Rajasthan High Court - Jaipur
State Of Rajasthan vs Heera Lal & Anr. on 2 June, 2000
Equivalent citations: 2000(3)WLC56, 2001(2)WLN79
ORDER Gupta, J.
(1). The death reference, as also the aforesaid three appeals arise out of the judgment dated 11.12.1997 of the learned Additional Sessions Judge, Sikar, whereby, she convicted Heera Lal, Moola Ram and Sonki under Section 302 read with Sec. 34 IPC and sentenced Heera Lal and Moola Ram to death and Sonki to imprisonment for life and a fine of Rs. 5,000/-. The three accused were convicted under Sec. 323 IPC also and sentenced to six months R.I. and a fine of Rs. 500/-. Sonki as convicted u/S. 341 IPC also sentenced to one month S.I. Bimla, the fourth accused was acquitted of all the charges. The State has challenged the acquittal of Bimla and the appellants, who have been convicted, have called in question their conviction and sentence.
(2). The facts which have emerged during the trial of the case are these. Pooran Singh @ Pooran Mal (deceased), Heera Lal and Moola Ram (accused) and Jaman were real brothers. Ram Lal (deceased) was the son of Heera Lal. Jamna is said to be mentally disturbed. Some days before the occurrence, Jamna transferred his part of the land in favour of the son of Ram Lal, which enraged the appellants. The prosecution case is that on 10.7.1996 at about 6.30 A.M. Pooran Singh was preparing for going to Sikar when Sonki accused tried to stop him by pulling his shirt and trouser and both the male accused, armed with axes, went there and caused injuries to Pooran Singh, and as Moola Ram rushed to the spot, to save his father, injuries were inflicted on him also and when Barji wife of Ram Lal and Kesar wife of Pooran Singh tried to save their husbands, they were also given beatings. It is alleged that Sonki and Bimla had also caused injuries to both Pooran Singh and Ram Lal (deceased persons). The prosecution case further is that both Kesar and Barji having suffered injuries, became unconscious and they regained consciousness in the hospital whereupon, the statement of Kesar was recorded by Shri Ahad Khan (PW 23), on which a case was registered at Police Station Nechhwa at 5.30 P.M. The prosecution evidence indicates that Shri Ahat Khan, I.O., had reached the place of occurrence at about 9 A.M. on receiving a wireless message from his Superior Officer that murders had taken place in village Mathor and after reaching there, he sent the two ladies; Kesar and Barji, for treatment to the hospital at Sikar and held the preliminary investigation. During investigation the police interrogated the witnesses, inspected the site, arrested the accused and recovered incriminating articles at their instance. After the completion of the investigation, a challan was filed.
(3). The case was tried by the Additional Sessions Judge, who had framed charges under Sections 302, in the alternative 302/34 IPC, and Section 307 IPC in the alternative 307/34 IPC, 323 and 341 IPC against all the four accused. The prosecution examined Padma Ram (PW 1), Rahman (PW 2), Har Lal (PW 3), Brij Lal (PW 4), Mohan Lal (PW 5), Dwarka Prasad (PW 6), Kesar (PW 7), Barji (PW 8), Lichhman (PW 9), Uma Ram (PW 10), Ratan Lal (PW 11), Madan Lal (PW 12), Ram Kumar Debe (PW 13), Dr. G.R. Tanwar (PW 14), Hanuman (PW 15), Bhanwar Singh (PW 16), Pooran Singh (PW 17), Vishavbandhu (PW 18), Dr. Tansukh Choudhary (PW 19), Madan Singh (PW 20), Dr. Dilip Soni (PW 21), Ram Dhan (PW 22), Ahad Khan (PW 23) and Bhagwana (PW 24). Accused in their statements u/Sec. 313 Cr.P.C. denied accusation. Heera Lal stated that Ram Dhan Head Constable at Nechhwa Police Station was related to the deceased party and he has influenced Shri Ahat Khan to make false investigation. The accused did not lead any evidence in defence.
(4). The trial Court, after hearing the arguments of the learned Public Prosecutor and the learned counsel for the accused persons, held that both Pooran Singh and Moola Ram had met homicidal death. It further held that Smt. Bimla had not taken part in the occurrence, and acquitted her of all the charges. Holding that Heera Lal, Moola Ram and Sonki had shared common intention to cause the death of Pooran Singh and Ram Lal and they had taken part in the occurrence and had given beatings to Barji and Kesar, the trial Judge convicted and sentenced the appellants as stated above.
(5). Dr. Dilip Soni (PW 21) deposes that he had performed the autopsy on the person of Ram Lal and Pooran Singh on 10.7.1996 and he had found the following injuries on their persons which were ante mortem in nature:-
Ram Lal Three incised wounds on right lateral and right parietal region of the scalp and occipital region. The bone underneath injuries had cut.
There were three sharp edged weapon injuries of the size of 6 x 3 x 2.5 cm on the neck.
He opines that the injuries to head and neck could be caused by axe and that Ram Lal had died because of suffering those injuries.
Pooran Singh Three incised wounds on the lateral side of the neck and one incised wound on the occipital region.
The size of the two incised wounds on the neck was 4 x 1 x 1 cm and of one was 5 x 2 1/2 x 2 cm.
He opines that the injuries could be caused by axe and that Pooran Singh had died because of suffering those injuries.
Nothing has come in the cross-examination of Dr. Dilip to doubt the correctness of his expert evidence. By his evidence, it is fully established that both Pooran Singh and Ram Lal had sustained injuries by sharp edged weapons and those injuries were the cause of their death. The trial court has rightly held both Pooran Singh and Ram Lal had met homicidal death.
(6). The question to be considered is whether the trial court was justified in acquitting Bimla and convicting the three appellants on the evidence produced in the case.
(7). The case mainly hinges on the evidence of Kesar (PW 7) and Barji (PW 8) who have deposed that all the four accused had participated in the occurrence and accused Heera Lal and Moola Ram had caused injuries to Pooran Mal and Ram Lal by axes, Sonki by 'Kasiya' and Bimla by 'lathi' and that they had given beatings to them also. The trial court has believed the evidence of Barji and Kesar so far as accused Heera, Moola and Sonki is concerned, but has disbelieved against Bimla.
(8). Shri, Bajwa, learned Senior Advocate contended that the trial court has erred in accepting the prosecution version, for the following reasons:-
(i) Both Kesar and Barji did not tell Ahat Khan, SHO, about the occurrence immediately after he reached there at 9 A.M., which shows that they had not seen the occurrence and they wanted some time to concoct a story.
(ii) The evidence of two ladies for their injuries is not consistent with the medical evidence as no injury caused by an axe or 'Kasiya' was found on their persons.
(iii) The SHO had already received wireless message disclosing the commission of cognizable offence and therefore the report Ex. P 62 should be treated as statement under Section 161 Cr.P.C.
(iv) Ahat Khan, though admits that the two ladies had told him about the names of the assailants yet he did not register the FIR and he registered the case at 5.30 P.M. after conducting investigation, which makes the F.I.R. the post investigation document.
(v) The site inspection memo was not prepared by Shri Ahat Khan immediately after he reached the place of occurrence, which shows that the investigation was not fair but tainted;
(vi) The prosecution has not examined important eye witnesses, i.e., mother of the deceased and Jamna which shows that they were not prepared to support the false story of the prosecution.
(vii) The Medical Officer was not asked questions after showing the weapons that if the injuries could be caused by those weapons.
(viii) The report of the Seriologist has drawn blank regarding the group of the blood found on the items recovered in the case.
(ix) The prosecution has not disclosed the origin of fight. The motive alleged by the prosecution was three month old and it was not so strong that the accused could cause the death of their blood relations.
(9). On the other hand, the learned Public Prosecutor and the learned counsel for the first informant contended that there is no cause to discard the testimony of Kesar and Barji injured. It was urged that if there was delay in recording the FIR or in the preparation of the site inspection memo, it was a lapse on the part of the Investigating Officer and the case should not be allowed to fail on the mistakes committed by him. It was canvassed that the recovery of the weapons, which were stained with human blood, at the instance of the accused. Heera Lal and Moola is the strongest circumstance against them. It was contended that non-examination of the mother of the deceased as also his brother should not be held to be fatal because the mother is deaf and dumb and brother was not eye witness to the occurrence.
(10). We have given the submissions our throughtful consideration. At the out set, it may be stated that the testimony of Kesar and Barji eye witnesses, that Heera Lal and Moola Ram had inflicted injuries to Pooran Singh and Ram Lal by axes, is fully corroborated by the medical evidence contained in the statement of Dr. Dilip Soni (PW 21) who says that the injuries on the head and neck of the two deceased persons, could be caused by axes.
(11). It may be that the weapons were not shown to the doctor when he was in the witness box but that does not have adverse effect on the direct evidence. Axe is not such a weapon which might not be understood by the doctor. It is common implement kept by the villagers, which has sharp edged blade and known by almost all the persons of ordinary understanding. It cannot be accepted that the doctor might not have occasion to see an axe. There is nothing in the cross examination of Dr. Soni that he did not have knowledge of an axe. When the doctor says that the injuries had been caused by a sharp edged weapon like axe, it has to be found that the medical evidence confirms the direct evidence contained in the statements of Kesar and Barji.
(12). Both Kesar and Barji state that they had also suffered injuries in that occurrence. Dr. G.R. Tanwar (PW 14) deposes that he had examined Barji on 10.7.1996 at about 10.45 A.M. and had found six lacerated wounds on her scalp and two contusion on her arms. Proving the injury report Ex.P.27, he deposes that the injuries were within six hours duration. Dr. Tanwar also says that he had examined the injuries of Kesar at 11.00 A.M. on the same day and there was one lacerated wound and one abrasion on her head and one abrasion on her arm. Proving the Injury Report Ex. P. 28, he says that they were of within six hours duration. The duration of the injuries of Barji and Kesar tallies with the time of the occurrence. This ensures that both the ladies were present at the place of occurrence.
(13). It is true that according to both the witnesses, Sonki had a kasiya in her hand and they had also suffered injuries at the hands of Moola Ram and Heeral Lal who had axes in their hands but no sharp edged weapon injury was found on their persons, but by that it cannot be inferred that they had not seen the occurrence. Both Kesar and Barji had sustained injuries when they had fallen on their husbands in order to save them. In that position, they could not see as to which part of the weapon was hitting them. It seems that both the male accused had caused injuries to Kesar and Barji by the reverse side of the axe, obviously because their intention was not to kill the ladies and they had already fulfilled their aim by causing fatal injuries to Pooran Singh and Ram Lal.
(14). A reading of the statements of both the lady witnesses shows that they were not in a position to see as to whether Sonki and Bimla had caused injuries to them. Barji says that first Heera Lal and Moola Ram had inflicted injuries to her head by Kulhari and thereafter Sonki and Bimla caused injuries to her. Barji, having sustained injuries to her head by Kulhari, may be by reverse side, could not be in a position to see as to who was inflicting injuries thereafter as she was lying (sic) husband keeping her face towards him. The same is true for Kesar, who had fallen on her husband. It appears that in order to implicate Sonki and Bimla, who are family members of the male accused, Barji and Kesar have named them as assailants. Sonki and Bimla resided in the same 'Dhani'. As such, their presence at the spot was natural. By their mere presence, it cannot be inferred that they had criminal intention or had taken part in the occurrence.
(15). It is significant to point out that according to the medical evidence, both Pooran Singh and Ram Lal had not sustained any injury by blunt object, whereas both the ladies depose that Bimla and Sonki had caused injuries to the deceased. It is relevant to state that both the lady witnesses have attributed the fatal injuries of the deceased to the male accused. This clearly shows that both the witnesses are lying on this fact that the two lady accused had taken part in the occurrence.
(16). However, as already stated the evidence of the two lady witnesses is fully corroborated by the medical evidence contained in the statement of Dr. Dilip Soni (PW 28) who had performed autopsy on the body of Pooran Singh and Ram Lal.
(17). No adverse inference can be drawn against the prosecution for not examining the mother of the deceased and Jaman. Barji (PW 28) deposes that her mother-in-law was present at the time of occurrence but she is deaf and dumb. There is no reason to disbelieve Barji. No evidence has been produced by the accused to show that Barji is in a position to hear the conversation and speak and could narrate the occurrence in Court. It may be that in the police statement of Barji Ex.D.3, it is recorded that her mother-in-law had tried to intervene and she was also given beatings but Barji has emphatically denied to have given such statement. Shri Ahat Khan (PW 23), of course, proves the relevant portion E to F to the statement Ex. D3, yet looking to the conduct of Shri Ahat Khan, it is not possible to accept his testimony in preference to the evidence of Barji. It appears that though Barji did not say certain facts, yet the I.O. wrote them in her statement. The very fact that mother of deceased has not been examined and she was even not interrogated by the I.O. goes to show that Barji had not stated before the I.O. that her mother-in-law had witnessed the occurrence or that she had suffered injuries. No adverse inference, therefore, can be drawn against the prosecution for her non-production.
(18). So also, for Jaman the brother of the deceased, it is in evidence that he is mentally ill. This fact is stated by Kesar (PW 7) and even Shri Ahat Khan (PW 23). In any case, it is not borne out by the evidence of Barji or Kesar that Jaman was present in the place of occurrence or he was in a position to see the occurrence and therefore, no adverse inference can be drawn for the non-production of Jaman.
(19). The serious contention of Shri Bajwa was that the statements of Barji and Kesar were not recorded by the I.O. immediately after he reached the place of occurrence which is strong circumstance against the prosecution. The explanation of the prosecution is that both Kesar and Barji were not in a position to give statements at the time the I.O. reached the place of occurrence and after the two ladies regained consciousness in the hospital, they could be interrogated.
(20). Both Kesar and Barji depose that they had regained consciousness in the Sikar hospital at about 3 or 3.15 A.M. and thereafter their statements were recorded. Shri Ahat Khan (PW 23) also deposes that when he reached the place of occurrence, he had seen the two ladies sitting in the jeep who were in unconscious condition and therefore, he sent them to the hospital and started preliminary investigation.
(21). It has come in the cross-examination of Shri Ahat Khan that there is a note in the case diary that two ladies were weeping and they had informed him that Heera Lal and his family members had given beatings to her family members. On this part of the statement, it was contended that both the ladies were not unconscious and they were in a position to give statements, yet the I.O. did not record their statements.
(22). At the out set, it may be stated the use of the case diary during the examination of Shri Ahat Khan in the case was beyond the purview of Section 172 Cr.P.C. Section 172 Cr.P.C. reads as under:-
"172. Diary of proceedings in investigation - (1) Every Police Officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the court; but, if they are used by the police officer who made them to refresh his memory, or if the court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145 as the case may, of the Indian Evidence Act, 1872 (1 of 1872), shall apply."
Sub-section (2) is clear that a criminal court may use the diary not as a evidence but to aid it in a trial, and sub-section (3) prohibits the use of the diary by the accused even if the court refers the same. The accused is entitled to see the diary only when it is used by the Police Officer to refresh his memory or the court uses the same for the purposes of contradicting the Police Officer.
The statement of Shri Ahat Khan appearing at page 11 recorded on 12.9.1997 does not show that there was a question asked to the witness, and he wanted to reply after seeing the case diary. It is not understood as to how the court permitted the use of the case diary and allowed the witness to see the same to answer the question on the basis of the case diary. No situation envisaged in sub-section (3) had arisen and therefore the use of the diary could not and should not have been permitted by the trial Judge.
Be that as it may, what is recorded at para No. 3 of the diary is ^^esjs dks xkoa esa nks ysfMt feyhA tks jks jgh Fkh mUgksaus ?kVuk ds ckjs esa c;ku nsus dh eufLFkfr ugha gksuk crk;kA ,oa mu efgykvksa us ekjus okyksa ds u ke ugha crk;s Fks uke xkao okyksa dks iwNus ls irk yxs FksA fQdjk ua- 3 esa eSaaus ekywekr gksus ij fy[kk gS fd et:cku ds'kj o cjth us crk;k fd; gekjs ifjokj okyksa dks ghjkjke] mldk tsB o mlds ifjokj okyksa us ekjihV dhA** Can it be said on the basis of this part of the statement that two ladies were in a position to give statements. There is a clear evidence on record that both these ladies were very much disturbed, and they had become nervous, obviously, because of the condition of their husbands. It may be that they were not fully unconscious as unable to speak or see, but they were bound to be in semi unconscious condition, wherein they could speak something incoherently. Even if a person is semi unconscious, it is said in the villages that he is unconscious. Therefore, when Kesar and Barji say that they were unconscious and Ahat Khan also says that they were in the condition of unconsciousness, it means that they were not fully conscious and were not in a position to detail the facts of the occurrence. As such, the non-interrogation of these two ladies by the I.O. at the spot cannot be said to be fatal to the prosecution.
(23). Even on assuming that the two ladies could tell something regarding the occurrence to the I.O., and in fact they had at least informed the I.O that Heera Lal and his family members had caused injuries to the deceased, yet the I.O. did not record their statements, the prosecution case cannot be thrown over board. The non-interrogation of Barji and Kesar at the spot would lead only to this conclusion that Shri Ahat Khan was not conscious of his duty. The accused cannot get advantage of the lapse committed by Shri Ahat Khan.
The Apex Court, time and again, has observed that the accused is not entitled to acquittal on the basis of mistakes committed by the I.O. in the investigation. In the case of State of Karnataka vs. K. Yappa (1), it has been observed that the wrongs committed by the Investigating Officer do not adversely affect the prosecution case. So also, in he case of State of U.P. vs. M.K. Anthony (2), it was observed that no importance should be attached to some technical errors committed by the I.O.
(24). Shri Ahat Khan, either because of the lack of experience of investigation or for other reasons had omitted to do certain things. He had the information of the commission of cognizance offence at 8 A.M. when he received Q.S.T and recorded entry Ex. P 58 in the Rojnamcha that two murders had been committed in a fight in village Mathor, yet he did not register the case u/S. 302 IPC before proceeding to the place of occurrence. There was obvious an information that cognizable offence had been committed. Needless to emphasize that the message received by him was the first information report. See: Sunil vs. State of M.P. (3). Then he did not prepare site inspection momo at the time of preliminary investigation. Thus certainly the investigation was far from satisfactory, but in our opinion, on the lapses of the I.O., the accused cannot claim acquittal where the evidence of two injured eye witnesses has been found to be reliable.
It is relevant to read the following observations of their Lordships appearing at para No. 19 of the reports:
"If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the Investigation Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casually for the wrongs committed by the investigating officers in the case, in other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer's suspicious role in the case."
(25). The fact remains that by the testimony of Kesar and Barji, it is fully established that both the accused Heera Lal and Moola Ram had inflicted injuries by axes to Pooran Singh and Ram Lal causing their death instantaneously.
(26). Now, it is to be seen if accused Sonki had taken part in the occurrence.
Kesar (PW 7) says that Sonki had caught hold of the shirt and trouser of Pooran Singh and thereafter Heera Lal and Moola Ram came to cause injuries to Pooran Singh. Barji (PW 8) says that Sonki had caught hold of Pooran Singh. This evidence has been led to implicate Sonki in the case. This part of the evidence of the two ladies does not inspire confidence. There is material discrepancy in the statements of Barji and Kesar. According to Kesar, Sonki had first caught the shirt and then the trouser of Pooran Singh, but according to Barji, she had caught hold of the person of Pooran Singh himself. This discrepancy cannot be said to be on insignificant point. The discrepancy shows that the ladies had not seen such incident.
Assuming that there was conversation between Sonki and Pooran Singh and Sonki had touched the clothes of Pooran Singh it could be like talks of "Dewar" "Bhabhi' without any criminal intent. In our opinion, he trial court has obviously erred when it held that Sonki had also shared common intention along with male accused persons to cause the death of Pooran Singh and Ram Lal. It is also not proved that she had taken part in the occurrence and caused injuries to the deceased or the witnesses.
(27). So also there is no convincing evidence regarding participation of Bimla in the occurrence. The trial court has assigned convincing reasons for her acquittal. We fully agree with the trial court.
(28). Apart from the direct evidence, the prosecution has relied on the report of the Seriologist report Ex.P.70. In this report, it has been opined that 'Payjama' (trouser), two axes and "Loongi' were stained with human blood.
(29). One axe was recovered on the information Ex. P 63 given by Heera Lal to Ahat Khan (PW 23) from the place pointed out by him in the presence of Har Lal (PW 3) and Laxman (PW 9). There is clear evidence of the prosecution that the axe recovered was sealed at the spot and was sent to the FSL in the same condition.
Another axe was recovered at the instance of accused Moola Ram on his information Ex.P.64 to Ahat Khan (PW 23). The Motbirs to the recovery, Har Lal (PW 3) and Laxman (PW 9), support the recovery. It is fully established that an axe was recovered at the instance of accused Moola Ram, which was sealed at the spot.
Ahat Khan (PW 23) deposes that Heera Lal was wearing a trouser at the time of his arrest which was blood stained and therefore, he had seized the same in the presence of Mohan (PW 5) and Madan Lal (PW 12). Both the witnesses also testify this fact. It is in evidence that the trouser was sealed at the place of seizure and was sent to the FSL in the same condition.
Ahat Khan (PW 23) thus depose that Moola Ram had given information Ex. P 66 and on that basis, he had recovered a 'Loongi' vide recovery memo Ex.P.18. Brij Lal (PW 4) supports the recovery. It is also in evidence that the 'Loongi' was sealed and sent to the FSL in the same condition.
In this connection, the statement of Uma Ram (PW 10) is also relevant. He says that when he reached the place of occurrence, he had seen both the accused having axes in their hands and at that time, Heera Lal was wearing a white trouser and Moola Ram was wearing 'Loongi' of green colour. The recovery of the clothes from the accused persons is thus an important circumstance against them.
(30). In respect of all the items, i.e., the axe recovered at the instance of Heera Lal, axe recovered at the instance of Moola Ram, trouser seized from the person of Heera Lal and 'Loongi' recovered at the instance of Moola Ram, there is the report of FSL Ex. P. 70 wherein it has been stated that all these items were stained with human blood.
Of course, the Serologist has not been able to state the blood group of the blood found on these items, yet it is an important piece of evidence against the accused. The Apex Court in the case of Khuji vs. State of M.P. (4), has held that the find of human blood on weapon and clothes of accused is material circumstance even in the absence of determination of blood group. It is significant to point out that the accused have not explained the presence of human blood on these articles. It is not the case for the accused that they had sustained injuries and there could be their blood on the clothes. Keeping in view the ratio of the Apex Court in the case Khuji (supra), it has to be held that the recovery of the axes and the clothes is the strongest circumstance against both the accused.
(31). The motive alleged by the prosecution was that Jamna had transferred his land in favour of Ram Lal vide relinquishment deed Ex. P. 72, about 4 months before the occurrence which was the cause of annoyance to the accused. The factum of transfer of land Jamna in favour of Ram Lal is not denied. These was thus motive for the crime.
(32). Shri Bajwa argued that something might have occurred in the morning itself which was the proximate cause of the occurrence but the prosecution has suppressed that fact. There may be substance in this contention. However, there is no adverse effect of the said suppression, since the accused have not come out with any definite version.
The version of the accused, put in the cross examination of Kesar, is that in the morning when Pooran Singh was to leave for Sikar, Kamla daughter of Sonki, who is mentally retarted child, was seen by him whereupon Pooran Singh remarked that whenever he tried to go out, she came in front of him. Kesar has denied that such thing had happened. Yet even on assuming on the basis of suggestion that such incident had taken place, it did not give the accused a right to make murderous assault on Pooran Singh and Ram Lal. It is possible that the accused, who were bearing ill- will against Pooran Singh and Ram Lal for having the land of Jaman transferred in their favour, could be agitated on the remark of Pooran Singh against Kamla, but it is not understood how this version helps the accused so far as offence is concerned. It cannot be said that the remark of Pooran Singh was such as to give grave and sudden provocation to the accused. That being so, the accused could not be justified in causing fatal injuries to two persons by for formidable weapons like axes.
(33). On a careful consideration of the entire material on record, we are of the considered view that the trial court has not erred when it found both Heera Lal and Moola Ram guilty under Section 302/34 IPC. The charges are proved against both the appellants beyond all reasonable doubts. The case against Sonki is not free from doubt. She is entitled to the benefit thereof. The trial court has not erred when it acquitted Bimla giving her the benefit of doubt.
(34). Having agreeing with the trial court that the charge under Section 302/34 IPC is proved. It is to be considered whether the sentence of death of both Heera Lal and Moola Ram should be confirmed.
It is settled legal position that u/Sec. 302 IPC, the general rule of sentence is imprisonment for life and sentence of death is an exception. Their Lordships of the Apex Court in the case of Bachchan Singh vs. State of Punjab (5), observed that the sentence of death should be awarded in the rarest of the rare case.
(35). The question for consideration is whether this case can be said to be the rarest of the rare case. The guidelines provided in the case of Bachchan Singh (supra) have been explained by their Lordships in the case of Machhi Singh & Ors. vs. State of Punjab (6). It has been observed at para No.34 of the report as follows:-
(i) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence ?
(ii) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according to maximum weightage to the mitigating circumstances which speak in favour of the offender ?
(36). True it is that the two accused have caused the death of two persons but in our opinion on the basis of two murders by two accused, the case does not fall in the category of the rarest of the rare case. To kill a person or persons is always cruel and therefore all murders are cruel, but cruelty varies in its degree of culpability. Their Lordships have observed in the case of Bachchan Singh (supra), that it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist for awarding death sentence.
(37). In the instant case, the deceased and the accused are the blood relations. The instant case of the incident, as alleged by the accused, is the passing of remark by Pooran Singh against the child. It is noticed that the accused have got their families. It is not suggested that the conduct of the accused has not been good prior to the occurrence.
Keeping in view the facts and circumstances of the case, we do not think it to be a case of the rarest of the rare nature. The sentence of death does not deserve to be confirmed.
(38). Consequently, the reference made by the learned Additional District and Sessions Judge under Section 366(1) Cr.P.C. fails.
The appeal of Sonki succeeds. Setting aside her conviction and sentence, she is acquitted of all the offences charged with.
The appeal of State of Rajasthan against Bimla, being devoid of merit, is dismissed.
The appeal of Heera Lal and Moola Ram is partly allowed while maintaining their conviction under Section 302/34 IPC, they are sentenced to imprisonment for life. Their conviction and sentence under Section 323 IPC are also maintainable.