Jeetan Kurmi And Others vs State Of U.P.
2015 Latest Caselaw 5592 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Court No. - 42
 

 
Case :- CAPITAL CASE No. - 1358 of 2013
 

 
Appellant :- Jeetan Kurmi And Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Devottam Pandey,L.P.Singh
 

 

 
Case :- CAPITAL CASE No. - 1909 of 2013
 

 
Appellant :- Jeetan Kurmi & 4 Others
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Chandrakesh Mishra, Daya Shankar Mishra, Kameshwar Singh, Shatrunjay Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
AND
 

 
Case :- CAPITAL CASE No. - 2003 of 2013
 

 
Appellant :- Ashok Patel & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Kameshwar Singh
 
Counsel for Respondent :- Govt. Advocate
 

 
			With Reference No. 06 of 2013
 

 
Hon'ble Arvind Kumar Tripathi,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Delievered by Hon'ble Arvind Kumar Tripathi, J.)

1. Capital Case No. 1358 of 2013 was filed (from jail) on behalf of Jeetan Kurmi and Others, Capital Case No. 1909 of 2013 Jeetan Kurmi and Others Vs. State and Capital Case No. 2003 of 2013 Ashok Patel & Another Vs. State, were filed through counsels. Reference No. 6 of 2013 is for confirmation of Capital punishment in Session Trial No. 217 of 2008.

2. Mr. Daya Shanker Mishra and Mr. Chandrakesh Mishra, learned Advocates appeared on behalf of appellants Jeetan Kurmi, Nand Kishore, Saijnath, Shiv Ji Yadav. Mr. Kameshwar Singh, learned Advocate appeared on behalf of the appellants Ashok Patel, Chitranjan Kurmi and Mr. Satrunjay Singh, learned Advocate appeared on behalf of the appellant Lal Sahab. Learned Government Advocate and Mr. A.N.Mulla, learned AGA appeared on behalf of the State.

3. The appellants were convicted and sentenced vide judgment dated 7.3.2013 passed by Additional Session Judge/X-cadre, Ballia under Section 302/149 IPC to Hang Till Death with fine for a sum of Rs. 50,000/- each and in default four years civil imprisonment, under Section 148 IPC, two years rigorous imprisonment with fine for a sum of Rs. 5,000/- each and in default three months civil imprisonment. Since capital punishment was awarded, hence, Reference was made for confirmation of the sentence to this Court. Against the impugned judgment of conviction and sentence, abovenoted Criminal Appeals (Capital Cases) were preferred on behalf of the appellants, hence, abovenoted cases were being heard and being decided jointly by a common order.

4. The brief fact of the case is that the F.I.R. was lodged and registered by the informant Laxman Sahni, P.W.-1. The report was written by one Arun Prakash on 4.7.2007. According to F.I.R., police personnel of different police stations came in the village for search of accused-appellants Sailesh Kurmi and with the help of P.W.-7 Shanker Mallah s/o Vishun Mallah, the police party went for search of him and raided at the houses of different persons. With regard to date of raid, there is overwriting but according to statement, police party came for search of Sailesh Kurmi on 1.7.2007. When Sailesh Kurmi came to know then just to take revenge along with his companion, Sailesh Kurmi, Jeetan Kurmi, Chitranjan, Ashok Patel, Nand Kishore, Saijnath all r/o Khadipur Mallahichak, P.S. Bansdih Ballia, Hridayanand r/o Khiruchhapra present r/o Kharauni P.S. Bansdih came stating that people belonging to 'Mallah' caste were taking steps with assistance of the police to kill the person of their caste. They reached at the place towards the west of the village where deceased Radhakishun was present in his corn field. They caughthold of him, took him at some distance and shot fire at him. Thereafter they proceeded towards north where deceased Swaminath was present at his tube-well and also shot fire at him. Thereafter, they proceeded towards Laxman Patel, injured P.W.-2 and shot fire at him. From there they went towards Diyara. The incident was witnessed by Vishram Patel P.W.-6, Sushil (not examined), Shanker Mallah P.W.-7, Shringar (not examined), Subhash and other people of the village in the moon light and torch light. The injured were taken by jeep to Ballia for medical aid. By the time, they reached Radhakishun and Swaminath expired. Injured Laxman Patel whose condition was serious, was referred to Varanasi. The incident took place in the night of 3.6.2007 at 10.30 P.M. The report was written by Arun Prakash on behalf of the informant Laxman Sahni and the same was lodged and registered on 4.7.2007 at 2.15 A.M. at P.S. Kotwali Bansdih, District Ballia as Case Crime No. 106 of 2007, under Sections 147, 148, 149, 302, 307/34 IPC and 7 Criminal Law Amendment Act.

5. After the F.I.R. was lodged, investigation was started by Incharge Inspector B.L.Singh P.W.-11. He recorded statement of the informant Laxman Sahni at the police station itself and went at the place of incident along with the informant. Statement of Vishram Patel and Shanker were recorded on pointing out of the informant and all witnesses, he inspected the place of incident and prepared site plan (Ex. Ka-10). Statement of Ramesh Mallah was recorded. He collected blood stained and plain earth from the place of incident where Radhakishun was shot dead. Recovery memo was prepared. He collected blood stained and plain earth and empty cartridge of 315 bore from the place where assailant shot fire at Swaminath. Torch of the informant was taken and thereafter the same was handed over again into the custody of the informant. Recovery memo was prepared which was proved and numbered as Ex. Ka-11 to Ex. Ka-14.

6. On 5.7.2007, during investigation on the basis of material collected by the I.O., other accused Kedar Kurmi, Sitaram, Dhurandhar Yadav, Ram Pujan, Madanji, Nisar came into the light for conspiracy, hence, u/s 120-B IPC, they were made accused. Statement of Shringar Yadav was recorded on 6.7.2007. Injured Laxman Patel who was brought by his son Mahesh Patel, was examined at 12.50 A.M. by Dr. R.N.Upadhyay, P.W.-12 who noted following injuries:

I. Fire arm wound of entry 1cm x 1cm right side chest cavity deep with profused bleeding which was 10 cm below from right nipple. X-ray of chest advised.

II. Metallic bullet is palpable over area of right kidney. At the tip there was lacerated wound 0.5 cm x 0.5 cm. Bleeding was present. X-ray of abdomen was advised.

III. There were black spots over whole of the chest.

IV. There were number of black spots on left arm.

According to opinion of the Doctor, the black spots were due to burned gun powder.

7. Post-mortem examination of deceased Swaminath was conducted on 4.7.2007 at 5.10 P.M. by Doctor Sujeet Kumar P.W.-8. Following injuries were noted :

I. Wound of entry 7 cm x 3 cm over posterior part of left ear, margin lacerated, blackening and tattooing present. On exposure one bullet recovered from temporal region of scalp underneath skin.

II. Wound of entry 1.8 cm x 0.8 cm, 6 cm below left nipple. Over left anterior half of the chest wall, margin inverted blackening and tattooing present. On exposure one bullet recovered from left side thoracic cavity. 7th rib of left side of chest was found fractured. Plura left side of chest and pericardium were found lacerated.

According to opinion of the Doctor, the death occurred within

one day and cause of death was due to shock and haemorrage as a result of anti mortem injury.

8. Post-mortem examination of deceased Radhakishun was conducted at 5.40 P.M. by Dr. Sujit Kumar P.W.-8 on 4.7.2007 who noted following injuries on body of deceased:

I. Fire arm wound of entry 4 cm x 3 cm over right post auricular region of scalp. Margin lacerated, abraded color present at places. Loss of upper half of right external ear.

II. Fire arm wound of exit 9 cm x 7 cm over right side of upper part of face over right forehead, right orbit and part of right cheek. Margin lacerated, there is loss of right eye ball. Right side perital front and maxilla bones were fractured and brain and membranes were lacerated.

Death occurred within one day and cause of death was Coma as a result of anti mortem injuries.

9. After collecting the evidence and completing the formalities, the charge-sheet was submitted by the second I.O. Krishna S. Baghel P.W.-9. Case was committed to the court of Sessions. Thereafter, charges were framed. Accused-appellants denied the charges and claimed to be tried.

10. The prosecution, to prove its case, examined 13 witnesses out of which P.W. 1 to 7 were witnesses of fact. Informant Laxman Sahni was examined as P.W.-1 who is eye-witness. Laxman Patel (eye-witness) as P.W.-2, Subhash Sahni (eye-witness) as P.W.-3, Srinath as P.W.-4, Sudarshan as P.W.-5, Vishram Patel (eye-witness) as P.W.-6, Shanker Mallah (eye-witness) as P.W.-7, Dr. Sujit Kumar as P.W.-8 who conducted post-mortem examination of deceased Swaminath and Radhakishun. Krishna S. Baghel (I.O.) as P.W.-8 who submitted the charge-sheet. Dilip Kumar Ojha as P.W.-10 who registered F.I.R. and prepared chick report and proved the same. Incharge-Inspector B.L.Singh, P.S. Kotwali Bansdih who was first I.O., was examined as P.W.-11. Dr. R.N.Upadhyay was examined as P.W.-12 who examined injured Laxman Patel. Ramesh Kumar Singh was examined as P.W.-13 to prove panchayatnama prepared by Sub Inspector S.P.Tripathi.

11. The statement of accused-appellants were recorded under Section 313 Cr.P.C. On behalf of defence D.W.-1 Dadan Mishra was examined. According to him, some unknown persons killed Swaminath and Radhakishun and caused injury to Laxman Patel on 3.7.2007. Further no force came on 1.7.2007 for search of Sailesh Kurmi and further to prove that informant Laxman Sahni and Vishram Patel were not present in the village on the date of incident.

12. Mr. Daya Shanker Mishra, learned counsel appearing on behalf of the appellants challenged the validity of impugned judgment and order of conviction and sentence on the following grounds:

I. that place of incident is not proved;

II. that prosecution case is not proved beyond the doubt;

III. that independent witnesses have not been examined and only interested witnesses or who have enmity have been examined;

IV. that motive is not proved as the same has not been supported by the witnesses;

V. that prosecution story is concocted and false;

VI. that there are contradictions in the statement of witnesses;

VII. that the alleged eye-witnesses, informant and injured became hostile;

13. Learned counsel for the appellants submitted that PW-4 Srinath and PW-5 Sudarshan were examined to prove the motive and fact of conspiracy but neither any charge was framed under Section 120-B nor there is conviction under Section 120-B IPC and without any evidence all the accused have been convicted under Section 302/149 IPC and sentenced to Hang Till Death with a fine for a sum of Rs. 50,000/- each. There was no evidence against Lal Sahab and Shiv Ji Yadav, however, they have also been convicted and one of the accused Hridayanand who was named in the F.I.R. died during the investigation. The alleged witnesses of conspiracy did not disclose the fact to any person and even the same was disclosed to the Investigating Officer after 16-17 days, according to their statement. Further according to statement of PW-5, he did not know the accused Hridayanand, Lal Sahab and Shiv Ji Yadav and no identification parade was conducted in the present case. Shiv Ji and Lal Sahab were not named in the F.I.R. but they were charge-sheeted. There was no allegation of conspiracy in the F.I.R. Hence, the story of conspiracy is afterthought. Story of the motive alleged on behalf of the prosecution is also baseless.

14. Learned counsel for the appellants further submitted that seven persons were named in the F.I.R. out of which trial of Sailesh was separated who was absconding and was not charge-sheeted along with other accused. Charge-sheet was submitted against 14 persons out of which 7 were convicted, namely, Jeetan Kurmi, Nand Kishor, Saijnath, Lal Sahab, Shiv Ji Yadav, Ashok Patel and Chitranjan. The motive as per prosecution case was that huge police force came into the village 2-3 days before the incident, in search of Sailesh and for his search Shanker Mallah went along with police to provide assistance. Hence, the person of 'Patel' community were annoyed that 'Mallah' community was responsible for arrest of member of 'Patel' community by providing assistance to the police, hence, they decided to teach the lesson by killing members belonging to 'Mallah' caste but in the present case one person of 'Patel' community, namely, Laxman Patel also received injury who became hostile and not supported the prosecution version with regard to the involvement of the appellants.

15. Considering the contradiction in the statement of witnesses, prosecution failed to prove the case of motive and the medical evidence also did not support the statement of witnesses and P.W. 1 and 3 became hostile, hence, the prosecution failed to prove its case beyond doubt. Only interested witnesses or who have enmity were examined, hence, their statement has to be examined very carefully as there was reason of false implication due to enmity as such the case of the prosecution is false, concocted, baseless and witnesses are not reliable. However, on the basis of statement of interested witnesses and the statement of those witnesses who became hostile and have not supported the prosecution version, appellants were not only convicted but sentenced awarding death punishment. He also contended that even place of the incident is doubtful. P.W.-1 Laxman Sahni became hostile who is informant. Injured witness Laxman Patel have also not supported the prosecution case. According to injured witness Laxman Patel, P.W.-1 Laxman Sahni was not present in the village on the date of incident. According to P.W.-3 Subhash also Laxman Sahni was not present in the village and he returned next day. According to P.W.-1 when he reached at the police station, accused Saijnath was found detained in police station though at that time F.I.R. was not in existence. Hence, it is clear that P.W.-1 was not present on the spot, subsequently who has not supported the prosecution case in cross-examination.

16. Learned counsel for the appellants further submitted that according to P.W.-6 Vishram Patel, all the four shots were fired by Jeetan and Sailesh, three shots by Jeetan and one by Sailesh. According to P.W.-1, Hridayanand, Jeetan and Sailesh fired. According to P.W.-7 Shanker, Sailesh shot fire at Swaminath and at the place of incident only there were two fires. There were two injuries caused to Swaminath, two bullets were recovered and there was one entry wound and one exit wound found on person of deceased Radhakishun, hence, the prosecution story is not supported by medical evidence. If there was intention to kill all the members of the 'Mallah' caste then when P.W.-1 came before the assailants why they did not shot fire at him. Why Shanker Mallah against whom there was enmity, was not killed though he was also present in his agricultural field near the field of Swaminath for supervision of the crops. Further according to P.W.-6 Vishram Patel, number of miscreants was about 10 but according to the F.I.R. number of miscreants was about 7. From a distance of about 200 meters, it was not possible for the witnesses to see the incident and identify the miscreants who shot fire at the deceased. Even the injured witness could not see who fired shot at him. Further if deceased Radhakishun died on the spot then why he was taken to hospital. The incident took place at about 10.30 P.M., hence, it is unbelievable that the witnesses could identify the assailants. Hence, according to counsels for the appellants, the conviction and sentence is against the evidence on record and the same is liable to be set aside. The Reference for confirmation of the death sentence, is liable to be rejected.

17. As the alternative prayer regarding quantum of punishment, it was submitted by counsel for the appellants that though the prosecution failed to prove the case beyond doubt, however, in view of the fact of the case even otherwise the case is not covered in the category of rarest of the rare case to award death punishment to the accused-appellants. Neither it was murder of two old and infirm persons nor members of only 'Mallah' community were assaulted but one person of 'Patel' community also received injury, hence, it was not an incident committed by member of one caste against other caste. There was enmity in between the parties and there was chances of false implication also and even if due to personal enmity three persons were assaulted out of which one person died on the spot and the other in the way to hospital then it will not be covered under the case in the category of rarest of the rare crime. Hence, the Reference for capital punishment is liable to be rejected.

18. Learned AGA vehemently opposed the prayer of counsels for the appellants. It was submitted that in the present case there is a clear motive which has been mentioned in the F.I.R. itself and it was a prompt F.I.R. Subsequently, the same has been supported in the statement of witnesses so it is incorrect to say that there was no motive to commit the crime but even if there is no motive and there are eye-witnesses of the incident then even without allegation of any motive the accused-appellants can be convicted and the death punishment can be awarded. There is a clear and reliable evidence regarding involvement of the appellants except appellants Lal Sahab and Shiv Ji Yadav against whom the charge-sheet was submitted. But no charge was framed under Section 120-B IPC. He further submitted that 7 persons were named in the F.I.R. out of which 5 have been convicted because one Hridayanand died during the investigation and the trial of other accused-appellants Sailesh Kurmi was separated as he was absconding. Role of firing was assigned to three accused persons Hridayanand, Jeetan and Sailesh which is clear from the statement of P.W.-1 who is eye-witness of the incident. His statement is clearly supported by Shanker Mallah P.W.-7 and Vishram Patel P.W.-6. Except some minor contradictions, there is no major contradiction in their statement which is supported by the medical report, hence, the appellants were rightly convicted and sentenced. The statement of P.W.-1 was recorded in 2010 and purposely he was not cross-examined and when the witness was recalled in 2012 then first time he stated before the court that under pressure of Kotwal, he gave statement against the appellants though he has not seen the incident, but according to his statement it is clear that no complaint was made to the court or any authority prior to that date. Apart from that in the examination-in-chief, there is specific allegation of involvement of the appellants and role of firing against accused-appellants Hridayanand, Jeetan and Sailesh. Hence, merely on the ground that subsequently after a long gap when P.W.-1 Laxman Sahni became hostile, the entire evidence will not be washed out rather the same has to be examined in the light of other statements adduced by the prosecution. The medical report has supported the statement of witnesses regarding assault by countrymade pistol. The cartridges and bullets were recovered. The witnesses saw the incident, identified the assailants in the moon light and torch light. The empty cartridges were recovered from the place of incident where Swaminath was killed. It was a prompt F.I.R., immediately, the injured were taken to the hospital. As far as the injured witness Laxman Patel is concerned, he also became hostile though he has admitted that he received fire-arm injury in the incident at about 11 P.M. but he could not identify the assailants. He also stated that in the same night, Radhakishun and Swaminath were also shot dead though he has stated that P.W. 1 Laxman Sahni was not present in the village but he has not stated that whole the day, he was with Laxman Sahni P.W.-1, so it cannot be said that whether P.W.-1 was present on the spot or not. With regard to the motive though P.W.-2 has stated that two days before the incident, no police force came in the village to search Sailesh but this part of evidence is not relevant because he became hostile who belongs to 'Patel' community and in the present incident, the intention was to kill members of 'Mallah' caste and to those who were in favour of them and were against the assailants. Hence, in view of the evidence of P.W.-6 and 7 who supported the statement of P.W.-1 informant, the prosecution proved its case beyond reasonable doubt and rightly the appellants were convicted and sentenced.

19. Learned Government Advocate further submitted that the accused-appellants in the present case with the intention and common object to kill members of 'Mallah' caste in a organised manner shot at three persons out of which one person belongs to 'Patel' community and two persons Swami Nath and Radhakishun belong to 'Mallah' community who succumbed to fire-arm injuries. Two fire-arm injuries were caused to Swami Nath and two bullets were recovered by the Doctor (P.W.-8) who conducted the post-mortem and on the body of deceased Radhakishun one fire arm entry and one exit wound was found though informant and witnesses saw the assailants but they were at a distance so merely on the ground that P.W.-1 was not assaulted, the prosecution would not be disbelieved. The incident was seen by the witnesses from a distance of about 100-150 meters in the moon light, apart from the torch light. Hence they have opportunity and sufficient light to identify the assailants. It was a murder of two old person of 'Mallah' community who were unarmed, hence, the manner of assault with the intention to kill person of other caste being inhuman was in the category of rarest of the rare crime and as such the appellants were rightly convicted and sentenced for death punishment. Hence, the Reference is liable to be accepted. The capital punishment is liable to be confirmed and the appeals are liable to be dismissed.

20. Considered the submissions of learned counsel for the parties. As far as the motive is concerned in the present case since very beginning motive was mentioned from side of the prosecution in the F.I.R. and it was a prompt F.I.R. which was lodged and registered on 4.7.2007 at 2.15 A.M. regarding the incident dated 3.7.2007 which took place at about 10.30 P.M. Subsequently, the motive was supported in the statement. So it is incorrect to say that there was no motive rather there was a clear motive because one person of 'Mallah' caste namely Shanker Mallah assisted police party for search of Sailesh Kurmi due to which persons of 'Kurmi/Patel' community were annoyed and in a pre-planned manner, there was attempt to kill persons of 'Mallah' community, even though they were innocent because as per averment only Shanker Mallah assisted the police for search of Sailesh who was hardened criminal. The raid was conducted in the house of Sailesh and at other places in search of Sailesh Kurmi. Though the witnesses who became hostile have not supported the prosecution case with regard to the motive as well as involvement of the appellants. However as far as motive is concerned it is well settled that motive might be of importance in the cases of circumstantial evidence but in cases of direct evidence motive looses its value in view of the judgment of the Apex Court in the case of Mangaru and Others Vs. State of U.P. 2008 (62) ACC Page 40 It is also well settled that there is no hard and fast rule that where the prosecution fails to prove the motive for commission of the crime then prosecution case must be disbelieved and it must necessarily result in acquittal of the accused. In view of the judgment of the Apex Court reported in the case of Nannu and Others Vs. State of U.P. 2012(77) ACC 125, where the ocular evidence is found to be trustworthy and reliable and finds corroboration with the medical evidence then finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved or motive is very weak.

21. It is also well settled that evidence of those witnesses have not to be disbelieved merely on the ground that there are related/interested witness or they are enmical but facts and circumstances of each case has to be examined independently. It depends on different circumstances, place where the incident took place. If incident took place at public place at road side, then only passers by will be the witness. If the incident took place inside the house then only family members or persons who are inside the house will have opportunity to witness the incident. It is also settled that merely the relationship is not a factor to affect credibility of the witness each case must be judged on its own facts.

22. It was held by the Apex Court in the case of Bhupendra Singh and Others Vs. State of U.P. 2009 (12) SCC 447 that merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. The relationship is not a factor to affect credibility of a witness. It is more often that the relation would not conceal the actual culprit and make allegations against an innocent person. In such cases the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and reliable. Hence, in view of the judgement of the Apex Court in the cases reported in 2011(11) SCC 766 Gosu Jayarami Reddy And Another Vs. State of Andhra Pradesh, 2009(16) SCC 337 K.M.Ravi And Others Vs. State of Karnataka, the related and interested witnesses has not to be disbelieved and discarded, if they are reliable and trustworthy and only the court is required to examine their statement cautiously and carefully to find out whether their statement are credible, trustworthy and reliable.

23. The power and duty of the appellate court has also been considered by the Apex Court in number of cases. In view of the judgment of the Apex Court reported in 2000(1) SCC 621 Padam Singh Vs. State of U.P., it is duty of the appellate court to look into the evidence adduced in the case arrive at an independent conclusion as to whether the said evidence can be relied upon or not. The appellate court has power to reappraise the evidence itself and this view was confirmed in subsequent judgments reported in 2013 (6) SCC 798 Majjal Vs. State of Haryana, 2014 Cr. Law Journal Pg. 443 Kamlesh Prasad Vs. State of West Bengal. Hence, whether the witnesses are interested or independent, it is duty of the appellate court to consider the entire evidence adduced by the parties and arrive at an independent conclusion whether the evidence is reliable, trustworthy and credible or not.

24. It is also well settled that merely on the ground of minor contradictions, the testimony of the witness has not to be discarded and disbelieved because minor contradictions are bound to occur specially after a lapse of considerable time in the testimony of natural witness. The witnesses react differently under different circumstances and unless the discrepancies in witness account is vital, it will not affect the credibility of the witnesses. As in view of the judgment of the Apex Court in the case of Leelaram (D) through Duli Chand Vs. State of Haryana and Another AIR 1999 SC 3717, unless the discrepancies is vital it will not affect the credibility of the witnesses as corroboration of evidence with mathematical niceties cannot be expected.

25. Some of the witnesses in the present case became hostile. Now under which circumstances they became hostile is also relevant to be examined and considered. Apart from that merely because the witness has become hostile, his statement will not be washed out and discarded rather the same has to be looked into, considered and those part of that statement corroborated by other evidence can be relied upon.

26. The contention of learned counsel for the appellants was that the place of incident is not proved and the same is doubtful. But in the present case the statement of witnesses is corroborated by the recovery of blood stained earth from the place of incident where deceased Radhakishun received fire arm injury. Recovery memo dated 4.7.2007 was proved by the I.O. and accepted as Ex. Ka-11. One empty cartridge of 315 bore was recovered from the place where miscreants shot fire at deceased Swaminath in the presence of witness Srinath Mallah and Sudarshan Mallah which was proved as Ex. Ka-12. Further blood stained and plain earth was recovered from the place of incident which was proved as Ex. Ka-13. In examination-in-chief P.W.-1 Laxman Sahni, informant has fully supported the prosecution case and after his examination-in-chief, the case was adjourned for cross-examination on application moved from side of the defence on 6.3.2010. Thereafter, he was cross-examined on 17.8.2010. Initially, his statement was recorded on 26.2.2010. Thereafter on 6.3.2010 and on 9.11.2010. On that date he stated in cross-examination that he did not know the assailants Dharmendra Yadav, Vinod Yadav, Shiv ji Yadav, Hridayanand Yadav, but the place of incident was not disputed though subsequently after a long gap when he was recalled for re-examination on 7.1.2012 he stated that he was not present in the village at the time of incident and when he returned at about 9 AM, police personnel were already present and the F.I.R. was written on dictation of Kotwal Sahab but name of that Inspector was not disclosed and first time it was stated that there was threat from the Inspector concerned. Thereafter, he was declared hostile. He was recalled to cross-examine on 7.1.2012 after statement of PW-2 and PW-3 were recorded in November and December 2010 who did not support the prosecution case.

27. PW-6 Vishram Patel and PW-7 Shanker Mallah have fully supported the prosecution case who witnessed the incident and they corroborated the statement given by PW-1 (informant) in his examination-in-chief. Admittedly, no oral or written complaint was made either to the police officer, district administration or to the court before January, 2012 that there was any threat from the Inspector (Kotwal Sahab) without disclosing his name. In the present case the first Investigating Officer was B.L.Singh PW-11 and thereafter second I.O. was Krishna S. Baghel P.W.-9 who submitted the charge-sheet. After change of investigation, there was no reason or occasion for extending any threat by first I.O. Mr. B.L.Singh even no complaint was made when examination-in-chief was recorded against second I.O. Krishna S. Baghel and even he was promoted and transferred in the department of C.B.C.I.D., so he was not Inspector on the relevant date. Hence, it appears that due to any other reason he became hostile after more than four years when he was recalled for further cross-examination and first time disclosed with regard to the alleged threat from the side of the Inspector without naming any police officer. So in view of the fact, the statement of facts mentioned in examination-in-chief of P.W.-1 Laxman Sahni, which was corroborated by P.W.-6 and 7, was rightly relied on by the trial court. Hence, this argument is not acceptable that the place of incident is doubtful or not proved. Admittedly, the incident took place in which two persons were shot dead and one person received injury though the injured witness has supported the incident and place of incident but subsequently he did not support the prosecution case as according to his statement he could not see and identify the assailants. Hence now this much has to be examined whether the appellants were involved in the incident and rightly they were convicted and sentenced by the impugned judgment.

28. According to examination-in-chief of PW-1 informant Laxman Sahni, he saw the entire incident. The incident took place at three different places. The motive for committing the offence was that since Shanker Mallah, nephew of the informant associated the police personnel for search of Sailesh Kurmi and his associates on 1.7.2007, hence, Sailesh and his companions were annoyed. Thereafter on 3.7.2007 at about 10.30 P.M., appellants with other associates, to take revenge and with the intention to kill, went to the house of Shanker Mallah who was not present at his house. Then Sailesh Kurmi went at the house of informant and Radhakishun. When the persons of 'Mallah' caste came to know they left their houses to save their lives. After seeing miscreants, informant also ran away to save his life. When they did not find any person of 'Mallah' caste at their houses they went towards western side of the village where his uncle Radhakishun was present for supervision of his corn crops. He was taken near field of Sudarshan Mallah then on exhortation of Ashok Patel, Chitranjan, Nand Kishore and Saijnath, the accused-appellants Jeetan, Sailesh and Hridayanand shot fire. The incident was also witnessed by Vishram Patel, Shringar Yadav. Thereafter, they went towards north at the tube-well of informant where his brother Swaminath was sleeping. Informant also followed them. He saw that on exhortation of Ashok Patel, Chitranjan, Nand Kishore and Saijnath, the accused-appellants Jeetan, Sailesh and Hridayanand shot fire causing fire arm injury to Swaminath. Subsequently he also succumbed to injuries. The incident was witnessed by informant P.W.-1, Shanker Mallah P.W.-7 and Subhash P.W.-3 in the moon light and torch light and the witnesses identified the assailants as they were well known to them. Thereafter they reached at Palani of Laxman Patel. They also shot fire which caused injury to Laxman Patel though he did not belong to 'Mallah' caste rather he belongs to the caste of assailants but he was not in the party of the assailants. Why they shot fire at him there is no clear motive to cause him injury. Laxman Patel has admitted that the fire arm injury was caused to him but according to him, he could not see and identify the assailants and he further stated that they had concealed their faces and he was declared hostile.

29. According to statement of Vishram Patel, he did not know Hridayanand Yadav and he witnessed the incident in which assailants shot fire at deceased Radhakishun. His agricultural field was at a distance of about 150 meters. from the field of deceased Radhakishun. According to him four fires were shot by the appellants Sailesh and Jeetan. According to statement of Shanker Mallah, he was present in his agricultural filed, the assailants went at his house in his search, however, he was in his agricultural field. According to his statement, he did not know Hridayanand Yadav but he saw that accused appellant Sailesh shot fire from countrymade pistol at deceased Swaminath who was present at his tubewell. He identified Sailesh, Jeetan, Chitranjan, Ashok Patel, Saijnath, Nand Kishore and he could not identify the other assailants. Hence, according to the statement, Jeetan has not fired at Swaminath rather Sailesh shot fire causing fire arm injury to Swaminath. So the statement of PW-1 in his examination-in-chief regarding firing by Jeetan and Sailesh is corroborated by PW-6 and 7 and other accused-appellants were accompanying them with common object to kill member of 'Mallah' caste especially members of family of the informant. Hence, with regard to firing by accused-appellants Jeetan and Sailesh and other accused-appellants were accompanying them, is proved by the statement of PW-1, 6 and 7 and there is no inconsistency in their statement regarding their involvement. There is no material contradiction except some minor discrepancies which are bound to occur when statement is recorded after 2-3 years. As far as the accused Hridayanand is concerned, he died hence he was not tried. Presence of those witnesses in their agricultural field is also not doubtful. The agricultural field was near the place of incident adjacent to the agricultural field of deceased. Hence, there is no reason to disbelieve their statement. It is well settled that the conviction can be based on testimony of a single eye-witness, if his testimony is found reliable, trustworthy and inspires confidence.

30. As far as the fire arm injuries are concerned, this is not the case of the prosecution that all the fire hit the deceased. Hence, merely on the ground that only one fire arm wound of entry was found at person of the deceased Radhakishun and two fire arm wound of entry was found on person of deceased Swaminath, it cannot be said that the post mortem report did not corroborate the prosecution story. According to opinion of the Doctor who conducted post mortem on 4.7.2007 in between 5.10 P.M. to 6 P.M., the death occurred within one day so the same might have taken place in the night of 3.7.2007.

31. In view of the abovenoted discussion, it is clear that no reliable evidence is available against accused-appellants Lal Sahab and Shivji Yadav for committing murder of deceased Swaminath and Radhakishun and assaulting injured Laxman Patel. However, it is very surprising that not only they were convicted but death punishment was awarded. Hence, the conviction and sentence in respect of accused-appellants Lal Sahab and Shivji Yadav is hereby set aside.

32. In view of the aforesaid discussion, it is clear that the other accused-appellants were involved in the incident of murder in furtherance of common object. There is no material contradiction to disbelieve the statement of P.W.-6 Vishram Patel, P.W.-7 Shanker Mallah and examination-in-chief of informant Laxman Sahni P.W.-1 regarding commission of offence, which is corroborated by the statement of witnesses Vishram Patel and Shanker Mallah. Hence, the accused-appellants Jeetan and Sailesh are guilty of committing offence under Section 302 IPC and 302/149 IPC. The other appellants except Lal Sahab and Shivji Yadav are guilty of committing the murder of deceased Swaminath and Radhakishun under Section 302 IPC read with Section 149 IPC as the offence was proved beyond reasonable doubt.

33. While awarding the punishment, the trial court held that the present case was in the category of rarest of the rare crime, without giving any valid reason on the point of sentence and counsel for the appellants submitted that it is not a case covered under the category of rarest of the rare crime. Even if the appellants are guilty of committing offence that was just to take revenge in which two persons were shot dead of the 'Mallah' caste but one person also received injury who was of 'Patel' community, the other persons of 'Mallah' community especially Shanker Mallah and others against whom there was grievance, were not assaulted. In view of the facts and circumstances, the case is not covered in the category of rarest of the rare crime. Hence, the sentence and reference for awarding capital punishment, is liable to be set aside and refused.

34. On the point of sentence, learned Government Advocate submitted that rightly the sentence of life imprisonment has been awarded against the accused-appellants except appellants Lal Sahab and Shivji Yadav because the intention was to kill the person of a particular caste, i.e., 'Mallah' in which those even against whom there was no grievance have been shot dead. However since the witnesses and villagers reached there, hence, other persons could not be assaulted. As far as injury caused to injured Laxman Patel is concerned, he was assaulted since he was against the accused-persons or it was a case of misidentification and Laxman Patel could not identify the assailants.

35. He relied upon the judgment of the Apex Court reported in 2014 1 SCC (Cri) 52 Deepak Rai Vs. State of Bihar, in which five categories of rarest of rare crime have been mentioned. 1. Manner of commission of murder; 2. Motive for commission of murder; 3. Anti social or socially abhorrent nature of the crime; 4. Magnitude of crime; 5. Personality of victim of murder.

36. He further submitted that in the present case, the motive for commission of murder was only because Shanker Mallah provided assistance to the police for search of co-accused/ associates of the appellants, namely, Sailesh who was a hardened criminal. However, due to that appellants belonging to 'Patel' community were annoyed and decided to take revenge by killing the persons of 'Mallah' community. Hence, in the present case, rightly the capital punishment was awarded by the trial court and it is a fit case to confirm the capital punishment and to allow the Reference.

37. Considered the submissions of learned counsel for the parties. In view of the prosecution case, the accused-appellants accompanied with other associates were searching Shanker Mallah, however, he was not available at his house. They went at the house of the informant and also at the house of the deceased Radhakishun who were not available at their houses. Thereafter, they went towards field at about 10 P.M. and two persons at two different places were shot dead. The incident took place at three different places in which two persons, namely, Radhakishun and Swaminath of 'Mallah' community were shot dead and one person of the Patel community, namely, Laxman Patel received gun shot injury. Para 48 of the judgment of the Apex Court in Deepak Rai (supra) is quoted herein below:

"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)

39. 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. "

38. In the abovenoted judgment, five categories were mentioned by Hon'ble Apex Court. Category no. 1 is manner of commission of murder. In the present case, one of the appellant Jeetan and co-accused Sailesh shot fire, others were accompanying them. It is not the case that they were subjected to inhuman acts of torture and cruelty or alive persons were set aflame or were cut into pieces. So it cannot be said that it was a case of murder committed in a extremely brutal, grotesque, diabolical, revolting or dastardly manner.

39. The second category is motive for commission of murder. The motive in the present case was that there was suspicion in the mind of Sailesh and other accused that Shanker provided assistance for search of co-accused Sailesh and due to assistance provided by him and persons of Mallah community, they were being arrested and harassed. So due to that suspicion they were annoyed. But the accused-appellants were not hired assassin to commit offence. It was also not to grab the property or committed in the course of betrayal of the motherland.

40. The third category is anti-social or socially abhorrent nature of the crime. It is clear that in the present case, the accused-appellants have suspicion that against them, assistance was provided to the police due to which they were being arrested and implicated in the commission of crime. But it was not against the member of SC/minority community or a particular community but the offence was committed due to personal reasons.

41. The fourth category is magnitude of crime. According to the Apex Court, 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. No doubt the grievance was against the Mallah community but it was a personal enmity in which two persons were shot dead but the other who received fire arm injuries belongs to Patel/Kurmi community. Hence, those persons were assaulted who were against the accused-appellants and co-accused or they were supporting the opponent and one of them was of their own community who was assaulted.

42. The fifth category is personality of victim of murder. Some of the categories were given, i.e., 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-a-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.

43. The Apex Court has further 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.

44. Hence, in view of the facts and circumstances of a particular case, if the court finds a fit case and special reasons are recorded then by recording the special reasons, capital punishment can be awarded. In the present case no reason was recorded for awarding death punishment.

45. In view of the aforesaid discussion, though it is a double murder case but in view of the facts and circumstances, it is not a fit case for awarding capital punishment. Accordingly, the sentence of capital punishment and reference for capital punishment is hereby rejected.

46. Since it is not a fit case for awarding death punishment but the minimum punishment under Section 302 IPC, is for life imprisonment. Hence, the appellants Jeetan Kurmi is convicted under Section 302 IPC and sentenced for life imprisonment with fine for a sum of Rs. 25,000/-. In case of default he will have to suffer two years rigorous imprisonment.

47. The accused-appellants Nand Kishore, Saijnath, Ashok Patel, Chitranjan are hereby convicted under Sections 302/149 IPC and sentenced for life imprisonment with fine for a sum of Rs. 25,000/- each, in default of payment of fine, the concerned convict shall suffer two years rigorous imprisonment. After deposit of the fine, 50% of the amount has to be given to the heirs of the deceased. Conviction of life imprisonment under Section 307/149 IPC is set aside and reduced to ten years imprisonment with fine for a sum of Rs. 10,000/- each. In case of default the concerned convict shall have to suffer additional rigorous imprisonment for two years The prayer in respect of conviction under other Section is hereby refused.

48. Accordingly, the appeal in respect of accused-appellants Lal Sahab and Shivji Yadav is hereby allowed. They shall be released forthwith if they are not wanted in any other case after compliance of provisions of Section 437-A Cr.P.C. and in respect of remaining appellants, the appeal is partly allowed in aforesaid terms.

Order Date: 21.12.2015

A.K.Srivastava