Patna High Court
State Of Bihar vs Arjun Marik, Mulo Marik And Bansi Marik on 24 April, 1992
Equivalent citations: 1992(2)BLJR1226
JUDGMENT Om Prakash, J.
1. Arjun Marik and his sons Mulo Marik and Bansi Marik have been convicted for the offence punishable under Section 302, I.P.C. and each has been sentenced to death. They have further been convicted for the offences punishable under Sections 394 and 411, I.P.C. and sentenced to undergo rigorous imprisonment for ten years for such offences respectively. This is a reference for confirmation of such death sentences and appeal against the order of such convictions and sentences.
2. Briefly stated, the prosecution case is that deceased Sitaram Jha, aged about seventy years, was an issueless money lender. He used to lend money to appellant Arjun Marik also under supervision of his nephew, informant Surnath Jha, (P. W. 6). On 19-7-1985, at about 7-30 to 8-00 p.m., appellant Arjun Marik along with his sons appellants Bansi Marik and Mulo Marik arrived at the house of Sitaram situated in Chetannyanath Jajbare Path in Deoghar Town, P.S. Deoghar, District Deoghar, to raise a loan for purchasing she-bufallow. Sitaram did not readily agree to advance further loan on the ground that only two months back, he had lend Rs. 10,000 to Arjun for purchasing she-buffalow. Besides dues were also outstanding against him from before. He told him that he would advance further loan only after accounting. When Arjun insisted, Sitaram called his nephew Surnath Jha and asked him to settle the accounts next morning. Thereafter, deceased Bharti alias Sugwa served meals to these appellants. They were given a room on the upper floor to sleep for the night, Sitaram retired on a cot in the Varandah adjacent to the said room. Deceased Kamakhya Devi, wife of Sitaram Bharti alias Sugwa slept in the varandah on the ground floor. The informant returned to his adjacent house.
3. Next morning, when girls of the neighbourhood entered Sitaram's house to fetch water they found Kamakhya and Sugwa lying dead in pool of blood and raised alarm which attracted Surnath Jha and Murlidhar Jha (P. W. 1), Mangla Charon Jha (since dead), Sushil Pd. Jha (P. W. 4), Govind Charan Jha (P. W. 2) and they found Kamakhya and Sugwa lying dead. They rushed to the first floor and found Sitaram done to death by strangulation. Arjun and his two sons were found absconding. Lock of the room on the ground floor was found broken. Lock of the trunk inside the room also was found broken. Articles were found scattered. A large number of valuable including golden neckless, golden nosepin, silver Karah, Mathia, Hasli, Payal, Ear-rings, Balpatra (Bel tree leaves) two silver coins, about Rs. 14,000 in currency notes, mostly of Rs. 10 denomination, dhoti, sweater and some papers were also found missing. Police arrived. Farbheyan (Ext-3) of Surnath Jha was recorded by Doman Razak (P. W. 10) the then Officer Incharge, Deoghar Police Station, at 8 a.m. on 20-7-1985 in the house of occurrence.
4. On 20-7-1985 at about 3 p.m. police raided the house of Arjun situated in village Bara, police Station Mohanpur, District Deoghar, and arrested Bansi and Mullo. Arjun managed to escape. In course of interrogation Bansi and Mulo produced a plastic bag containing the all valuables stolen from Sitaram's house from a east facing room of their house. Such articles were seized. They were identified by Surnath Jha, (P. W. 6) and Murlidhar Jha (P. W. 1) as the articles stolen from the house of Sitaram, at a Test Identification parade. On completing the investigation, police submitted charge-sheet against the three appellants who in due course were put on trial, convicted and sentenced as above.
5. In their statements under Section 313 of the Code of Criminal Procedure the appellants have denied the allegations claiming to be innocent and to have been falsely implicated. They have admitted the seizure. But . they have claimed the seized property as their own. They have adduced some evidences in their defence.
6. There is no eye-witness of the murder. The learned Additional Sessions Judge has relied on circumstantial evidence to arrive at a finding of guilt.
7. Evidence of P. W. 1 Murlidhar Jha, a nephew of Sitaram living near Sitaram's house shows that on 19-7-1985, a Friday at about 8 p.m. while going to the main road from the lane which his house is situated, he met the three appellants. On query Arjun disclosed that he was going to Sitaram to raise loan. His further evidence shows that he knew the three all from the time he attained Hosh. In such circumstances, the conduct of P. W. 1 in making such query is consistent with natural human conduct. His evidence further shows that aged about 70 years was a money lender. His wife Kamal was a leper. The couple had no issue.
8. Evidence of P.W. 4, Sushil Pd. Jah, another nephew of Sitaram, is that on 19-7-1985 at about 8 p.m. he was going to call one Shankar Jha whose house is in front of the house of Sitaram. At that time he saw P. W. 1 Murlidhar Jha emerging from lane on the main road. His further evidence is when he was calling out Shankar Jha standing in the lane in front of the house of Shankar Jha, he saw appellant Arjun along with two other entering into the door of the house of Sitaram. His further evidence shows that Arjun was on visiting terms with Sitaram for the last 30 years. Sitaram was his money lender. Arjun also used to recommend to Sitaram advance of loans to others. Thus it appears that Arjun enjoyed Sitaram's confidence.
9. Evidence P.W. 6, Surnath Jha, is that on 19-7-1985, at about 7-30 to 8 p.m., he had returned to his house when his uncle Sitaram called him. He went to Sitaram's house and found Arjun, Mulo and Bansi present there. They were pleading with Sitaram for further loan for purchasing she-buffalow. Sitaram told them that they had already taken loan from him for purchasing she-buffalow recently. The dues were to be paid by Shawan Purnima. But instead of paying the dues, they were demanding further loan. But still the appellants insisted for further loan. Then Sitaram asked him (P. W. 6) to settle their accounts next morning. Under such circumstances, the three appellants stayed in the house of Sitaram for the night. They were served meal by deceased Bharti Kumari alias Sugwa. Thereafter, preparations for retiring started. The three appellants retired in the room on the first floor and Sitaram slept in the adjacent varandah on a cot. His aunt Kamakhya and Sugwa slept on the ground floor. Thereafter he returned to his adjacent house. His evidence further shows that Arjun supplied milk to Sitaram for 30 years. They were not new to Sitaram. Under the above circumstances, Sitaram's conduct in getting meals served to them and allowing them to stay in his house for the night so that accounts may be settled next morning, appears to be consistent with natural human conduct.
10. Evidence of P. W. 7, Manju Devi, shown that on the morning following the eventful night, at about 6 a.m., she visited Sitaram's house to fetch water as usual and found Sitaram's wife and Bharti alias Sugwa murdered. She raised alarm which attracted P. W. 1 Murlidhar Jha, P. W. 4 Sushil Pd. Jha, P. W. 6, Surnath Jha and others.
11. Evidence of P.W. 6 Surnath Jha further shows that hearing such screams of P. W. 7 Manju Kumari, he along with his cousins P. W. 1 Murlidhar Jha, P. W. 2 Govind Charan Jha, P. W. 4 Sushil Pd. Jha and uncle Mangla Charan Jha (since dead) rushed to the house of Sitaram and found his aunt Kamakhya Devi and Bharti Kumari alias Sugwa lying dead in a pool of blood. Their necks were half-out. They rushed to the first floor where they found Sitaram Jha lying strangulate and dead. Evidence of P. W. 9 Dr. Narenda Narain Das is to the same affect P. W. 6 adds that. None of the three appellants to was there. The lock of the room on the ground floor near which Kamakhya Devi and Bharti had slept the preceding night, was found broken. The lock of the box kept therein was also broken. Articles were scattered in the room. Similar is evidence of P.W. 1 Murlidhar Jha. Further evidence of P.W. 6 is that golden and silver ornaments, one golden neckless, one golden nosepin, two silver earrings, one silver Hasli, three pairs of silver mathia, two pairs of silver karah, one silver goat, three silver payal, one silver Belpatra, two silver coins of Rs. 1 denomination and about Rs. 14,000 in currency notes mostly of Rs. 10 denomination, besides one woolen sweater, a pair of dhoti and some papers, were found missing.
12. Evidence of P. W. 8 Ratan Kumar Singh, a resident of village Chhatki lying adjacent south of Arjun's village Bara, P.S. Mohanpur is that on 20-7-1985 at about 5 to 5.30 a.m. he had gone to Joria for cleaning. When he was returning he met Arjun who had a bag with plastic handles in his hand. On a quary Arjun disclosed that he was returning from Deoghar and the bag contained khali and Besan (cattle feed). His further evidence shows that he has been to the house of Arjun who is an agriculturist and a milk-seller.
13. Evidence of P. W. 10, Doman Razak, the then officer Incharge, Deoghar police station, shows that after recording fardbeyan, Ext. 3, of P.W. 6 Surnath Jha, on 20-7-1985, he inspected the place of occurrence which is double story house of deceased Sitaram. He found dead body of Kamakhya Devi and Bharti alias Sugwa lying in a pool of blood in the varndah on the ground floor of the house. Neck of each of the dead body was half-cut. The lock of the room adjacent went of the varandah was broken and articles scattered in the room. Lock of a box kept therein was also broken. He found dead body of Sitaram on a cot in the Varandah on the first floor. He found plastic bedding spread in the room West to the Varandah. There was a pillow on the bedding. Such objective finding of the Investigating Officer corroborate P. W. 6 on the subject.
14. Further evidence of the Investigating officer, P. W. 10, and seizure list Ext. 5 shows that on 20-7-1985 itself, at 3 p.m. along with a armed section of police and an Assistant sub-inspector of police raided the house of the appellants in village Bara, P.S. Mohanpur, and arrested Bansi and Mulo. But their father Arjun managed to escape. In course of interrogation, Bansi and Mulo produced looted golden ueckless (material Ext. I), Golden nosepin (material Ext. II) four silver karah (material Ext. X), three pairs of silver Mmathia (material Ext. VI), three silver payal (material Ext. V), one silver Goat (material Ext. VIII), two silver Ear-Ringha (material Ext. IV), one silver 'Belpetra (Material Ext. VII), two silver coins (material Ext. IX), Rs. 13,229.35 paise in currency notes, mostly of Rs. 10 denomination (material Ext. XIII) besides two Dhoti (material Ext. XI), one half sweater (material Ext. XII) all kept in a plastic bag from a East facing room of their house. He seized such articles,
15. Such production of the articles stolen from Sitaram's house by appellants Bansi and Mulo before the Investigating Officer on soon after the robbery goes a long way to show and prove that the appellants and none other than the appellants are the robbers who looted such property from Sitaram' house. It has been held in Lachhman Ram v. State of Orissa AIR 1988 SC 486, that recovery of stolen articles at the instance of the accused very soon after the occurrence in itself sufficient to bring the case not under the provisions of Section 412, Indian Penal Code but also under Section 395, Indian Penal Code with the aid of Section 114 of the Evidence Act because the recoveries were made very soon after the occurrence.
16. Further evidence of P. W. 10 is that the above seized articles were identified by P. W. 1, Murlidhar Jha and P. W. 6 Surnath Jha as Sitaram's property at a Test Identification parade held by P. W. 11. Evidence of P. W. 11 Upendra Sharma the then Anchal Adhikari, Deoghar, is similar. P. Ws. 1 and 6 also claims to have identified the said articles at such a Test Identification parade held on 29-8-1985 in the office premises of P. W. 11.
17. Evidence of P. W. 1, Murlidhar Jha further shows that above silver 'Belpatra' and two silver coins were donated to Sitaram by one of his 'Jajmans' (religious client) 10 to 12 years ago. His evidence also shows some of the seized ornaments were pledged with Sitaram who used to advance money on security of ornaments also. But deceased Kamakhya used to put on the above golden neckless and golden nosepin. In my view, even a leper woman can put on nosepin and also golden neckless at least on some special occasion. Evidence of P. W. 6 shows that even at the time of her murder, Kamakhya was wearing a golden nosepin.
18. Evidence of P. W. 11 further shows that when he arrived in his office for holding Test Identification parade, the Investigating Officer with the articles in question was present. But he removed the Investigating Officer when he held Test Identification parade. His evidence further shows that articles put on the Test Identification parade had some identification marks though articles of similar description which were mixed with the articles seized, had no identification mark. Naturally some marks must have been put on the seized articles before mixing the same with other articles of similar description to facilitate their separation from articles of similarly description mixed, after the Test Identification parade. There is no material on the record to show that such marks of identification were visible to the P. Ws. or were of such nature which rendered the seized articles easily identifiable at the time of Test Identification parade. On the other hand evidence of both P. Ws. 1 and 6 in their cross-examinations shows that no label or slip was affixed on the articles put on the identification parade. There were no (visible) special marks on such articles. The above evidence shows that P. W. 11 a responsible officer of the State Government and an independent witness, is speaking plain truth without trying to conceal any true fact. I find no good reason to reject his convincing testimony.
19. It is significant to note here that the seizure of the above material exhibits by P. W. 10, the Investigating Officer, from the house of the appellants is an admitted fact. But the appellants have claimed the seized property to be their. In this connection they have examined D. W. 3 Shahadeo Rout and D. W. 4 Surya Narayan Poddar, a gold smith, who resides within the jurisdiction of 3rd police station. D. W. 3 claims to have seen Arjun's wife wearing ornaments. D. W. 4 claims to have gone to the house of Arjun 7 to 8 years ago to clean one golden neckless, one golden nosepin, one silver Hasli, three pairs of Mathia, two pairs of silver karah, one pair of silver payal, a broken silver payal, one pair of silver Ear-Sings and one small Belpatra. But D. W. 3 does not say that he had seen Arjun's wife wearing the above materials exhibits. Similarly, D. W. 4 does not claim to have cleaned the above materials exhibits at Arjun's house. According to him, Arjun's house is a brick built four roomed house which has a pucca roof. But evidence of D. W. 3 Arjun's co-villager, is that the house of Arjun is a mud built three roomed house which has a roof thatched with tiles for 10 or 15 years prior thereto it was thatched with straw. Thus it appears that D. W. 4 has not even seen the house of Arjun.
20. No average person of ordinary prudence carrying on business in cattle and milk is likely to keep over Rs. 13,000 besides golden and silver ornaments and garments in a bad in one of the three rooms of his mud built house if really it is his hard earned property. In all probabilities, he would keep such money in some post office or Bank for reasons of security and earning some interest. He would keep clothes like Dhoti and Sweater separately from ornaments and cash. Keeping of such cash, ornaments and clothes of daily use together in a bag strongly and unmistakably indicates and suggests that such property was brought from somewhere hours before. The above goes a long way to prove very satisfactorly that the seized valuables are not the property of Arjun and his sons but Sitaram's property stolen from his house after commission of the three murders. Being nephew and next door neighbours of deceased Sitaram, P. Ws. 1 and 6 are likely to know about Sitaram's property and to be competent to identify the same specially in view of the fact that Sitaram had no issue and it was P. W. 6 who used to assist him in looking after his business accounts as appears from his evidence.
21. Further evidence of P. W. 6 is that the deceased couple had kept Bharti @ Sugwa as their servant and not as a daughter. They had no idea to adopt her as their daughter. His evidence also shows that on eventful night Kamakhya Devi had slept on a cot and Sugwa had slept on the floor by the side of her cot. It strongly suggests that the status of Sugwa was that of a maid-servant and not that of a prospective (adopted) daughter. Had it not been so, she would not have been allowed to sleep on the floor by the side of cot of Kamakhya Devi, in that case she, too, would have been given another cot. The above excludes any hypothesis of any change in the line of inheritence on account of Bharti @ Sugwa. Had Bharti @ Sugwa been a hindrance in the way of any of the agnates (including P. Ws.) of issueless Sitaram to his property, Sugwa as one would have easily been eliminated and there was no occasion to murder the old and infirm couple also who was waiting on the shore for their boat. Only those persons who have an intention to loot the money and ornaments of the house owner sleeping by the side of the room in which such property is stored, would commit such murders to remove the hurdles from their way.
22. From the above discussion of evidence of natural/independent and competent witnesses and the circumstances and probabilities disclosed thereby, the following circumstances are fully and cogently established and proved:
(i) That deceased Sitaram used to advance money to appellant Arjun from time to time and Arjun used to supply milk to Sitaram for 25 to 30 years before the occurrence and he enjoyed Sitaram's confidence.
(ii) This on 19-7-1985 at about 8 p.m. the three appellants arrived at the house of occurrence only to raise another loan from Sitaram.
(iii) That Sitaram was not readily agreeable to advance a further loan before repayment of his earlier dues by them.
(iv) That they insisted for Further loan and then Sitaram asked P. W. 6, Suniath Jha, first of all to settle accounts next morning.
(v) That the three appellants stayed in the house of occurrence for the night occupying a room adjacent to the Varandah where dead body of Sitaram was found next morning.
(vi) That the three appellants were found absent from the house of the occurrence next morning when murders of Sitaram, Kamakhya Devi and Bharti @ Sugwa were detected by P. Ws. 7, 1, 2, 4 and 6.
(vii) That on 20-7-1983 at about 5 to 5.30 a.m. appellant Arjun was seen by P. W. 8, Ratan Kumar Singh, returning with a bag in his hand from Deoghar near his village adjacent south to that of the appellants.
(viii) That the Investigating Officer P. W. 10 raided appellants' house on 20-7-1985 at about 3 p.m. and after interrogation by him, Bansi and Mulo produced the material exhibits aforesaid before him which at a Test Identification parade held by P. W. 11, were identified to be the property stolen from the house of the deceased couple.
(ix) Appellants have falsely claimed that the seized property is theirs.
23. In my considered view, the above circumstances cumulative from an unbroken chain of events which leads to the proof of the guilt of the appellants. They fully, convincingly and unerringly point out towards the guilt of the appellants. They are conclusive in nature and are consistent only with their guilty. They unmistakbly point out that the three appellants and none other than the three appellants, are the murderers and the robbers. They are consistent with the sole hypothesis of their guilt. They are in compatible with the hypothesis of their innocence. They exclude every hypothesis but one of their guilt. There is nothing to show, indicate or even suggest remotely that any body other than the appellants might have committed the crimes in question. They had an apparent motive namely to have money which their old creditor Sitaram, was not inclined to advance without first settlement of accounts and repayment of his earlier dues. The conduct of Sitaram in insisting for settlement of account and repayment of earlier dues appears to have created an impression upon the appellants that they were not going to have any further loan from Sitaram and this appears to have led them to decide thereafter on that very night to loot his money after removing the hindrances, by committing murders of an old man, an infirm old woman and a female child.
24. Sri Brij Kishore Prasad, learned Counsel for the appellants has argued that P.W. 1 had claimed to have seen the appellant, on the lane, P.W. 4 has claimed to have seen then entering in Sitaram's house and P. W. 8 has claimed to have seen appellant Arum returning to his village with a bag in his hand. But these circumstances have not been put to any of the appellants in his examination under Section 313, Cr.P.C. and hence such circumstances should be excluded from consideration. In this connection he has referred to the following cases.
25. In Sharat v. State of Maharashtra , it has been held that circumstances which have not been put to the accused, cannot be used against him.
26. In Harijan Megha Jesha v. State of Gujarat , on personal search of the appellant, a 'Chadi' was found which was stained with human blood. This circumstances was not put to the accused in his statement under Section 313, Cr. P.C. Then, it was held that prosecution cannot be permitted to rely on it in order to convict the appellant particularly after he had been acquitted by the Trial Court.
27. In Hate Singh v. State of Madhya Bharat , the trial Court and High Court has attached importance to the fact that accused had absconded. Then it was held that accused should have been asked question on this point and given a chance to explain it in his examination under Section 342 of the Criminal Procedure Code, 1898. In absence of this, the fact cannot be used against him.
28. But in the instant case, it has been put to each of the appellants in his examination under Section 313, Cr. P.C. that in the night between 19th and 20th July, 1985, they came to the house of Sitarara and they have denied it. In my view, it includes their moving in the lane of the house of Sitaram and entering into his house. Question relating to recovery of the ornaments, cash and garments in question has been put to the appellants and they have claimed them as theirs. These appellants have not been acquitted by the Trial Court. On the other hand, they have been convicted for murders.
29. The purpose of examination of an accused under Section 313, Cr. P.C. is to give him a chance to admit, or deny and to explain the evidence, the materials, on record against him, to afford him an opportunity to have his say in the matter, so that no material prejudice is caused to him, no justice is done to him and he is not caught by surprise.
30. In the instant case, the record clearly shows that the appellants knew full well the facts alleged against them. The evidence was recorded in their presence. They cross-examined prosecution witnesses on such circumstances against them and they suggested to them that they had deposed falsely. When in course of their examination under Section 313, Cr. P.C. the trial Judge asked them to have their say in their defence, they stated that they would give in writing. And in fact, they have filed a 20 page elaborate written statement referring to the evidence of all the above P. Ws. and challenging the circumstances referred to above. Thus it is clear that they have enjoyed a good opportunity to have their full say with regard to the evidence adduced by the prosecution and have full knowledge of the allegations made against them. In such situation, in my opinion, no material prejudiced has been caused to the appellants and no in justice has been done to them.
31. In Israful Sheikh v. State of Bihar 1978 BLJ 381, the question about extra judicial confession was not put to the accused in their examination under Section 342, Cr. P.C. (1898), Then, it was held by this Court that it did not amount to non-compliance of the provisions of Section 342, Cr. P.C. as the appellants were aware of the nature of the allegation made against them and no prejudice or injustice could be said to have been caused to the accused persons.
32. In Tilkeshwar Singh v. State of Bihar , it has been held that it is no doubt true that Section 342, Cr. P.C. (1898) contemplates an examination in court and the practice of filing the statement is to be deprecated. But that is not a ground for interference, unless prejudice is established. And it is nothing unusual for the accused to prefer filing statement instead of answering questions under Section 342, lest they should suffer by inadvertent to admission or by damaging statement.
33. In Bimbadhar v. Orissa State , the accused was put the question "have you got anything to say on the evidence of the witnesses". Then it was held that that was sufficient in the circumstances of that case to show that the attention of the accused was called to the prosecution evidence. It could not be said that the accused had been in any way prejudiced by the way he had been questioned under that section.
34. In Labhchand v. State of Maharashtra , it has been held that where the appellant accused was fully aware of the nature of the allegations made against him and in addition to giving a detailed explanation, he had also filed an elaborate written statement and had not raised any objection either in the trial court or appellate court to the non-compliance of Section 342, Cr. P.C. though the general form of question put to the accused did not strictly comply with Section 342, he has not suffered any injustice and his conviction has not been vitiated.
35. Sri Prasad has also challenged the Test Identification parade of the articles seized on the ground that (i) it was held in presence of the Investigating officer and (ii) the articles seized were marked. He has referred to the following cases.
36. In Nari Santa v. Emperor AIR 1945 Pat 161, the practice of having Test Identification at a police station where the police officers are in a position to advice the officer under whose guidence the Test Identification is to be held, was deprecated. But in the instant case, the Test Identification parade was held not at any police station but in the premises of the Anchal Office and evidence of P. W. 11 shows that it was held not in the presence of any police officer.
37. In Kanan v. State of Kerala , it has been held that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless unless there has been a previous Test Identification parade to test his power of observation. The idea for holding Test Identification parade under Section 9 of Evidence Act is to test the veracity of the witness on the question of capability to identify an unknown person whom witness may have seen only once. If no Test Identification parade is held then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. But the instant case is identifying property and a Test Identification parade has been held. P. Ws. 1 and 6 had occasions to see such property on earlier occasions. It is not a case of identifing an unknown person whom the witness must have seen only once at the time of commission of the crime. Thus the above Supreme Court decision in Kanan's case has no application to the facts of the instant case,
38. On the other had, Sri K. P. Gupta, learned Additional Public prosecutor, has argued that Test Identification parade of seized articles is not a requirement of law. He has relied upon the case of Eara-Bhabrappa v. State of Karnataka , where contention that on account of want of a prior Test Identification the testimony of witnesses examined as regards identity of seized articles to be the stolen property, cannot be relied upon, was rejected and it was held that there is no such legal requirement.
39. Sri Prasad has further argued that there has been undue delay in sending the Fardbeyan, Ext. 3, to the Chief Judicial Magistrate, Deoghar. According to the prosecution case it was recorded at 8 a.m. on 20-7-1983 but it was seen by the Chief Judicial Magistrate on 22-7-1985. Date of dispatch has not been mentioned in the relevant column in the formal F. I. R. Ext. 2, which, he has argued, indicates that the Fardbeyan was not recorded at the time when it is alleged to have been recorded. Arguing that it was recorded after seizer of the articles from the appellants Bansi and Mulo, he has referred to the following cases in this connection.
40. In Datar Singh v. State of Punjab 1974 BBCJ 192, F. I. R. was neatly written soon after the occurrence. Date of its dispatch was not mentioned in the column. Then it was held by the Supreme Court that it is difficult to believe that so neatly written and detailed F. I. R. could have been written up so soon. It is more likely that the F. I. R. was drafted and written up carefully afterwards. The failure of the police to enter the date of dispatch to a Magistrate in column of the F. I. R. seems to be quite significant in the light of other facts indicating that the F. I. R. must have been drawn up such later than it is actually shown to have been.
41. In Mwar Singh v. State of U.P. , there was two days unexplained delay in sending the F.I.R. Then it was held that the extraordinary delay in sending the F. I. R. is a circumstance which provides a legitimate basis for suspecting that the First Information Report was recorded such later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a destorted version of the occurrence. In that case the suspicion hardened into a definite possibility when the case made in court differed at least in two very important particulars from that narrated in the F. I. R. In such a case, the evidence of the eye-witnesses cannot be accepted at its face value.
42. In Jamal Mirdaha v. State of Bihar 1991 BBCJ 92, fardbeyan was recorded on 9-7-1983, F. I. R. was drawn on the same day but was sent to the Magistrate on 14-7-1983. No explanation was given for the delay in dispatch. Then it was held that it was a serious lacuna. It may give rise to suspicion that the same was manufactured. First Information Report can always be sent to the Chief Judicial Magistrate or Magistrate Incharge even on holidays.
43. In the instant case, the Fardbeyan was recorded on 20-7-1985, a Saturday. It was sent to the Chief Judicial Magistrate on 22-7-1985, a Monday. Thus the intervening day was a Sunday. There is no variation or difference in any material particulars between the F. I. R. and evidence adduced by the prosecution. The P.Ws. are natural and competent witnesses and they appear to have no reason to falsely implicate the appellants who according to their evidence were on very old business terms with their uncle deceased Sitaram. The reason for not sending the F. I. R. and fardbeyan, Ext. 2 and 3 to the Chief Judicial Magistrate on 20-7-1985 itself appears to be immediate taking up of investigation by the investigating Officer and engagement of the Investigating Officer and other police officers in raiding the house of the appellants situated in a village under the jurisdiction of another police station on the same day. In these circumstances, there appears to have been some delay in dispatching of the said documents to the Chief Judicial Magistrate. Every delay cannot be considered to be fatal to the prosecution case. It all depends on the circumstances of each case.
44. In Pala Singh v. State of Punjab , it has been held that where the F. I. R. was actually recorded without delay and the investigation started on the basis of that F. I. R. and there is no other infirmity brought to the notice of the Court, then, however, improper or objectionable the delay in receipt of the report by the Magistrate concerned in the absence of any prejudice to the accused, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable,
45. It has been held in State of U.P. v. Gokaran AIR 1985 SC 131, that it is not that as if every delay sending a delayed special report to the District Magistrate under Section 157, Cr. P.C. would necessarily lead to the inference that the F. I. R. has not been lodged at the time stated or has been anti-time or antidated or that the investigation is not fair and forthright. It has been further held by the Supreme Court that where the steps in investigation by way of drawing inquest report and other panchanama started soon which could only follow the handing over of F. I. R. the delayed receipt of the special report by District Magistrate would not enable the court to dub the investigation as tainted one and F. I, R. be regarded as ante-timed or ante dated.
46. In Balu Rammu Machhi v. State of Gujarat 1986 CLJ 983, there was inordinate delay of five days on the part of the police officer in sending the copy of the F. I, R. under Section 157, Cr. P.C. to the Judicial Magistrate and no effort was made to explain the delay. Then it was held that such delay did not adversely affect the prosecution case, in as much as the evidence of the prosecution witness "X" was most natural and probable and his statement as well as the statements of other witnesses had been recorded by the police on the same night of the incident and there appeared no reason whatsoever for the prosecution witnesses to falsely implicate the accused in the crime.
47. From the above discussion of evidence, circumstances and probabilities of the case I come to the conclusion that the conviction of the appellants is well-founded and calls for no interference.
48. As regards sentence, it is well settled by now that death sentence should be awarded in a rarest of the rare cases. In the instant case the convicts have committed three cold blooded murders without any provocation just to loot money. One of the victim is 70 years old person who had reposed confidence in them and allowed them to stay and sleep in his house for the night before accounting was done next morning. They also murdered his old wife in cold blood who too was an old and infirm lady. They also murdered in cold blood a 13 years old female child, a maid-servant of the old infirm couple. They have committed extremely heinous crime just to have monetary gain namely to loot money of Sitaram who was insisting on accounting and repayament of earlier dues before advancing any further loan. In my view, in such a case no leniency is warranted. The adequate sentence must be the sentence of death, I am therefore of the opinion that the sentence of death does not require any interference.
49. In the case of Shashi Nayar v. Union of India , on Raj Gopal Nayar had killed his father and step brother. He was tried for murder and was awarded sentence of death. Both the High Court and Supreme Court upheld such sentence of death. The review petition, too, was dismissed. Both the Governor of Jammu and Kashmir and the President of India rejected his mercy petitions. He challenged the order of President of India rejecting his mercy petition, but the Supreme Court dismissed the same. A writ petition under Article 226 of the Constitution of India for quashing the sentence was rejected by the Jammu and Kashmir High Court. Then Raj Gopal's wife Shashi filed a petition under Article 32 of the Constitution of India challenging the validity of the capital punishment and praying for quashing the sentence awarded to her husband. But the Supreme Court dismissed the same observing that the death penalty has a deterrent affect and it does serve a social purpose. The Apex Court further held that judicial notice can be taken of the fact that the law and order situation in the country has deteriorated over the years and is fast worsening day to day.
50. In the result, the appeal is dismissed and the death sentence against each of the three is hereby confirmed.
A.N. Chaturvedi, J.
51. I agree.