and meanness.
(10) When there is a cold-blooded murder without provocation.
(11) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.
Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.
(2) The age of the accused is a relevant consideration but not a determinative factor by itself.
(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.
(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.
(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.
(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.
(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused." (Emphasis added)
95. The principles laid down in Bachan Singh (supra) and Machhi Singh (supra) were sought to be followed and applied subsequently for deciding as to what sentence should be awarded but later on it was felt that the principles laid down in the above authorities are not being correctly applied and have led to inconsistency in sentencing process in India. It was also observed that the list of categories of murder crafted in Machhi Singh (supra) in which death sentence ought to be awarded are not exhaustive and needs to be given even more expansive adherence owing to changed legal scenario.
96. In a recent judgment in Mukesh and another v. State (NCT of Delhi) and others, (2017) 6 SCC 1, a three-Judges Bench has confirmed death sentence in two concurring judgments rendered by Hon'ble Dipak Misra,J. (for himself and Hon'ble Ashok Bhusan,J.) and by Hon'ble R. Banumathi,J.
97. After referring to catena of decisions, earlier rendered on the question of sentence, it is observed that Court would consider cumulative effect of both factors i.e. aggravating and mitigating circumstances and has to strike a balance between the two and see towards which side the scale/balance of justice, tilts.
98. Hon'ble R. Banumathi,J. observed that factors like poverty, young age, dependants, absence of criminal antecedents, post crime remedies and good conduct in imprisonment cannot be taken as mitigating circumstances to take out the case in the category of rarest of rare case. In para 516 of concurring judgment, Hon'ble R. Banumathi,J. Court said :-
"Society's reasonable expectation is that deterrent punishment commensurate with the gravity of the offence be awarded. When the crime is brutal, shocking the collective conscience of the community, sympathy in any form would be misplaced and it would shake the confidence of public in the administration of criminal justice system. As held in Om Prakash v. State of Haryana, (1999) 3 SCC 19, the Court must respond to the cry of the society and to settle what would be a deterrent punishment for what was an apparently abominable crime." (Emphasis added)
99. In para 497 of the judgment in Mukesh and another v. State (NCT of Delhi) and others (supra), in concurring judgment by Hon'ble R.Banumathi,J. it is observed :-
" ... Courts have further held that where the victims are helpless women, children or old persons and the accused displayed depraved mentality, committing crime in a diabolical manner, the accused should be shown no remorse and death penalty should be awarded." (Emphasis added)
100. The true import of aforesaid settled propositions of law is that awarding of life imprisonment for offence under Section 302 IPC is the rule and death sentence is an exception. Death sentence should only be awarded in cases which come under the purview of "rarest of rare" case. Supreme Court, time and again has ruled that for awarding death sentence, Courts should specify the aggravating and mitigating circumstances of the case. What are the aggravating and mitigating circumstances would depends upon the facts of each case.
101. Mitigating circumstances are categorized as the manner and circumstances in and under which offence was committed; the age of the accused; the chances of the accused in not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated; if the condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct and the circumstances which, in normal course of life would render such a behaviour possible and could have the effect of giving rise to mental imbalance. Mitigating circumstances may also be that if upon appreciation of evidence Court is of the view that crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime. Court has to see, if it is 'rarest of rare' case for awarding death sentence and in the opinion of Court any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice then only extreme punishment would be awarded. Moreover, aggravating circumstances are in relation to crime and victim while mitigating circumstances are broadly in relation to criminal. Balance between the two has to be ascertained by Court while determining "Rarest of rare" case. Circumstances discussed in aforesaid decisions are example but not exhaustive. No fixed formula has been set to formulate aggravating and mitigating circumstances and the discretion is left with Court which has to evaluate, depending on the facts and circumstances of each case.
102. Applying the exposition of law as discussed above, in the facts of the present case, we have examined the available aggravating and mitigating circumstances in the case in hand.
103. At the time of incident, accused was 30 years of age, as is disclosed in his statement under Section 313 Cr.P.C.
104. Coming to the aggravating circumstances, we also find that accused-appellant has committed murder of not only his brother but also his brother's wife and four minor children. Postmortem reports disclose brutal, grotesque, diabolical murder by cutting neck of all deceased, which clearly reflects the mindset of accused-appellant.
105. Present incident was committed when deceased Satyabhan did not agree to return the land belonging to accused-appellant, which he had purchased after paying consideration amount. The manner in which offence was committed and also the magnitude of crime, in our view, places the present matter in the category of anti social or socially abhorrent nature of crime. We concur with the finding of Trial Court that six family members were murdered by accused-appellant along with his companion in most brutal, grotesque, diabolical and dastardly manner arousing indignation and abhorrence of society which calls for an exemplary punishment. Four minor children who were less than 5 years of age including their father and mother have been murdered by accused-appellant and his companions when they were helpless and nothing is on record to show that they aggravated the situation so as to arouse sudden and grave passion on the part of accused-appellant to commit such dastardly crime. Accused-appellant has also not shown any remorse or repentance at any point of time, inasmuch as, he attempted to hide the weapon in the same house and ran away from the house. Admittedly, when Informant in the morning reached the house of deceased, accused-appellant was not present there and after apprising himself of entire incident, Informant lodged the report. Accused-appellant was arrested on 09.05.2012. In the statement recorded under Section 313 Cr.P.C. also, we find no remorse on the part of accused-appellant.
106. The above conduct, attitude and manner in which murder of six persons has been committed by accused-appellant along with his companions shows that appellant is a menace to the Society and if he is not awarded with death penalty, even members of the Society may not be safe. He slayed six lives to quench his thirst. The entire incident is extremely revolting and shocks the collective conscience of the community. Murders were committed in gruesome, merciless and brutal manner.
107. Balancing mitigating and aggravating factors and looking to the fact that appellant has committed crime in a really shocking manner showing depravity of mind, in our view, the aggravating circumstances outweigh the mitigating circumstances by all canons of logic and punishment of life imprisonment would neither serve the ends of justice nor will be an appropriate punishment. Here is a case which can be said to be in the category of "rarest of rare" case and justify award of death punishment to accused-appellant. We are also clearly of the view that accused-appellant is a menace to the society and there is no chance of his rehabilitation or reformation and no leniency in imposing punishment is called for.
108. In the circumstances, we are of the view that death punishment imposed upon accused-appellant for the offence under Section 302/34 IPC is liable to be confirmed. Reference No. 07 of 2017 is liable to be allowed and accepted to the extent of confirmation of death penalty.
109. In view of foregoing discussions, Reference No. 07 of 2017 submitted by Trial Court for confirmation of death punishment awarded to accused-appellant Gambhir Singh for the offence under Section 302/34 IPC is hereby accepted and death punishment awarded to accused-appellant in the present matter is hereby confirmed. Conviction and sentence of imprisonment for the offence under Section 404 IPC is also confirmed against accused-appellant.
110. In the result, instant Appeal filed by accused-appellant is liable to be dismissed and is accordingly dismissed. As regards Government Appeal filed by State of U.P. against impugned judgment and order whereby co-accused Smt. Gayatri has been acquitted, is concerned, finding of Trial Court for the reasons discussed here-in-above cannot be said to be illegal or perverse and no interference is warranted by this Court in the impugned judgment and order to the extent of acquittal of co-accused Smt. Gayatri. Thus, in view of settled position of law, as has been held in the case of S. Govindaraju Versus State of Karnataka, (2013) 15 Supreme Court Cases 315 and Gangabhavani Versus Rayapati Venkat Reddy and Others, (2013) 15 Supreme Court Cases 298, connected Government Appeal is liable to be dismissed and is hereby dismissed.
111. However, as provided under Section 415 Cr.P.C. execution of sentence of death shall stand postponed until the period allowed for preferring such appeal has expired and if an appeal is preferred within that period, until such appeal is disposed of. It is also clarified that death punishment shall only be executed in accordance with law complying with all guidelines laid down by Hon'ble Supreme Court time and again.
112. Let a copy of this judgment along with Trial Court record be sent to Court concerned for compliance and two copies of judgment as well as printed paper book be sent to State Government, as required under Chapter XVIII Rule 45 of Allahabad High Court Rules, 1952. A copy of the judgment be also sent to accused-appellant through Jail Superintendent concerned for intimation. Compliance report be also sent to this Court.
113. Let copy of this judgment be also placed on record of Government Appeal No.3574 of 2017 (State of U.P. v. Smt. Gayatri).
114. Sri Brijesh Sahai, amicus curiae and Sri Dharmendra Singh, amicus curiae have assisted the Court very diligently. We provide that Sri Brijesh Sahai shall be paid counsel's fee as Rs. 25000/- and Sri Dharmendra Singh shall be paid counsel's fee as Rs. 10000/-. State Government is directed to ensure payment of aforesaid fee through Additional Legal Remembrancer posted in the office of Advocate General at Allahabad to Sri Brijesh Sahai, amicus curiae and Sri Dharmendra Singh, amicus curiae without any delay and in any case within 15 days from the date of receipt of copy of this judgment.
Order date : 09.01.2019 ss