GHANSHYAM PRASAD, J.
(1.) All the above nine appeals were heard together along with the Death Reference which arise out of one and the same judgment dated 27th April, 2002 and order dated 29th April, 2002 passed by 5th Additional Sessions Judge, Gaya in Sessions Trial No. 109 of 1998/202 of 1998. All the 11 appellants have been convicted under Sections 302 /149 IPC, and 27 of the Arms Act. Appellants Suchit Singh, Manoj Singh and Arvind Singh, S/o Baleshwar Singh have further been convicted under Section 302 IPC, appellant Dabloo Singh has also further been convicted under Section 307, IPC and appellants Suchit Singh, Manoj Singh, Dilip Singh, Mantu Singh and Bugan @ Devendra Kumar Singh have also been convicted under Section 380 IPC. Appellants Manoj Singh, Suchit Singh and Arvind Singh, S/o Baleshwar Singh have been sentenced to death under Section 302, IPC and rest 8 appellants have been sentenced to undergo life imprisonment i.e. till last day of their life under Sections 302/149, IPC. No separate sentence has been passed under other sections.
(2.) It is to be mentioned here that inadvertently, the Court below failed to mention name of the convict/appellant Sugan Singh while awarding sentences to the convicts. Later on, on the direction of the Court, he re-heard the convict Sugan Singh on the point of sentence and sentenced him to undergo life imprisonment i.e. till last day of his life, vide dated 25.4.2005.
(3.) This common judgment will govern the result of all the aforesaid 9 appeals as well as death reference.
(4.) Gloom descended in the family of the informant Satendra Kumar (PW 3) in the. night of 30th March, 1997 as three members of the family of three generations i.e. grand father, father and son were killed, allegedly by the appellants.
(5.) Briefly stated, the prosecution case, as disclosed in fardbeyan (Ext. 4), is that on 30.3.1997 at 7.45 p.m. all the three deceased, namely, Ramjanam Singh, Bhim Singh and Nagendra Kumar, the father, the grand father and younger brother of the informant and the informant himself were at darwaza of the house. One co-villager Ramanand Singh (PW 2) was also sitting at darwaza along with them and they were listening news on radio (Transistor). All of a sudden about 12-13 persons armed with firearms came near the darwaza through western gate of the house and began indiscriminate firing. When they came quite close, the informant in the light of lantern and flash of torch of the miscreants identified all the appellants who were armed with pistols and gun. First of all, they threatened the informant and deceased persons not to move and thereafter, appellants Arvind Singh S/o Baleshwar Singh and Bugan Singh tied the legs of the father of the informant, namely, Ramjanam Singh and laid down on a cot and appellant Sudershan Singh after assaulting him with lathi asked as to where his rifle was. He replied that the same was with his brother at Bokaro.
(6.) Further case of the prosecution is that in the meantime, appellants Mantu Singh, Manoj Singh, Suchit Singh, Dilip Singh and Bugan Singh brought deceased Bhim Singh inside the house and after sometime they all returned along with a bundle containing articles including ornaments of the house. They also got the room of the dalan opened and searched and thereafter, appellant Suchit Singh fired shot from his pistol at chest of father of the informant Ramjanam Singh as a result he fell down on the cot. Seeing this, Bhim Singh tried to run away inside the house but appellant Manoj Singh chased and shot at him and appellant Arvind Singh S/o Baleshwar Singh also shot at deceased Nagendra Kumar from his pistol as a result they too fell down on the spot. While the informant was trying to run away in order to save his life, he was too shot at by appellant Dabloo Singh on the right side of abdomen. Thereafter, all the appellants vanished from the scene raising the slogan "INQUALAB ZINDABAD AUR HAMSE JO TAKRAIGA WOH CHUR CHUR HO JAIGA."
(7.) Further case of the prosecution is that after they left the scene several persons of the village came and brought the informant, his grandfather and Nagendra Kumar to Paraiya PHC. Immediately after reaching the hospital Bhim Singh and Nagendra Kumar succumbed to the injuries. Ramjanam Singh had already died at the spot and hence his dead body remained kept at the dalan.
(8.) The police of Paraiy Police Station, namely, SI, S.K. Mauwar (PW 10) came at Paraiya Hospital and recorded fardbeyan of the informant Satendra Kumar, which is Ext. 4. In the same night, just after the fardbeyan, he prepared inquest reports of the deceased Bhim Singh and Nagendra Kumar at Hospital, which are Exts 5 and 5/1. The informant who was injured, was sent to Medical College Hospital, Gaya for treatment by the villagers and the fardbeyan was also sent to the police station, Paraiya for institution of the case.
(9.) In the s
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ame night at 11.20 p.m., the SI along with other police officers came to the PO village, Bagahi and inspected the place of occurrence. He found the dead body of Ramjanam Singh in baithka of the house laying in pool of blood. He also found bloods at different places at the PO. The IO also found scattered clothes and broken boxes in the rooms. He prepared inquest report of the dead body of Ramjanam Singh, which is Ext. 5/2. He sent all the three dead bodies to the police station for getting their post-mortem conducted. The postmortem was conducted at Gaya Medical College Hospital on the next day by PW 7, Dr. Arvind Prasad. The IO also recorded statement of witnesses at the spot in the same night. After receipt of the postmortem reports and supervision by the superior officers, charge-sheet was submitted by his successor Mr. Rajendra Paswan against all except appellant Bugan Singh @ Devendra Kumar Singh. However, the learned CJM rejected the final form and took cognizance against all appellants including Bugan Singh.
(10.) In course of the trial, the prosecution examined altogether 11 witnesses, out of them PW 3 Satendra Kumar is the informant of the case, PW 7 Dr. Arvind Prasad is the man, who conducted autopsy on the dead bodies, PW 8 Dr. Kapildeo Singh is the Medical Officer of Paraiya State Dispensary, PW 11 Dr. Harideo Tripathi is the then Medical Officer posted in Gaya Medical College Hospital and PW 10 S.K. Mauwar is the IO of the case. PW 1 Jitendra Kumar is the son of the deceased Ram-Janam Singh, PW 4 is the widow of the deceased Bhim Singh, PW 5 Renu Devi is wife of Balmukund Singh, son of deceased Bhim Singh and PW 6 Chandan Kumar is cousin of the informant, who has been tendered. PW 2 Ramanand Singh is a co-villager and PW 9 Harishankar Singh is constable posted at Paraiya PS who is a formal witness.
(11.) Apart from usual defence of innocence and false implication a defence of alibi has also been taken on behalf of the appellants Bugan @ Devendra Kumar Singh and Sudershan Singh. Further defence is that the P.O. village is extremists infested area and the deceased persons might have been killed by the extremists. In assertion of the defence, they have examined as many as six witnesses. They are DW 1 Shatrughan Sharma, DW 2 Ramjanam Singh, DW 3 Ramanand Mandal, who was then Officer-in-Charge of Paraiya Police Station, DW 4, Bhola Prasad Yadav, a police Havildar, DW 5 Ajay Kumar Roy, Dy. S.P. and DW 6 Awadh Bihari Singh, a police constable. One Court witness has also been examined, who is CW 1 Ramautar Ram, an Assistant in the office of Deputy Inspector General of Police, Hazaribagh. Apart from the oral evidence, they have also filed some documents, which are Exts A to I.
(12.) The trial Court after consideration of evidence of witnesses as well as documents of both the sides rejected the plea of innocence of the appellants as also other defence and recorded the findings of guilt of all the appellants and awarded sentences to them in a manner stated above.
(13.) In course of submission, the learned counsel for the appellants raised manifold contentions in order to assail the judgment under appeal. It has been submitted that the Court below has not properly appreciated the evidence of both the sides and has wrongly placed implicit reliance upon the testimony of the prosecution witnesses and rejected the evidence of appellants. It has further been submitted that there are material contradictions in the evidence of prosecution witnesses which not only affect their credibility but also cut the very root of the prosecution story. In fact, the informant was not present in the village on the date of the alleged occurrence and the entire prosecution case is afterthought, concocted and instituted after due deliberation. Last but not the least important submission is that this case is not of a nature of "rarest of rare cases" and the Court below has wrongly and against the well settled principle has awarded extreme penalty of death sentence to three appellants.
(14.) So far cause of death of the aforesaid three family members of the informant is concerned, there is no dispute. According to the prosecution story, all the three persons, namely, Ramjanam Singh, Bhim Singh and Nagendra Kumar died as a result of gun/pistol shots injuries. The medical evidence confirms this assertion of the prosecution. PW 7 Dr. Arvind Prasad held post-mortem on the dead bodies of the aforesaid three persons. At that time, he was Associate Professor in ANMCH, Gaya. The post-mortem were done by him on 31.3.1997 in between 10.45a.m. to 11.50a.m. He found following ante-mortem injuries on the dead body of Ramjanam Singh :
"One circular wound of entry of size 1" diameter x chest cavity deep located over middle of front of chest over lower part of body of sternum. There was one hole in the bone which was circular of 1" diameter and on dissection of chest cavities, both lungs were found lacerated. The superior surface of right lobe of liver was found lacerated along with right side of diaphragm and pellets were found lodged with lung and liver substance. Time since death-within 24 hours ; Cause of death : Shock haemorrhage and coma injury to chest and liver which was caused by fire arms."
He found following ante-mortem injuries on the dead body of Bhim Singh :
"One wound of entry of 1" x 3/4" x abdominal cavity deep over upper part of left entire lateral aspect of abdominal wall was found with blackening over its margin which was inverted directed obliquely downwards slightly backwards and to the right porterior iliac crest where a wound of exit of size 1-1/2x1" without any blackening or tattooning was found with averted margin lacerated coils of intestine was found bulging out through world of exit. Coils of intestine and left kidney were found lacerated. Time since death-within 24 hours. Cause of death : Shock, haemorrhage and coma produced by above mentioned injuries caused by fire arms."
He found following ante-mortem injuries on the dead body of Nagendra Kumar :
"Wound of entry of size 1" x 3/4" x chest cavity deep was found over slight lateral aspect of lower part of chest at 8th inter costal space. Margins were inverted and blackening with tattooing around the wound of entry and lateral aspect of chest with wound of exit over lateral aspect by lower part of chest with averted margin without blackening or tattooing. Laceration of intervening structures of chest cavity was found with fracture of 8th and 9th ribs on both sides of chest wall. Time since death : Within 24 hours. Cause of death : Shock haemorrhage and coma produced by injury to chest caused by fire arm."
(15.) According to prosecution story, one more person was also injured by fire arm. That person is the informant Satendra Kumar himself. However, that injuries were not sufficient to cause his death. First of all from the scene of the occurrence, he was removed to Paraiya PHC for treatment where his statement was recorded by the police and thereafter, in the same night he was removed to ANMCH., Gaya for specialized treatment. PW 8 Dr. Kapildeo Singh is the doctor who examined him at Paraiya PHC and PW 11 Dr. Harideo Tripathi is the doctor who examined him on 30.3.1997 at ANMCH, Gaya. Ext. 6 is the injury report granted by him. He found following injuries:-
(i) Lacerated wound inverted margin 1/2" x 1/2" x chest deep. (ii) Lacerated wound inverted margin on the back right side 1" x 1/2" x chest deep. Age of injury within 6 hrs. Nature of weapon-fire arms.
(16.) PW 8 has stated in his evidence that he also examined Satendra Kumar on 30.3.1997 and has proved injury report as Ext. 3. However, cross-examination (paragraph-7) goes to show that Ext. 3 is actually copy of the injuries found by PW 11.
(17.) At bar various submissions were made in order to show that actually Satendra Kumar did not receive any injury and the injury reports are nothing but ante dated, sham and forged documents and prepared to show presence of the informant at the P.O. on the alleged date of the occurrence. This question will be dealt with later on. At present, we are mainly concerned with the murder of three persons.
(18.) Now turn to other evidence of prosecution witnesses. Out of 11 witnesses, apart from the informant PW 3 Satendra Kumar, PWs 1, 2, 4 and 5 are also material witnesses who have testified the occurrence. Needless to say except PW 2 all witnesses belong to the family of the deceased and are closely related to them. PW 1 Jitendra Kumar is the son of the deceased Ramjanam Singh and grandson of deceased Bhim Singh PW 3, the informant, is also son of the deceased Ramjanam Singh and grandson of Bhim Singh. PW 4 Maharani Kunwar is the widow of deceased Bhim Singh, mother of the deceased Ram Janam Singh and grand mother of deceased Nagendra Kumar. PW 5 is the wife of brother of deceased Ramjanam Singh and daughter- in-law of deceased Bhim Singh.
(19.) The Court below in his judgment in question has dis-believed the evidence of PW 2 Ramanand Singh but has fully relied upon testimony of other witnesses including the informant and on that basis he has recorded the guilt of the appellants in a manner said above.
(20.) In my view, the most important witness of this case is PW 4 Maharani Kunwar. She is aged about 80 years. She is the most sadest person of the family. In her last phase of life her three dear close relatives i.e. husband, son and grand son were killed in her presence. It is not expected that she would speak lie and falsely implicate innocent person leaving the real culprit to go un-punished. She has stated in her evidence that at the time of the alleged occurrence she was in courtyard of her house and her husband Bhim Singh, son Ramjanam Singh, grand sons Nagendra Kumar and Satendra Kumar and a co-villager Ramanand Singh were in baithka and were listening radio. Nagendra Singh was reading in the light of lantern. In the meantime, he heard sound of firing and on hearing it, she came at the darwaza. She saw five persons at darwaza whom she identified, who were appellants Suchit Singh, Manoj Singh, Mantu Singh, Dilip Singh and Bugan Singh. They were armed with revolver, gun etc. Some of them had torch light also. She has further stated in her evidence that appellant Suchit Singh caught hold her neck and took her inside in the courtyard. They also brought her husband behind her. They asked about the rifle, money and ornaments. Thereafter, they entered into the room, broke open boxes and took away ornaments etc. Appellant Mantu Singh also snatched her nose ring. They also made her to come up to darwaza. There she saw seven others, who are also accused-appellants. They were also armed with fire arms. She has also given other details of the incident but the important fact to which she witnessed is that appellant Suchit Singh fired at her son Ramjanam Singh which hit at his chest, appellant Manoj Singh fired at her husband Bhim Singh and appellant Arvind Singh S/o Baleshwar Singh shot at her grandson Nagendra Kumar and appellant Dabloo Singh shot at informant Satendra Kumar. Thereafter, they all fled away raising slogan. She also identified most of the accused persons standing in the dock at the time of the evidence.
(21.) To sum up the evidence of this witness, one can safely conclude that she was an eye-witness of the occurrence who identified the persons, who fired shots and killed her husband, son and grand son and also injured the informant. Her presence at the spot at the time of the occurrence also cannot be doubted. She has satisfactorily explained about her presence. She is also most natural and competent witness being close relative of the deceased persons. Under the circumstances, it is difficult to throw any doubt upon her testimony.
(22.) The learned counsel for the appellants plead to doubt on credibility of this witness mere on the ground that her statement before the police was not fully consistent with the evidence given before the Court. For that they referred to paragraphs 79 and 83 of the evidence of the IO (PW 10). I have gone through the evidence of the IO but do not find any inconsistent or contradictory statement made by this witness before the police which goes to the root of the prosecution story. It is not expected from her to give minute accounts of the incident at a time when she was in state of great grief and shock. Therefore, it is the substance and not the form which matters while dealing with the previous statement of witnesses for the purpose of contradiction. Apart from it, we cannot shut our eyes against the detorriating standard or investigation and in a manner in which statement of witnesses are recorded by the Investigating Officers. We have to strike a balance while appreciating the evidence of witnesses given before the Court vis-a-vis statement recorded by the police in course of investigation. On going through the entire evidence of this witness, I have no doubt in my mind that she even at the age of 80 years has firmly stood the twist and turn of lengthy cross-examination by the defence.
(23.) The other important witness of the prosecution is PW 5 Renu Devi, a female member of the family of the deceased persons. She is daughter-in-law of the deceased Bhim Singh and wife of brother of the deceased Ramjanam Singh, namely Balmukund Singh. Her presence at the PO at the time of alleged occurrence also cannot be doubted. She, in her evidence, has stated that at the time of alleged occurrence she was in courtyard along with her mother-in-law (PW 4), Jitendra Kumar (PW 1), Chandan (PW 6), Shilpi and Kukku, two minor daughters. She had torch in her hand. In the meantime, she heard sound of firing coming from the side of baithka. She has further stated that on hearing sound of firing, her mother-in-law went towards baithka and Jitendra Kumar and Chandan Kumar went on roof. She has further stated that after sometime five persons came in 'Aangari' catching hold of her mother-in-law. She has claimed to identify in torch light all the five persons, who are appellants and also named four of them. Thereafter, she has supported the fact of demand of rifle by them and commission of theft of ornaments, clothes etc. She has further stated that appellant Mantu Singh snatched her nose ring. Those five appellants brought her mother-in-law at the darwaza. She also followed her and at darwaza she saw other seven persons to whom she identified by name. She has further stated in her evidence that at baithka, Bhim Singh, Ram Janam Singh, Nagendra Kumar and Ramanand Kumar were present and were listening news on radio. In paragraph-5, she has narrated in detail about the murder of her three family members. She has stated that appellant Suchit Singh fired at the chest of Ramjanam Singh, appellant Manoj Singh fired at Bhim Singh and Arvind Singh S/o Baleshwar Singh fired at Nagendra Kumar. When Satendra Kumar tried to flee away he was also shot at by appellant Dabloo Singh.
(24.) In other words, this witness has fully corroborated the prosecution story as well as evidence of PW 4 on each and every material point. In course of submission, the evidence of this witness was sought to be impeached on the ground of some discrepants parallel statement made by her before the police. It appears from the evidence of I.O., PW 10, that some details of the occurrence are missing from her earlier statement made before the police. However, I find no material in discrepancies in between two statements of the witnesses. Missing details might have occurred due to shock and grief at the time of statement given before the police. In my view on that score evidence of this witness cannot be discarded, who is competent and natural witness having no grudge or enmity with the appellants.
(25.) Another member of the family was present at the time of the occurrence is PW 1 Jitendra Kumar, who is the grand son of Bhim Singh and son of deceased Ramjanam Singh. He has stated in his evidence that at the time of the occurrence he was at courtyard along with grand mother PW 4, aunt (PW 5), younger brother Chandan (PW 6) and younger sisters. On hearing sound of firing, he and Chandan went upstairs and from there he identified five appellants who entered in Aangan armed with fire arms and torch light. They also glanced at the outer portion of dalan and identified other accused persons in torch light. He has further stated that on seeing accused Manoj Singh scaling ladder to reach roof top, he along with Chandan jumped from the top into ganaura and ran towards Basti. Thereafter, he heard another sounds of 3-4 firing followed by slogans. After 20 minutes, they returned to house and saw his father dead and other three persons in injured condition. He with the help of villagers took injured persons to Paraiya hospital.
(26.) A bare perusal of the evidence of this witness gives an impression that he is truthful and it does not admit any room for exaggeration or embellishment. Had he any motive to falsely implicate the appellants he would have become eyewitness of the murder. The learned counsel for the appellants in course of submission have failed to offer any criticism in order to impeach credibility of this witness. In cross-examination also nothing has been elicited to show any infirmity in his testimony. The other brother of this witness (PW 6) Chandan has been tendered.
(27.) Now come to the evidence of the informant who is PW 3 Satendra Kumar. He is son of the deceased Ramjanam Singh and grand son of deceased Bhim Singh. He claims himself to be an injured witness. He has stated in his evidence that occurrence took place on 30.3.1997 at about 8.00 p.m. At that time, he was sitting at his dalan along with all the three deceased persons and one co-villager Ramanand Singh (PW 2). In the meantime, 12-13 persons entered through western gate and began firing. They also came up to the dalan. He claimed to identify them who are appellants. He has stated in details about the arms held by each of the individual appellants. He has also given details of the incident in which his three family members including his father were killed by the appellants and he too was also shot at. He has stated that first of all the appellants tied the legs of his father and assaulted him with a lathi and asked about the gun. Thereafter, five accused-appellants, namely, Mantu Singh, Manoj Singh, Dilip Singh, Suchit Singh and Bugan Singh brought his grand father inside the house and came out after 15 minutes along with bundle of articles. Suchit Singh ransacked the room of dalan. Thereafter, they shot at all the three victims. Appellant Suchit Singh fired at his father with his revolver, appellant Manoj Singh fired at his grand father with his pistol and appellant Arvind Singh S/o Baleshwar Singh shot at his brother Nagendra Kumar with his pistol. All the three fell down after receiving injuries from fire arms. He has further stated that when he tried to flee away he was too shot at by appellant Dabloo Singh as a result he also fell down. Thereafter, they all fled away raising slogans. He has further stated in his evidence that his father died at his spot and other two persons died in the way before reaching Paraiya hospital. He has further stated that his fardbeyan was recorded by PW 10 at Paraiya hospital, which is Ext. 4. From Paraiya hospital, he was forwarded to Gaya hospital for treatment where he remained hospitalised for a long period.
(28.) As per his evidence, he also received fire arm injury in the occurrence. Therefore, his evidence cannot be brushed aside lightly. Apart from it, he is son and grand son of deceased persons and, therefore, he is not expected to falsely implicate any innocent person leaving the real culprits to go un-punished. However, he is un-severe criticism by the learned counsel for the appellants. It has been submitted that the real fact is that he was neither present in the village on the date of the occurrence nor he received any injury. All documents with regard to his injuries are manufactured documents in collusion with the doctors. It has further been submitted that on the next day, he along with his uncle who is police official, came in the village from Patna and thereafter, ante dated fardbeyan was lodged by him in collusion with the local police with false and concocted version as a result the same was despatched and received in CJM's, Court after long delay. It is further submitted that there are other infirmities in his evidence also which would go to the root of the prosecution story.
(29.) Apart from the evidence of the informant himself, there are other cogent and reliable evidence to show that he received fire arm injuries in the occurrence which took place in the night of 30th March, 1997. Those witnesses are PWs 1, 4 and 5. They have fully supported the fact that Satendra Kumar also received injury by fire arm. PWs 4 and 5 are eye-witnesses and PW 1 returned at dalan after 20 minutes of the occurrence and saw the informant laying in injured condition along with his father, grand father and brother Nagendra Kumar. He, vide paragraph-5, has also stated that Satendra Kumar under went treatment in hospital. PW 2 Ramanand Singh has also supported this fact vide paragraph-4 of his evidence and has stated that Satendra Kumar was shot at by appellant Dabloo Singh while he was attempting to flee away.
(30.) PW 8 Dr. Kapildeo Singh is the Medical Officer posted at Paraiya hospital and PW 11 Harideo Tripathi is Assistant Professor in surgery ANMCH, Gaya. PW 8 has stated that on 30.3.1997, he examined Satendra Kumar and has also proved injury report, which is Ext. 3. However, Ext. 3 coupled with cross-examination vide paragraph-7 of this witness clearly goes to show that Ext. 3 is copy of the injury report prepared at ANMCH, Gaya. Actually, no separate injury report was issued by him. PW 11 has stated that on 30.3.1997, he examined Satendra Kumar and found two fire arm injuries on his person. He has also proved bed head ticket as Ext. 6 which contains injuries. In paragraph-8 of his evidence, he has stated that the patient had been referred from Paraiya hospital.
(31.) Ext. 6 is in plain paper and it also bears cutting in name of the patient. Therefore, it is submitted that it is forged and fabricated document and actually Satendra Kumar was never admitted or examined either in Paraiya hospital or in ANMCH, Gaya.
(32.) The submission of the learned counsel for the appellants cannot be accepted only on the above ground. There are other overwhelming materials on the record to prove that PW 3 received injuries in course of the incident. Apart from the aforesaid discussed ocular evidence the evidence of IO also goes to prove that Satendra Kumar had injuries and he was first of all treated at Paraiya hospital and later on he was shifted to ANMCH, Gaya for treatment. PW 10, the IO. in his evidence paragraph-2, has stated that when he reached Paraiya hospital he found Satendra Kumar in injured condition and recorded his fardbeyan. In cross-examination paragraph-39, he has further stated that in his presence some persons whose statements he recorded took away Satendra Kumar by jeep to Gaya for further treatment.
(33.) Therefore, in view of above discussion of material available on the record, I find no substance in the submission of the learned counsel for the appellants that Satendra Kumar was not present in the village on the alleged date of the occurrence and he did not receive any injury in the incident.
(34.) In order to impeach the credibility of the witness the learned counsel for the appellants also drew our attention towards some discrepant statements made by him before the police. I have gone through the evidence of the IO (PW 10) particularly paragraphs 76, 77 and 78 in which he has been confronted with the certain statement of PW 3. Those contradictions do not appear to me as vitals which effect the prosecution case in any manner. Here once more, I may emphasize that it is substance of the statement and not the form which matters for impeaching the credibility of the witness on this score.
(35.) In view of above, I am of the opinion that the appellants have failed to discredit the testimony of PW 3 in any manner. The evidence of PW 3 is quite consistent with the prosecution case as alleged in fardbeyan (Ext. 4).
(36.) Apart from the above witnesses, the prosecution has also examined one more witness PW 2 Ramanand Prasad who has claimed to be an eye-witness of the entire occurrence right from beginning to the end. The informant and other witnesses have consistently stated in their evidence that he, at the time of the occurrence, was sitting in dalan along with the victims. In other words, his presence at the PO at the time of the occurrence has been fully substantiated. But the Court below after going through his cross-examination has not relied upon his evidence and has held that he is not trust-worthy. However, it makes no difference. Apart from evidence of this witness, there are host on other witnesses also who have fully testified the occurrence.
(37.) Other important witness is IO of this case who is PW 10 S.K. Mauwar. The objective findings of the IO support the ocular evidence of the prosecution witnesses. He has stated that on 30.3.1997, he was posted as Officer-in-charge at Paraiya Police Station. At 9.30 p.m., he came in Paraiya hospital and recorded fardbeyan of informant Satendra Kumar which is Ext. 4. He has further stated that he found two dead bodies in the hospital. He prepared inquest reports of both the bodies which are Exts. 5 and 5/1. He sent the fardbeyan to police station, Paraiya for registration. He took investigation himself. He visited the PO village in the same night at about 11.00 p.m. He found dead body of Ramjanam Singh in baithka of the house of the informant. He prepared inquest report of dead body which is Ext. 5/2. Paragraph-11 of his evidence goes to show that he found blood stains and blood at several places in and around baithka. Paragraph-13 of his evidence goes to show that he found broken boxes, scattered clothes, grains etc. inside the house. He sent all the dead bodies for post-mortem. Ultimately, the charge-sheet was submitted by his successor Rajendra Paswan.
(38.) It is submitted by the learned counsel for the appellants that the entire investigation is perfunctory which is apparent from the fact that within 35 minutes he completed all formalities at hospital, which is humanly not possible. On this score, it is submitted that the evidence of IO must be thrown out. In my opinion, this fact alone is not sufficient to hold entire investigation as perfunctory and tainted. Apart from it, it is well settled law that any irregularity or lapse in the conduct of investigation does not go to the root of the prosecution case and is of no consequence if the case is proved otherwise.
(39.) In course of submission, the learned counsel for the appellants Mr. Tara Kant Jha raised the plea of alibi of appellants Bugan Singh @ Devendra Kumar Singh and Sudarshan Singh. It is submitted that both the appellants are in police service and on the alleged date of the occurrence they were on duty at different places and thus excluding the possibilities of their presence at the scene of the occurrence. In support of it, the defence has adduced both oral as well as documentary evidence. The Court below has discussed the evidence of defence in paragraphs-15 to 23 of the judgment and ultimately vide paragraph-27 has rejected the plea of alibi as being weak evidence.
(40.) Appellant Bugan Singh @ Devendra Kumar Singh is police Havildar. He in his statement under Section 313, Cr PC has only stated that on the alleged date of occurrence he was in Tata whereas other appellant Sudarshan Sharma, who is police constable, has stated only that on that day he was on duty. No place of duty has been mentioned.
(41.) The defence/appellants have adduced total six witnesses. Evidence of PW 1 Shatrughan Sharma and PW 2 Ramjanam Singh is not of much consequence. They proved two sale deeds dated 12.9.1994 (Ext. E) and dated 26.4.1985 (Ext. E/1) respectively. The learned counsel have failed to show any relevancy of these documents. Remaining witnesses are on the point of alibi. DW 3 Ramanand Mandal is the then Officer-in-charge of Paraiya Police Station. According to him on order of S.P., Gaya he investigated about the plea of alibi of those two appellants. He went to Jamshedpur and on interrogation of some constables of S.P. of Jamshedpur and Sergeant Major he submitted his report with regard to Devendra Kumar Singh, Havildar which is Ext. C. The report, with regard to Sudarshan Sharma is Ext. F. The cross-examination of this witness completely demolishes the plea of alibi of these appellants. The cross-examination paragraph-6 goes to show that from 27.3.1997 to 30.3.1997 the appellant Devendra Kumar Singh was not on duty at Jamshedpur. He was on leave. Paragraph-7 of the cross-examination shows that on 31.3.1997, he was seen at Gaya Police Line. So far appellant Sudarshan Sharma is concerned, the cross-examination paragraph-8 coupled with paragraph-4 shows that he was also not in duty atleast from 29.3.1997 to 1.4.1997. Apart from it, the persons who were introgated by this witness have not been examined in the Court. In absence of evidence of those police personnel the reports Ext. C and F have no value.
(42.) DW 4 Bhola Prasad Yadav is Havildar. He claims that he along with Sudarshan Sharma was posted at Chaibasa and from there they were transferred to the office of the IG Railway, Patna. They handed over charge on 18.3.1997 and joined IG office on 29.3.1997. On 30.3.1997 and 31.3.1997, they were in police line. However, in paragraphs 2 and 3, he has admitted that they have no proof that they were in police line on 30.3.1997 and 31.3.1997. On the other hand, DW 3 has specifically stated that there was no document to show that on 30.3.1997 and 31.3.1997, he was on duty in the office of I.G. Railway.
(43.) DW 5, Ajay Kumar Roy is body guard of Dy. S.P. He has stated that he along with Devendra Kumar Singh left Gaya for Jamshedpur on 30.3.1997 from Purshottam express at 11.00 a.m. and reached at Jamshedpur at 9.45 p.m. But the evidence of DW 3 shows that Devendra Kumar Singh was on leave even on 31.3.1997. It means this witness is not speaking truth.
(44.) DW 6 Awadh Bihari Singh is a constable. He has stated in his evidence that on 30.3.1997 at 9.45 p.m. he met Devendra Kumar Singh at Tata Railway Station. In view of the fact that Devendra Kumar Singh was not on duty even on 31.3.1997, his statement cannot be relied upon. Had he returned to Tata on 30.3.1997, he would must be on duty on 31.3.1997.
(45.) CW 1 Ramautar Ram is a Court witness. He has come to depose that at relevant date he was Assistant in office of IG Railway Police, Patna. He has come to prove that Sudarshan Sharma joined office on 29.3.1997 and was relieved on 1.4.1997 to join in the office of Deputy I.G., Patna. Paragraphs 14 and 15 of his evidence are important. He has stated that no register is maintained in his office through which it could be known as to which police man was on duty and who was not on duty on a particular date. In paragraph-15, he has further stated that it is not mentioned on command that Sudarshan Sharma was on duty in between 30.3.1997 to 31.3.1997. Thus, it is quite clear that the evidence of this witness does not go to help the appellant Sudarshan Sharma in any manner to show that he was on duty on the alleged date of the occurrence.
(46.) What is alibi? and how it is to be established have been answered in detail by Apex Court in a case Binay Kumar Singh v. State of Bihar vide para 23 : The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is a basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need to be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter-evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions."
(47.) Thus, from above discussions of the evidence of DWs, it is quite evident that the defence has miserably failed to exclude with certainty the possibility of presence of appellants Bugan @ Devendra Kumar Singh and Sudarshan Sharma at the place of occurrence. They have failed to discharge burden to prove of alibi in a manner required under law as reported in above decision of the Apex Court.
(48.) The other submissions of the learned counsel for the appellants are usual plea of defence like delay in dispatch or receipt of FIR in the Court of Magistrate, non-examination of independent witnesses, non-production of means of identification and false implication due to village politics or enmity. However, these submissions do not cut much ice.
(49.) It is needless to say that Section 157, Cr PC mandates that the FIR must be sent forthwith without any delay to the Magistrate concerned. Any delay in despatch on receipt gives an ample scope to suspect that the fardbeyan is ante dated, ante timed and the investigation is tainted one. However, delay in every case does not lead to such conclusion. It depends upon the facts and circumstances of each cases. If fardbeyan is lodged promptly and investigation also begins without any delay, the delay in despatch or receipt of FIR does not lead to any adverse conclusion and it is of no consequence. (See State of U.P. v. Gokaran and others and Sunil Kumar and others v. State of Rajasthan. In the present case, according to the prosecution story occurrence took place on 30.3.1997 at 7.45 p.m. Ext. 4 the fardbeyan goes to show that it was lodged promptly at 9.45 p.m. on the same night. The police begins investigation just after the fardbeyan which is apparent from the fact that the inquest reports of the dead bodies were prepared at 10.00 p.m. and dead bodies were also despatched in the same night for postmortem. The post-mortem was also held on 31.3.1997 at 11.50 a.m. In the same night, the IO also inspected the PO. Under the circumstances, the delay if any in despatch or receipt of FIR leads to not any adverse conclusion. Therefore, I find no merit in the submission of the learned counsel for the appellants. In this case the FIR was despatched to the Court on 31.3.1997 and reached in the Court on 1.4.1997.
(50.) The learned counsel for the appellants vehemently argued that non-production of means of identification i.e. torch or lantern is serious lacuna in the prosecution case which cuts the very root of the story and on this score identification of the appellants by the witnesses must be doubted.
(51.) In the facts and circumstances of the case. I do not find much substance in the above submission. In FIR (Ext. 4) itself, it has been stated that accused-appellants were identified in the light of lantern. It has also been mentioned that some of the accused persons had torch in their hands. In course of the trial, PW 1 Jitendra Kumar, vide examination-in-chief, has claimed that he identified the accused persons in the light of dhibri (lamp) and torch. PW 2 Ramanand Singh has also claimed that he identified the accused persons in the light of lantern. PW 3, the informant Satendra Kumar has stated in his evidence that the accused persons had torch in their hands. PW 4 Maharani Kunwar has stated that the deceased Nagendra Kumar was reading in dalan in the light of lantern. She has further stated that accused persons had torch in their hands. PW 5 Renu Devi has also claimed that she identified the accused persons in torch light.
(52.) Thus, from above evidence, it is quite clear that there was sufficient light at the spot to identify the accused persons by the witnesses at the time of the occurrence. Apart from it, all the accused persons were well known to the witnesses from before. Therefore, one can take notice that there could be no difficulty in identifying the accused/appellants by the witnesses. Under the circumstances, non-production of torch or lantern is not of much significant. No adverse inference should be drawn for it. Similar view has been expressed by the Apex Court in a decision State of Orissa v. Dibakar Nayak and others. In paragraph-20, it has been held as follows :
"Regarding non-seizure of the torch light, used by the witness to see the occurrence, it was held in Balo Yadav v. State of Bihar, that such an omission cannot be considered as a lapse on the part of any Investigating Officer and as such it was not a ground for impairing the testimony of the witness concerned. Even if there was failure on the part of investigating agency to take steps for the seizure of torch light such an omission cannot be treated as a ground to reject the prosecution case."
(53.) The last submission of the learned counsel for the appellants is that non-examination of independent witnesses goes to the root of the prosecution case." However, on careful consideration of the facts and circumstances, it would appear that there is no merit in the above submission of the learned counsel for the appellants. The fardbeyan itself goes to show that the villagers came at the spot after the miscreants left the scene and, therefore, their evidence does not appear to be important. Only family members were present at the time of the occurrence. Therefore, they alone were natural and competent witness of the occurrence. The submission of the appellants that testimony of the family members, being most interested should not be relied upon is also un-merited. The witnesses being close relatives of the deceased cannot be expected to speak lie and falsely implicate innocent person. Their prime concerned is to get the real culprits punished and not to implicate innocent persons without any rhyme and reason. Almost similar view has been expressed by Hon'ble Apex Court in a decision Sher Singh v. State of Haryana.
(54.) In this case, PW 3 the informant, is the son and grand son of the deceased persons. PW 4 is the widow of deceased Bhim Singh, mother of the deceased Ramjanam Singh and grand mother of deceased Nagendra Kumar. PW 5 Renu Devi is also a close relative of the deceased persons being daughter-in-law of the deceased Bhim Singh. PW 1 Jitendra Kumar is the son of deceased Ramjanam Singh and grand son of deceased Bhim Singh. Their presence at the PO at the time of the occurrence cannot be doubted in any manner. They have satisfactorily explained their presence at the P.O. Therefore, they are most natural and competent witnesses of the occurrence. As discussed above, their testimony is quite unblemish and un-im-peachable and hence fit to be acted upon for holding the appellants guilty.
(55.) Thus, on careful consideration of oral and documentary evidence adduced on behalf of the prosecution as well as defence, I am of the opinion that absolutely there is no scene for interference in the findings of the Court below with regard to the guilt of the appellants. The conviction of all the appellants in a manner mentioned in the judgment in question is perfectly justified and based on legal evidence.
(56.) So far sentence of the appellants is concerned, the Court below has awarded death sentence to three appellants, namely, Manoj Singh, Arvind Singh S/o Baleshwar Singh and Suchit Singh under Section 302, IPC. Rest eight appellants, namely, Arvind Singh S/o Raja Singh, Upendra Singh, Dilip Singh, Sugan Singh, Mantu Singh, Bugan @ Devendra Kumar Singh, Sudarshan Singh (Sharma) and Dabloo Singh have been awarded life imprisonment i.e. till last day of their life under Sections 302 / 149, IPC. No separate sentence has been awarded to them under other sections for which they have been held guilty.
(57.) In view of Section 354 (3) of Cr PC, now for the persons convicted for charge of murder, sentence of life imprisonment is rule and death penalty is an exception. There must be existence of "special reason" which means "exceptional reasons" for awarding death sentence. Our Apex Court in various decisions [Bachan Singh v. State of Punjab) have held that in order to attract death penalty the case must fall within the category of "rarest of rare cases". In case reported in AIR 1980 SC 898, the Court has also mentioned illustrations of "rarest of rare cases." In the instant case, judging from the angle of "rarest of rare cases", I do not find that it is a fit case in which any of the appellants deserves to be awarded extreme penalty of death. The Court below is not justified in awarding death penalty to three accused-appellants only because three persons of the family were killed. In this case there is no element of extreme brutality or exceptional deprivity in commission of murder to attract death penalty. In my view, sentence of life imprisonment is sufficient to meet the ends of justice. Accordingly, I commute the death sentences awarded to the aforesaid three appellants, namely, Manoj Singh, Arvind Singh S/o. Baleshwar Singh and Suchit Singh into life imprisonment.
(58.) There is another feature in sentence awarded to remaining eight appellants. The Court below has awarded life imprisonment to them with addition of word i.e. "till last day of their life.' It is needless to say that life imprisonment means whole of remaining period of convicts natural life. It does not need to be explained in so many words. The convict can be legally kept in prison for remaining span of life. However, it is not proper or legal for the Court to record such direction while awarding sentence of life imprisonment. The reason behind it is that under Sections 432, 433 and 433-A of Cr PC, the Government has been empowered to give remission in sentences in appropriate cases. Such direction may cause un-necessary hindrance in giving remission in period of sentence by the appropriate authority. If the Court had any doubt in its mind that the sentence of life in simplicitor would not meet the ends of justice he would have imposed the alternative sentence of death to remaining convicts also as provided under the Act instead of unnecessarily imposing restrictions on power of the State as provided under the Act for remission of sentences. In view of that, the word "till last day of their/his life" occurring in the order of the Court below after the word "life imprisonment" is hereby deleted/ modified and now all the 11 appellants are sentenced to life imprisonment in simplicitor.
(59.) In the result, all the aforesaid nine Cr. Appeals are dismissed with modification in sentences as mentioned above. Accordingly, the death reference also stands refused. It appears that out of eleven appellants, eight are on bail. Their bail bonds are cancelled and they are directed to surrender before the Court below to serve out their respective sentences. Appeal dismissed