Suresh (in Jail) vs State of U.P.

The condemned prisoner Suresh has preferred this appeal against judgment and order dated 30.5.2002, passed by Sri J. P. Gupta, the learned Sessions Judge, Aligarh in Sessions Trial No. 393 of 2000 convicting the Appellant u/s 302, I.P.C. and sentencing him to extreme penalty of death. The Sessions Judge has also made a reference for confirmation of death sentence.

The prosecution story, briefly stated, is as under:

Appellant Suresh was resident of village Rayatpur, Bahadurpur P.S. Iglas, district Aligarh. Sayeed (35) deceased was also resident of said village. Smt. Sabira (P.W. 1) was wife of Sayeed. Mubin (10) deceased was son of Sayeed and Smt. Sabira (P.W. 1). Sayeed deceased along with his wife Smt. Sabira (P.W. 1) and sons Mubin deceased and Yameen was residing in Mohalla Mahfooz Nagar, P.S. Delhi Gate, District Aligarh and was earning his livelihood by running a buggi (cart driven by horse).

Prior to 15 days of the occurrence of this case Appellant Suresh had come to the quarter of Sayeed and was residing there. Sometimes he took his meals at the house of deceased and sometime in a hotel. Appellant had borrowed a sum of Rs. 400 from Sayeed, which he was not paying to him despite of repeated demands. On the evening of 4.11.1999 the Appellant again demanded money from Sayeed, which he refused to pay saying that he had not paid previous money. On account of it the Appellant had grudge with Sayeed.

On the night of 4/5.11.1999 Sayeed deceased was sleeping in his room. Smt. Sabira (P.W. 1) was also sleeping in said room on another charpai, Suresh Appellant was sleeping in verandah. Mubin deceased, elder son of Sayeed was also sleeping in verandah near Suresh Appellant. At about 3.00 a.m. Smt. Sabira (P.W. 1) heard the shrieks of Sayeed. She awoke and saw that Appellant Suresh was inflicting blows by Banka on Sayeed deceased. When Smt. Sabira (P.W. 1) tried to save her husband she was also assaulted by the Appellant, Mubin raised alarm and Suresh assaulted him also and thereafter ran away. Hearing hue and cry of Smt. Sabira and Mubin, Nizam (P.W. 2), Safia alias Safi Mohammad (P.W. 3) Muma and others rushed to the spot. Sayeed died on the spot.

Smt. Sabira (P.W. 1) got prepared report of the occurrence Ext. Ka-1 from one Arif and sent the same through Zafaruddin to police station, Delhi gate. On the basis of report (Ext. Ka-1) constable clerk Virendra Singh (P.W. 5) prepared chick report (Ext. 4) at 4.15 a.m. and made an endorsement of the same at G.D. report (Ext. Ka-5) and registered a case u/s 302/307, I.P.C. against the Appellant.

Investigation of the case was taken up by Sri Ahibaran Singh Arya (P.W. 6). He reached the spot. Smt. Sabira (P.W. 1) and Mubin deceased were lying injured whom he sent to M.S. Hospital, Aligarh through Dharmendra Singh Sub-Inspector. The Investigating Officer conducted inquest of the dead body of Sayeed and sent the same for post-mortem. The Investigating Officer took into possession blood stained and simple earth from the spot.

Injuries of Mubin and Smt. Sabira (P.W. 1) were examined on 5.11.1999 at 4.30 and 4.40 a.m. respectively by Dr. A. K. Gupta (P.W. 4).

Autopsy on the dead body of the deceased was conduced on 5.11.1999 at 3.30 p.m. by Dr. A. K. Gupta (P.W. 4) who found three incised wounds on neck and head and cause of death due to shock and haemorrhage.

Mubin was shifted to J. M. Medical College, Aligarh where he succumbed to his injuries on 5.11.1999 at 6.30 a.m. The Investigating Officer came to the said hospital and conducted inquest of the dead body of Mubin deceased and sent it for post-mortem.

The autopsy on the dead body of Mubin deceased was conducted on 5.11.1999 at 3.40 p.m. by Dr. A. K. Gupta (P.W. 4) who found six stitched wounds as ante-mortem injuries, and cause of death due to coma and haemorrhage.

The Investigating Officer again came to the spot, interrogated witnesses, visited place of occurrence and prepared site plan.

The Appellant surrendered in the Court of C.J.M., Aligarh on 20.11.1999. The Investigating Officer interrogated him on 24.11.1999. The Investigating Officer took police custody remand of the Appellant Suresh for two days on 1.12.1999. On 3.12.1999 at 4.15 p.m. ''banka'', weapon of assault, was recovered on the pointing out of the Appellant from bushes of ''moonj'' in the field of Malkhan Singh at Mahfooz Nagar. On completion of investigation the Investigating Officer submitted charge sheet against the Appellant.

Cognizance of the case was taken by the Magistrate who committed the case to the Court of Sessions.

The Appellant was charged and tried for the offence punishable u/s 302, I.P.C. He pleaded not guilty and contended that he was falsely implicated on account of enmity.

The prosecution, to prove its case, examined Smt. Sabira (P.W. 1) Nizam (P.W. 2), Safia alias Shafi Mohammad (P.W. 3), Dr. A. K. Gupta (P.W. 4), Constable Virendra Singh (P.W. 5) Ahibaran Singh, Investigating Officer (P.W. 6). The Appellant did not adduce any evidence in his defence.

The learned Sessions Judge on considering the evidence of the prosecution held that the prosecution has successfully proved that the Appellant committed murder of Sayeed and Mubin and was liable for the offence punishable u/s 302, I.P.C. With these findings he convicted and sentenced the Appellant as mentioned above.

Aggrieved with his above conviction and sentence the Appellant preferred this appeal. The learned Sessions Judge has also made a reference for confirmation of death sentence awarded by him.

We have heard Sri Dharmendra Singhal, learned Counsel for the Appellant and learned A.G.A. for the Respondent and have perused the evidence on record.

Before examining the contention raised by the learned Counsel for the parties, it is necessary to briefly refer to the evidence adduced by the prosecution.

Dr. A. K. Gupta (P.W. 4) examined injuries of Smt. Sabira (P.W. 1), and Mubin deceased. He also conducted autopsy on the dead bodies of Sayeed and Mubin deceased on 5.11.1999. He stated that he examined injuries of Smt. Sabira (P.W. 1) on 5.11.1999 at 4.40 a.m. at Malkhan Singh Hospital, Aligarh and found following injuries on her person:

(1) Incised wound 8 cm. - 1 cm. muscle deep over right cheek just lateral to right angle of mouth.

(2) Incised wound 3 cm. - 1 cm. - muscle deep on right neck upper part.

(3) Incised wound 2 cm. - 1 cm. - muscle deep over back of right elbow joint.

The injuries were simple in nature caused by sharp edged object and fresh in duration.

He examined Mubin (while he was alive) on 5.11.1999 at 4.30 a.m. and found following injuries on his person.

(1) Incised wound 10 cm. - 4 cm. - bone deep on left side neck.

(2) Incised wound 4 cm. - 1 cm. - bone deep on left side head 4.5 cm. above left ear.

(3) Incised wound 6 cm. - 2 cm. - bone deep on left side head 2 cm. above injury No. (1).

(4) Incised wound 2.5 cm. - 1 cm. - bone deep on left side head 2 cm. behind to injury No. 3.

(5) Incised wound 2 cm. - 1 cm. - bone deep on back of head 1.5 cm. behind injury No. 4.

(6) Incised wound 3 cm. - 1 cm. - bone deep over palmer and inner aspect of right ring finger.

(7) Incised wound 2 cm. - 1 cm. - bone deep on muscle deep on inner half of right palm.

All injuries were caused by sharp edged object, fresh in duration, kept under observation except injury Nos. 6 and 7 which were simple.

He conducted autopsy on the dead body of Sayeed (30) on 5.11.1999 at 3.30 p.m. and found following ante-mortem injuries on his person:

(1) Incised wound 4 cm. - 1 cm. - muscle trachea cut on left side neck lower part. All blood vessels and trachea found cut.

(2) Incised wound 4 cm. - 1 cm. - muscle deep on left side neck 2 cm. above injury No. 1.

(3) Incised wound 3 cm. - 0.8 cm. - scalp deep over left side back of head 10 cm. away from left ear.

Internal examination showed that trachea was cut, large vessels were cut under injury No. 1. Stomach contained 2 ounce pasty food. Small intestine contained fluid and gasses and large intestine contained faecal matter. The doctor opined that cause of death was shock as a result of ante-mortem injuries.

He further stated that he conducted autopsy on the dead body of Mubin deceased aged about 10 years on 5.11.1999 at 3.40 p.m. found following ante mortem injuries on his person:

(1) Stitched wound 12 cm. over left side neck lower part.

(2) Stitched wound left side head 4 cm. length 10 cm. above left ear.

(3) Stitched wound 4 cm. over back of left side head 11 cm. behind left ear.

(4) Stitched wound 3 cm. over back of head in mid line.

(5) Stitched wound 4 cm. over inner aspect and palmer aspect of right finger.

(6) Stitched wound 3 cm. over inner aspect of palmer side of right hand.

Internal examination showed fracture of left occipital and parietal bones. Membranes were lacerated. Clotted blood present in the brain over left hemisphere. Stomach contained 2 ounces pasty material. Small intestine contained food and gasses and large intestine contained faecal matter, cause of death was coma as a result of ante-mortem head injury.

Constable Virendra (P.W. 5) prepared chick F.I.R. (Ext. Ka 4) on the basis of written report (Ext. Ka-1) on 5.11.1999 at 4.15 a.m. and registered a case against Appellant u/s 302, I.P.C. by making endorsement in G.D. report (Ext. Ka-5). Ahibaran Singh Arya (P.W. 6). is the Investigation Officer who visited spot after registration of case, sent Sabira (P.W. 1) and Mubin deceased to Malkhan Singh Hospital. Aligarh for medical examination and treatment. Conducted inquest on the dead body of Sayeed deceased and sent the dead body for post-mortem. He also took into possession blood stained and simple earth from the spot. He came to Hospital and conducted inquest on the dead body of Mubin and sent dead body for post-mortem. He interrogated Sabira (P.W. 1) and other witnesses and prepared site plan. He also took police custody remand of Appellant and on his pointing out recovered ''banka'' (weapon) of assault and on completion of investigation challaned Appellant.

Coming to ocular testimony Smt. Sabira (P.W. 1) wife of Sayeed and mother of Mubin deceased stated that Appellant Suresh was well known to her. He was resident of her village. The Appellant was residing at her house (in Aligarh city) for last 15 days of the occurrence. Sometimes, he took meals at her house. Her husband had advanced a sum of Rs. 400 to the Appellant. She and her husband demanded back their money from the Appellant but he did not. On the evening of 4.11.1999 Appellant again demanded money from her husband, which he refused. On account of it Appellant started bearing grudge. On the night of 4/5.11.1999 her husband Sayeed deceased was sleeping in his room on a charpai. Her son Mubin and Yameen were also sleeping. At about 3.00 a.m. the Appellant started inflicting ''gandasa'' blows on her husband. She tried to save him. Appellant inflicted ''gandasa'' blow on her and her son Mubin, who were badly injured. On her alarm Suleman and Munna and others came to the spot. Police and mohalla people took Mubin to Hospital. Mubin died at about 8 a.m. She dictated report (Ext. Ka-) to Arif.

Nizam (P.W. 2) stated that he was knowing Sayeed deceased who was residing in his Mohalla after one house of his house. His wife Sabira and his children were also residing with him. His one son Mubin was also residing with him. On the night of occurrence at about 3 a.m. he reached the house of Sayeed on the alarm of his (Sayeed''s) wife Sabira. Wife of Sayeed who was also injured told that Suresh Appellant who was residing at her house caused injuries to Sayeed and Mubin by gandasa. Mubin who was alive also told that Suresh cut him and his father by gandasa. He had seen Suresh residing in the quarter of Sayeed for last 15 days.

Safia alias Safi Mohammad (P.W. 2) stated that Appellant Suresh was residing for last 15 days at the house of Sayeed. On the night of occurrence about 4-5 a.m. he reached the house of Sabira on the alarm. Electric light was there. He saw that Sayeed and his son Mubin were lying injured and Sabira was crying that Suresh killed Sayeed and Mubin. Sabira was also injured.

The case of Appellant was of total denial and false implication on account of village enmity.

The death of Sayeed and Mubin and injuries on the person of Sabira (P.W. 1) is not disputed. There is no challenge to medical evidence of Dr. A. K. Gupta (P.W. 4). His evidence established that Sayeed and Mubin deceased died due to shock and comma respectively on account of ante-mortem incised wounds caused by edged object like ''banka'' and that Sabira (P.W. 1) sustained incised wounds caused by sharp edged object.

It is also not disputed that occurrence took place in the night of 4/5.11.1999 at about 3 a.m. in the quarter of Sayeed situated in Mohalla Mahfoj Nagar, P.S. Delhi Gate, Aligarh City. The evidence of Sabira (P.W. 1), Nizam (P.W 2) and Safi (P.W. 3) on the date, time and place of incident is unchallenged. The Investigating Officer found dead body of Sayeed as well as injured Sabira (P.W. 1) and Mubin at the place of occurrence. He also found blood on the spot. Therefore, date, time and place of occurrence has also been established by the prosecution.

Undisputedly, Sayeed deceased was original resident of village Bahadurpur, P.S. Iglas district Aligarh, Suresh Appellant was also resident of said village. It is alleged that Suresh Appellant was residing at the quarter of Sayeed accused in Aligarh city from before 15 days of the occurrence. Sabira (P.W. 1), Nizam (P.W. 2) and Safia alias Safi (P.W. 3) have testified this fact and there is no challenge of their evidence on this point. The Appellant had admitted in his statement u/s 313, Code of Criminal Procedure, that he and Sayeed deceased were resident of village Bahadurpur (Rayatpur) P.S. Iglas. However, he denied that he was residing at the quarter of Sayeed in Aligarh City but Sabira (P.W. 1), Nizam (P.W. 2) and Safia alias Safi (P.W. 3) have stated that they had seen Suresh Appellant residing with Sayeed and Sabira (P.W. 1) from before 15 days of the occurrence of the case. The above witnesses reside near the house of Sayeed and there is nothing on record to show that they had any reason to depose falsely against the Appellant.

The motive for the offence alleged by the prosecution was that Suresh Appellant had borrowed a sum of Rs. 400 from Sayeed which he was not paying back. Suresh Appellant again demanded more money from Sayeed on the evening of 4.11.1999 but Sayeed refused to pay saying that he had not paid back previous loan. On account of it Suresh was having grudge. It was argued by the learned Counsel for the Appellant that the motive alleged by the prosecution was very weak and on account of it the Appellant could not commit murder of two persons.

Different persons react differently in a given situation. How, the Appellant took the refusal by Sayeed deceased to give money to him cannot be measured on any thermometer nor the prosecution could lead evidence on this point. Some person takes a small thing very seriously and some person take a serious matter lightly. Therefore, weakness of motive is no ground to doubt the prosecution case.

Moreover, the prosecution has relied on eye-witness account of Sabira (P.W. 1) and therefore, weakness of motive is immaterial for this case.

The occurrence in this case took place on the night of 4/5.11.1999 at about 3.00 a.m. and the report of the occurrence was lodged at 4.15 a.m. in the same night while the distance of police station was about two kms. The report was thus lodged promptly.

The learned Counsel for the Appellant contended that informant Sabira (P.W. 1) was injured and her husband had died and, therefore, she was not in a position to dictate report to scribe Arif and Arif was not examined. Therefore, report was ante-timed.

The scribe Arif is resident of same mohalla and his arrive at the house of Sayeed after the incident was natural and probable. The lodging of report at 4.15 a.m. is further proved by the evidence of Sri Ahibaran Singh Arya Investigating Officer (P.W. 6) and Dr. A. K. Gupta (P.W. 4). Ahibaran Singh (P.W. 6) stated that after registration of the case at the police station at 4.15 a.m. he took up investigation and reached with police force at the house of Sayeed deceased. Sabira (P.W. 1) and Mubin were lying in injured condition. He sent them to Malkhan Singh Hospital through Sub-Inspector Dharmendra Singh for medical examination. Dr. A. K. Gupta (P.W. 4) stated that he examined injuries of Mubin on 5.11.1999 at 4.30 a.m. and that of Smt. Sabira (P.W. 1) on same day at 4.40 a.m. Medical examination of Mubin and Sabira injured at 4.30 a.m. and 4.40 a.m. respectively on 5.11.1999 confirms the lodging of the F.I.R. at 4.15 a.m. on 5.11.1999.

It is true that Arif the scribe of the report was not examined by the prosecution but no adverse inference can be drawn for non-examination of the scribe. The scribe was not an eye-witness. He did not see the incident and did not know who were present or who the assailants were. He only scribed what was told to him by Sabira (P.W. 1). Since Arif was not an eye-witness to the incident there was no necessity to examine him. He could have not stated whether the Appellant was present or not. Therefore, no prejudice has been caused to the Appellant vide Anil Kumar Vs. State of U.P.,

The next contention of the learned Counsel for the Appellant was that no witness was named in the F.I.R. and Smt. Sabira (P.W. 1) introduced in her evidence that on her shrieks Suleman, Munna and others of the Mohalla came to the spot but neither Suleman nor Munna were examined. That Nizam (P.W. 2) and Safi alias Safia (P.W. 3) had admitted that they had not seen the occurrence and, therefore, sole testimony of Sabira (P.W. 1) is not sufficient to base conviction of the Appellant.

The law regarding reliability of sole witness is well-settled. The Apex Court held in the case of Amar Singh Vs. Balwinder Singh and Others, , as below:

It is true that the witness essential to the unfolding of the narrative on which the prosecution is based must be called by the prosecution whether the effect of their testimony is for or against the case of the prosecution. However, that does not mean that every one who has witnessed the occurrence, whatever their number be, must be examined as a witness.

...The contention raised by learned Counsel fails to take notice of Section 134 of Evidence Act, which provides that no particular number of witnesses shall in any case be required for the proof of the any fact. A similar contention has been repelled by this Court in a very illustrating judgment in Vadivelu Thevar Vs. The State of Madras, and it will be useful to take note of para 11 of the report which reads as under:

...The contention that in a murder case the Court should insist upon plurality of witnesses is much too broadly stated. The Indian Legislature had not insisted on laying down any such exception to the general rule recognised in Section 134 which by laying down that "no particular number of witnesses shall in any case be required for the proof of the any fact" has enshrined the well recognised maxim that "evidence has to be weighed and not counted". It is not seldom that a crime has been committed in the presence of only one witness, leaving aside cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon the plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime would go unpunished.

The above quoted principle was laid/reiterated in the case of Ramratan and Others Vs. The State of Rajasthan,

In the case in our hands, the occurrence of murder of Sayeed and assault on Sabira (P.W. 1) and Mubin took place in odd hours of night at about 3 a.m. when generally people were sleeping. The occurrence took place inside the room where Sayeed deceased and his wife Sabira (P.W. 1) were sleeping. The incident of assault on Mubin took place in verandah of the house of deceased. It is in the evidence that Sayeed and Sabira (P.W. 1) were sleeping in the room and Mubin and Suresh Appellant were sleeping in verandah of said room. Younger son of Sabira was sleeping along with Mubin. Sayeed and Mubin died. Thus, the crime was committed in the presence of only one witness Smt. Sabira (P.W. 1). Presence of witnesses other than inmates of the house and persons sleeping in the verandah was not possible. The people of the locality could come to the spot on hearing shrieks of injured witnesses. This happened in this case that Nizam (P.W. 2) and Safi alias Safia (P.W. 3) came to the spot on hearing shrieks of the injured persons. In the above facts and circumstances of the case, not examining of other witnesses was not fatal to the prosecution case. Smt. Sabira (P.W. 1) is injured witness. Medical evidence of Dr. A. K. Gupta (P.W. 4) proved that she sustained injuries in the same transaction in which Sayeed and Mubin deceased sustained injuries. Besides being injured Smt. Sabira (P.W. 1) is most natural witness as she being the wife of Sayeed deceased and mother of Mubin deceased must be present in the house specially in the night.

The testimony of Sabira (P.W. 1) further finds support from the evidence of Nizam (P.W. 2) and Safi alias Safia (P.W. 3) who reached the spot on hearing her shrieks. These two witnesses are next door neighbours of Sabira (P.W. 1) and could easily reach the spot on hearing the shrieks of Sabira (P.W. 1). On reaching the house of Sayeed, Sabira (P.W. 1) who was injured told them that Suresh killed Sayeed and Mubin by a ''gandasa'', Mubin, who was also injured told them that Suresh, who was living with him, cut him and his father. Their above evidence of Nizam (P.W. 2) and Safi (P.W. 3) is admissible in evidence as res gestae u/s 6 of Indian Evidence Act as well as oral dying declaration of Mubin, who died subsequently and above statement of Mubin related to cause of his death.

Learned Counsel for the Appellant contended that Nizam (P.W. 2) and Safia alias Safi Mohammad (P.W. 3) were not named in the F.I.R. and the informant Smt. Sabira has not stated the presence of these witnesses on the spot. The non-mention of the name of above two witnesses in the F.I.R. is not fatal as they were interrogated by the Investigating Officer during investigation. It was held by the Apex Court in the case of Pammi @ Brijendra Singh Vs. Government of Madhya Pradesh, , as below:

It is a matter of appreciation of evidence and the mere fact that P.W. 1 in the injured condition did not mention the names of all the eye-witnesses when she gave first information statement is no ground to frown at the evidence of P.W. 2 and P.W. 4 (whose name was not mentioned in the F.I.R.). The High Court cannot be said to have gone wrong in action on the testimony of those two witnesses, which was subjected to rigorous cross-examination and no material has been elicited to doubt their presence. At any rate as it relates to appreciation of evidence, we are not taking a different view from what the High Court has taken about that.

We have also to take notice of the circumstances in which Smt. Sabira dictated report. In the incident of this case, her husband was killed and her elder son had sustained severe injuries. She was also injured. The report was dictated by her just after the occurrence. In these circumstances, it was not expected from her to dictate each and every details of the occurrence.

As such non-mention of name of above witnesses is no ground to discard their testimony.

It was further contended by the learned Counsel for the Appellant that Nizam (P.W. 2) and Safia alias Safi Mohammad (P.W. 3) have not told before the Investigating Officer that Smt. Sabira told that Suresh Appellant had murdered her husband Sayeed and caused injuries to her and her son Mubin. That above witnesses had also not told before the Investigating Officer that Mubin told them that Suresh Appellant had cut him and his father and the evidence of above witnesses in the Court is a subsequent development, and therefore, it cannot be relied on. It is true that according to evidence of Sri Ahibaran Singh Arya (P.W. 6) Investigating Officer, above witnesses have not told above facts before him, but if we consider their evidence in the light of facts and circumstances of the case, it would appear that Nizam (P.W. 2) had his hut (jhopari) just towards north of the house of deceased and Safia (P.W. 3) had his house adjacent towards west of the house of deceased. Incised injuries were caused to the deceased as well as Smt. Sabira (P.W. 1) and Mubin. In these circumstances, it was but natural for them to have raised alarm and next door neighbours could easily reach the spot on hearing the alarm. It was also natural for the above witnesses to have enquired as to what happened and why they were crying and on their query Sabira must have told the incident to them. Moreover, they have stated that the Investigating Officer had not enquired from them about above facts. As mentioned above, these witnesses were interrogated by the Investigating Officer. When Sabira was interrogated and it cannot be said that they were introduced for the first time during evidence and if they had appeared on the spot during course of occurrence, they could know the facts told by Smt. Sabira and therefore, on the above omission, their testimony cannot be discarded.

Statement of Smt. Sabira (P.W. 1) also finds full corroboration from medical evidence, F.I.R. dictated by her and other circumstances of the case. There is nothing in her cross-examination to discredit her testimony. Therefore, sole testimony of Smt. Sabira can be made basis for conviction.

Besides above, ocular and res gestae evidence there is also recovery of ''banka'' on the pointing out of the Appellant as stated by Ahibaran Singh Arya, Investigating Officer (P.W. 6).

The learned Counsel for the Appellant contended that the alleged recovery of ''banka'' is not believable because the witnesses Shamsul and Jagdish before whom alleged recovery was made were not examined and it is also not proved that there was human blood on the ''banka'' as it has not been sent to chemical examiner for test.

No doubt Shamsul and Jagdish before whom recovery of banka was made on the pointing out of the Appellant were not examined. But the factum of recovery of banka on the pointing out of Appellant is proved by the evidence of Ahibaran Singh Arya (P.W. 6) and as there is nothing in his cross-examination to discredit his testimony. So far not sending the banka to Chemical Examiner is concerned, it does not affect the recovery. The place where the banka was concealed was in the exclusive knowledge of the Appellant and its recovery on pointing out of Appellant is a circumstance, which goes against him.

From our above discussions and observations we find that the prosecution had successfully proved that Appellant Suresh was original resident of the village of deceased and for last 15 days of the occurrence, he was residing at the house of deceased and on account of refusal by the deceased to advance him money, he was bearing grudge with the deceased. That on the night of occurrence at about 3 a.m. he caused banka injuries on Sayeed. When Sabira (P.W. 1) and Mubin tried to save Sayeed deceased, they were also assaulted and in the said incident, Sayeed and Mubin lost their lives. Therefore, the prosecution had successfully proved the guilt of Suresh Appellant for committing murder of Mubin and Sayeed for the offence punishable u/s 302, I.P.C.

Although it is clear from the evidence on record that Appellant also committed murderous assault on Smt. Sabira, but neither charge u/s 307, I.P.C. was framed against him nor the trial court convicted him under said section. The State has also not preferred any appeal and therefore, we cannot add conviction of Appellant u/s 307, I.P.C. also.

Learned Counsel for the Appellant contended that assuming that the Appellant committed murder of Sayeed and Mubin and it was not rarest of rare case and extreme penalty of death could not be awarded in this case. He also placed reliance on various decisions of Apex Court in this connection.

Therefore, it is to be considered whether the case comes within the category of rarest of rare. The Apex Court held in the case of Om Prakash v. State of Haryana 1999 (2) ACrR 556 (SC) : 1999 SCC (Crl) 334, that it is true that the Court must respond to the cry of the society and to settle what would be a deterrent punishment for an abominable crime. It is equally true that a large number of criminals go unpunished thereby increasing criminals in the society and law losing its deterrent effect. It is also a truism as observed in the case of State of M.P. v. Shyamsunder Trivedi 1995 SCC (Crl) 715, that the exaggerated adherence to and insistence upon the establishment of proof beyond every reasonable doubt, by the prosecution, ignoring the ground realities, the fact situation and the peculiar circumstances of a given case often results in miscarriage of justice and makes justice delivery system a suspect, in the ultimate analysis, the society suffers and a criminal gets encouraged. Sometimes it is stated that only rights of the criminals are kept in mind, the victims are forgotten. Despite this it should be kept in mind that while imposing the rarest of rare punishment, i.e., death penalty, the Court must balance mitigating and aggravating circumstances of the crimes and it would depend upon particular and peculiar facts and circumstances of each case.

Dealing with this aspect in the case of Shanker v. State of Tamil Nadu 1994 SCC (Crl) 1252, the Apex Court observed as under:

The choice as to which of the two punishments provided for murder is the proper one in a given case Will depend upon the particular circumstances of that case and the Court has to exercise its discretion judicially and on well recognised principles after balancing all the mitigating and aggravating circumstances of the crime. The Court also should see whether there is something uncommon about the crime, which renders sentence of imprisonment of life inadequate and calls for death sentence. The nature of the crime and the circumstances of the offender should be so revealing that the criminal is a menace to the society and the sentence of imprisonment of life would be inadequate. The sentence of death should be reserved for the rarest of rare cases after a due consideration of both mitigating and aggravating circumstances. What circums-tances bring a particular case under the category of rarest of rare cases vary from case to case depending upon the nature of the crime, weapons used and the manner in which it is perpetrated etc.

A Constitutional Bench of the Supreme Court in the case of Bachan Singh Vs. State of Punjab, , the Apex Court after referring to aggravating circumstances held that the following mitigating circumstances are undoubtedly relevant circums-tances and must be given weightage in determination of sentence:

(1) * *

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.

The Apex Court further observed in the said case that there are numerous other circumstances justifying the passing of the lighter sentence ; as there are countervailing circums-tances of aggravation. ''We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undelating society.'' Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be blood thirsty Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency-a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high road of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception.

In Rajendra Prasad Vs. State of Uttar Pradesh, , in its majority judgment the Apex Court observed:

It is not the number of deaths caused nor the situs of the stabs that is telling 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 extraordinary 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.

Again in Anshad and Others Vs. State of Karnataka, it was observed that the number of persons murdered is a consideration but that is not the only consideration for imposing death penalty unless the case falls in the category of ''rarest of rare cases''. The Court must keep in view the nature of the crime and the brutality with which it was committed, the antecedents of the criminal, the weapons used etc. It is neither possible nor desirable to catalogue all such factors and they depend on case to case.

On testing the facts and circumstances of the present case as well as antecedent of the Appellant and manner in which the offence was committed, we find that cause of murder alleged by the prosecution was that the deceased failed to advance money to the Appellant on his demand on the evening of the occurrence. Except above motive no other motive has come in the evidence. The evidence of Smt. Sabira (P.W. 1) shows that the injuries to her and her son Mubin were caused by the Appellant when they tried to save Sayeed on whom the Appellant was inflicting ''banka'' blows. The learned Sessions Judge has also observed in his judgment that the Appellant committed brutal murder of Sayeed, the husband of Smt. Sabira (P.W. 1) and when the informant''s son Mubin aged about 10 years tried to save his father, he was also badly assaulted by the Appellant by the ''banka''. Thereafter, Smt. Sabira (P.W. 1) too was assaulted with ''banka''. However, the learned Sessions Judge observed that the antecedent of the accused was to liquidate the entire family of Smt. Sabira (P.W. 1). This observation is not borne out of the record as injuries of Mubin and Smt. Sabira (P.W. 1) were caused by the Appellant when they tried to save Sayeed on whom the Appellant was inflicting ''banka'' blows. Admittedly, another son of Sayeed namely, Yameen was also sleeping in the verandah where Mubin was sleeping but no harm was caused to him. Therefore, there is nothing on record to show that intention of the Appellant was to eliminate entire family of Sayeed. However, it can be inferred that his intention was to murder Sayeed who had refused to pay money to him.

The evidence on record further shows that there was no motive of the Appellant to loot the properties of Sayeed and he committed murder of Sayeed and Mubin to acquire their properties. The Appellant had no criminal antecedent. Rather the evidence on record show that the relations of the Appellant with Sayeed and his family members were cordial as he was residing with Sayeed deceased prior to 15 days of the occurrence and had not done anything wrong within this period.

In these circumstances, we find that it is not a rarest of the rare case and, therefore, we are not inclined to confirm death sentence awarded by the trial court and we are of the view that the death sentence is liable to be reduced to imprisonment for life. For the reasons mentioned above while confirming the conviction of the Appellant u/s 302, I.P.C., we reduce the death sentence to sentence of life imprisonment.

Accordingly, the appeal is partly allowed to extent of sentence. The conviction of the Appellant u/s 302, I.P.C. is confirmed and instead of death penalty he is sentenced to undergo imprisonment for life.

The reference made by the Sessions Judge is rejected.

The Appellant is in jail and will serve out the sentence.

Office is directed to send a copy of this judgment to C.J.M., Bareilly for information and necessary action.