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Judgment
R.N. Prasad, J.—Death reference and the Criminal Appeals arise out of the judgment and order dated 29.2.2000 passed by the Sessions Judge, Vaishal at Hajipur in S.T. No. 128/98, they have been heard together and are being disposed of by this judgment.
Ram Babu Singh Appellant in Cr. Appeal No. 132/2000 has been convicted for the offence u/s 302/34 of the Indian Penal Code and sentenced to death. He has further been convicted for the offence u/s 302/120B of the Indian Penal Code and sentenced to undergo imprisonment for life. The Appellant has filed the appeal for setting aside the judgment under appeal whereas death reference is for confirmation of death sentence awarded by the trial court. Lakshuman Singh, Appellant in Cr. Appeal No. 136/2000 has been convicted for the offence u/s 302/120B of the Indian Penal Code and sentenced to undergo imprisonment for life.
The incident took place in the night of 11/12.1.1998 in the house of Vijay Singh, the deceased, at Hajipur. In the incident six persons, namely, Vijay Singh aged about 50 years, his wife, Indu; Devi aged about 42 years, his son, Aditya Raj aged about 10 months, his two, daughters, Mamta Kumari aged about 15 1 years and Kanchan Kumari aged about 7-8 years and his elder sister-in-law, Anju Devi, were killed. Gopal Prasad, the husband of sister-in-law of Vijay Singh, is informant. He was 4th grade employee in Sonepur Block. On 12.1.1998 at about 3 P.M. he heard rumour that Vijay Singh and his family members were killed. He rushed to the house of Vijay Singh. He gave his ardbeyan at about 3.30 P.M. before the Officer-in-charge of Hajipur Police Station that when he came near the house of Vijay Singh he found several persons assembled there. Police was also there. He went to the first floor of the papoose and found the dead body of Mamta Kumari and Kanchan Kumari, daughter of Vijay Singh, the dead body of his elder sister-in-law, namely, Anju Devi on a Plung kept in the north facing room on the southern side of the first floor, Bharti Devi, daughter of Vijay Singh,, was also lying unconscious by the side of the dead body of Kanchan Kumari on the said Plung. He found sharp cut injuries on the vital part of their dead body. On the other Plung kept in the same room he found dead body of Vijay Singh and dead body of his wife, Indu Devi. There were sharp cut injuries on their person. Son of Vijay Singh, namely, Aditya Raj was also lying unconscious on the said Plung. Bleeding injury was also on his person. Chhaya Kumari aged about 12-13 years was hiding crying. However, she disclosed the previous night at about 6-7 P.M. her elder uncle, Lakshuman Singh and his son Ram Babu Singh who were living at Gorakhpur came with sweets. They distributed sweets among all he family members. In the meantime her Mausi and Mausa (Mother''s sister and her husband), namely, Anju Devi and Prabhunath Singh respectively came. Prabhunath Singh returned to Muzaffarpur. Anju Devi stayed there. Anju Devi also took sweets. At about 9 P.M. her father and mother asked her uncle, Lakshuman Singh and his son Ram Babu Singh for dinner but they refused. Her father made arrangement for stay of Lakshuman Singh and Ram Babu Singh on the ground floor. Thereafter, her father and other members of the family also after taking meal were sleeping on the first floor in the room. After taking sweets she was feeling drowsy. Sometime before his arrival she woke up and found her father, mother, brother and sister lying dead. She out of fear was hid-ding herself beneath the Plung. About 6-7 months ago Indu Devi Kad told him that elder brother of her husband namely, Lakhsumah Singh was demanding share in the house at Hajipur. Her husband was also demanding share in the house at Gorakhpur where Lakshuman Singh and his family members were residing. She disclosed that Lakhsuman Singh was trying to grab the property at Hajipur. He expressed suspicion that Lakshuman Singh and his son Ram Babu Singh in conspiracy to grab the property at Hajipur has committed the crime after giving sweets mixed with intoxicant to all the family members with the help of their associates. Injured Bharti Devi and Aditya Raj were taken to hospital but Aditya Raj died in the Hospital.
On the aforesaid fardbeyan, Ext. 5, formal first information report, Ext. 7, was drawn and investigation was taken up. During the investigation place of occurrence was inspected. Inquest report was prepared. Seizure list was prepared. Postmortem of the dead bodies was held. Statement of the witnesses was recorded. Statement of Chhaya Kumari and Bharti Kumari u/s 164 of the Code of Criminal Procedure was recorded by the Judicial Magistrate. On completion of investigation charge-sheet was submitted against four persons including the Appellants. On receipt of charge-sheet in the court cognizance was taken and the case was committed to the court of Sessions for trial. The trial court convicted the Appellants as indicated above, however, acquitted Rakesh Singh and Subhash @ Subhash Harijan from all the charges levelled against them.
The defence of the Appellants was that they were innocent and were falsely implicated in the case due to land dispute.
The prosecution in support of its case examined 20 witnesses, out of whom P.Ws. 2 & 3 are witnesses to the inquest. P.Ws. 4, 9 & 11 are witnesses to the seizure. P.Ws. 1, 6, 7 & 10 are hearsay witnesses. P.Ws. 5 & 8 are eye witnesses to the occurrence. P.W. 12 is Doctor who held postmortem over the dead body of deceased Vijay Singh, P.W. 13 is also Doctor who held postmortem over the dead body of Kanchan Kumari and Indu Devi. P.W. 14 is also Doctor who held postmortem over the dead body of Anju Devi, sister-in- law of late Vijay Singh. P.W. 19 is also a Doctor who held postmortem over the dead body of Mamta Kumari and also examined Aditya Raj and Miss Bharti P.W. 15 is the Judicial Magistrate who recorded the statement of P.Ws. 5 & 8 u/s 164 of the Code of Criminal Procedure. P.W. 16 is Police Officer who recorded fardbeyan of P.W. 10. P.W. 17 is the Investigating Officer who investigated the case till 11.3.1998. P.W. 18 is also Investigating Officer who took charge of the case on 12.3.1998 from P.W. 17 and submitted charge-sheet. P.W. 20 took Aditya Raj to, Patna Medical College and Hospital for treatment.
Appellant Lakshuman Singh is brother of deceased Vijay Singh and Appellant Ram Babu Singh is nephew of deceased Vijay Singh. Appellants Lakshuman Singh and Ram Babu Singh, were living at Gorakhpur with their family members. Deceased Vijay Singh was living at Hajipur with his family members. The occurrence took place in the night of 11/12.1.1998 in which six persons, namely, Vijay Singh, his wife Indu Devi, his son Aditya Raj aged about 10 months, his two daughters Mamta Kumari aged about 15 years and Kanchan Kumari aged about 7/8 years and elder sister-in-law Anju Devi were killed in the house of decease Vijay Singh, In the incident P.W. 8 Shaft Kumari, daughter of deceased Vijay Singh aged about six years was also assaulted but she survived after treatment. She is eye witness to the occurrence, P.W. 5, Chhaya Kumari aged about 11 years daughter of deceased Vijay Singh is also an eye witness to the occurrence. P.W. 10 is Sarhu of deceased Vijay Singh. He is informant in this case. He is not eye witness to the occurrence. He was Peon in Sonepur Block. He learnt about the occurrence at Sonepur Block on 12.1.1998 at about 3 P.M. He came to the house of deceased Vijay Singh at Hajipur and learnt about the occurrence from P.W. 5 and accordingly gave his fardbeyan to the police at about 3.30 P.M. P.Ws. 5 & 8, daughters of deceased Vijay Singh are the only eye witnesses to the occurrence. They are child witness and as such their evidence has to be considered with care and caution.
P.W. 10 has disclosed in the fardbeyan that about 6-7 months ago his sister-in-law Indu Devi, the deceased wife of deceased Vijay Singh told him that Appellant Lakshuman Singh was demanding share in the property of Hajipur. Her husband Vijay Singh was demanding share in the property of Gorakhpur where Appellants were residing. She also told him that Appellant-Lakshuman Singh was trying to grab the property of her husbandat Hajipur and as such the witness expressed suspicion that due to the aforesaid reason Appellants in conspiracy with others have committed murder of Vijay Singh and his family members. P.W. 10 in his evidence before the court also reiterated the same. P.W. 1 is hearsay witness but he stated in his evidence that deceased Vijay Singh had told him that his brother Lakshuman Singh was trying to grab his property at Hajipur. Specific question was put to P.W. 5 with regard to dispute for land but she stated that she had no knowledge that there was dispute for land in between her father and appellant Lakshuman Singh. However, suggestion was given to the witness, P.W. 5, that Appellants were falsely implicated due to the land dispute which she denied. The case of defence itself is that they have falsely been implicated due to land dispute. Therefore, it is evident from the discussion made above that there was dispute for property between deceased Vijay Singh and the Appellants.
P.W. 5 is child witness. She was tested by the trial court and the court has certified that the witness understanding is good, She stated in her evidence that on 11.1.1998 at about 6 P.M. Prabhu Nath Singh, her Mausa (her mother''s sister''s husband) and her Mausi Anju Devi, deceased wife of aforesaid Prabhu Nath Singh, P.W. 7, came. Anju Devi stayed but Prabhu Nath Singh returend to Muzaffarpur. Her uncle Lakshuman Singh and brother Ram Babu Singh came at that very time from Gorakhpur. They stayed in the house in the night. P.W. 8 is also a child witness but she Was not administered oath as she was not knowing result of giving false evidence. However, the court certified that understanding of the witnesses is good with regard to her age. She stated in her evidence that at about 6 P.M. on the relevant date she was watching T.V. Her uncle Lakshuman Singh and his son Ram Babu Singh came and stayed in the night in the house. P.W. 2 is witness to the inquest but his shop is situated near the shop of deceased Vijay Singh. He stated in his evidence that on 11.1.1998 at about 7 P.M. when he was going after closing his shop he saw Lakshuman Singh and his son Ram Babu Singh in the shop of-Vijay Singh. They were known to him from before and he talked with them. P.W. 7 is husband of deceased Anju Devi. His evidence is that in the evening of 11.1.1998 he had gone to the house of deceased Vijay Singh along with his wife. He stayed there for an hour. He had seen Lakshuman Singh and his son Ram Babu Singh at the house of deceased Vijay Singh. He left his wife at the house of deceased Vijay Singh and he himself returned to Muzaffarpur. P.Ws. 1, 6 & 10 have stated in their evidence that when they came to the place of occurrence they learnt from P.W. 5 that Appellants had come in the evening of 11.1.1998 from Gorakhpur and had stayed in the night in the house of deceased Vijay Singh. Therefore, it is evident that evidence of child eye witness with regard to coming and staying of the Appellants at the house of deceased Vijay Singh is corroborated by the evidence of. P.Ws. 2 & 7 and also by P.Ws. 1, 6 & 10 who came at the place of occurrence and learnt about the occurrence from the eye witnesses.
P.W. 10 is the informant. He is ''Sarhu'' of deceased Vijay Singh. He is not an eye witness to the occurrence. He learnt about the occurrence from Chhaya Kumari, P.W. 5. When he went to the first-floor of the house he found five persons lying dead on two cots in the room and also found Aditya and Bharti, P.W. 8, injured. Bharti was lying on the cot unconscious. Aditya died in the hospital. However, Bharti survived after treatment. Chhaya, P.W. 5, disclosed about the occurrence. In the fardbeyan it was stated that Chhaya, P.W. 5 disclosed that previous night i.e. in the night of 11.1.1998 at about 6-7 P.M. her elder uncle Lakshuman Singh and his son Ram Babu Singh came with sweets. They distributed sweets among all the family members. In the meantime her Mausa Prabhunath Singh and Mausi Anju Devi came. Prabhunath Singh returned to Muzaffarpur and Anju Devi stayed there. Anju Devi also took sweets. At about 9 P.M. her father and mother asked her uncle Lakshuman Singh and his son Ram Babu Singh for dinner but they refused. Appellants Lakshuman Singh and Ram babu Singh stayed on the ground floor. Her father and other members of the family also after taking meal were sleeping in the room on the first floor. Some time before his arrival she woke up and found father, mother, brother and sisters lying dead. She out of fear was hiding herself beneath the Plung. In evidence P.W. 10, however, stated that P.W. 5 disclosed about coming of the Appellants, distribution of sweets by the Appellants, stay of the Appellants in the night on the ground floor. However, the witness stated that Chhaya had disclosed that when she woke up in the night she saw Ram Babu Singh and two-three persons having sharp cutting weapon in their hands who were assaulting with their weapons the deceased persons. She slept beneath the table.
Learned Counsel for the Appellants pointed out that evidence of witness is not worthy of reliance as he had developed the case that P.W. 5 woke up in the night and saw Ram Babu Singh and others assaulting the deceased persons. It has already been stated that P.W. 10 is not an eye witness to the occurrence. He learnt about the occurrence from P.W. 5. Thus he is hear-say witness. Development of the case by the witness in the court, in my view, carries not much weight because of the fact that Chhaya Kumari who disclosed about the occurrence to the informant, P.W. 10, has herself been examined as P.W. 5. The evidence of P.W. 5 would be important in such a situation.
On the point of occurrence P.ws. 5 & 8 are only witnesses in this case. They are child witnesses. Therefore, their evidence requires to be examined in details with care and caution. P.W. 8 was .examined on 5.7.1999. Her age was recorded as six years on the date of examination. The date of occurrence is 11/12.1.1998. Therefore, her age at the time of occurrence was about four years six months. She on question stated before the court that she does not understand duty of speaking truth and as such she was not administered oath. However, the trial court certified that understanding of the child witness is good with regard to her age.
Learned Counsel for the Appellants raised question with regard to admissibility of evidence of P.W. 8 and also with respect to credibility of her evidence. The Oath Act does not deal with the competency of witness. Its object is to render persons who give false evidence, liable for prosecution Section 118 of the Evidence Act deals with competency. The Oath Act does not dealer with respect to admissibility of evidence. There is no provision in the Oath Act that if the oath is not administered the evidence would be inadmissible. In the case of Rameshwar Vs. The State of Rajasthan, the Apex Court has held that an omission to administer oath, even to an adult goes only to the credibility of the witness and not to his competency. Question of competency is dealt with in Section 118 of the Evidence Act. Oath Act does not deal with competency. Omission to take oath does not affect admissibility of the evidence. However, it is desirable that the judges and magistrates should always record their opinion that the child understands the duty of speaking truth and state why they think that, otherwise credibility of the witness may be seriously affected. Therefore, it is evident that not administering oath will not render evidence of witness inadmissible. for far credibility of the evidence is conceded, the witness P.W. 8 has stated about coming of the Ram Babu Singh and Lakshuman Singh, distributing sweets among the family members. She also took sweets but it had no good taste and as such she threw it. She and other family members slept on the first floor in a room. The Appellants stayed in the ground floor in a room. At about midnight she woke up and saw Appellants and three others assaulting the deceased persons and also Aditya. She slept in the night and woke up on the next day and saw the dead bodies of the deceased persons and also Chhaya Devi, P.W. 5, who was alive. She was taken to the Hospital. She identified the persons in the dock. In cross-examination the witness stated that Appellants had come for the first time on the date of occurrence. They never came earlier. On question by the court the witness categorically stated that she was not knowing the name of the accused persons who assaulted. On the day of evidence Appellant Ram Babu Singh was present in the dock. However, the witness in her evidence named the Appellant Ram Babu Singh and Lakshuman Singh. It was pointed out that in such a situation naming the Appellants by the witness indicated that the witness was tutored as she was not knowing the name of the Appellants as they had come for the first time on the date of occurrence. It was also pointed out that evidence of the witness is not worthy of reliance on the point of assault as the witness stated that both the Appellants and three others were assaulting the deceased persons which is inconsistent with the evidence of P.W. 5 who stated that Appellant Ram Babu Singh and two others assaulted the deceased persons; It was also pointed out that after such incident it is not ex-pected that the person who had seen the occurrence will again sleep in the same room. It is true that evidence of child witness is notoriously dangerous as he is susceptible to be tutored but her entire evidence on the point raised by the learned Counsel for the Appellants is not required to be thrown out. The evidence of the witness on the point of coming/stay rig of the Appellants in the night of occurrence does not suffer from any vice and is corroborated by evidence of the witness.
P.W. 5 is also a child witness. Her evidence was recorded on 16.3.1999. Her age was recorded 11 years at the time of recording evidence. Therefore, she was aged about ten years at the time of occurrence. She was tested by the trial court and the court had certified that the witness understanding is good. The evidence of P.W. 5 is that on 11.1.1998 at about 6 P.M. she was watching TV. Her Mausa, Prabhunath Singh, P.W. 7 and her Mausi, deceased Anju Devi, came. Prabhunath Singh returned to Muzaffarpur and Anju Devi stayed there. Her uncle Lakshuman Singh and his son Ram Babu Singh also came and stayed in the ground floor in the night. Food was offered to Lakshuman Singh but he refused to eat. Ram Babu Singh came on the first floor and gave sweets to eat. Deceased Kanchan and Aditya did not take sweets. She ate sweets but it had no good taste and as such she threw the sweets. After taking sweets all the family members slept in the night. At about mid night she woke up. She saw Ram Babu Singh and two others having sharp cutting weapon in their hand. They assaulted her Mausi Anju Devi, her mother, her father, her sister Mamta Kumari, Kanchan Kumari, brother Aditya Raj. They also assaulted Bharti, P.W. 8 but she Was alive. She out of fear slipped beneath the table and was watching the occurrence. The assailants after assault left the place. She slept there. She woke up on the next day at about noon. She tried to awake her Mausi, Mami and Papa but she found them dead. Manju @ Mamta, Kanchan, Aditya had also bleeding injury. She came down and opened the door and called Vinod Jee who was living near her house. Raj Kumar took her to the Doctor. Her statement was recorded by the police and she disclosed the names whom she had identified. She identified Ram Babu Singh in the dock and claimed to identify Lakshuman Singh. In cross-examination the witness stated that her father had two brothers. Her father was the youngest. She had four sisters and one brother. Mamta was the eldest. She did hot know how many sons and daughters Lakshuman Singh had. However, she stated that her uncle had two sons, namely, Ram Babu Singh and Rakesh Singh. She had no knowledge as to whether Ram Babu Singh and Rakesh Singh had been married. She had gone to the house of Ramk Babu Singh. She was reading in class III at the time of occurrence and Mamta, the deceased, was reading In class VIII. She did not know that her father was married twice. Her uncle Lakshuman Singh and his son used to come at her house. She had no knowledge that there was any land dispute between her father and Lakshuman Singh. When hot Mausi, Anju Devi, had come Lakshuman Singh and Ram Babu Singh were at he book shop. At about P.M. Ram Babul Singh had distributed sweets and they I had taken sweets. Her mother and Mausl had taken bread in the night. Ram Babu Singh had taken food in the night. Shi did not remember when her'' mother and Mausl had gone to sleep. She was sleeping with her mother, father and brother, Kanchan, her Mausi Mamta and Bharti were sleeping en one bed. She did not remember that her mother had closed the door. Electric bulb was burning in the room. When Ram Babu Singh was assaulting her Mausi she sliped beneath the table which was kept south of the Plung (cot). She had seen injuries on the person of the deceased persons. Blood had fallen on the ground. There was only one passage for coming and going in her house and Hari Nath Jewellers. Her statement was recorded by the police in the evening of 12.1.1998. At the time of committing occurrence Ram Babu Singh had not concealed his face. Suggestion was given to the witness that no occurrence took place in the manner as alleged and the Appellants have been falsely implicated out of land dispute which she denied.
P.W. 12 is Doctor who held postmortem over the dead body of deceased Vijay Singh on 12.1.1998. He found incised wound on the person of the deceased. He opined that time elapsed since death was within 24 fours. Death was due to shock and hemorrhage due to injuries found on the person of the deceased. The injuries were caused by sharp cutting weapon. He found semi digested food in the stomach. P.W. 13 held postmortem over the dead body of deceased Kanchan Kumari aged about 7 years and Indu Devi on 12.1.1998. He found incised injuries on the person of the deceased. He found semi digested food In the stomach. Time elapsed since death was 24 hours. Death was due to shock and haemorrhage due to the injuries found, on the person of the deceased, which was sufficient to cause death in ordinary course of nature. Injuries were caused by sharp cutting weapon. P.W. 14 held postmortem over the dead body of Anju Devi on 12.1.1998. He found incised wound on the person of the deceased. He found semi digested food in the stomach. Injuries were caused by sharp cutting weapon. Time elapsed since death was 24 hours. Death was due to shock and haemorrhage due to the injuries found on the person of the deceased. P.W. 19 held postmortem over the dead body of Mamta Kumari aged about 15 years on 12.1.1998. He found incised wound on the person of the deceased. He found semi digested food in the stomach. Injury was caused by sharp cutting weapon. Death was due to the shock and haemorrhage due to the injury found on the person of the deceased. Time elapsed since death was 24 hours. The doctor also examined Aditya Raj and Miss Bharti on the same day i.e. 12.1.1998. He found grievous incised wound on their persons. Injuries were caused by sharp cutting weapon. Injuries were caused within 24 hours. Aditya Raj died in the Hospital but no postmortem was held.
P.W. 16 is the Inspector of Police. He only recorded the fardbeyan of the informant in presence of witnesses. P.W. 17 is the Investigating Officer. He took charge of the case on 12.1.1998. He inspected the place of occurrence. Place of occurrence was double strayed house. On the first floor there was room on the southern side. The room was 25 feet long. There was a stair in the northern side of the room which goes to the bath room. In the bath room there was a door in the eastern side fitted with planks which opens in the lane and goes to the main road. He found the said door opened from inside. He also found a separate stair which goes on the room of first floor. This stair is used for going to first floor from ground floor. There was a corridor which opens on the main road in which grill was fitted. This corridor was used by deceased Vijay Singh and Hari Nath Jewellers. In the east of the corridor there was a room. In the room there was door but it had no plank. In the said room the Appellants stayed in the night. He found two cots with bed in the said room. The shop of Vijay Singh was adjacent to the corridor. k In the room where occurrence was committed he found copious of blood on botli the beds and beneath the Plung. The deceased were found on two Plungs. He found injuries on the person of deceased and also on the person of Adity Raj and Bharti. Aditya Raj and Bharti were taken to the hospital; He found utensils, gas stove in the said room. He found bread and vegetables in plastic bag. He also found cooked rice and vegetables kept in the pot. He also found empty packet on which "Swadist Mithaiyan" was printed. He seized those articles and prepared seizure list. He also seized blood stained Muffler in presence of witnesses. He prepared inquest report in presence of witnesses. During investigation he seized Fiat car at Gorakhpur which was in the name of Smt. Babita Singh wife of Rakesh Kumar Singh son of Lakshuman Singh, the Appellant. He handed over charge to Gorakh Nath Singh, Sub inspector of Police,_P.W. 18. In cross-examination the witness stated that at the time of recording fardbeyan by P.W. 16 he was dispursing the mob from the place of occurrence. He was not at the place where fardbeyan was being recorded. However, he stated that P.Ws. 5 & 8 were present at the time of recording fardbeyan. When he reached the place of occurrence he found the grill gate opened and also back door of the house in the southern side opened. He did not seize the bed on which the Appellants stayed in the night. The room where occurrence was committed is on the first floor. He found door of the room opened. He did not find window etc. broken. He found blood on both the plungs and beneath the plungs. He did not seize blood stained bed. He did not send food etc. for test. He went to Gorakhpur and found the car which was used for committing offence. He wrote for recording statement of the witnesses u/s 164, of the Code of Criminal Procedure. He recorded the statement of Chhaya Kumari in the hospital. He recorded the statement, of Binod Sah, P.W. 2, P.W. 18 is also a police officer who took charge from P.W.: 17. The statement of P.Ws. 5 & 8 was recorded u/s 164 of the Code of Criminal Procedure in the Court. Accused Subhas Ram had given confessional statement which was noted in the diary. He submitted charge-sheet.
From the evidence as discussed above it is obvious that P.Ws. 5 and 8 are only witness on the point of occurrence. They are child witnesses. They have given details of occurrence on material points. Even if the evidence of P.W. 8 is kept aside on the points raised by learned Counsel for the Appellants, the evidence of eye witness, P.W. 5 appears to be trustworthy. The witness has given vivid picture of occurrence. Nothing was pointed out of disbelieve her evident Her evidence is corroborated by the evidence of Doctors, P.Ws. 12, 13, 14 & 19 who found incised wounds on the person of the deceased which were caused; by sharp cutting-weapon. The time of committing offence is also corroborated by the evidence of the Doctor as they have opined that time elapsed sine death was 24 hours which fits in with the prosecution case. P.W. 19 examined Aditya Raj and Bharti, P.W. 8, who found incised wound on their persons which corroborates the weapon used in commission of the crime as disclosed by the eye witness, P.W. 5. The evidence of eye witnesses is also corroborated by the evidence of Investigating Officer, P.W. 17, who has given detailed narration of the place of occurrence which indicates that persons in the house had committed the offence by using the back door connected with room where occurrence was committed after opening said door. He found dead bodies in the room of the first floor as disclosed by the eye witnesses. He found blood on the beds and beneath Plung. He also found empty sweets packet, and some food. The findings by the Investigating Officer at the place of occurrence corroborates the prosecution case and proves place of occurrence.
Learned Counsel for the Appellants, however, contended that Appellants are innocent. They have falsely been implicated in the case out of enmity. Some outsiders had committed the offence as the back door of the house was found open. It is not in dispute that the person were killed in a room on the first floor where they were sleeping in the night. The Appellants had come on 11.1.1998 in the evening and stayed in the house in the night on the ground floor. The evidence of eye witnesses to the aforesaid effect has been corroborated by independent witness, P.W. 2, who had stated that he had seen the Appellants in the evening of 11.1.1998 sitting in the shop of Vijay Singh. P.W. 7 the husband for deceased Anju Devi had also stated to the aforesaid effect, P.Ws. 1, 6 & 10 carne at the place of occurrence and f learnt from P.W. 5 that Appellants had come in the evening of 11.1.1998 from Gorakhpur and they stayed in the night in the house. Therefore, it is evident that Appellants were in the house of the deceased Vijay Singh in the night of occurrence. P.W. 17 the Investigating Officer has given vivid picture of the place of occurrence. He in his evidence stated that he found a stair in the room where the occurrence was committed which goes to the ground floor and is connected with bath room. In the bath room there was a door fitted with plank which opens in the lane. There was provision for closing the door from inside. The said door was found open from insidie. He also found a stair connected with first floor from corridor on the ground floor. In the corridor there was a room in which the Appellants had stayed in the night. He found bed etc. in the said room. North of the corridor there was a door. However, the grill was fitted there which was used jointly by deceased Vijay Singh and Harinath Jewellers. It has come in evidence that grill was locked up and keys remain with Vijay Singh and Harinath Jewellers. There is nothing on the record that said door was not locked up in the night of occurrence. There is no evidence on the record that any other person had stayed in the night in the said house. It is thus evident that the persons who were in the house had committed the offence. It is evident that it was easy for the persons who were staying in the ground floor to go through the stair on the first floor and they used the stair in the room which goes to the bath room and opened the door foreside and committed the offence. In case any outsider would have entered through the said door of the bathroom there would have marks of violence on the plank of the door but the Investigating Officer did not find such marks of violence on the plank of the door. The circumstances, as indicated above, fully indicate that, the persons staying in the house have committed the offence. There is nothing on the record to show that any other person except the Appellants stayed in the house in the night of occurrence. The circumstances indicated above fully corroborate the evidence of eye witnesses and as such contention of learned Counsel for the Appellants has no substance at all.
Learned Counsel for the Appellants next contended that the evidence of P.W. 5 cannot be relied upon as in the fardbeyan there is nothing that P.W. 5 disclosed to the informant, P.W. 10, that she had seen the occurrence of assault. If at all P.W. 5 had seen the occurrence of assault in natural course, she would have disclosed the said fact to the informant. P.W. 10 is not the eye witness to the occurrence. He is hearsay witness and has claimed to have learnt about the occurrence from P.W. 4. If at all there is any discrepancy in the evidence of P.W. 10, the same cannot be taken in view of the fact that Chhaya Kumari who disclosed about the occurrence herself has been examined as P.W. 5 and she narrated the incident as an eye witness. She was cross-examined at length but nothing could be elicited to doubt her evidence. In such a situation non-mentioning by P.W. 10 about disclosure by P.W. 5 about assault by the Appellants does not carry any weight as the person who disclosed i.e. P.W. 5 herself has given detailed picture of occurrence and her evidence cannot be dated on the said ground. Moreover, the statement of P.W. 5 was recorded in the evening of 12.1.1998 soon after recording fardbeyan of P.W. 10 Nothing has been put to the witness that her evidence is inconsistent to the statement before the police. Therefore, on consideration the contention of learned Counsel for the Appellant has no leg to stand.
Learned Counsel for the Appellants further pointed out that P.W. 5 stated in her evidence that she woke up and came down on the ground floor, opened the door and called Binod Jee, P.W. 2, did not say that he was called by P.W. 5 rather he learnt about the occurrence at 3.30 P.M. According to the learned Counsel for the Appellants, to such a situation, the evidence of P.W. 5 is fit to be rejected. In this connection K would be pertinent to mention herein that evidence as pointed out is not with respect to point of occurrence and merely because the said piece of evidence is not corroborated by P.W. 2 it cannot be said that her evidence is fit to be rejected. More-over, such type of omission/contradiction is flimsy in nature and the same will not affect the prosecution case.
Learned Counsel for the Appellants further contended that it has been stated by P.W. 17 the Investigating Official that at the time of recording fardbeyan of P.W. 10 by P.W. 16, P,Ws. 5 & 8 both were present but case was not initiate on the fardbeyan of P.W. 5 or P.W. 8 which indicates false implication of the Appellants. The contention of learned Counsel for the Appellants has no leg b stand as P.W. 17, the Investigating officer, has categorically stated that fardbeyan was recorded by P.W. 16. At that time he was dispersing the mob from the place of occurrence. He was not present where the fardbeyan was being recorded by P.W. 16. In such a situation submission of learned Counsel for the Appellants does not carry any weight. Moreover, laches on the part of police official would not affect the prosecution case. In the case of State of Rajasthan Vs. Kishore, the Apex Court has held that irregularity committed by the Investigating Officer cannot be a ground for throwing out the prosecution case. Thus the submission of learned Counsel for the Appellants has no force at all.
Learned Counsel for the Appellants further pointed out that name of Appellant Lakshuman Singh as assailant has been disclosed only by P.W. 8 whose evidence is not worthy of reliance and as such conviction of Appellant Lakshuman Singh is not justified. In this connection it would not be out of place to mention herein that even if evidence of P.W. 8 is kept aside P.W. 5 has categorically stated that both the Appellants had come in the evening of 11.1.1998 with sweets and they distributed sweets among the family members. They stayed in the room in the ground floor in the night. The evidence on the aforesaid point has been corroborated by P.Ws. 2, 6 & 7 who had seen the Appellants in the evening of 11.1.1998 at the house of deceased Vijay Singh. Other witnesses, P.Ws. 1, 8 & 10 also stated in their evidence that when they came at the place of occurrence P.W. 5 disclosed about arrival of the Appellants in the evening and their stay at the night in the house. Charge has been framed against a Appellant Lakshuman Singh for the of fence u/s 302/120.B I.P.C. i.e. I commission of offence in conspiracy with others. The trial court has also taken care of the situation and as such Appellant Lakshuman Singh was held guilty u/s 302/120B of the Indian Penal Code. Therefore, it cannot be said that there is any illegality/irregularity in finding of the trial court with respect to conviction of Appellant Lakshuman Singh.
Learned Counsel for the Appellants lastly raised a question with regard to quantum of punishment with respect to Appellant Ram Babu Singh who has been awarded capital punishment. It was pointed out that the prosecution case is based on the evidence of sole child eye witness, P.W. 5, and as such it would not be safe to award death sentence. In this regard it would not be out of place of mention herein that Code of Criminal Procedure, 1973 came into force with effect from 1st April, 1974. Prior to coming into force of the Code of Criminal Procedure, 1973 sentence of death or imprisonment for life was normal sentence in case of murder and certain other offences under the Indian Penal Code. In the Code of Criminal Procedure, 1973, Section 354(3) has been added which indicates change in the legislative policy. Section 354(3) says that when conviction is for the offence punishable with death or in the alternative imprisonment for life the judgment shall state reasons for sentence awarded and in case of sentence of death the special reasons for such sentence be recorded. Therefore, it is evident that in case of murder and other capital offences under the Indian Penal Code normal punishment is imprisonment for life and death penalty is an exception. The death sentence must be confined to rarest of rare cases when the alternative option is foreclosed. The aforesaid proposition has been laid down by the Apex Court in the case of Bachan Singh Vs. State of Punjab, There cannot be any hard and fast rule for awarding sentence. Question of sentence depends upon the facts and circumstances of each case. However, in the case of Rajendra Prasad Vs. State of Uttar Pradesh, in its majority judgment the Apex Court has held as follows:
It is not the number of deaths caused nor the sites of the stabs that is Jelling on that decision to validate the non application of its ratio. It is a mechanistic art which counts the cadavers to sharpen the sentence oblivious of other crucial criteria shaping a dynamic, realistic policy of punishment. Three deaths are regrettable, indeed terrible. But it is no social solution to add one more life lost to the list. In this view, we are satisfied that the Appellant has not received reasonable consideration on the question of the appropriate sentence. The criteria we have laid down are clear enough to point to the softening of the sentence to one of life imprisonment. A family feud, an altercation, a sudden passion, although attended with extra ordinary cruelty, young and malleable age, reasonable prospect of reformation and absence of any conclusive circumstances that the assailant is a habitual murderer or given to chronic violence--these catena of circumstances bearing on the offender call for the lesser sentence.
In the instant case the Appellants and the prosecution party both belong to one family. The Appellants were residing it Gorakhpur and the prosecution party vas living at Hajipur. There was dispute or share between the parties. Appellants very claiming share in the property of Hajipur and prosecution party was claim-rig share in the property of Gorakhpur. Thus to the aforesaid reason offence is alleged to have been committed. Nothing has come on the record that the Appellants were hardened criminal, habitual murderer or they were menace to the society.
Thus in the circumstances, I am of the the view that the Appellant Ram Babu Singh deserves lessor sentence. Accordingly, sentence of death awarded Ram Babu Singh is converted into life Imprisonment. Both the appeals are dismissed with modification in the sentence as indicated above. Death Reference is answered accordingly. However, sentences awarded shall run concurrently.
A.K. Sinha, J.
I agree.