Raju Basor vs State of U.P.

Imtiyaz Murtaza, J.—The challenge in this appeal is to the judgement and order dated 25.4.2007 passed by the Sessions Judge Mahoba in S.T. No 78 of 2006 whereby the learned Sessions Judge recorded the verdict of conviction against the appellant Raju Basor under section 302 I.P.C and he has been awarded the sentence of death. The appellant is further convicted under section 376 I.P.C. and sentenced to imprisonment for life with a fine of Rs. 1000/ with default stipulation to undergo further imprisonment for one year. Appellant Rajendra Dhobi has been convicted under section 302 I.P.C. and sentenced to imprisonment for life with a fine of Rs. 1000/ with default stipulation to undergo further imprisonment for one year. He is further convicted under section 376 read with 34 I.P.C. and sentenced to undergo imprisonment for 10 years and a fine of Rs. 1,000/ with default stipulation to undergo one year further imprisonment. The incident is stated to have occurred in the intervening night of 6/7.2.2006 at 2 a.m and the author of the F.I.R is one Ashok Kumar resident of village Chhikhara Mahoba. The prosecution case filtering out unnecessary details is that that informant accompanied with his sister in law Saroj Devi aged 22 years had gone to village Swasamaf in order to participate in the marriage of daughter of Raghunath Kushwaha (maternal uncle of the deceased). A folk drama (Nautanki) had been arranged in front of the door of Raghunath. In between the programme, his sisterinlaw Smt. Saroj Devi left for urinating and had gone at a short distance at a lonely place. It is alleged that she was heard shrieking and immediately, the informant, maternal uncle of his sisterinlaw Raghunath, Brij Kishore, a native of Swasamaf village rushed to the scene of occurrence flashing their respective torches and saw that in the vacant plot of Dayaram Kushwaha, Raju Basor resident of Tola Soem Police Station Charkhasi, Mahoba who had been deployed to pick up pattal while Rajendra Dhobi was engaged as a labourer for pitching up the tent were molesting Smt. Saroj. Precisely speaking, it was mentioned that Rajendra Dhobi was pinning his sisterinlaw down and catching hold of her tightly while Raju was outraging her modesty. It is further alleged that Rajendra had caught hold of her hands in order to subdue her resistance. A Dhoti (Saree) was found tied around her neck. When she cried for help while resisting fiercely, both the accused persons assaulted her with bricks. It is further alleged that on being challenged by the village people, the accused persons escaped towards the forest. A dhoti was tied around her neck. Due to assault by bricks, it is further alleged, She was badly injured and was rushed to Mahoba Hospital where she was declared dead. While leaving dead body in the District hospital, the informant came to police station to lodge the F.I.R. It is further alleged that some of the ornaments which she was wearing, were found missing from her body.

On the basis of this information furnished by Ashok Kumar, a first information report was registered at 8.30 a.m. under section 302/376 I.P.C. at case crime no. 111 of 2006. After registration of the case, Inspector Karan Singh took over investigation and to begin with, he recorded the statements of Head Moharrir Dhanaram Chaudhary, informant Ashok Kumar, and witness Raghunath Kushwaha. He prepared site plan on the pointing out of informant and Raghunath Kushwaha (Ext. Ka10). He also collected one broken garland and prepared its recovery memo, which is marked as Ext. Ka11. He also collected two blood stained bricks and prepared its recovery memo. He also collected one underwear and broken bangles and a Joint recovery memo was prepared which is marked as Ext. Ka12. Recovery memo of torch of Raghunath was also prepared which is marked as Ext. Ka13. Accused Raju Basor and Rajendra Dhobi, it would, appear, were arrested from the Salat trijunction. A seizure memo of their underwear was also prepared which is marked as Ext. Ka14. He also recorded the statement of Mahendra Singh and Durg Singh. On the basis of information sent by the District Hospital, Mahoba about the death of Saroj, report was noted in Kotwali Mahoba at 6.15 a.m on 7.2.2006 and inquest was prepared by Onkar Nath. On 9.2.2006 seizure memo of the torch of Brij Kishore was prepared, which is marked as Ext. Ka15. Thereafter, the Investigating officer recorded the statements of Brij Kishore, Gulab Singh, Pappu Kushwaha, Mahendra Singh, S.I. Anar Singh, Constable Subhash Sharma, Constable Moharrir Onkar Nath, Home Guard Chandrika Prasad, Ghasiram, Dewaki Nand and Ayodhya Prasad. On 18.2.2006, the report of vaginal smear was received by the police, which is marked as Ext. Ka16. The Investigating officer also dispatched the articles for analyses to Vidhi Vigyan Prayogshala, Agra and a docket was prepared which is marked as Ext. Ka17. After the investigation on 5.3.2006, charge sheet was submitted against the accused persons in the Court.

Dr. S.K. Bajpai of Mahoba District Hospital conducted the autopsy on the person of the deceased, Smt. Saroj Devi and enumerated the following ante mortem injuries in the post mortem report.

Lacerated wound on left side of forehead 6 cm. x 2.5 cm. bone deep, frontal bone fractured placed 1 cm. above left eye brow;

Lacerated wound 3 cm. x 2 cm. present over lateral angle of left eye bone deep, left maxillary bone fractured;

Lacerated wound on left side of upper lip 3 cm. x 1.5 cm.

Lacerated wound 4 cm. x 2.5 cm. at left side of chin

Contusion on bridge of nose 3 cm. x 2 cm.

Abrasion on superasternal notch 3 cm. x 2 cm.

Abrasion on left supra clavicular area 3 cm. x 1 cm.

In the internal examination, he found the membrane congested, brain congested, underlying frontal bone fractured left side and haematoma present, pleura was congested, heart was right full and left empty. In the stomach 400 ml. pasty food matter, in the small intestine gases were present and in the large intestine faecal matter and gases were present. Liver was congested, spleen and kidney was congested bladder was empty. In the organs he found gravid uterus containing foetus of one month size, clotted blood present over near vagina and vulva and medial aspect of both side. The Doctor opined that causative factor of death was shock and haemorrhage as a result of ante mortem injuries.

After the charge sheet was submitted, the case was committed to the court of Sessions in due course of time. Upon the case being committed, the Sessions Judge framed charges under section 302/34 and 376 I.P.C. against Raju Basor and charges under section 302/34 and 376/34 against Rajendra Dhobi.

The prosecution in order to substantiate its case, examined as many as 9 witnesses in all, namely, P.W. 1 Ashok Kumar, informant who lodged the first information report, P.W. 2 Raghunath (maternal uncle of the deceased), P.W. 3 Dr. S.K. Bajpai, who conducted post mortem on the dead body of the deceased, P.W. 4 Dhanaram Chaudhary Inspector, P.W. 5 Anar Singh (Sub Inspector), P.W. 6 Brij Kishore (eye witness of the occurrence), P.W. 7 Karan Singh, Investigating Officer, P.W. 8 Dr. D.K. Mahora who examined the injuries on the person of accused Raju Basore, and P.W. 9 Ramjeet Dwivedi, Police Inspector.

The accused in their statements recorded under section 313 Cr.P.C. denied the incriminating evidence appearing against them. They pleaded that they have been implicated falsely on account of dispute over payment and claimed to be innocent. However, no evidence was adduced by them to prop up their defence.

The trial court, upon appraisal of the entire evidence on record, held the accused persons guilty of the charges and convicted them as aforesaid.

Being aggrieved, the accused filed the appeal before this Court assailing the conviction recorded against them.

We have heard Shri H.C. Tewari, Amicus curiae for the appellant Raju Basor, Shri V.B. Shivhare for the appellant Rajendra Dhobi, and Shri D.R. Chaudhary, Government Advocate, Shri Arunendra Singh, A.G.A. Shri M.S. Yadav, A.G.A., Shri S.S. Shukla, A.G.A. and Shri Vinod Kumar Misra, A.G.A. for the State.

Learned counsel for the appellants has assailed the findings of the trial on various grounds interalia arguing that the evidence produced in this case is not sufficient and convincing to warrant the conviction of the appellants followed by the submissions that the witnesses in their depositions have given a concocted version which cast severe doubts about truthfulness of the prosecution case.

Per contra, learned counsel for the State has canvassed for the correctness of the view taken by the trial judge.

In order to appreciate rival contentions of learned counsel for the parties we have independently scrutinised the oral as well as documentary evidence appearing on record.

P.W. 1 Ashok Kumar who is related to the deceased as his brother in law and had accompanied the deceased to participate in the marriage of the daughter of Raghunath (herein arrayed as P.W.2), deposed that the accused Raju Basor and Rajendra Dhobi were known to him. He further deposed that he and deceased had gone to village Swasamaf on 6.2.2006 for participating in the marriage of daughter of Raghunath, who happened to be maternal uncle of the deceased. His sisterinlaw was Smt. Saroj Devi, in the midst of folk drama, felt urge to urinate and left for lonely place at about 2 O''clock at a short distance. By that time, 15 to 20 had elapsed and about the said time, her shrieks were heard crying for help. Immediately, he and other people including Raghunath, Brijkishore who had torches in their hands, rushed to the side from where shrieks had emanated. When they reached the vacant plot of Daya Ram, they flashed their torches and saw the accused persons committing the crime out of which, it is precisely deposed, accused Rajendra Dhobi was seen catching hold of the hands of the deceased while accused Raju Basor was forcibly raping her. The deceased, he also deposed, was fiercely resisting and trying to ward off the accused persons. As deceased was fiercely resisting the onslaughts of the accused persons, the accused persons also inflicted brick blows on her as a result of which she sustained injuries. A piece of cloth (Dhoti) was also seen tied around her neck and her hands were also pinioned. On being challenged, the accused persons scampered towards the forest. The witness further deposed that his sisterinlaw was rushed in precarious condition to Mahoba Hospital where she was declared dead. She had died due to the injuries caused by accused persons. He further deposed that Raju Basor was seen in the acts of forcing his male organ in the vagina of his sisterinlaw. The occurrence was witnessed by Raghunath and Brij Kishore in the light of torches carried by them. He further deposed that he had prepared the first information report on way to Mahoba on 7.2.2006 and that the report was handed over at the police station and the same was registered at 8 or 8.30 a.m. He clarified that in the night, he had taken his injured sisterinlaw to the hospital where she was declared dead and therefore, the report was lodged in the morning. He attested to the report stating that it was the self same report which he had scribed and that the report bore his signatures and was marked as Ex. Ka 1.

In the cross examination, he stated that his sisterinlaw was married about 45 years back. She had a daughter Uma aged about 2 years. He further deposed that he alongwith his sisterinlaw and a baby child aged about 2 years had come to attend the marriage in Swasamaf village and all of them had arrived in the village at about 4 p.m. He also stated that his brother had not come to participate in the marriage. He further stated that the marriage ceremony continued till 1.20 a. m. to 2 O''clock and there was large gathering. The marriage party had come from village Bajaria Mahoba. There was separate arrangement for sitting of male and female. The witness approximated the number of ladies to 100 200 and men to 500. In the folk drama (Nautanki), he further stated, large sized loudspeakers had been fixed atop. He also stated that dance and songs were being played, when his sisterinlaw had gone to urinate. He admitted that she left for urinating without anyone telling about it and that he had not seen her leaving for urinating. He further stated that the Nautanki had commenced when the marriage ceremony was over. He further expounded that after about 4 hours of the start of Nautanki, he heard the shrieks of his sisterinlaw emanating from the southern side. He stated that the place of occurrence lay at a distance of about 4050 steps from the place where the Nautanki was being played. He also explained that after about 23 houses, was the plot of Dayaram. A Generator had been arranged which was running at the relevant time and thus, he convincingly stated there was sufficient light. He also stated that he had a torch in his hand and at the time when he reached the place of occurrence, the torch was in his hand. He was given a torch in village Swasamaf. He also stated that Raghunath and Brij Kishore were also having torches in their possession and it was in the light of torch that they saw that Rajendra catching hold of the hands of his sisterinlaw. He further explained that accused Rajendra was catching hold the hands of his sisterinlaw with his hands while the hands of Raju were on the breast of his sisterinlaw. He had seen the occurrence for the first time from 202530 steps. He further stated that they had challenged the accused persons who took to their heels leaving her sisterinlaw. He had not followed the accused persons and he was standing near his sisterinlaw. Raghunath and Brij Kishore followed the accused but they could not apprehend them. He further stated that Brij Kishore was related to him as his Phupha (uncle) while Raghunath happened to be maternal uncle of his sisterinlaw. He also stated that the deceased was taken in a Marshal Jeep to Mahoba Hospital. She was not admitted or treated in the Hospital. They reached in the Hospital at about 3.30 a.m. He also stated that after the doctor had declared her dead, they also sat near the dead body in the Hospital. The post mortem was conducted in Mahoba. They reached police station charkhari at about 8 a.m. He also stated that he had scribed the report on his own and denied the suggestion that anybody had dictated the report to him. He also denied the suggestion that he had consulted any one before writing the first information report. He also stated that both the accused Raju Basor and Rajendra Dhobi were not natives of village Swasamaf and on the date of marriage itself, he came to know that Raju Basor was called in the marriages for picking up Pattals and belonged to village Tola Soem. He was informed about Raju by Barati Lal, who was brother of Raghunath. He further stated that his statement was recorded at the police station on the date when the report was lodged. He stated that the sub inspector did not demand torch in the light of which he witnessed the occurrence. He denied the suggestion that he had not witnessed the occurrence and had falsely named the accused persons.

This witness was recalled on 2.8.2006 for further cross examination and in the second innings of cross examination, his deposition goes as follows. He stated that arrangement for stay of the marriage party had been made in a school which was situated on the northern side of the house of Raghunath. There was light of Generator around the house of Raghunath. The plot of Dayaram, he further stated, was unlit and the light of Generator did not reach out to the plot aforesaid. He further stated that dinner of marriage continued uptil 10 p.m. and after about half an hour after the Dinner was over, Nautanki had started. After 34 hours of the start of Nautanki, he had heard the shrieks of his sisterinlaw. He came to know when his niece began crying and he was told by the mother of his sisterinlaw that she had gone to urinate and did not return. The Nautanki was immediately stopped. He further stated that he heard shrieks of the deceased and in the direction of shrieks, he alongwith Raghunath and Brij Kishore and several other persons, reached the place of occurrence which lay at a distance of about 2025 steps from the place of Nautanki. They reached there within a minute. The place of occurrence was enveloped in darkness. Pappu Kushwaha, Ram Sajewan, Ram Swaroop, Rati Ram Kushwaha and others also arrived there. The persons who followed him could not see the accused because by the time they reached there, accused had already fled away. When they had heard the shrieks and flashed the torches, the accused persons scampered away. He had seen in the light of the torch that one of the accused was catching hold of his sisterinlaw and other was committing rape and they were also assaulting her. One person was assaulting her with bricks, with one hand and the other accused was assaulting with both the hands. They had witnessed the occurrence from 10 steps. Brij Kishore was carrying a Danda while he and Raghunath had torches and they had no Danda. He stated that the accused persons were being called by their names prior to the occurrence who had been engaged for performing assigned work and it is in this circumstance that he had known them by names and faces and had mentioned their names. He explained that there were houses in and around the place of occurrence and that the accused persons had escaped towards southern side. The people of village reached there within 1 2 minutes after the accused had run away. The accused were empty handed. Raghunath and Brij Kishore followed them but they trailed and could not be reach out to grasp them. He also stated that his sisterinlaw had taken food in the marriage around 9 p.m. He denied the suggestion that his sisterinlaw was murdered by unknown persons and that he did not witness the occurrence and that on account of some dispute regarding payment of money with Rajendra, accused persons had been falsely nominated by them in this case as perpetrator of crime.

P.W. 2 Raghunath who happened to be maternal uncle of the deceased Saroj, deposed that the accused persons Raju Basor and Rajendra Dhobi were known to him. On 6.2.2006, marriage of his daughter was scheduled. To attend the marriage, his niece Smt. Saroj had reached there from village Charkhari. She came there alongwith her brotherinlaw Ashok Kumar and her daughter aged about one and half year. The folk drama (Nautanki) had been arranged by the bridegroom party for entertainment and the programme was in full swing at the time of occurrence. The marriage party, his family members and other relatives were watching the Nautanki. Saroj and his brotherinlaw were also present there. In the night about 12 O''clock after the marriage dinner, he came to know that Saroj was conspicuous by her absence at the place where she was sitting and that her daughter was crying. The ladies informed him that Saroj had gone to urinate near the house of Kunji. She did not return for about 1015 minutes and it is upon this that he beckoned to stop the Nautanki and started search alongwith Ashok Kumar and Brij Kishore. In the meanwhile, they heard the shrieks of Saroj which was emanating from the side of plot of Dayaram. He, Ashok and Brij Kishore reached near the plot of Dayaram carrying their torches and saw that Raju Basor was committing rape and Rajendra was catching hold of her hands on account of resistance being offered by her niece. He further deposed that as her niece was raising alarm, accused persons were hitting her with bricks and stones. He further stated that they challenged the accused persons from a distance of 510 steps and immediately, the accused persons took to their heels and escaped towards the forest. At the time when they reached the place of occurrence, accused Raju Basor was forcing his male organ in the vagina of Saroj. The occurrence was witnessed by Ashok Kumar and Brij Kishore in the light of torches. He deposed that prior to the occurrence, he had seen Raju Basor in the Mela which was held in the village, who had been called there to remove Pattal and Rajendra Dhobi who had been called to set up tents. On the date of occurrence, Raju Basor had been called for picking up Pattal and Rajendra Dhobi was called for decoration and for setting up the tents. He further deposed that after being repeatedly hit, his niece had fallen unconscious and at the time, when they felt her, her breath was very difficult and weak. They rushed his niece Saroj to Mahoba Hospital in the Marshal Jeep which they arranged. On examining her, the doctor attending on her, declared her brought dead. He also deposed that the report about the incident was scribed and lodged by Ashok Kumar at police station Charkhari. The police had seized his torch by which he had witnessed the occurrence. His statement was also recorded by the police. The occurrence took place around 2 O''clock in the night.

The witness was subjected to gruelling cross examination and in the cross examination he deposed that Swasamaf village was situated at about 1617 km. from Charkhari while its distance from Mahoba was approximately 18 km. Swasamaf fell within the circle of Tehsil and police station Charkhari. He further stated that he had invited his niece and other family members in the marriage on one invitation letter. On his invitation his niece, her child and brotherinlaw Ashok Kumar had attended the marriage and others were conspicuous by their absence. He further stated that it was in his knowledge that the husband and father in law of his niece were present in village Chhikhara. He further deposed that village Chhikhara lay at a distance of about 5 6 km away from Mahoba. He also stated that last time, he had seen Saroj around 1 O''clock and by that time, she had taken her meal, and thereafter she was sitting alongwith ladies and watching Nautanki. He further deposed that the ladies came to know of absence of Saroj when her daughter started crying. He was informed about the absence of Saroj and immediately, he beckoned to stop the Nautanki and on further enquiries, the ladies had told him that she had gone to urinate towards the side of the house of Kunji. The house of Kunji, proceeds the statement, was situated hardly 78 steps away from the place of Nautanki. When they reached near the house of Kunji Kushwaha, Brij Kishore and Ashok Kumar also accompanied him with their respective torches in their hands. He further stated that Brij Kishore was related as phupha to Ashok and he was also a native of Swasamaf. When they reached near the house of Kunji, they heard Saroj crying and also saw the accused persons in the light of torches, they were hardly 5 6 steps from them. In the light of the torches he saw that Raju Basor was committing rape with his niece while Rajendra had overpowered her by catching hold of her hands. They challenged them and upon seeing them, the accused persons ran away towards the forest. He further stated that about 10001500 people were watching Nautanki, and there were 200 300 ladies present there. They took his niece to Mahoba Hospital at about 3 a. m. The doctor who attended on her had declared her dead. They stayed in the Hospital for about half an hour. He alongwith Ashok and Brij Kishore had gone to police station for lodging the report. The post mortem on the dead body of Saroj was conducted and cremation had taken place in village Chirkhari. He had not given any statement to the police nor he had handed over his torch to the police. He further stated that Raju Basor was a native of Tola some and he used to work in the marriages held in the village for picking up Pattal and thus he was known to him prior to the occurrence. He also stated that the accused Raju also charges money for picking dona and pattal. He denied the suggestion that he has falsely named Raju for commission of the offence.

This witness was recalled on 2.8.2006 for further cross examination in which he stated that the arrangement for stay of marriage party was made in a school situated at a distance of 100 150 steps from his house. A Generator was also deployed to illuminate the place. He further stated that immediately after the house which was adjacent to his house, there was a lane leading to the south and in this lane, tubelight rod was fixed. There is a tube light in the lane. Adjacent to his house was the house of Kunji and tube light was fixed upto that place. Adjacent to the plot of Kunji was the plot of Sukhlal towards east and in the immediate vicinity of this plot was the plot in which occurrence took place. The tubelight installed near the house of Kunji was lighted and its light was reaching out to the plot of Daya Ram but the light reaching the plot of Daya Ram was a little dimmer. He further stated that the contract for setting up tent had been entrusted to Ram Charan Kushwaha and accused Rajendra had been engaged by the contractor. The Jaimal (garlanding) ceremony was performed at about 1011 p.m and immediately thereafter, the feast had started which continued uptil 1 O''clock. Nautanki had started about 1 O''clock. His niece Saroj was seated on a Chabutra from where she was watching Nautanki. He further stated that he was not watching Nautanki as he was busy elsewhere in the arrangement of marriage. He however stated that Ashok was watching Nautanki. He also stated that he had not seen his niece leaving for urinating from the place from where she was watching Nautanki. He also explained that he had not heard the shrieks of his niece. He denied the suggestion that he search for her niece throughout the night. He also stated that about half an hour after start of the Nautanki, the daughter of his niece started crying, he came to know that Saroj was not at her place and then he alongwith Ashok and Brij Kishore began search for her. He further clarified that ladies of his family was unable to use urinals inside the house on account of the house being overcrowded. He also stated that all of them were carrying torches. Brij Kishore was not possessed of any Danda. He also stated that after 10 15 minutes of the search he could find his niece, she was lying in the empty plot of Dayaram. When they reached there she was breathing weakly and her Dhoti was tied around her neck and hands were also pinioned. Immediately she was rushed to the Hospital in a Marshal Jeep. No one was present where his niece was lying, they brought her to Mahoba Hospital and they returned next date in the evening. The accused were arrested by the police. In his presence village people did not assault any of the accused persons. They came back to village after the cremation. Accused were taken to the police station by the police. He denied the suggestion that his niece was murdered by unknown persons in the night and on account of some dispute regarding payment with Rajendra, he was falsely implicated in this case.

P.W. 3 is Dr. S.K. Bajpai who conducted the autopsy on the person of the deceased Smt. Saroj Devi and proved the post mortem examination report. He opined that Saroj died on account of ante mortem injuries and duration of death was about 3/4th day as the rigour mortise was present all over her body. He collected blood stained green coloured dhoti, one blouse, one sweater, one petticoat, two white metal, one white metal (bichchua), one black thread alongwith two amulet (tabeez), two yellow coloured metallic bangles from the body and sealed on the spot. The post mortem report was prepared jointly alongwith Dr. Anurag Purvar. He alongwith Dr. Anurag had signed the post mortem report which is Ext. Ka2. The ante mortem injuries, it was opined, were caused possibly by brick and stones. He further deposed that the deceased had died in the morning of 7.2.2006. The doctor also opined that the death was possible after 12 O'' clock midnight. In the cross examination, he deposed that injuries 1,2, 3 and 4 were possibly not caused by any sharp weapon. He also opined that the deceased might have taken food four hours prior to her death. The injuries no. 1,2,3,4 6 and 7 were not possible by single blow. All the injuries of the deceased spread over from the middle of neck to head. He had received the F.I.R. alongwith other police papers.

P.W. 4 Constable Dhanaram Chaudhary was posted at the relevant time as Head Moharrir in the police station. He had registered the the case at case crime no. 111 of 2006, the report which he had prepared, which he stated is marked as Ext. Ka3. He further stated that the report Ex. Ka 3 and G.D. No. 10 at 8.30 a.m was in his writing and copy thereof is Ext. Ka4. In the cross examination, he deposed that Ashok Kumar Yadav came alongwith Yadvendra Singh and no other person was accompanying them for lodging the F.I.R. He denied the suggestion that the report was ante timed.

P.W. 5 is S.I. Anar Singh and at the relevant time, he was posted as Sub Inspector at Police Station Kotwali Mahoba. He deposed that he was informed by a ward boy about the death of Smt. Saroj on 7.2.2006 at 6.15 a.m. The information of death was registered by constable Onkar in G.D. and he had prepared the inquest report. The inquest was prepared by Tehsildar. He had prepared the inquest on the dictation of Tehsildar. He had also prepared the photo lash, letter to C.M.O., Challan Lash, letter to R.I. which were marked as Ext. Ka 5 to 9. The dead body was sealed and entrusted to constable Subhash Sharma and Home Guard Chandrika Prasad for post mortem examination. He deposed that in the inquest report Ext. Ka5 the signature of Tehsildar was obtained on the last page.

P.W. 6 Brij Kishore, who happened to be Phupha of Ashok, the first informant, deposed that the accused Raju Basor and Rajendra were known to him. He also deposed that the deceased Saroj Devi was also known to him. On 6.2.2006 at 2 a.m in village Swasamaf, accused had inflicted injuries on Saroj Devi in the course of committing rape and Saroj had succumbed to her injuries in the Hospital. He further deposed that Saroj was wife of Hardayal. On 6.2.2006, she came to the village alogwith her brotherinlaw Ashok to attend the marriage of daughter of Raghunath. Deceased Saroj was niece of Raghunath. He further deposed that a Nautanki was also going on near the house of Raghunath. He was also watching Nautanki. Ashok was also sitting alongwith him. At about 2 O''clock he came to know about Saroj having gone for urinating and having not return, he, alongwith Ashok and Raghunath after stopping the Nautanki set out searching for her carrying torches in their hand. About that time, they heard shrieks coming from the plot of Dayaram. They reached there and flashed their torches and saw Raju Basor raping Saroj and Rajendra was overpowering her by catching her hands. Both the accused, he further deposed, were also hitting her with bricks. Saroj, he further deposed, was resisting accused by clawing at him. He also deposed that he alongwith Raghunath and Ashok witnessed the occurrence in the light of torches and on seeing them accused persons ran away. At that time, Saroj, who had injuries on her head and mouth was alive. She was taken to the Hospital in injured condition in a Marshal Jeep. She died in the Hospital on account of her injuries. He had shown his torch to the police.

In the cross examination, he deposed that there are 34 houses sandwiched between his house and house of Raghunath. He and Raghunath both belonged to Kushwaha community. He is not related to Raghunath but he is like a brother. On the date of occurrence marriage of daughter of Raghunath Mankunwar was being performed After the Jaimal (garlanding ceremony), Bhanwar ceremony remained to be performed. Marriage feast in the marriage continued up till 10 11 p.m. Nautanki had started around 9 p.m and the distance between the two places I.e the place where the Nautanki was being played and the place where marriage ceremony was being performed was about 30 steps. There was arrangement of Pandal, light and mike at the place where the Nautanki was being played and a Generator was also there. There was gathering of 200 300 people and the gathering consisting of ladies and children was in inverse proportion qua the gathering of male members. Separate arrangement had been made for ladies and gents. He deposed that he had no knowledge that when Saroj had gone for urination. He was informed by the mother of Saroj about Saroj leaving for urination and crying of her daughter. They immediately started search for her. He clarified that they did not ask the mother of Saroj as to at what time she left the place. The mother of Saroj came to him at the place where he was seated and watching the Nautanki and informed him about Saroj having not returned after urinating. He further stated that he started search for Saroj from the place where Nautanki was being played. He alongwith Raghunath and Ashok had gone searching for Saroj. He further stated that they had witnessed the occurrence in the light of their torches. They had witnessed the occurrence from 1015 steps. The accused were unmoved seeing the light of torch but on being challenged, they took to their heels. He had hotly pursued them about 10 15 steps but accused persons succeeded in escaping. He also stated that no other person had chased them. He also stated that the police had seized the bricks by which Saroj was assaulted. His torch was also taken by the police and thereafter it was returned to him. He deposed that he could recognize the bricks by which Saroj was assaulted. He had not gone to Mahoba Hospital alongwith the deceased. At the time of occurrence, proceeds the deposition, accused Raju Basor was wearing Pant and Shirt. He denied the suggestion that he had not witnessed the occurrence and was falsely implicating the accused person. In further cross examination, he deposed that Janwasa (arrangement for stay of marriage party) was about 30 meters away from the house of Raghunath; that on the southern side of Raghunath''s house, there was a house of Kunji Kushwaha. Decoration of marriage was up till Kunji Ka Bara, it had not gone up till the plot of Dayaram. The informant Ashok was his nephew in relation and he was called phupha by Ashok. He stated that Ashok''s aunt was married to him. He heard the cries of Saroj after 3 4 hours of the start of Nautanki. When he heard the cries of Saroj, Nautanki had already been put on hold as he was informed by the mother of Saroj that Saroj was not present at her place. Thereafter he heard the cries of Saroj. He explained that as cries of Saroj were heard emanating from the plot they had not gone to any other place in search of Saroj. He denied the suggestion that both he and Raghunath had gone to different directions in search of Saroj. He was carrying a (staff) Danda at that time and Ashok was carrying a torch. He had seen the accused for about half minute. When he had seen the accused Rajendra was catching hold of her hand and Saroj was lying on the ground. Her legs were in the northern direction and head was in southern direction. Saroj was clawing at Rajendra with her left hand and her right hand was caught hold by Rajendra. He could not remember how many people reached there apart from them, but he clearly stated that about 3035 people had collected there after some time. Before these persons arrived there, accused persons had already left the place. He had witnessed the occurrence from 10 15 steps. The accused were not carrying Danda or any other weapon. He had not thrown Danda at the accused. He had studied upto class VIII. The accused had fled away towards the mountain and forest and there was no village after about 2 3 km. They had chased the accused persons upto 1015 steps and no other person had pursued them. Dwelling upon the topography, he clarified that on the northern side, there was a plot of Dayaram and on the southern side there was Chabutara of Mahaveer. On the eastern side, there was a mountain and on western side there was a field of Thakur Durg Singh. He had seen Saroj watching the Nautanki. He denied the suggestion that he had not witnessed the occurrence and was deposing falsely because of Raghunath and informant Ashok. He also denied the suggestion that accused Rajendra had dispute regarding payment with Raghunath and on that account they had falsely implicated the accused persons.

P.W. 7 is the investigating officer of the case and after the investigation he had submitted the charge sheet against the accused persons. After registration of the F.I.R. the inquest was prepared, and by the time when he reached, the inquest proceedings were already concluded. Thereafter he arrived at the place of occurrence. On 9.2.2006, he came to Mahoba for recording the statement of Deewan and Daroga. He had prepared the recovery memo of brick, Mala and other articles. He had recorded the statement of Ashok immediately after registration of the F.I.R. at the police station. Thereafter, he had not recorded his statement. The statement of Raghunath was recorded at the place of occurrence. Raghunath was the real maternal uncle of Saroj and he had come to attend the marriage. He had not recorded the statement of doctor who had conducted the post mortem examination. The place of occurrence, he deposed was at a distance of about 60 65 steps away from the place where Nautanki was being played. On the northern side of the place of occurrence, house of Kallu was situated and other place was lying vacant and there was an enclosed area (Bara). He had arrested the accused persons on 7.2.2006. He had arrested the accused persons in village Swasamaf. He also stated that when the police got information about the accused from police informers, he alongwith police force rushed. He further stated that the accused persons resisted arrest and tried to flee and in the process, one of the accused Raju Basor suffered minor injuries. Three slides of vaginal smear was sent to pathological analyses from Mahoba Hospital. In further cross examination, he deposed that the investigation was entrusted to him on 7.2.2006 at 9 10 a.m. He returned at the police station at 2.15 p.m. alongwith S.P. Mahadeo Singh and other constables. The bricks which he had taken in his possession were blood stained. He had sent the bricks for serological examination. He had inspected the place of occurrence in the presence of Raghunath and informant. At the time of registration of the case, only informant was present and Raghunath was not present. He has brought Raghunath from Mahoba Hospital to the place of occurrence. He had inspected the place of occurrence around 11 11.30 a.m. When he had left the place of occurrence Ashok and Raghunath were spared from there and they were not accompanying them. He denied the suggestion that he had not arrested the accused but accused persons were apprehended by the villagers. He also denied that under the pressure of informant he had not properly investigated the case.

P.W. 8 Dr. D.K. Mahora deposed that on 7.2.2006 he was Medical Supdt. Charkhari. At 4 p.m. he had medically examined Raju Basor and noted the following injuries:

Linear abrasion 15 cm long on right side of neck, 3 cm. below from right ear.

Abrasion 2 cm. x 1/4 cm. on front side of right shoulder, 1/1/2 cm. below from its tips.

Linear abrasion 1/2 cm. long on right supra clavicular fossa 8 cm. medial to lot end of right clavicle.

Abrasion 2 cm. x half cm. (1/2 cm.) in right supra clavicular fossa 5 cm. away from medial end of right clavicle.

Abrasion 1.5 cm. x 1/2 cm. on right side of neck, 3 cm. above from medial end of right clavicle.

Abrasion 3 cm. x 1/2 cm. on front side of neck, 1.5 cm. above from medial end of right clavicle.

Abrasion 2 cm. x 1/2 cm. on part of neck, 2 cm. above from medial end of right clavicle.

Abrasion 1.5 cm. x 1 cm. on left side of neck, 3 cm. below from left ear.

Linear abrasion 1/2 cm. on left side of chest wall, 11 cm above from left nipple.

In his opinion all the injuries were caused by hard and blunt object. All the injuries were simple and he had got affixed the thumb impression of the accused on the medical examination report, which is marked as Ext. Ka21 and in his opinion all the injuries are possible in the night of 6.2.2006 by the nails. On the same day he had examined Rajendra at about 4.30 p.m. who was brought by the constables and he did not find any injury on his body. In the cross examination he deposed that he did not examine the colour of the injuries. There are three other medical officer in the Charkhari Hospital who are looking after the management of Mahoba Hospital and they are also attending to the works relating to Charkhari. He denied the suggestion that Raju Basor was not medically examined and he was deposing under the pressure of the police. He had mentioned the identification mark of Raju Basor and has identified the accused persons in the court.

P.W. 9Constable Ramjeet Dwivedi deposed that on 7.2.2006 he was posted as constable attended with further deposition that he had been in the district since 1998. He identified the signature of Dhani Ram Chaudhary and Inspector Karan Singh. He also deposed that the G.D. entry No. 20 dated 7.2.2006 at 14.15 was in the handwriting of constable Dhani Ram Chaudhary and the same is also signed by the Inspector Karan Singh. This entry, he further deposed, relates to the arrest of Raju Basor in case crime no. 111 of 2006 under section 376/302 I.PCC. Copy of the G.D. is marked as Ext. Ka23. In the cross examination, he deposed that Ext. Ka23 was not prepared in his presence. He further deposed that Dhani Ram was presently posted in Jhansi while Karan Singh was on duty in Ardh Kumbh Mela at Allahabad. He denied the suggestion that in order to suppressing the correct facts, the scribe and the Inspector were not produced by the prosecution.

The Sessions judge after analytically examining the evidence on the record, recorded verdict of conviction as aforesaid. The Sessions Judge in recording verdict of conviction, placed credence on the testimonies of three eye witnesses touching on their credibility the incriminating nature of facts and circumstances spoken to by the witnesses attended with finding that their version received corroboration from the medical evidence.

The counsel for the appellants assailed the findings of the trial court interalia on the grounds firstly that the first information report was lodged with inordinate delay and it was lodged after consultation and deliberation. Next ground urged is that all the witnesses were closely and intimately related and thus they were partisan and interested witnesses and their deposition gave an appearance of a concocted version which casts severe doubts about truthfulness of the prosecution case followed by submission that the prosecution deliberately did not examine independent witnesses. The next submission of the counsel for the appellant is that the place of occurrence was situated at a considerable distance from the place of marriage ceremony attended with the submission that there was no light at the place of occurrence in which accused could be identified. Yet another submission of the counsel for the appellant was that at the time of occurrence, there was assemblage of large number of people and that the accused persons were not armed with any weapon followed by submissions that no one was able to apprehend them. It was further argued that the post mortem examination report did not support the ocular testimony inasmuch as from the post mortem examination, it crystallized that the deceased had not sustained any injury on neck nor on the private part and that there was not an iota of evidence that the deceased was subjected to rape. As regards injures on the body of the accused, it is argued that timing of injuries on the person differed with the alleged time of occurrence and the exact nature of the injury has also not been enumerated by the doctor.

Dealing with the first submission relating to delay in lodging the F.I.R, we will have to reckon with this submission in the light of facts and circumstances of each case. The incident in question is alleged to have taken place on 6/7206 about at 2 A.M. and a written report of the occurrence was lodged by Ashok Kumar P.W.1 in which are contained all the necessary details about the occurrence on 7.2.06 at 8.30 a.M.. In the instant case, as we have been able to gather from various testimonies adduced in the case, the deceased Saroj did not die on the spot and as was natural, she was rushed to Mahoba Hospital in an injured condition in Marshal Jeep for the treatment. In the circumstances, it is but possible that it must have entailed some time in making arrangement for carrying deceased to the hospital who was undeniably in a precarious condition. After reaching the hospital, again it is but natural that some time must have been taken by the doctor in examining the injured and after examination, she was declared dead. It is not expected from villagers to immediately proceed for lodging the report and some time must have been taken in preparing the report and thereafter report was lodged in the morning at 8.30 A.M. The informant in his deposition has explained that when the doctor had declared his sister in law dead, they stayed back at the hospital to bid time. If we consider the report and the evidence on record in entirety, it would clearly transpire that the time of occurrence is mentioned by way of approximation.

The relevant decision on the point is Ashok Kumar Chaudhary v. State of Bihar,(2008) 12 SCC 173, in which the Apex Court quintessentially observed that "it is trite that mere delay in lodging the first information report is not by itself fatal to the case of the prosecution. Nevertheless, it is a relevant factor of which the court is obliged to take notice and examine whether any explanation for the delay has been offered and if offered, whether it is satisfactory or not. If no satisfactory explanation is forthcoming, an adverse inference may be drawn against the prosecution. However, in the event, the delay is properly and satisfactorily explained; the prosecution case cannot be thrown out merely on the ground of delay in lodging the FIR. Obviously, the explanation has to be considered in the light of the totality of the facts and circumstances of the case".

The second decision on the point is State of H.P. v. Gian Chand, reported in (2001 AIR SCW 1903), in which the Apex court has held as under:

"12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

More recent case on the point is Ramdas v. State of Maharashtra (2006 AIR SCW 5675) in which it has been laid down that the question whether the delay in lodging the report adversely affects the case of the prosecution has to be considered in the light of the totality of the evidence. This is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be host of circumstances appearing on record which may provide reasonable explanation for the delay.

In the case of Silak Ram V. State of Haryana, (2007) 10 SCC 464 at page 468 the Apex Court considering the issue of delay in lodging the F.I.R. has observed as under:

"Coming to the stand that there was delay in lodging the FIR and in dispatch of the report to the Illaqa Magistrate, this also has been elaborately dealt with by the High Court. Delay in lodging FIR by itself would not be sufficient to discard the prosecution version unless it is unexplained and such delay coupled with the likelihood of concoction of evidence. There is no hardandfast rule that delay in filing FIR in each and every case is fatal and on account of such delay the prosecution version should be discarded. The factum of delay requires the court to scrutinise the evidence adduced with greater degree of care and caution."

We have delved into the facts and circumstances of the case on the issue qua the submissions advanced across the bar. Reverting to the facts of the case, it is obtrusively noticeable that the distance covered by informant in taking injured to the hospital and then covering the distance from hospital to the police station and the fact that occurrence took place around 2 A.M. in the dead of night, we are of the firm view that the delay if any is not fatal and has been explained fully and the reasons assigned for the delay are satisfactory.

Coming to the next submission which is to the effect that the occurrence took place in the night and at the place of occurrence there was no light in which assailants could be identified, we have independently scrutinised the oral as well as documentary evidence appearing on record. The case of the prosecution from the very inception consistently is that the accused were recognised in the torch light. In the F.I.R, it has been clearly enumerated by the first informant that after hearing the shrieks of his sister in law, he alongwith Raghunath and Brij Kishore who were carrying torches, rushed and witnessed the occurrence in the torch light. In his deposition also, he stated that he had witnessed the occurrence in the torch light. P.W.2 also lent corroboration to the testimony of P.W1 on this material aspect that they were carrying torches and that he had witnessed the occurrence in the torch light. P.W.6 Brij Kishore also deposed that when they came to know that Saroj had not come back after urination, they started searching her and that at that time they were carrying torches with them and that they had witnessed the occurrence in the torch light. The investigating officer namely Karan Singh, P.W.7, it is also on record, had prepared the recovery memo of torches marked as Ex.Ka 13 possessed by Ashok Kumar and Raghunath and had also prepared the recovery memo of the torch of Brij Kishore which is marked as Ex Ka15. By this reckoning, it leaves no manner of doubt that the prosecution has proved its case to the hilt beyond any reasonable doubt that at the time of occurrence, the witnesses were possessed of torches and they carried torches and in the torch light, they had witnessed the occurrence and recognised the accused persons while committing the crime. In our considered view, the submission of the counsel for the appellants that there was no light at the place of occurrence falls to the ground and carries no substance.

The next submission advanced across the bar by the counsel for the appellants revolves round non production of the independent witnesses who were available at the time of occurrence and only proximate relations were examined. We have give our anxious considerations to the submission and in our opinion, regard being had to the materials on record, the submission is not loaded with any substance. It brooks no dispute that the prosecution examined only three witnesses out of large assemblage to prop up its case. To reiterate, P.W.1 Ashok Kumar is brotherinlaw of deceased, P.W.2 Raghunath is maternal uncle of the deceased and P.W.6 Brij Kishor is uncle (Phoopha) of Ashok. It is significant to note that P.W.2 and P.W.6 are natives of the same village/place where the occurrence took place. The presence of P.W 1 Ashok Kumar cannot be doubted regard being had to the fact that he had in no Delphic terms, explained his presence stating that he had come to attend the marriage along with the deceased. It is a settled position in law and there is no proposition in law that the witnesses are to be treated as untruthful witness, just because they were related to the deceased and merely because they were related to the deceased, would be no ground to discard their testimony, if otherwise their testimony inspires confidence. It has been observed ad nauseum by various decisions that being relatives, it would be their endeavour to see that the real culprits are punished and normally, they would not nominate or implicate any innocent person in the crime, so as to allow the real culprits to escape unpunished. In so far as the submission of the non examination of other witnesses is concerned, mere failure to examine all the witnesses who may have witnessed the occurrence would not result in out right rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable. Moreover, we cannot ignore the reality that many eye witnesses shy away from giving evidence for obvious reasons.

The decision germane to the point is Appabhai v. State of Gujarat reported in 1988 (supp.) SCC 241 in which the Apex Court has observed as under:

"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. ''''

The next argument revolves round the submission that it is unbelievable that the accused persons could not be apprehended by the persons present at the time of occurrence qua the fact that none of the accused were armed with any weapon. We have given our sincere thoughts to the submission and we are afraid we do not find the submission loaded with any substance because no one could predict whether any of the accused were armed with any weapon or not? Moreover, no one could predict the reaction of any witness in a situation like this one. The Apex Court in the case of Appabhai (Supra) has observed that ''''The court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horrorstricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner."

The next submission made across the bar by the counsel for the appellant is that medical evidence does not lend support to the eye witness account. We have given our thoughtful consideration to the submissions and having considered the materials on record, we are of the view that the submission carries no weight and substance. Rather, we must say that the post mortem examination report and medical examination reports fully lend assurance to the truthfulness of the prosecution case. To recapitulate precisely, the prosecution case is that Raju Basor was committing rape while Rajendra Dhobi was catching hold of the hands of the deceased and they were assaulting the deceased with bricks. In the post mortem report doctor had noted seven injuries which were lacerated wounds and abrasions and all the injuries were present on the upper part of the body and in the opinion of the doctor, all the injuries were possibly caused by bricks and stones. The post mortem report fully supports the ocular testimony. Another important feature of the case is that the prosecution had alleged that Raju Basor had committed rape and this allegation of rape is not against Rajendra Dhobi. It has been mentioned by the witnesses that the deceased was resisting with all possible might. After the arrest of Raju Basor, he was medically examined by Dr. D.K. Mahora on 7.2.06 at 4 p.m. and he found nine abrasions and linear abrasions. He also opined that these injuries could be caused in the night of 6/7.2.2006 which is the alleged time of occurrence. In the cross examination, he admitted that he did not mention the colour of the injury but no suggestion was made to the doctor that these injuries were caused at any other time. The case of the defence was that the accused Raju Basor was not examined by the doctor. The doctor had mentioned the identity mark of the accused and on that basis he categorically stated that the identifying marks were mentioned in the report and those marks are present on Raju Basor. In the post mortem examination report doctor had found clotted blood present over near vagina and vulva and medial aspect of both side. At the time of arrest of Raju Basor, his under wear was seized by the police and the serologist report shows the presence of semen in his underwear. It is important to mention that the allegation of rape was levelled only against Raju Basor and not against Rajendra Dhobi.

It is also worthy of notice here that the first information report enumerates the individual roles of the accused and also the names of the witnesses. Only relatives were examined because when it was noticed that deceased was missing and her child was crying, and it was natural that the relatives grew anxious and immediately, a search was undertaken to find her out. There is nothing abnormal in case only relatives set out in search of the deceased. At that time of occurrence, it was expected that whole village must have galvanised into action in searching the lady. The informant was examined as P.W.1 and he was subjected to gruelling cross examination and nothing tangible could be elicited to discredit his testimony.

The counsel for the appellant has challenged the presence of this witnesses on the premises that the occurrence took place in village Swasamaaf while informant was a native of village Chhikhara. We do not find any substance in this submission considering that the informant was brother in law of the deceased who had come alongwith the deceased and minor niece to participate in the marriage and naturally, he must be most anxious about the incident. Further the has explained his presence from the very beginning to the effect that he had come to attend the marriage along with his sister in law and it is not denied by the defence that no marriage was to be held on that date of occurrence. Moreover, the presence of both the accused has not been denied and that they were called for assigned work in the marriage. The prosecution case is that Raju Basor was employed in the marriage to collect pattals while Rajendra was labourer for fixing tents. The suggestion of the defence that they were falsely implicated because there was dispute regarding payment of the charges does not commend to us for acceptance regard being had to the fact that payment etc is made only next day after sending off the Barat and not immediately after the work of picking up of Pattal was over. It is also worthy of notice that according to his testimony when he along with other witnesses reached place of occurrence, he saw that Rajendra was catching hold of hands of his sister in law while Raju Basor was forcibly raping the deceased. His sister in law was resisting them and she was assaulted by the with bricks. In connection with his deposition about manner of crime, it is necessary to examine the medical evidence. In the post mortem examination, the doctor had noted all the lacerated wounds and contusion in the region of face which is possible when the deceased was lying on the ground and the accused was leaning on her. The doctor also noted in the post mortem report that clotted blood present over near vagina and vulva and medial aspect of both side. The injury on private part of the deceased does indicate that the deceased was subjected to rape. One more clinching evidence regarding rape is that on the under wear of deceased and Raju Basor semen was found and on the under wear of Rajendra semen was not found. This circumstance lends credence to the presence of witnesses who have made allegation of rape only against Raju Basor and not against Rajendar.

The allegation of rape is made only against Raju Basor and the evidence of prosecution shows that deceased was resisting the accused persons. The injury report of Raju Basor shows that he had sustained linear abrasions and abrasions on the upper part of his body the infliction of which is possible on account of resistance of the deceased. P.W.8 Dr. D.K.Mahora proved the injury report of Raju Basor and in his opinion, these injuries are caused due to clawing by nails and could be caused 6/7206 at about 2 O''clock in the night. It is important to mention that the accused had denied his injuries and it was suggested to the doctor that he was not produced before him for medical examination. The doctor negated the suggestion by relying on the medical report and stated that he had mentioned the identification mark of the accused and he also identified the accused when he was present in court. The prosecution has fully proved the injuries of the Raju Basor beyond reasonable doubt. When the accused was confronted with the testimony of the doctor in his statement under section 313 Cr.P.C, he simply denied his injuries unsupported by any clinching and reliable evidence.

P.W.2 Raghunath is maternal uncle of the deceased. On the date of occurrence marriage of his daughter namely Mankuwar was held and Saroj, deceased had come to attend marriage from chhikhara along with her brother in law namely, Ashok. She came alongwith her daughter Uma Devi aged about one and a half year. After the dinner his niece and her brother in law were watching Nautanki. After the child started crying, the absence of Saroj was noticed and the ladies present there had informed Raghunath that Saroj was not to be seen further informing that she had gone to urinate and had not returned as yet. After 15 minutes when she did not return he stopped the Nautanki and he alongwith Ashok and Brij kishore started searching her. He heard the cries of Saroj emanating from near the vacant plot of Daya Ram. He alongwith Ashok and Brij Kishore went towards the plot of Dayaram carrying torches and saw that Raju Basor was committing rape with Saroj and Rajendra was catching hold of her hands. His niece was resisting them. While she was resisting and raising cries, the accused persons assaulted her causing injuries with bricks and stones. His testimony fully corroborates the ocular account furnished by P.W.1.He was extensively cross examined but he withstood the test of cross examination and nothing could be elicited to discredit his testimony.

P.W.6 Brij Kishore has also supported the prosecution case in all material aspects and his testimony corroborates the testimonies of P.W. 1 and P.W. 2. It is true that he is maternal uncle of P.W. 1 Ashok but on this ground alone, his testimony does not merit to be rejected when he has withstood the test of gruelling crossexamination. His testimony is not tainted with any infirmity. The learned Sessions Judge has rightly relied upon his testimony. All the three eye witnesses have proved the prosecution case and we also carefully scrutinised their testimonies and found the same absolutely reliable. Their testimonies also find corroboration from the medical examination report and the serologist report. There is no cogent or convincing reason put forth by the defence to prove the charge that they were falsely implicated in such a heinous offence. Accordingly, we affirm the findings recorded by the trial court.

In view of the above, we are of the inescapable view that the finding recorded by the trial court of conviction against the appellants is sustained. However on the question of sentence, the sentence inflicted on appellant Rajendra Dhobi is adequate and the same is upheld.

Now the question arises for serious consideration is whether the sentence of death awarded to Raju Basor by the trial court would meet the ends of justice?

Under the old code of criminal Procedure ample discretion was given to the courts to pass death sentence as a general proposition and the alternative sentence of life term could be awarded in exceptional circumstances, that too after advancing special reasons for making this departure from the general rule. The new Code of 1973 has entirely reversed the rule. A sentence for imprisonment for life is now the rule and capital sentence is an exception. It has also been made obligatory on the courts to record special reasons if ultimately death sentence is to be awarded. A Constitutional Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab A.I.R. 1980 898 while upholding the constitutional validity of the death sentence voiced that as a legal principle death sentence is still awardable but only in rarest of rare cases when the alternative option of lesser sentence is unquestionably foreclosed.

Coming to the aspect whether penalties of death should be sustained in the facts and circumstances of the case, we feel called to advert to the guidelines laid down in stream of decisions commencing from Bachan Singh v. State of Punjab 1980 (2) SCC 684 and thereafter reiterated in subsequent decisions namely Machchi Singh v. State of Punjab 1983 (3) SCC 470 and Devender Pal Singh v. State of N.C.T. Of Delhi 2002 (5) SCC 234. The guidelines laid down in Bachan Singh''s case (Supra) may be culled out as under:

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty, the circumstances of the offender also require to be taken into consideration alongwith the circumstances of the crime.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so, the mitigating circumstances have to be accorded full weightage and just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised."

In Machchi Singh and others v. State of Punjab (1983), the Supreme Court expanded the "rarest of rare" formulation beyond the aggravating factors listed in Bachan Singh to cases where the "collective conscience" of a community may be shocked. But the Bench in this case underlined that full weightage must be accorded to the mitigating circumstances in a case and a just balance had to be struck between aggravating and mitigating circumstances.

In Devender Pal Singh''s case (Supra), the Apex Court regard being had to both the cases supra, expanded the formulation for imposing extreme penalty. The guidelines may be abstracted below as under:

(1) 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.

(2) When the murder is committed for a motive which evinces total depravity and meanness e.g. Murder by hired assassin for money or reward, or cold blooded murder for gains of a person visavis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3) 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; or in cases of bride burning or 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.

(4) When the crime is enormous in proportion. For instance when mutiple murders, say of all or almost all the members of a family or alarge number of persons or a particular caste, community, or locality are committed.

(5)When the victim of murder is an innocent child or a helpless woman or old or infirm person or a person visavis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community."

We may advert to the reasons recorded by the Sessions Judge for awarding extreme penalty. The sessions Judge observed that there was no evidence that appellant was financially sound. The Sessions Judge appeared to be inclined to inflict the extreme penalty considering that the accused persons outraged the modesty of a married woman while she was carrying pregnancy and she was brutally murdered while she resisted the attempts to commit rape on her. The learned Sessions Judge further observed that the accused persons were so brutal that they in order to gratify their lust, hit her so hard on head that her skull bone had broken. In ultimate analysis, he opined that such persons would be a menace to the society at large and the case falls within the category of rarest of rare cases.

In the perspective of the above decision and regard being had that the reasons assigned for inflicting the extreme penalty do not constitute special reasons, we are of the view that the case does not fall in the category of rarest of rare cases.

In connection with the above, another decision on the point may be referred to. The Apex Court in the case of Ram Pal Vs. State of U.P. 2003(47) A.C.C. 567 for the reasons mentioned in paragraph 8 and 9 of the judgement reduced the sentence from death to life imprisonment despite the fact that 21 persons were murdered in an incident.

Compassion in sentencing is also a key factor. It allows the scars to heal. Longevity of incarceration may make them see reason. Passage of time may make them ponder over the crime they had committed. This might arouse in them a feeling of remorse and repentance.

Coming to the facts of the present case, it would transpire that the appellants worked as labourers and were doing odd jobs and on the day of occurrence, they were engaged either for setting up tents or for clearing off the Pattals on whose food was served to the invitees. Though the offence committed by them deserves severe condemnation and is a most heinous crime, but on cumulative facts and circumstances of the case, we do not think that the case falls in the category of rarest of the rare case though it is perilously near the region of this category. It is not shown that the appellants had any criminal antecedents or were involved in the crime of this nature as a habit. Besides there is no clinching evidence to manifest that they would constitute any menace to the society in future. No such material has been placed before us to draw such a conclusion. The offence of rape took place at a lonely place and the deposition is to the effect that she was overpowered and pinned down by the accused persons. She is also stated to have resisted and was attacked to subdue her resistance as the accused were sexually aroused. In our considered view these are the mitigating circumstances for substituting the death sentence by the sentence to imprisonment for life.

Considering the over all circumstances of the case this case does not fall within the category of rarest of rare case and it cannot be said that imprisonment for lesser sentence of life term stood altogether foreclosed and we are of the view that a sentence of imprisonment for life to the appellants would meet the ends of justice.

We therefore, reduce the sentence of death of the appellant Raju Basor to imprisonment for life.

The appeal is partly allowed. In consequence the conviction recorded by the Sessions Judge is maintained but in the facts and circumstances and for reasons recorded above, the sentence of death awarded to the appellant Raju Basor by the learned Sessions Judge Mahoba is commuted to imprisonment for life.

In so far as appeal preferred by appellant Rajendra Dhobi, is concerned, the same fails and is dismissed accordingly.

The appellants are in jail and they shall serve out the sentences accordingly in terms of the above.

Reference made in this Court shall stand rejected.