Amar Singh vs State Of U.P.
2015 Latest Caselaw 1809 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
				        Judgment reserved on :  14.7.2015
 
				        Judgment delivered on : 14.8.2015
 

 
Case :- CAPITAL CASES No. - 103 of 2011
 

 
Appellant :- Amar Singh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Hemendra Pratap Singh,H.C.Tiwari,P.N.Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Along with 
 

 
Criminal Reference No. 01 of 2011 
 

 
Connected with 
 

 
Case :- CAPITAL CASES No. - 104 of 2011
 

 
Appellant :- Kamlesh
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Dharmendra Pratap Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with 
 

 
Case :- CAPITAL CASES No. - 307 of 2011
 

 
Appellant :- Kehari Singh And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Jai Narain,Apul Misra
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with
 

 
Case :- CAPITAL CASES No. - 466 of 2011
 

 
Appellant :- Budhsen @ Raju
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Harish Chandra Tiwari A.C
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shashi Kant Gupta, J. 

Hon'ble Om Prakash-VII, J.

(Delivered by Hon'ble Om Prakash-VII, J)

1. All the four aforesaid connected criminal (capital) appeals have been filed by the accused appellants Amar Singh, Kamlesh, Kehari Singh, Rakesh, Kanti and Budhsen alias Raju against the judgement and order dated 20.12.2010 passed by the learned Additional Sessions Judge, Kashi Ram Nagar in Sessions Trial No.138 of 2009 (State Vs. Budhsen alias Raju and others) pertaining to crime no. 46 of 2009 under Sections 147, 149, 302 IPC, Police Station Amapur, District Kashi Ram Nagar whereby all the accused appellants have been convicted and sentenced to death punishment under Section 302 IPC and further to undergo one year rigorous imprisonment under Section 147 IPC.

2. Concerned Court through the learned Sessions Judge, Kashi Ram Nagar had also sent a Reference No.1 of 2011 under section 366 Cr.P.C. for confirmation of the death sentence, which is also connected with the aforesaid criminal (capital) appeals.

3. Since all the aforesaid four connected criminal (capital) appeals arise out of the same judgment and order passed in sessions trial no.138 of 2009 and have been heard together, therefore, they are being decided along with the reference by a common judgment.

4. The prosecution case in a nutshell was that on 26.2.2009, informant Harbansh (P.W.1), the resident of village Suratpur Khushkari, District Kanshi Ram Nagar, moved a written report Ex.Ka.1 scribed by one Itwari Lal at the police station Amapur, District Kanshi Ram Nagar mentioning therein that informant's younger brother Hori Lal, his wife Nattho Devi and son Manoj Kumar were residing in a separate house. On 25.2.2009, there was a marriage ceremony of the daughter of Yograj in the village in which rangshala (musical and dance programme) was also organized. Informant had also gone there. When, at about 12:00 O'clock in the night, he was returning to his home, he heard the shrieks from the house of Hori Lal whereupon he entered in the house and saw that accused Buddhsen @ Raju son of Hori Lal, Amar Singh son of Mihi Lal residents of the same village, Kehari Singh son of Ramjeet, Rakesh son of Kehari resident of Hodalpur, P.S. Soron, Distt. Kashi Ram Nagar, Kanti resident of Virsua, P.S. Dholna, District Kashi Ram Nagar and Kamlesh resident of Madda Nagla, P.S. Kotwali Dehat, District Etah were assaulting his brother Hori Lal by throttling him on the cot. When the informant asked the accused persons, what are they doing, they hurled abuses and threatened the informant to keep mum otherwise they would not spare him, as they had not spared his brother's family. When the informant loudly raised an alarm, the local people of the mohalla arrived on the spot and chased them, as a result accused persons fled away. The informant and other persons reached near Hori Lal and saw that Hori Lal was done to death. Smt. Nattho Devi wife of Hori Lal was also done to death and her dead body was lying on the roof of the house. Manoj Kumar, son of deceased Hori Lal was missing also. The incident was witnessed by the informant and the village people in the light of petromax lantern. They thought that Manoj would have fled away due to fear to save himself, but next morning the village people told the informant that the accused-persons had taken away Manoj in the night itself towards the bambi. One Devkaran son of Bhojraj came there and told that the dead body of Manoj Kumar was lying in the orchard of Natthu Singh resident of Mihari. When the informant reached there, he saw the dead body of Manoj lying there. He was done to death by crushing his head. It was also mentioned in the report that accused Budhsen alias Raju had taken loan due to which the deceased Hori Lal had sold his two bighas agricultural land to repay the loan. Now accused Budhsen alias Raju wanted some more land so the panchayat was convened in this regard. Deceased Hori Lal when refused to give more land, accused Budhsen alias Raju threatened and uttered the following words "Ke Ped he nahi rahega toh pakshi kahan baitheygay". As a consequence, the accused Budhsen later on with the help of his relatives (father-in-law, mausa and friends) committed the murder of his father Hori Lal, mother Nattho Devi and brother Manoj Kumar. It was also mentioned in the written report that the dead bodies were lying on the spot and villagers were present there. Since there was no mode of transportation in the night and also he was so frightened and terrorized that he could not lodge the first information report at night.

5. On the basis of the written report (Ex.Ka.-1), Chick F.I.R. (Ex.Ka.-21) was registered on 26.2.2009 at 9:30 A.M. as a case crime no. 46 of 2009 under Sections 147, 149, 302 IPC at Police Station Amapur, District Kashi Ram Nagar. by C.C. Dileep Kumar (P.W.6) and G.D. entry was also made by him at Rapat No.14.

6. Investigation of the case was entrusted to P.W.4 S.I. Sri Ram Singh Pal, the then Incharge of the police station Amapur in whose presence the Chick FIR was lodged. He copied the chick F.I.R. and the G.D. entry in the case diary. Information regarding the incident was transmitted through the R.T. Set to the higher authorities and the neighbouring police stations.

7. Investigating officer (P.W.4) visited the village Amapur, where the incident had taken place, along with the police force in the government jeep keeping with them the chick F.I.R, G.D. and other papers for preparation of the inquest report etc. The informant had also accompanied them. The corpse of the deceased Hori Lal was lying inside the house on a cot and the corpse of the deceased Smt. Nattho Devi was lying in the room of the first floor. Dead body of the deceased Manoj Kumar was found lying in the mango orchard of Natthu Singh one and a half kilometers away from the village.

8. S.S.I. Ram Shankar Mishra was instructed by the C.O., Sahawar to conduct the inquest proceedings on the body of the deceased Manoj Kumar.

9. Investigating officer Sri Ram Singh Pal (P.W.4) prepared the inquest report (Ex.Ka-7) of the deceased Hori Lal. Photo lash, challan lash, letter to R.I., letter to C.M.O., sample seal were also prepared keeping the dead body in a sealed cloth. He also prepared the inquest report (Ex.Ka.-8) of the deceased Smt. Nattho Devi and kept the dead body in a sealed cloth and also prepared the sample seal, photo lash, challan lash, letter to R.I., letter to C.M.O.

10. Dead bodies were dispatched for postmortem and a letter to the C.M.O. (Ex. Ka.-15) was also sent by the investigating officer to perform the postmortem in the night itself.

11. Inquest report (Ex.Ka.-26) of the dead body of the deceased Manoj Kumar was prepared by S.I. Jai Prakash Pathak (P.W.7). Other police papers were also prepared keeping the dead body in a sealed cloth and also preparing the sample seal.

12. Dead body of the deceased Manoj Kumar was also dispatched for postmortem.

13. Investigating officer inspected the place of occurrence and prepared the site-plan Ex.Ka.-16. Blood stained pieces of the concrete floor were also taken by the investigating officer preparing the memo and keeping the same in sealed containers. Pieces of the bangles found on the spot were also taken by the investigating officer and the same were kept in a separate sealed containers by preparing the sample seal. Memo Ex.Ka.-2 was also prepared in this regard. One petromax lantern found at the place of occurrence was taken into possession by the investigating officer and memo Ex.Ka.-3 was prepared giving it in the custody of the informant. Investigating officer also visited the place, where the dead body of the deceased Manoj Kumar was found lying, and prepared the site plan Ex.Ka.-17. He also took a pair of slippers belonging to the deceased Manoj Kumar found near the dead body. Investigating officer had also taken into possession a blood stained brick from the spot. Blood stained earth and simple earth were also taken from the place of occurrence and memo was prepared keeping the articles (materials) in sealed containers. Sample seal was also prepared. The memos prepared by the investigating officer were Exs. Ka.4, 5 & 6.

13. Witnesses were also interrogated by the investigating officer at the place of occurrence. He also made attempts to arrest the accused persons at different places. The memos and other papers prepared during the investigation were copied in the case diary in the light of gas lantern. He also visited the district headquarters, Etah to ensure that permission for performing the postmortem be obtained in the night itself and thereafter he returned to the concerned police station. On 27.2.2009 also, he made efforts for arrest of the accused-persons and accused namely Budhsen alias Raju, Amar Singh and Rakesh were arrested from the tubewell of Amar Singh at 5:45 A.M. Arrest memo was also prepared at the place of occurrence and other formalities were fulfilled. Accused persons were kept in the HAWALAT of the police station concerned. After fulfilling the formalities, they were interrogated by the investigating officer. He also went to the village to maintain the law and order situation at the time of funeral of the dead bodies. He interrogated the scribe of the written report and the witnesses of inquest and also ensured the arrest of the rest of the accused-persons.

15. Later on, the investigation was completed by S.I. Sukant Sharma (P.W.8), who interrogated the witnesses and ensured the arrest of the rest of the accused-persons and filed the charge-sheet (Ex.Ka.-13) on the basis of evidence collected during investigation against all the accused persons named in the F.I.R. He sent the material collected on the spot by the first investigating officer to the Forensic Science Laboratory. The Laboratory Report (Ex.Ka.-31) was also submitted.

16. Post mortem on the dead body of the deceased Nattho Devi was performed on 27.2.2009 at 1:00 A.M. by Dr. Sayeed Mohammad (P.W.5) of District Hospital, Etah. Dead body was brought by C.P.19 Ram Naresh Sharma and C.P.220 Mohd. Aslam belonging to Police Station Amapur, who had also identified the dead body. Deceased was 50 years of age and was of average built. Rigor mortis was present in both the extremities. Eyes were closed. Mouth was semi-opened. Bleeding from right side ear was found. Postmortem report Ex.Ka-18 was prepared.

On external examination, following ante mortem injuries were found by the doctor on the person of the deceased :

(i) Contused swelling 4 cm. x 3 cm. on left side frontal part of head and forehead. Clotted blood was present underneath scalp.

(ii) Complete ligature mark 25 cm. x 2 to 3 cm. on upper and middle part of neck. Left comua of hyoid bone fractured.

According to doctor, the death was caused due to coma and asphyxia as a result of ante-mortem injuries sustained by the deceased. Time of death has been shown as about one day (24 hours).

17. Post mortem on the body of the deceased Hori Lal was conducted on 27.2.2009 at 1:30 A.M. by Dr. Sayeed Mohammad (P.W.5) himself. Dead body was brought by the same police personnel C.P.19 Ram Naresh Sharma and C.P.220 Mohd. Aslam, who had also identified the body. Rigor mortis was passing off from upper extremities and present in lower extremities. Deceased was 55 years of age and was thin. Postmortem report Ex.Ka-19 was prepared.

On external examination, following ante mortem injuries were found by the doctor :

(i) Abrasion 3 cm. x 3 cm. on right side neck and 2.5 cm. x 2 cm. on left side neck. On middle part of neck, on cut section underneath tissue congested. Both comua of hyoid bone fractured.

Duration of death was about one day (24 hours). According to doctor, cause of death was asphyxia as a result of ante mortem throttling.

18. Postmortem on the body of the deceased Manoj Kumar was performed on 27.2.2009 at 2:00 A.M. by the same Dr. Sayeed Mohammad (P.W.5). Dead body of the deceased was brought by C.P.57 Naushad Khan and H.G. 3877 Santosk Kumar of P.S. Kasganj. Deceased was 25 years of age and was average built. Rigor mortis was present in both the extremities. Bleeding found present in the right ear. Dried and clotted blood was present on the face. Stomach was found full of semi solid food contents. Postmortem report Ex.Ka-20 was prepared.

On external examination, following ante mortem injuries were found by the doctor :

(i) Lacerated wound 2 cm. X 1 cm. X bone deep on left side back of head, underlying bone was fractured.

(ii) Lacerated wound 3 cm. X 1 cm. X bone deep on right side head, 7 cm. above pinna of ear.

(iii) Lacerated wound 2 cm. X 1 cm. X bone deep on right side head, 8 cm. behind injury no.(ii). Underlying bone fractured.

Time since death was about one day (24 hours). Cause of death was coma as a result of ante mortem head injuries.

19. F.S.L. Report (Ex.Ka.-31) shows that human blood was found over the blood stained material sent for chemical examination i.e. material nos.1, 6, 11, 14, 15 & 16.

20. Cognizance was taken by the concerned Magistrate having jurisdiction in the matter and the case, being exclusively triable by the Sessions Court, was committed for trial.

21. Accused persons appeared before the Court of Additional Sessions Judge, Kashi Ram Nagar where the case was transferred for trial.

22. Charges under Sections 147 and 302 read with 149 IPC were framed against the accused-persons, to which they pleaded not guilty and claimed their trial.

23. In order to establish its case, prosecution examined as many as 10 witnesses. P.W.1 Harbansh, who is the informant of the case and the brother of the deceased, claimed himself to be the eyewitness of the murder of deceased Hori Lal. P.W.2 Suraj Pal Singh, who also claimed himself to be the eyewitness of the murder of the deceased Hori Lal. P.W.3 Rajveer Singh is the witness of the last seen evidence of the deceased Manoj Kumar. P.W.4 S.I. Ram Singh Pal is the first investigating officer. The inquest reports of the deceased Smt. Nattho Devi and Hori Lal and other papers relating to inquest were prepared by this witness. He also interrogated the witnesses and inspected the place of occurrence and prepared the site plan. P.W.5 Dr. Sayeed Mohammad., who conducted the postmortems on the bodies of the deceased Hori Lal, Nattho Devi and Manoj Kumar. The ante mortem injuries and other details have already been shown in the earlier portion of the judgment. P.W.6 C.P. Dileep Kumar prepared the chick F.I.R. and G.D. (Ex.Ka.21 and Ex.Ka.-22 respectively). He also prepared the ravangi G.D. of the investigating officer S.I. Ram Singh Pal and the G.D. (Ex.Ka.-23) relating to deposit of the material collected from the place of occurrence by the investigating officer S.I. Ram Singh Pal. This witness also prepared G.D. relating to the entry of the accused in the HAWALAT (bars) as Ex.Ka.-24 and 25. P.W.7 S.I. Jai Prakash Pathak, who prepared the inquest report of the deceased Manoj Kumar. He received the information on R.T. Set at the Kotwali Police Station, Kasganj and proceeded to the place of occurrence where the dead body of the deceased Manoj Kumar was lying. The inquest report (Ex.Ka.26) was prepared by this witness on the direction of concerned C.O. Other police papers relating to the inquest report Ex.Ka.27, 28, 29 & 30 were also prepared by this witness. P.W.8 S.I. Sukant Sharma, the subsequent investigating officer, who completed the investigation after interrogating the witnesses, submitted the charge-sheet Ex.Ka.-30 against all the accused persons. He also proved the examination report of Forensic Science Laboratory as Ex.Ka.-31. P.W.9 C.P. 57 Naushad Khan, who carried the dead body of the deceased Manoj Kumar for postmortem along with police papers and P.W.10 C.P.19 Ram Naresh Sharma, who carried the dead bodies of the deceased Nattho Devi and Hori Lal along with the police papers in sealed condition.

24. After closure of the prosecution evidence, statement under Section 313 Cr.P.C. of the accused appellants were recorded.

25. Appellant Budhsen alias Raju had stated the prosecution story to be false. As per this appellant, first information report was lodged on the basis of false facts. He has specifically stated that P.W.1 Harbansh, P.W.2 Suraj Pal Singh and P.W.3 Rajveer have made false statements before the Court. P.W.4 Ram Singh Pal, the I.O. has made perfunctory investigation and has not proved the police papers in an acceptable manner. He never confessed his guilt before P.W.4. Other prosecution witnesses have also made false statements and the first information report was lodged belatedly. Statements of the prosecution witnesses are against the fact mentioned in the inquest report. Subsequently I.O. P.W.8 Sukant Sharma has submitted the charge-sheet on the basis of insufficient evidence and has made false statement before the Court. Report of the Forensic Science Laboratory is also based on false facts. Witnesses have deposed before the Court due to enmity. He specifically stated that the informant was trying to usurp the land belonging to deceased Hori Lal, therefore, on the basis of false facts, implicated the appellant in this case.

26. Accused appellant Amar Singh has also stated more or less the same facts as has been stated by Budhsen. He stated that prosecution witnesses are relatives. Specific pleading was taken by this appellant that he is handicapped. Informant wanted to grab the land of this appellant, therefore, falsely implicated him in this case.

27. Accused appellant Kehari Singh has also made more or less the same statement and claimed himself to be innocent.

28. Accused appellant Rakesh, who claimed himself to be innocent, has stated more or less the same facts as has been stated by accused-appellant Budhsen. He has specifically stated that he was arrested from his house.

29. Accused appellant Kanti also stated the same facts. He has specifically stated the he was present the whole night on the date and time of the incident in the mandap ceremony of his cousin brother's son in his village. Photography of the ceremony was also done. P.W.2 Suraj Pal was not present at the time of occurrence and he was present at his service place.

30. Accused appellant Kamlesh, stating the same facts as has been stated by other accused appellants, has specifically stated that the informant wanted to usurp the land, therefore with the aid of witnesses, he (informant) had committed the present offence and falsely implicated him in this matter.

31. Accused appellants in their defence have examined D.W.1 Aneg Singh, who claimed himself to be the cousin of accused appellant Kanti. He is the witness of the alibi of the accused appellant Kanti. D.W.2 Radhey Shyam is the senior clerk posted in the irrigation department at Etah. He produced the attendance register showing the presence of P.W. 2 at his service place. D.W.3 Gajendra Singh claimed himself to be the family member of D.W.1 Aneg Singh, who performed photography in the said mandap ceremony. D.W.4 Vijay Pal Singh is also the witness of the plea of alibi of the accused appellant Kanti. D.W.5 Kanti, the accused appellant has also examined himself before the Court to prove the plea of alibi.

32. After hearing the parties, vide impugned judgment and order, the trial Court convicted and sentenced the accused appellant as above and sent the reference for confirmation of the death sentence. Feeling aggrieved with the impugned judgment and order, the accused appellants have also preferred the aforesaid criminal capital appeals.

33. We have heard Sri Rahul Mishra, Sri Harish Chandra Tiwari (Amicus Curiae), Sri Hemendra Pratap Singh and Sri Jai Narain, learned counsel for the appellants in the leading case as well as in the connected cases and Sri Akhilesh Singh, learned Government Advocate and Sri Rajiv Gupta, learned A.G.A. for the State and have also gone through the entire record.

34. Learned counsel for the appellants have submitted that the prosecution was not able to bring home the guilt of the appellants from the evidence, but the trial Court has illegally convicted and sentenced the appellants. Incident took place in the night. P.W.2 Harbansh is a chance witness and was residing at a distance of 500 meters from the place of occurrence, there was no occasion for him to remain present at the place of occurrence. He was aged about 75 years. It is an improbable story that he would have gone to see the musical and dance programme in the night. P.W.2 Suraj Pal is also a chance witness. He was not present on the spot. He served in the irrigation department at District Headquarters, Etah. Attendance register proved by the defence witnesses clearly indicates that he was present at his place of posting on the date and time of incident. Motive attributed to the accused appellants was also not established by the prosecution. P.W.3 Rajveer has not disclosed this fact immediately that he had seen the deceased Manoj Kumar along with the accused persons in the night itself. This fact was stated for the first time in the statement under Section 161 Cr.P.C. only to connect the death of the deceased Manoj Kumar with the present crime. Conduct of P.W.1 and P.W.2 does not inspire confidence of the Court. They are not reliable witnesses. There are major contradictions on the material point in their statements. None had witnessed the incident regarding the death of the deceased Nattho Devi. The most material witnesses Dev Karan, Suresh and Shiv Shanker were not examined by the prosecution, therefore, presumption against the prosecution would be drawn that if they were examined, they would have not supported the prosecution case. Medical evidence also does not support the prosecution version. In the first information report, nothing was mentioned about causing the death of the deceased Hori Lal by pressing the sticks / danda over his neck. The Doctor, who conducted the postmortem of the deceased Hori Lal, has clearly opined that injuries found on the neck of the deceased Hori Lal could not be caused by sticks / danda. The last seen evidence is also not reliable as it is not supported by any other independent evidence. There is delayed interrogation of the witnesses and no plausible explanation has been offered. The first information report was also lodged belatedly and it is ante timed document. Rajendra Singh, who could explain the time of the incident, was also not examined by the prosecution. It appears improbable that Rajendra Singh reached in the morning of 26.2.2009 itself from Noida to the place of occurrence. All the witnesses are relatives and interested witnesses. The shrieks made from the house of the deceased could not be heard from the place where the musical and dance programme was going on. Shrieks made from the house of the deceased Hori Lal could also be heard from the house of Suresh, there were many people in the house of Suresh, but they could not hear the hue and cry raised from the house of the deceased. It was also submitted that the conduct of Suresh appears unnatural that the door of the house of the deceased was open, but he entered in the house of the deceased through the roof of his house. It was further submitted that appellant Kanti was not present on the spot as is clear from the defence evidence. He was present in his village and participated in the mandap ceremony. Specific role of the appellants were not assigned by the prosecution witnesses, despite the fact that they claimed themselves to be the eyewitness. There are major contradictions in the statements of P.W.1, P.W.2 and P.W.3 on material point. There is improvement at the stage of prosecution evidence before the Court and the same is fatal to the prosecution case. Details, as require under the law, were not mentioned in the inquest report. Time mentioned in the inquest report of the deceased Manoj Kumar also indicates that the first information report was not in existence at the time mentioned in the chick F.I.R. Appellant Amar Singh is a handicapped person. He could not participate in the crime. It was next submitted that the present case does not come under the purview of rarest of rare case. Trial Court has wrongly awarded death punishment to the appellants.

35. Learned Government Advocate submitted that F.I.R. was lodged at the earliest possible time. Delay has been properly explained in the written report itself. Father, mother and one of the sons were murdered. No blood relative, except the informant P.W.1 Harbansh, the brother of the deceased, P.W.2 Suraj Pal Singh, who were residing at some distance from the place of occurrence, were present. Rajendra Singh, who was the younger son of the deceased Hori Lal was informed at night itself. He reached the village in the morning. One of the sons of the deceased Hori Lal was involved in the crime, therefore, delay in lodging the F.I.R. cannot be taken to be fatal to the prosecution case. Presence of P.W.1 and P.W.2 at the place of occurrence is natural and probable. They reached the place of occurrence while accused appellants were committing the murder of the deceased Hori Lal. Facts and circumstances of the case clearly establish that accused appellants have committed the murder of Smt. Nattho Devi before committing the murder of Hori Lal. There is no major contradiction on material point in the statements of these two witnesses. Dead body of the deceased Manoj Kumar was found lying in the garden about one and a half kilometers away from his house. Although, name of P.W.3 Rajveer as witness of the last seen evidence was not mentioned in the F.I.R., but at the earliest point of time he disclosed these facts to the investigating officer and other witnesses. Motive attributed to the appellants was fully established from the prosecution evidence. Accused appellant Budhsen alias Raju had extended threat in the panchayat to eliminate the deceased for not agreeing to sell the land to discharge the debt owed by the appellant Budhsen alias Raju. This fact is fully established from the prosecution evidence. There was no occasion to falsely implicate the accused appellants in the present matter. Suggestions given by the accused appellants to the prosecution witnesses are mere suggestions. There is no supporting evidence to establish the plea taken by the accused appellants. The doors of the house of the deceased were open, this is not an improbable fact. One of the appellant is the son of the deceased Hori Lal and Nattho Devi. It might be possible that deceased would have opened the door at the request of the accused appellants. It also appears probable because the offence took place in the night at about 12:00 hours and the assailants were the relatives of the deceased. Medical evidence fully supported the prosecution version. Lapses committed by the investigating officer does not affect the credibility and testimony of P.W.1, P.W.2 and P.W.3. It was the rarest of the rare case as the three persons were done to death by their blood relatives. Trial Court has rightly held that it was a rarest of the rare case and has rightly awarded death punishment to the accused appellants.

36. Before proceeding to deal with the submission raised by the parties and issues involved in this matter, we would refer to the findings and observations recorded by the trial Court in the impugned judgment.

(I)Trial Court while passing the impugned judgment and order has observed that motive attributed to the accused appellants was established from the prosecution evidence. A panchayat had convened and accused appellant Budhsen alias Raju had extended threat to eliminate the deceased for not agreeing to sell the agricultural land to discharge the debt liability.

(II)P.W.1 Harbansh and P.W.2 Suraj Pal Singh were present on the spot at the time of occurrence. They had seen the accused appellants committing the murder of the deceased Hori Lal.

(III)Smt. Nattho Devi was done to death by the accused appellants prior to committing the murder of Hori Lal.

(IV)Accused appellants had also taken away the deceased Manoj Kumar with them and committed his murder in the orchard where his dead body was found.

(V)Medical evidence fully supported the prosecution case. Non-examination of Dev Karan, Suresh, Shiv Shanker and Rajendra is not fatal to the prosecution case.

(VI)All the accused appellants had formed unlawful assembly to commit the present offence and they gathered at the place of occurrence and committed the present offence in furtherance of the common object of the unlawful assembly.

(VII)Present case comes under the purview of rarest of rare case, therefore, trial Court imposed death punishment to the accused appellants.

(VIII)Participation of all the accused appellants in committing the present offence was fully established from the prosecution evidence beyond reasonable doubt.

(IX) Evidence adduced by the accused appellants in their defence was not believable.

(X) P.W.2 Suraj Pal Singh was well present at the time of the occurrence and also remained present on 26.2.2009, as is clear from the inquest report etc.

(XI)Shrieks raised from the house of the deceased could easily be heard from the place where P.W.1 and other witnesses were present.

(XII)Prosecution evidence is clear and consistent on the point of availability of petromax at the place of occurrence. Witnesses had recognized the accused appellants in the light of petromax lantern.

37. We would also refer to the case laws relied upon by the learned counsel for the parties and discussed by the Court at this juncture.

(i) B. Kumar alias Jayakumar alias Left KR. alias S.Kumar Vs. Inspector of Police through CB CID reported in (2015) 2 Supreme Court Cases 346.

(ii)Purushottam Dashrath Borate and Another Vs. State of Maharashtra reported in (2015) 6 Supreme Court Cases 652.

(iii) Shabnam Vs. State of Uttar Praesh reported in (2015) 6 Supreme Court Cases 632.

(iv)Deepak Rai Vs. State of Bihar reported in (2013) 10 Supreme Court Cases 421.

(v) Ram Naresh Vs. State of Chhattisgarh reported in (2012) 4 Supreme Court Cases 257.

(vi) State of U.P. Vs. Dharmendra Singh reported in (1999) 8 Supreme Court Cases 325.

(vii) Machhi Singh Vs. State of Punjab reported in (1983) 3 Supreme Court Cases 470.

(viii) Bachan Singh Vs. State of Punjab reported in (1980) 2 Supreme Court Cases 684.

38. Discussion :

In the instant matter, offence is said to have been committed in the intervening night of 25/26.2.2009 at about 12:00 hours at two different places. Firstly, at the residence of the deceased Hori Lal where Hori Lal and his wife Nattho Devi were murdered and secondly, in the orchard of one Natthu Singh situated at a distance of about 1½ kms. from the house of the deceased Hori Lal where his son Manoj Kumar was murdered. Deceased Hori Lal had three sons. One is the accused appellant Budhsen alias Raju, second was Manoj Kumar (deceased) and third one is Rajendra Singh, who was residing at Noida at the time of the incident. P.W.1 Harbansh is the brother of the deceased Hori Lal, who was admittedly residing at about 500 meters away from the place of incident. P.W.2 Suraj Pal was also residing at a distance of about 500 meters from the place of occurrence. Both P.W.1 and P.W.2 are neighbours. Thus, both of them come under the category of chance witnesses.

39. P.W.3 Rajveer is the son of P.W.1 Harbansh. It is also an admitted case of the prosecution that when P.W.1 Harbansh reached the spot, he saw the accused appellants committing the murder of Hori Lal (deceased). It means, he is the only eyewitness of the murder of Hori Lal. It is also clear from the evidence that none had seen the accused appellants committing the murder of Smt. Nattho Devi. Similarly, there is only last seen evidence against the murder of the deceased Manoj Kumar. Prosecution had not examined Dev Karan, who gave the information about the dead body of Manoj Kumar lying in the orchard. Suresh and Shiv Shanker, who were accompanying P.W.2, were also not examined by the prosecution. Rajendra Singh son of the deceased Hori Lal was informed in the night of the occurrence itself and he reached at the place of occurrence in the morning of 26.2.2009. P.W.2 Suraj Pal is the employee of Irrigation Department and was posted at Etah district at that time. Defence has also not disputed the musical and dance programme organized in the night of the incident on the occasion of the marriage ceremony of the daughter of one Yog Raj. Prosecution witnesses have also admitted that the accused appellant Budhsen alias Raju was residing separately at Kasganj from his father deceased Hori Lal at the time of occurrence. Accused appellant Kanti is the maternal uncle (Mausa) of the accused-appellant Budhsen alias Raju and is the husband of the sister of the deceased Smt. Nattho Devi. Some of the accused appellants are also relatives of the deceased, as has been admitted by the prosecution witnesses themselves. It is also an admitted case of prosecution that there were only 07 bighas of land in the name of deceased Hori Lal.

40. Thus, in the light of above factual situation, the Court proceeds first of all to analyze the motive attributed against the accused appellants to commit the present offence.

41. The first information report was lodged by P.W.1 on 26.2.2009 at 9:30 A.M. It was mentioned in it that accused appellant Budhsen alias Raju had taken loan earlier and to repay the same, deceased Hori Lal, the father of the accused appellant Budhsen alias Raju, had sold two bighas of land. Again accused appellant Budhsen wanted to sell more land to discharge his debts to which Hori Lal refused, whereupon a panchayat was held in which the accused appellant Budhsen alias Raju had threatened and uttered the following words "Ke ped he nahi rahega toh pakshi kahan baitheygay" and this was the reason why the accused appellant Budhsen alias Raju with the aid of his mausa (maternal uncle) and other acquaintances had committed the murder of Hori Lal, Nattho Devi and Manoj Kumar.

42. P.W.1 Harbansh, who is the informant in this case, has supported this fact before the Court. Although, he has not specified the place of panchayat, where it was held, but has admitted taking part in the panchayat. He also stated before the Court that accused-appellant Budhsen alias Raju wanted to sell some more land, but deceased Hori Lal refused to oblige him, therefore, Bhemsen alias Raju had threatened in the panchayat uttering "Ke ped he nahi rahega toh pakshi kahan baitheygay".

43. It was the submission of the learned counsel for the accused appellants that the real son Rajendra Singh was not examined by the prosecution, who could speak the truth about the panchayat and the motive attributed to the accused appellants. It was further argued that the prosecution witnesses themselves wanted to purchase the agricultural land belonging to the deceased Hori Lal. Therefore, they committed the murder of the deceased and falsely implicated the appellants in this case. If the arguments advanced by the learned counsel for the accused appellants are analyzed with the evidence available on record, it is evident that accused appellants have not challenged this fact in the cross-examination. Although, in the statements under sections 313 Cr.P.C., they have denied this fact. Looking to this situation that taking of loan by the accused appellant Budhsen alias Raju and in lieu thereof selling of two bighas of land by the deceased Hori Lal to repay the loan has not been challenged and the defence has also not challenged the convening of the panchayat, then we are of the view that motive part attributed against the accused appellants was established from the prosecution evidence. Trial Court observation on this point is not illegal.

44. Before proceeding to deal with other issues, we would discuss the existence of the first information report at the time mentioned in the chick.

45. In the present matter, F.I.R. was lodged on 26.2.2009 at 9:30 A.M. Distance between the place of occurrence and the police station was about 10 kms. Offence is said to have been committed in the intervening night of 25/26.2.2009 at about 12:00 hours. Thus, the F.I.R. was lodged after a gap of 9½ hours. P.W.1 Harbansh, the real brother of the deceased Hori Lal, has mentioned in the written report the reason for delay in lodging the F.I.R. First reason was that there was no means of transport in the night and secondly, due to fear and terror of the appellants, he could not go to lodge the F.I.R. During the course of examination, the same facts were stated by P.W.1 Harbansh. He stated before the Court that the written report was scribed by one Itwari Lal on his dictation and thereafter it was read to him before he signed it. In the cross-examination, he admitted that he reached the concerned police station at about 8:00 A.M. in the morning of 26.2.2009 and it took an hour to prepare the written report at the concerned police station. G.D. Entry prepared at the time of preparation of Chick (Ex.Ka.-21) indicates that P.W.2 Suraj Pal and Rajendra Singh also accompanied him.

46. It is the submission of the learned counsel for the accused appellants that written report (Ex.Ka.-1) was prepared with the consultation of the police after preparing the inquest report. Rajendra Singh and P.W.2 Suraj Pal both were not present at that time. It was also submitted that Rajendra Singh was residing at Noida at the time of occurrence. It appears improbable that he reached 26.2.2009 morning at the place of occurrence.

47. To analyze this fact, we have minutely perused the chick F.I.R., G.D., and other police papers prepared along with the inquest report. It is evident that the police officials, who prepared the inquest report of the deceased Manoj Kumar, have shown different time in the column of information received at police station of the inquest report, but it is also evident that inquest report of the deceased Manoj Kumar was prepared by the police of Kotwali, Kasganj. First information report was lodged at Police Station Amapur. Inquest report of the deceased Hori Lal and Nattho Devi were prepared by the police of P.S. Amapur. Information at the police station Kotwali, Kasganj was given through R.T. Set. Since the dead body of the deceased was lying within the jurisdiction of Kotwali, Kasganj, therefore, the police of Kotwali, Kasganj proceeded to prepare the inquest report on the direction of the higher authorities. It appears that due to this reason the time mentioned in the column was 11:00 A.M. Contention raised by the learned counsel for the accused appellants is not acceptable. Three persons of a family were done to death and one of the sons of the deceased was himself involved in the incident. Other surviving son was residing at Noida at the time of occurrence. Informant (P.W.1) is the brother of the deceased. Offence was committed at midnight. Therefore, the reasons assigned in the first information report and stated by P.W.1 Harbansh before the Court are plausible and believable. In the facts and circumstances of the case, if the informant proceeded to lodge the first information report in the morning of 26.2.2009, we are of the view that there was sufficient ground for the same and it was explained by the prosecution. The explanation / reason offered by the prosecution is proper and satisfactory. Non-examination of Rajendra Singh will not render the explanation offered by the prosecution unbelievable or unsatisfactory, specially when there is a clear evidence that Rajendra Singh reached the spot in the morning of 26.2.2009 and had also accompanied the informant to the police station concerned. If Rajendra Singh did not lodge the first information report himself, it is also not fatal to the prosecution as he was not an eyewitness of the incident. He was the witness of inquest. Inquest reports have been proved by the prosecution from other evidence in accordance with law. Presence of P.W.2 Suraj Pal is also proved at the concerned police station at the time of lodging of F.I.R. vide G.D. Entry. Thus, the plea taken by the learned counsel for the accused appellants regarding delay in lodging the F.I.R. is not acceptable.

48. As far as consultation with the police in preparing the chick F.I.R. is concerned, P.W.1 Harbansh has clearly and consistently stated before the Court that he got prepared the written report from one Itwari Lal on his oral dictation. If the written report (Ex.Ka.-1) was prepared at the police station concerned, it will not be presumed that it was prepared after consultation with the police. The arguments advanced by the learned counsel for the accused appellants is not based on any cogent and reliable evidence.

49. In the present matter, prosecution case rests upon the testimony of P.W.1 Harbansh, P.W.2 Suraj Pal and P.W.3 Rajveer. Other witnesses examined by the prosecution are either formal witnesses or they are the witnesses of inquest, recovery or of postmortem. The conduct of the witnesses to go and watch the musical & dance programme in the village at night of the occasion of the marriage ceremony of the daughter of one Yog Raj is not unnatural or improbable. Generally, people in villages watch such type of programmes irrespective of their age, caste or creed. Admittedly, P.W.1 was aged about 75 years, but he was able to walk and to do his work. Thus on this basis, the fact that he had gone to watch the programme cannot be disbelieved. As per this witness, when he while returning from the programme, heard the shrieks from the house of Hori Lal as he came close to it. The path chosen by this witness lies in-front of the house of the deceased Hori Lal and also goes towards the house of this witness. The conduct of this witness cannot be termed as unnatural. Although, he is the chance witness, but presence of this witness at the time of occurrence is probable and believable as he is the resident of the same village.

50. So far as the presence of P.W.2 Suraj Pal, P.W.3 Rajveer and other witnesses are concerned, P.W.1 Harbansh has admitted that when he raised an alarm, P.W.2 Suraj Pal , P.W.3 Rajveer, Suresh and Shiv Shankar reached there and they also saw the incident. Prosecution has not examined Suresh and Shiv Shankar. To disbelieve the presence of P.W.2 Suraj Pal, the accused appellants had examined the clerk of the concerned Department. It is the submission of the learned counsel that on the date and time of incident, P.W.2 Suraj Pal was present in his office discharging his official duty. At this stage, the statement of the concerned witnesses and the attendance register proved by the said witnesses were also referred to. It is true that defence witness had stated that in the attendance register, the presence of P.W.2 Suraj Pal was marked on 24, 25 & 26.2.2009, but at the same time he also stated that a leave application from the evening of 24.2.2009 for 25 & 26.2.2009 had been moved by P.W.2 Suraj Pal, which was accepted by the Head of the Institution. Learned counsel for the accused appellants referring to this situation has argued that the leave application was moved later on only to ensure the presence of P.W.2 at the place of occurrence. Document proved by the defence witness clearly indicates that P.W.2 Suraj Pal was not present on the date, time and place of the occurrence.

51. We have closely analyzed the prosecution and defence evidence in light of the submissions raised by the learned counsel for the parties.

52. Inquest reports of the deceased Hori Lal, Smt. Nattho Devi and Manoj Kumar were prepared on 26.2.2009. P.W.2 Suraj Pal was the witness in all the three inquests. Similarly, P.W.2 Suraj Pal had accompanied P.W.1 Harbansh to lodge the F.I.R. at the concerned police station. Presence of P.W.2 also finds support from the evidence of P.W.1 Harbansh. It is unbelievable fact that he was present at his office in the morning of 26.2.2009 and at the same time he participated in the inquest proceedings and had gone to lodge the F.I.R. accompanying P.W.1 in the morning of 26.2.2009 itself. Therefore, the presence of P.W.2 Suraj Pal in both the places at the same point of time cannot be accepted. Inquest report and other police papers clearly establish that P.W.2 Suraj Pal was present on the date and time of the occurrence in the village itself. He was the witness of panchayat also. He had also gone to watch the programme. It is possible that they were returning for their home at that relevant time. Since they were returning from the same path, which lies in front of the house of the deceased Hori Lal, therefore, alarm raised by P.W.1 Harbansh could easily be heard by them from the lane. Thus, the presence of P.W.1 Harbansh and P.W.2 Suraj Pal cannot be doubted on this score. There are some contradictions in the statements of P.W.1 and P.W.2 regarding the presence of P.W.1 Harbansh at the time when P.W.2 Suraj Pal reached in front of the house of the deceased Hori Lal and also on this point whether Rajveer had accompanied them at that time or not, but on this ground the fact that both these witnesses had reached on the spot at the time of occurrence cannot be doubted, specially when the defence has not denied the music & dance programme (rangshala) was organized at the marriage.

53. To analyze the submission raised by the learned counsel for the appellants regarding non-mentioning of use of lathi in commission of the offence in the F.I.R. and opinion expressed by P.W.5 regarding use of lathi, we have again minutely perused the statements of P.W.1, P.W.2 and P.W5 Dr. Sayeed Mohd. As per the prosecution case, when P.W.1 Harbansh reached the place of occurrence, he saw that the accused appellants were pressing the neck of the deceased Hori Lal. This incident was witnessed by him in the light of petromax. Six persons were said to have been pressing the neck of the deceased. Certainly, the prosecution witnesses were present at some distance at that time. It might be possible that exactly what sort of method was adopted by the accused appellants in committing the murder of the deceased Hori Lal, could not be clearly seen or perceived.

54. P.W.5 Dr. Sayeed Mohd. has not clearly denied that death of the deceased Hori Lal was not the result of throttling. This fact that danda was used in committing the murder of the deceased Hori Lal, was stated for the first time before the Court, but only on this basis the presence of P.W.1 Harbansh and P.W.2 Suraj Pal on the spot at the time of occurrence cannot be disbelieved or their testimony cannot be discarded. The opinion expressed by doctor is a mere opinion. The doctor has not clearly opined that the deceased was not done to death by throttling. Sometime witnesses make exaggerated statements but that cannot be the basis to discard the testimony of those witnesses otherwise credit-worthy.

55. In view of the above, it is clear that the deceased Hori Lal was done to death by throttling. When P.W.1 and P.W.2 reached the spot, they saw the accused appellants pressing the neck of the deceased Hori Lal. On their raising an alarm, the accused appellants ran away from the back door of the house of the deceased Hori Lal. When they reached near Hori Lal, they found him dead. They also searched for Nattho Devi wife of Hori Lal and found her lying in a dead condition in the room of the first floor of the house of Hori Lal. Attention of the Court was also drawn by the learned counsel for the accused appellants that Suresh, who was the neighbour of the deceased Hori Lal, also accompanied P.W.2 Suraj Pal. He is also said to have reached there along with P.W.2 Suraj Pal. The door of the house of the deceased Hori Lal was opened, but he did not enter in the house of the deceased Hori Lal from that door, instead of that he preferred to enter the house by jumping from the roof of the house of the deceased Hori Lal.

56. Contention raised in this context by the learned counsel for the accused appellants was also scrutinized by us. Suresh was not examined by the prosecution. What was in his mind, only he can explain. It might be possible that he would have thought that the accused persons could escape through the roof of his house. Learned counsel have also raised contention that by non-examination of Suresh by the prosecution, an adverse inference against the prosecution should be drawn as he might not have supported the prosecution case.

57. Here it is noteworthy that non-examination of Suresh does not create any doubt regarding the presence of P.W.1 Harbansh and P.W.2 Suraj Pal on the date, time and place of occurrence. Generally, people do not want to come forward to give evidence. The present case is a peculiar one in which one of the sons of the deceased Hori Lal was involved and against whom allegation is that he along with the other accused appellants had eliminated his father, mother and younger brother.

58. In criminal jurisprudence, witnesses are divided in three categories, namely, wholly reliable, wholly unreliable and lastly neither wholly reliable nor wholly unreliable.

59. In the case of first two categories the Court do not feel any difficulty but in the case of third category of witness corroboration from some other evidence would be required.

60. The statement of P.W.1 Harbansh regarding the presence of P.W.3 Rajveer Singh at the scene of occurrence is not supported by the evidence of P.W.3 itself. Similarly, statement of P.W.2 Suraj Pal on the above point is also not supported from the evidence of P.W.3 Rajveer. Some other points, like the use of danda in committing the present offence is also not supported from the medical evidence. Therefore, in our considered view, P.W.1 Harbansh and P.W.2 Suraj Pal cannot be placed in the category of wholly reliable witnesses. Since both these witnesses are the relatives of the deceased persons and they reside at a distance of 500 meters away from the place of occurrence and they claimed their presence on the spot due to the reason that they were returning home after watching the music and dance programme, therefore, we scrutinized their version / testimony along with the medical evidence. Doctor, conducting the postmortem on the dead bodies of the deceased Hori Lal, Nattho Devi and Manoj Kumar had clearly stated that the deceased were done to death at about 12:00 hours in the intervening night of 25/26.2.2009. Since there is no direct evidence regarding the murder of Smt. Nattho Devi and Manoj Kumar, therefore, expecting from the prosecution to adduce the evidence regarding the manner of the incident in committing the murder of Smt. Nattho Devi and Manoj Kumar is not warranted in the present matter, but it is established that both the deceased were done to death at the time, as has been stated by the prosecution witnesses. As far as the opinion expressed by P.W.5 Dr. Sayeed Mohd. regarding the death of the deceased Hori Lal is concerned, the use of lathi in committing the murder of the deceased by pressing his neck has been denied, but medical evidence does not fully belie that the deceased Hori Lal was not done to death by throttling. On this aspect, we have discussed in the earlier portion of the judgment in detail, therefore, we do not find any necessity for detailed discussion at this stage on this point.

61. In the instant case, analyzing the direct evidence regarding the murder of the deceased Hori Lal minutely, we are of the view that it cannot be held that medical evidence is in conflict with the oral evidence, rather medical evidence supported the ocular testimony.

62. So far as the relations of P.W.1 Harbansh and P.W.2 Suraj Pal with the deceased persons are concerned, nothing has come out in the cross-examination to hold that these witnesses have made false statements to implicate the accused appellants in this case. P.W.2 is the real brother of the deceased Hori Lal, he will not falsely implicate an innocent person leaving the real culprit to go unpunished. Accused appellant Budhsen alias Raju is the real nephew of this witness. Thus, the point raised by the learned counsel in this respect is also not acceptable.

63. Interestingly, in the instant case, P.W.3 Rajveer was not interrogated by the first investigating officer, but was interrogated by the subsequent investigating officer after a gap of 20 days. He claimed that he had told about the last seen evidence to the witnesses at the night of incident itself. If we analyze the first information report of this case, nothing is mentioned in this regard. Two self-contradictory facts cannot be taken as true simultaneously. Three types of presumptions (inferences) could be made in this case regarding the evidence of P.W.3 Rajveer. Firstly, either he was present along with P.W.2 Suraj Pal at the time of occurrence ; or secondly, he had gone to ease himself in the night at about 12:30 A.M. and had seen the accused appellants taking away the deceased Manoj Kumar with them; and or thirdly, neither he was present at the place of occurrence accompanying P.W.2 Suraj Pal nor he had seen the accused appellants taking away the deceased Manoj Kumar with them.

64. If the entire statement made by this witness is scrutinized to ascertain the truthfulness, it emerges out that he is not a reliable witness. The observation also finds support with the fact that nothing was mentioned about P.W.3 Rajveer on the point of last seen evidence in the chick F.I.R. nor in any other police papers prepared at that time. Satisfactory or plausible explanation regarding delayed interrogation of this witness by the investigating officer was also not put forth by the prosecution to the conscience of the Court.

65. Thus, the testimony of P.W.3 Rajveer is not safe to be relied upon. Prosecution was only able to establish that the deceased Manoj Kumar was done to death at the night of 25/26.2.2009 between 12:00 to 1:00 A.M. There is no direct or circumstantial evidence available on record to connect the accused appellants with the death of the deceased Manoj Kumar, except the motive part attributed against them.

66. So far as the lapses committed by the investigating officer is concerned, the testimony of P.W.1 Harbansh and P.W.2 Suraj Pal regarding murder of Hori Lal, which is supported by the medical evidence, cannot be discarded. Lapses said to have been made on the part of the investigating officer do not go to the root of the case and does not carry much weight.

67. So far as the suggestions put to the witnesses by the defence regarding false implication of the accused appellants are concerned, which are too trivial, and cannot form the basis of false implication of the accused appellants in this case. Apart to this, the suggestions put by the accused appellants were also not proved by any cogent or clinching evidence. Non-examination of any other independent witness to support the prosecution case do not demolish the prosecution version. Looking to the nature of the offence, manner in which the present offence was committed and the time and place of occurrence, if any independent witness has not come forward to support the prosecution case, no adverse inference would be drawn against the prosecution. Offence was committed at midnight in the house of the deceased Hori Lal. Prosecution evidence itself indicates that prior to arrival of P.W.1 Harbansh at the house of deceased Hori Lal, no one was present in the lane and in the house except the accused and the deceased persons. Whether family members of the witness Suresh, whose house was adjacent to the house of the deceased, were actually present in their house at the time of occurrence and whether they were sleeping at that time or were awake, was not the matter essentially to be proved by the prosecution. Keeping in view the time of the occurrence, there was every possibility that either they were sleeping at that time or they had gone to watch the programme.

68. Specific plea has been taken on behalf of the accused appellant Kanti that he was not present at the place of occurrence at the time alleged in the F.I.R. He has not only examined himself, but also D.W.1 Aneg Singh, D.W.3 Gajendra and D.W.4 Vijay Pal Singh. From the close scrutiny of the statements of these defence witnesses, definitely it cannot be held that accused appellants Kanti was present on the date and time of the occurrence in village Virsua. On minutely analyzing the statements of these witnesses, it emerge that mandap ceremony had started at noon itself. Photography would also have been lasted maximum till 9:00 or 10:00 P.M. in the night. Photo camera was not a digital camera. Whether photographs, as stated by the defence witnesses, were actually clicked on the date and time stated by the defence witnesses or not, there is no cogent and creditable evidence produced by the defence. Therefore, trial Court has rightly disbelieved the plea of alibi taken by the accused appellant Kanti.

69. So far as the relation of this accused appellant with the deceased persons is concerned, there is direct evidence of P.W.1 Harbansh that accused appellant Kanti took part in committing the present offence. He also participated in the panchayat held earlier to solve the dispute regarding agricultural land between the deceased Hori Lal and accused appellant Budhsen alias Raju. No cogent evidence or any other fact was elaborated by the accused appellant to establish that there was any motive for the witnesses to implicate accused appellant falsely. In the absence of any such type of evidence, the plea taken by the accused appellant regarding the alibi and false implication of the accused appellant Kanti is also not acceptable.

70. We have already discussed the presence of P.W.2 Suraj Pal on the date, time and place of the occurrence while discussing the evidence of D.W.2. Therefore, there is no need for fresh discussion.

71. Since in the present matter, three persons were said to have been done to death and all the three deceased persons belong to the same family and they were father, mother and son, therefore, we have also gone through the evidence to re-appreciate the role specified to the accused appellants and the statement recorded under section 313 Cr.P.C. to ensure that whether all the incriminating facts come in the evidence against the accused appellants have been placed before them to explain or not.

72. On close scrutiny of the statement of P.W.1 Harbansh and P.W.2 Suraj Pal, we come to the conclusion that prosecution did not specify the role of the accused appellants. The allegation is that when P.W.1 Harbansh and P.W.2 Suraj Pal reached the spot, they saw that all the accused persons were pressing the neck of the deceased Hori Lal. From a perusal of the statement recorded under section 313 Cr.P.C., it also reveals that all the incriminating facts and evidence in the matter were put / placed before the accused appellants to explain. Nothing was argued on behalf of the accused appellants in this regard.

73. Trial Court, while passing the impugned judgment and order, was of the opinion that the deceased Hori Lal, Nattho Devi and Manoj Kumar were done to death by the accused appellants in the manner stated by the witnesses on the date, time and place as mentioned in their statements.

74. On the basis of discussion made here-in-above, we are of the view that there is no direct evidence to connect the accused appellants with the death of Nattho Devi and Manoj Kumar, except the motive part. Convening of the panchayat and selling of two bighas of land by the deceased Hori Lal to repay the loan taken by accused appellant Budhsen alias Raju were not challenged by the defence / accused appellants. The time of death of the deceased Hori Lal, Nattho Devi and Manoj Kumar indicates that all the deceased persons were done to death in a preplanned manner. If for the sake of argument murder of the deceased Manoj Kumar be not connected with the accused appellants, then also there is a direct evidence against the accused appellants in committing the murder of the deceased Hori Lal. When the witnesses reached the house of the deceased Hori Lal and raised alarm, the accused appellants fled away from the back door of the house of the deceased Hori Lal. On search being made, witnesses found Nattho Devi lying dead in the room at the first floor of the house. No other person, except the accused and the witnesses were present at that time in the house. Therefore, it can be safely presumed that Nattho Devi was also murdered by the same accused appellants, who were responsible for the murder of the deceased Hori Lal. Thus, trial Court finding that accused appellants have committed the murder of Hori Lal and Nattho Devi is not against the law and evidence and no interference on this finding is required by this Court.

75. As far as presence of petromax on the spot where the deceased Hori Lal was done to death is concerned, it is not unnatural or improbable. Incident is of the year 2009. Using of the petromax as a source of light is a common practice. Thus, the submission of learned counsel for the appellants on this point is also not acceptable. From the statement of prosecution witnesses it is established that there was sufficient light of the petromax at the place where the deceased Hori Lal was done to death.

76. A perusal of the impugned judgment and order also indicates that accused were convicted by the trial Court for the offence under Section 147, 302 read with 149 IPC, but sentence of death was imposed only under section 302 IPC. It is a clerical mistake. It appears that due to a typing mistake, section 302 read with section 149 IPC was not typed and on this score, the trial Court finding regarding guilt of the accused appellants cannot be interfered with. Accused appellants were six in numbers. It is established that they committed the murder of Hori Lal and Nattho Devi. Attending circumstances itself establish that they had formed an unlawful assembly. Common object of the unlawful assembly was to commit the present offence and in furtherance of this common object, being the member of unlawful assembly, all the accused appellants committed the present offence. Therefore, finding recorded by the trial Court regarding guilt of the accused appellants for the offence under Sections 147 and 302 read with 149 IPC is a legal one. Due to this extent, finding recorded by the trial Court on this count is liable to be corrected only.

77. In the instant matter, trial Court has imposed death punishment finding the accused appellants guilty under Section 302 read with 149 IPC. Observation of the trial Court is that :-

"n.M ds iz'u ij vfHk;qDrx.k U;kf;d vfHkj{kk esa mifLFkr vk;s gSaA vfHk;qDrx.k dh vksj ls rdZ fn;k gS fd ;g ekeyk fcjyk esa fcjyre~ dh Js.kh esa ugha vkrk gS D;ksafd vfHk;qDrx.k u rks ekSds ij fxjQ~rkj gq, gSa vkSj u gh muls dksbZ cLrq cjken gq;h gSA vr% lgkuqHkwfriwoZd fopkj djrs gq, de ls de n.M ls nf.Mr fd;s tkus dh izkFkZuk dh gSA ;g Hkh rdZ fn;k gS fd bl ekeys esa dkUrh ,oa deys'k dk dk;Z fn[kk;k x;k gS] vU; fdlh dk dk;Z ugha fn[kk;k gSA vfHk;qDrx.k dks flQZ lEcU/kh gksus ds vk/kkj ij dBksj n.M ls nf.Mr fd;k tkuk mfpr ugha gSA mudh vksj ls dkUrh dks 56 o"kZ ,oa dsgjh flag dks 70 o"kZ dk crk;k x;k gS rFkk ;g Hkh crk;k gS fd mudk dksbZ vkijkf/kd bfrgkl Hkh ugha gS] muds ihNs ifjokj dh ftEesnkjh gSA

blds foijhr vfHk;kstu i{k dh vksj ls rdZ fn;k gS fd vfHk;qDrx.k us vius lkekU; mn~ns'; dh iwfrZ ds fy, rhu O;fDr;ksa dh gR;k dhA ;g ekeyk fcjy ls fcjyre~ dh Js.kh esa vkrk gS D;ksafd vfHk;qDrx.k us iwjs ifjokj dks gh lekIr djus dk dk;Z fd;k ysfdu jktsUnz ds xkao esa u jgus ds dkj.k] og lkSHkkX; ls cp x;sA vfHk;kstu i{k dh vksj ls lHkh vfHk;qDrx.k dks e`R;qn.M ls nf.Mr djus dk rdZ fn;k gSA

vfHk;qDrx.k ds fo}ku vf/koDrkx.k ,oa fo}ku 'kkldh; vf/koDrk ¼QkStnkjh½ dh cgl lquh gS vkSj i=oyh dk voyksdu fd;k gSA

i=koyh ij miyC/k lk{; ls ;g Li"V gS fd vfHk;qDrx.k us vius fof/k&fo:) teko ds lnL; gksrs gq, cYok fd;k gS vkSj ;g lkeqfgd ujlagkj fd;k gS] ,slh fLFkfr esa /kkjk 147 Hkkjrh; naM lafgrk ds vijk/k ds fy, mUgsa ,d o"kZ ds dkjkokl ls nf.Mr fd;k tkuk mfpr gksxkA tgka rd /kkjk 302 Hkkjrh; naM lafgrk dk lEcU/k gS] lHkh vfHk;qDrx.k dk bjknk bruk iDdk Fkk fd og gj dher ij cq)lsu ds jkLrs dh gj dfBukbZ dks gVkuk pkgrs Fks] mlds fy, mUgksaus gksjhyky] uRFkh nsoh ,oa eukst dqekj dh gR;k;sa dhA vfHk;qDrx.k dks vius vki ij bruk fo'okl Fkk fd fcuk fdlh gfFk;kj ds gh mUgksaus bl gR;kdk.M dks rhu vyx&vyx LFkkuksa ,oa le; ij flQZ gkFk vFkok bZV ;k M.Mksa ls iwjk fd;kA vfHk;qDrx.k us rhu dhM+s&edksM+ksa dh gR;k ugha fd cfYd mUgksaus ekW dh eerk] firk ds ykM&I;kj ,oa NksVs HkkbZ ds fo'okl dh gR;k dh gSA ;g ,sls lEcU/kksa dh gR;k gS] ftu lEcU/kksa dh fgQktr ds fy, bl ns'k ds ykxksa us viuk thou rd cfynku dj fn;k gS vkSj bl izdkj ls ,sls lEcU/kksa dh gR;k djus okys yksxksa dk thou ysus esa dksbZ ladksp ugha fd;k gSA bfrgkl bl ckr dk xokg gS fd bl ns'k esa i'kq ,oa i{kh ds fo:) Hkh fgalkRed dk;Zokgh ds fy, n.M dh O;oLFkk gS ysfdu flQZ ifjLFkfr;ksa dks n`f"Vrxr j[krs gq, U;k;ky; ds er esa ;g ekeyk fojy ls fojyre~ dh Js.kh dk gks x;k gSA ,slh fLFkfr esa U;k;ky; ds le{k vfHk;qDrx.k dks Hkkjrh; naM lafgrk dh /kkjk 302 lifBr /kkjk 149 ds fy, e`R;qn.M ls nf.Mr djus ds vfrfjDr vU; dksbZ fodYi ugha gSA"

78. To analyze the finding recorded by the trial Court on the point of imposition of death sentence, we would refer the settled legal position on this point.

Hon'ble Supreme Court in the matter of Dipak Rai (Supra) has held in paras 48, 59, 60, 89 as under.

"48. The said five categories of rarest of the rare crimes delineated in Macchi Singh case (supra) are as follows:

"I. Manner of commission of murder

33. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance,

(i) when the house of the victim is set aflame with the end in view to roast him alive in the house.

(ii) when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death.

(iii) when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner.

II. Motive for commission of murder

34. When the murder is committed for a motive which evinces total depravity and meanness. For instance when (a) a hired assassin commits murder for the sake of money or reward (b) a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control over property of a ward or a person under the control of the murderer or vis-à-vis whom the murderer is in a dominating position or in a position of trust, or (c) a murder is committed in the course of betrayal of the motherland. III. Anti-social or socially abhorrent nature of the crime

35. (a) When murder of a member of a Scheduled Caste or minority community, etc. is committed not for personal reasons but in circumstances which arouse social wrath. For instance when such a crime is committed in order to terrorise such persons and frighten them into fleeing from a place or in order to deprive them of, or make them surrender, lands or benefits conferred on them with a view to reverse past injustices and in order to restore the social balance.

(b) In cases of ''bride burning' and what are known as ''dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

IV. Magnitude of crime

36. When the crime is enormous in proportion. For instance when multiple murders say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

V. Personality of victim of murder

37. When the victim of murder is (a) an innocent child who could not have or has not provided even an excuse, much less a provocation, for murder (b) a helpless woman or a person rendered helpless by old age or infirmity (c) when the victim is a person vis-à-vis whom the murderer is in a position of domination or trust (d) when the victim is a public figure generally loved and respected by the community for the services rendered by him and the murder is committed for political or similar reasons other than personal reasons." (emphasis supplied)

This Court has cautioned that though the aforesaid are extremely important factors could not be taken as inflexible, absolute or immutable, they must be perceived only as indicators which the Courts must bear in mind while deciding upon the sentence and assigning special reasons, if required.

59. In Ramnaresh v. State of Chhattisgarh, (2012) 4 SCC 257, this Court has reflected upon the aforesaid decisions and culled out the principles as follows:

"76. The aforesaid judgments, primarily dissect these principles into two different compartments--one being the "aggravating circumstances" while the other being the "mitigating circumstances". The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.

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 CrPC.

(9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community. (10) 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. (11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold-blooded murder without provocation. (13) 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.

77. While determining the questions relatable to sentencing policy, the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.

Principles (1) The court has to apply the test to determine, if it was the "rarest of rare" case for imposition of a death sentence. (2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice.

(3) Life imprisonment is the rule and death sentence is an exception.

(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime."

60. This Court has consistently held that only in those exceptional cases where the crime is so brutal, diabolical and revolting so as to shock the collective conscience of the community, would it be appropriate to award death sentence. Since such circumstances cannot be laid down as a straight jacket formula but must be ascertained from case to case, the legislature has left it open for the Courts to examine the facts of the case and appropriately decide upon the sentence proportional to the gravity of the offence. 89. In the present circumstances, we would place reliance upon the observations of this Court in State of U.P. v. Dharmendra Singh, (1999) 8 SCC 325. In this case, 6 accused persons were charged with offence under Section 302 read with 149 of the IPC for murdering 5 persons: an old man of 75 years, a woman aged 32 years, two boys aged 12 years and a girl aged 15 years, at night when they were asleep by inflicting multiple injuries to wreak vengeance. The Trial Court while convicting them had awarded life sentence in regard to 4 accused persons and after assigning reasons awarded death sentence to the 2 others. In appeal the High Court upheld the conviction of all accused persons and while confirming life sentence on the 4 accused persons came to the conclusion that the sentence of death was not called for in respect to 2 accused persons who were languishing in the death cell for 3 years and consequently reduced the sentence to that of imprisonment of life. In appeal, this Court in context of the argument that since individual overt acts that have not been established, even if the conviction is to be upheld, capital punishment should not be granted, has observed as follows: "15. We have carefully perused the evidence adduced in this case, to the limited extent of examining whether the case in hand is a case which could be termed as rarest of the rare cases so as to invoke the extreme penalty of death. The learned Sessions Judge while assigning special reasons for awarding the capital punishment came to the conclusion that the crime in question was a dastardly crime involving the death of 5 innocent human beings for the purpose of achieving the sadistic goals of Dharmendra and Narendra, the respondents herein, to avenge their respective grouse against the complainant and his niece Reeta by eliminating 5 members of the family. Learned Sessions Judge distinguished the case of the 4 other accused with that of these respondents based on the motive and on the ground that these respondents were the principal perpetrators of the crime. It is seen that the High Court has concurred with this reasoning of the Sessions Judge. However, the High Court on the ground that the accused have languished in the death cell for 3 years, altered the sentence to life imprisonment. 23. It is possible in a given set of facts that the court might think even in a case where death sentence can be awarded, the same need not be awarded because of the peculiar facts of that case like the possibility of one or more of the accused being responsible for offences less culpable than the other accused. In such circumstances, in the absence of their being no material available, to bifurcate the case of each accused person, the court might think it prudent not to award the extreme penalty of death. But then such a decision would rest on the availability of evidence in a particular case. We do not think that a straitjacket formula for awarding death sentence can be evolved which is applicable to all cases. The facts of each case will have their own implication on the question of awarding sentence. In Ronny case (1998) 3 SCC 625, this Court on facts found extenuating factors to curb the sentence which is clear from the following extract from the said judgment: (SCC p. 654, para 47) "From the facts and circumstances, it is not possible to predict as to who among the three played which part. It may be that the role of one has been more culpable in degree than that of the others and vice versa. Where in a case like this it is not possible to say as to whose case falls within the ''rarest of the rare' cases, it would serve the ends of justice if the capital punishment is commuted into life imprisonment."

Hon'ble Supreme Court in the case of Mohinder Singh (Supra) has held as under.

9) The crime of double murder of his wife and daughter in a gruesome and diabolical manner will irrefutably be taken into consideration as aggravating circumstance. However, for some reasons, the High Court did not find any mitigating circumstance in favour of the accused for the purpose of balancing aggravating against mitigating. Even, the High Court recorded at page 38 of the impugned order as under:-

"... In this background, looking for a strong mitigating circumstance, may not yield any result and this offence has in fact, ceased to remain a simple case of murder. This has rather acquired an enormity to the extent of rushing into the category of the "rarest of rare case." It is pertinent to mention that in spite of the onerous duty bestowed on the reference court to balance the aggravating and mitigating circumstances, the High Court evaded the same.

10) On the other hand, the Sessions Court had attempted to draw a balance of aggravating and mitigating circumstances by stating two mitigating circumstances as follows:

1. Firstly, his age at the time of commission of crime i.e. 41 years.

2. Secondly, that the accused is a poor man, who had no livelihood.

16) The doctrine of "rarest of rare" confines two aspects and when both the aspects are satisfied only then the death penalty can be imposed. Firstly, the case must clearly fall within the ambit of "rarest of rare" and secondly, when the alternative option is unquestionably foreclosed. Bachan Singh (supra) suggested selection of death punishment as the penalty of last resort when, alternative punishment of life imprisonment will be futile and serves no purpose.

17) In life sentence, there is a possibility of achieving deterrence, rehabilitation and retribution in different degrees. But the same does not hold true for the death penalty. It is unique in its absolute rejection of the potential of convict to rehabilitate and reform. It extinguishes life and thereby terminates the being, therefore, puts an end anything to do with the life. This is the big difference between two punishments. Thus, before imposing death penalty, it is imperative to consider the same.

18) "Rarest of rare" dictum, as discussed above, hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment would be pointless and completely devoid of any reason in the facts and circumstances of the case. As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable. Therefore, for satisfying the second aspect to the "rarest of rare" doctrine, the court will have to provide clear evidence as to why the convict is not fit for any kind of reformatory and rehabilitation scheme.

19) Treating the case on the touchstone of the guidelines laid down in Bachan Singh (supra), Machhi Singh (supra) and other decisions and balancing the aggravating and mitigating circumstances emerging from the evidence on record, we are not persuaded to accept that the case can appropriately be called the "rarest of rare" case warranting death penalty. We also find it difficult to hold that the appellant is such a dangerous person that sparing his life will endanger the community. We are also not satisfied that the circumstances of the crime are such that there is no other alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances in favour of the accused. In our considered view, this case is the one in which humanist approach must be taken in the matter of awarding punishment.

20) It is well settled law that awarding of life sentence is a rule and death is an exception. The application of the "rarest of rare" case principle is dependant upon and differs from case to case. However, the principles laid down and reiterated in various decisions of this Court show that in a deliberately planned crime, executed meticulously in a diabolic manner, exhibiting inhuman conduct in a ghastly manner, touching the conscience of everyone and thereby disturbing the moral fiber of the society, would call for imposition of capital punishment in order to ensure that it acts as a deterrent. While we are convinced that the case of the prosecution based on the evidence adduced confirms the commission of offence by the appellant, however, we are of the considered opinion that still the case does not fall within the four corners of the "rarest of rare" case.

Hon'ble Supreme Court in the case of B. Kumar alias Jayakumar alias Left KR. alias S.Kumar Vs. Inspector of Police through CB CID reported in (2015) 2 Supreme Court Cases 346 has held as under.

"22. Accordingly, this Court must also ascertain the mitigating and aggravating circumstances pertaining to the crime as also the criminal. Hence the Court will evaluate, whether the interplay of the abovementioned circumstances gives rise to the "special reasons" as expressly contemplated under Section 354 (3) Cr.P.C., which creates an onus upon the court in cases of death sentence, to explain why the extreme penalty is attracted in that particular case. In all fairness it must be observed that the learned counsel for the appellant, having regard to the circumstances of this case, laid much greater emphasis on pointing out the impropriety and illegality of the death sentence rather than seeking to avoid the conviction. That is why, we have not found it necessary to deal with the details of the prosecution case and the evidence on the basis of which the appellant has been convicted. Suffice it to say, that we find the conviction recorded by both, the Sessions Court and the High Court, is based upon cogent and reliable evidence. Thus, we are of the opinion that the appellant has been found guilty beyond reasonable doubt."

79. It is the settled proposition of law that awarding of life imprisonment for the offence under Section 302 IPC is the rule and the death sentence is an exception. Death sentence should only be awarded in cases which come under the purview of "rarest of rare case". Hon'ble Supreme Court at time has dictated that for awarding of the death sentence, Court should specify the aggravating and mitigating circumstances of the case. What are the aggravating and mitigating circumstances, it depends upon the facts of each case.

80. As the Hon'ble Supreme Court in the case of Machhi Singh (supra) has propounded the categories in which the case should be treated as 'rarest of rare' case. The said categories are as follows :

(I)Manner of commission of murder.

(II)Motive for commission of murder.

(III)Antisocial or socially abhorrent nature of the crime.

(IV)Magnitude of the crime.

(V)Personality of the victim of murder.

81. Mitigating circumstances may also be categorized as the manner and circumstances in and under which the 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. 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 the 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. Hon'ble Supreme Court has also held that the Court has to apply the test to determine, if it was the 'rarest of rare' case for awarding the death sentence and in the opinion of the Court awarding of 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.

82. To scrutinize the present matter in light of the settled legal position propounded by the Hon'ble Supreme Court for awarding the death sentence, we have analyzed the aggravating circumstances against the accused appellants and the mitigating circumstances in favour of the accused appellants. Trial Court, while awarding the death punishment, has observed the following aggravating circumstances :

83. Firstly, accused appellants forming an unlawful assembly committed riot and massacre. Secondly, all the accused appellants were so determined to remove every hurdle which comes in the way, they committed the murder of three innocent persons. Thirdly, accused appellants were so confident that they have committed the present offence at three places at different times without using any deadly weapon. They have not only committed the murder of the mother, father and the brother, but have also committed the murder of faith, trust and love of their near and dear ones. Just to inherit the property, the accused appellants eliminated the three family members from their way. Trial Court has not discussed any mitigating circumstances while awarding the death punishment.

84. In the opinion of the Court, mitigating circumstances in favour of the accused appellants are that - firstly, prosecution from its evidence could not establish the bifurcated role assigned to the accused appellants, secondly, the age of the accused appellants and thirdly, the opportunity of being rehabilitated or reformed.

85. If the aggravating circumstances of the present matter, as has been discussed above, are compared with the mitigating circumstances, we find that prosecution was not able to establish the bifurcated role of each accused appellants, therefore it is possible that one or more of the accused appellants being responsible for the offence were less culpable than the other accused appellant.

86. Accused appellants namely, Budhsen alias Raju was aged about 28 years, Amar Singh was aged about 21 years, Kehari was aged about 65 years, Rakesh was aged about 30 years, Kanti was aged about 50 years and Kamlesh was aged about 22 years at the time of passing of the impugned judgment and order dated 20.12.2010. Reference is pending in this Court since the year 2011. It is clear from this that accused appellants are languishing in death cell since 2010. The trial Court has also not discussed at all the cumulative effect of aggravating and mitigating circumstances whether accused appellants would be continuing threat to the society if the punishment of life imprisonment is awarded to them.

87. Considering the entire facts and circumstances of the case and going through the mitigating and aggravating circumstances of the present case and also having noticed the settled legal position propounded by the Hon'ble Supreme Court, though three members of the family were done to death, but we find that the accused appellants are not threat to the society and they are not hardened criminals. There is no criminal history of the accused appellants. They are also not such dangerous persons that if they are spared, they would endanger the community. Bifurcated role of each of the accused appellants is also not established. Thus, on analysis of the entire evidence and taking into consideration the mitigating circumstances in favour of the accused appellants, we are of the view that the present case does not come under the purview of 'rarest of rare' case and the sentence of death awarded by the trial Court to the accused appellants is not warranted in the present matter. In the facts and circumstances of the case, awarding sentence of imprisonment for life to the accused appellants would meet the ends of justice.

88. Thus, the reference sent by the trial Court is liable to be rejected as the sentence of death awarded by the trial Court is not liable to be confirmed and the aforesaid criminal (capital) appeals filed on behalf of the accused appellants are liable to be partly allowed commuting the sentence of death into imprisonment for life.

89. On the basis of foregoing discussions, the Reference No.1 of 2011 submitted by the trial Court for confirmation of the death punishment awarded to the accused appellants Amar Singh, Kamlesh, Kehari Singh, Rakesh, Kanti and Budhsen alias Raju is hereby rejected and criminal appeals as capital cases no.103 of 2011, 104 of 2011, 307 of 2011 and 466 of 2011, having some merit, are partly allowed.

90. The finding of conviction recorded by the trial Court under Section 302 IPC in Sessions Trial No.138 of 2009 (State Vs. Budhsen alias Raju and others) regarding conviction of the accused appellants Amar Singh, Kamlesh, Kehari Singh, Rakesh, Kanti and Budhsen alias Raju is corrected as under Section 302 read with 149 IPC. Finding recorded by the trial Court regarding offence under Section 147 IPC is not altered or modified and is confirmed.

91. The sentence of death awarded to each of the accused appellants namely, Amar Singh, Kamlesh, Kehari Singh, Rakesh, Kanti and Budhsen alias Raju under section 302 read with 149 IPC in Sessions Trial No.138 of 2009 (State Vs. Budhsen alias Raju and others) is commuted into that of imprisonment of life sentence. Here we note that the punishment to imprisonment of life sentence in this case must extend to their full life subject to any remission by the Government for good reasons.

92. Let a copy of this judgment along with the trial court record be sent to the court concerned for compliance. Compliance report be also submitted to this Court.

93. Sri Harish Chandra Tiwari appeared and argued in the matter as Amicus Curiae on behalf of the appellants Budhsen alias Raju and Amar Singh. Office is directed to pay a sum of Rs.15000/- (Rupees fifteen thousand) to him.

Dtd./- : 14th August, 2015.

 
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(Om Prakash-VII, J.)       (Shashi Kant Gupta, J.)