TMI Blog2002 (4) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... shish Mahto (Accused No. 12) have been acquitted whereas the four appellants, viz., Krishna Mochi- appellant No. 1(Accused No. 8), Dharmendra Singh @ Dharu Singh- appellant No.2 (Accused No. 9), Nanhe Lal Mochi-appellant No.3(Accused no. 13) and Bir Kuer Paswan @ Beer Kuer Dusadh-appellant No. 4(Accused No. 5) have been convicted under Sections 302/149 of the Indian Penal Code, 1860 (in short 'Penal Code') and sentenced to undergo rigorous imprisonment for life. They have been further convicted under Section 3(1) of the TADA Act and awarded death sentence and the proceedings have been submitted to this Court for confirmation. Bihari Manjhi (Accused No.2), Ramautar Dusadh @ Lakhan Dusadh (Accused No. 4), Rajendra Paswan (Accused No. 6) and Wakil Yadav (Accused No.7) have been convicted under Section 302/149 of the Penal Code and Section 3(1) of the TADA Act and sentenced to undergo rigorous imprisonment for life on each count. However, sentences have been ordered to run concurrently. Out of these four accused persons, accused Nos. 2, 4 and 7 have filed separate appeal before this Court bearing Criminal Appeal No. 752 of 2001 whereas accused No.6 has filed Criminal Appeal No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesajee asked the female folk to go to their houses. Thereafter, the villagers were taken near the canal where they were kept confined with their hands and legs tied. In the meantime, the informant heard sound of firing coming from western side of the village and in the light of the fire, he identified several accused persons including the appellants naming all of them. The terrorists slittered the villagers by cutting their neck with the help of pasuli which is a sharp cutting weapon. In the mean time, the terrorists having guessed arrival of the police, started fleeing away whereby anyhow the informant could save his life. The police with informant went to the place of occurrence and found 35 persons named in the fard beyan dead and some persons having serious injuries who were immediately sent to hospital for treatment. It has been alleged in the fard- beyan that the terrorists were armed with police rifles and some of them were in police uniform. The terrorists were about five hundred in number, out of which about two to three hundred persons were armed. When they made their retreat they shouted slogan of Maoist Community Center (hereinafter referred to as M.C.C. ) Zindabad. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uli and massacred 35 members of a particular community and injured several persons after surrounding them, prosecution examined Maneshwar Devi (PW 3), Lal Badan Devi (PW 4), Belmati Devi (PW 5), Birendra Singh (PW 6), Lavlesh Singh (PW 7), Yogendra Singh (PW 8), Brajesh Kumar (PW 11), Gopal Singh (PW 12), Ram Sagar Singh (PW 16), Budhan Singh (PW 18), Dhananjay Singh (PW 19), Bunde Singh (PW 20), Ram Sumiran Sharma (PW 21), Krishna Devi (PW 22), Rajmani Devi (PW 23) and Usha Devi (PW 30) as witnesses and upon consideration thereof, the trial court came to the conclusion that there was a gruesome carnage which conclusion could be neither assailed by learned counsel appearing on behalf of the appellants nor I find any infirmity in the well reasoned judgment by the Designated Court on this count. Shri U.R.Lalit, learned senior counsel appearing on behalf of the appellants in support of the appeal submitted that the prosecution has failed to prove the participation of the appellants in the crime by credible evidence. Learned counsel further submitted that it is a fit case in which benefit of doubt should be given to the appellants as informant was not examined, as such the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant before the police as would appear from the statement of investigating officer Suresh Chander Sharma (PW 17), inasmuch as the occurrence is said to have taken place on 12th February, 1992 and the witness was examined on 17th April, 1999. Thus, the evidence of Belmati Devi (PW 5) and Birendra Singh (PW 6) on the question of participation of this appellant cannot be of any avail to the prosecution. Yogendra Singh (PW 8) who was an injured witness and resident of the village of occurrence claims to have witnessed the entire occurrence as during night when he was inside the house, the accused persons entered the house after breaking open the door, tied hands of this witness as well as his family members and they were taken near the canal where he found other villagers were already surrounded by accused persons and some more being brought with their hands tied. The accused persons thereafter got some other villagers from the temple and they tied their legs as well as of this witness and his family members inasmuch as started slitting their throats. Immediately after the occurrence, when the police arrived at the village, it found this witness lying on the ground with bleeding inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd set the entire village on fire, but nothing could be pointed out on behalf of the defence to disbelieve his evidence. Dhananjay Singh (PW 19) who was another injured person and resident of the village of occurrence stated that on 12th February, 1992, when he was sleeping in his house with his brothers, in the night, at about 9.00 O'clock , sounds of explosion of bombs from all sides of village were heard and immediately thereafter his brother Vidya Bhushan Singh went out from the house for hiding himself in the house of a villager but before this witness could take shelter in the house of another villager, a bomb was thrown on the house making pace for the accused persons to enter the same and thereafter they did enter the house with deadly weapons. The hands of this witness and his three brothers were tied and thereafter, they were taken to the temple where some people had already been brought from the eastern side of the village whose hands had also been tied and these persons were also made to sit there. Thereafter, all those persons including this witness and his family members whose hands were tied were taken to a bridge upon the canal where many other villagers were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. This being the position, I have no difficulty in holding that the participation of this appellant in the crime has been proved by credible evidence of Yogendra Singh (PW 8), Ram Sagar Singh (PW 16), Dhananjay Singh (PW 19) and Bunde Singh (PW 20) though it is not possible to place reliance upon the evidence of Belmati Devi (PW 5), Birendra Singh (PW 6) and Lalita Devi (PW 29). Turning now to the participation of appellant No. 2-Dharmendra Singh @ Dharu Singh (Accused No. 9), it may be stated that he is said to have been identified by Brajesh Kumar (PW 11), Dhananjay Singh (PW 19) and Ram Sumiran Sharma (PW 21). So far as Brajesh Kumar (PW 11) is concerned, this witness has named him for the first time in Session Court after seven and a half years from the date of alleged occurrence as according to the evidence of Investigating Officer Suresh Chander Sharma (PW 17), the witness did not disclose the name of the appellant in his statement made before the police inasmuch as no explanation could be furnished by the prosecution for such a non disclosure. This being the position, it is not safe to place reliance upon the evidence of this witness in relation to participation of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be destroyed.' This witness was examined by the police in the hospital, where he had gone to receive the dead bodies of his family members, on the next morning of the occurrence. The witness identified this appellant as well as accused Nanhe Lal Mochi-appellant No. 3(accused No. 13) and Bir Kuer Paswan @ Beer Kuer Dusadh-appellant No. 4 (accused No. 5). So far as this appellant is concerned, the witness in his cross-examination pretended that he was not known to him from before the incident, although, it was admitted by him that this appellant had agriculture land in the village of occurrence which is at a distance of one and a half kilometers away from his land. As suggestion was given to this witness that there was animosity between them, on account of the land dispute as a result of which this appellant was falsely implicated, which clearly shows that the witness was very well known to this appellant from much before the date of the alleged occurrence. In my view, this witness has stood the tests of cross-examination and there is nothing to discredit his testimony as he was quite natural witness and consistently supported the participation of this appellant in the crime with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this connection, reference is made to the statement of one Vijay Pratap Singh (PW 33) who, at the relevant time, was police inspector and posted as Station Incharge of Tekari Police Station within which the village of occurrence falls. During the course of cross-examination, this witness has stated the reasons why on the date of occurrence and on the next day, the statements of many witnesses could not be recorded as they were not in a position to give their statements in view of the fact that they were busy in performing the last rites of their family members who were slittered to death and relatives of the persons who died were not in a mental condition to make statement. Further, the witness stated that there were visits of various political leaders in the locality as a result of which law and order condition had become complicated. According to the witness, the statement of other witnesses could not be recorded due to the aforesaid reasons which were beyond the control of the police. So far as Budhan Singh (PW 18) is concerned, two of his sons were slittered to death in the present occurrence and in view of the aforesaid facts, if his statement could not be recorded by the pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not identify him on account of very weak eye sight at the time of his examination in Court. Therefore, no reliance can be placed on the evidence of such a witness. Thus, on the point of participation of this appellant, out of the evidence of Yogendra Singh (PW 8), Ram Sagar Singh (PW 16), Budhan Singh (PW 18), Dhananjay Singh (PW 19), Bunde Singh (PW 20), Ram Sumiran Sharma (PW 21), Krishna Devi (PW 22) and Lalita Devi (PW 29), the evidence of Yogendra Singh (PW 8), Ram Sagar Singh (PW 16), Budhan Singh (PW 18), Ram Sumiran Sharma (PW 21) and Krishna Devi (PW 22) is unimpeachable whereas no reliance can be placed upon the statements of Dhananjay Singh (PW 19), Bunde Singh (PW 20) and Lalita Devi (PW 29). Coming now to the participation of the last appellant, namely, Bir Kuer Paswan @ Beer Kuer Dusadh-appellant No. 4(accused No. 5), it may be stated that this appellant, according to the prosecution, was identified by Lavlesh Singh (PW 7), Dhananjay Singh (PW 19) and Ram Sumiran Sharma (PW 21). Out of the aforesaid witnesses, Lavlesh Singh (PW 7) who was also one of the injured and was resident of the village of occurrence stated that at the time of occurrence, when he was sl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dentified one Bihari Manjhi as this appellant. Thus, the evidence of this witness cannot be used to show complicity of this appellant with the crime. Last witness on the question of participation of this appellant is Ram Sumiran Sharma (PW 21). This witness claimed to have identified this appellant and on the point of participation of this appellant, there is nothing to doubt the credibility of the witness, especially in view of the grounds mentioned while considering the evidence of this witness in relation to appellant No.2- Dharmendra Singh @ Dharu Singh (Accused No. 9). Thus, out of the three witnesses, namely, Lavlesh Singh (PW 7), Dhananjay Singh (PW 19) and Ram Sumiran Sharma (PW 21) on the question of participation of this appellant in the crime, no reliance can be placed on the evidence of Dhananjay Singh (PW 19) but I do not find any infirmity in the evidence of Lavlesh Singh (PW 7) and Ram Sumiran Sharma (PW 21). From the above, it would be plain that in relation to appellant no. 1 evidence of four witnesses, appellant no. 2 one witness, appellant no. 3 five witnesses, appellant no. 4 two witness has been found credible. It has been submitted by learned counsel app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eaking for the Court, observed in paragraph 16 at page 210 thus:- .where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case. [ Emphasis added ] Thus, it appears that this Court laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not difficult to gain over a witness by money power or giving him any other allurence or giving out threats to his life and/or property at the instance of persons, in/or close to powers and muscle men or their associates. Such instances are also not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. It is most unfortunate that expert witnesses and the investigating agencies and other agencies which have an important role to play are also not immune from decline of values in public life. Their evidence sometimes becomes doubtful because they do not act sincerely, take everything in a casual manner and are not able to devote proper attention and time. Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as to achieve the yardst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. Thus, in the present case where there was more or less a caste war between haves and have nots, gruesome murder of 35 persons of one community in which several persons were injured, great commotion in the locality, people became panicky as the accused persons were members of MCC, which is a very violent organisation, even if the complicity of the accused is proved by credible evidence of one or two witnesses, it would not be unsafe to convict an accused, rather a duty is enjoined upon the court not to acquit an accused on this ground alone unless the prosecution case is otherwise found to be untrustworthy. It is well settled that in a criminal trial credible evidence of even a solitary witness can form basis of conviction and that of even half a dozen witnesses may not form such a basis unless their evidence is found to be trustworthy inasmuch as what matters in the matter of appreciation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the investigation was entrusted to one Suresh Chandra Sharma (PW.17) who, at that time, was posted as Inspector, Chandauti Police Station and PW.33 made over charge of the case to PW.17 on 19.2.1992, who, after completing investigation which was supervised by the Superintendent of Police himself, submitted chargesheet. From the above facts it would be plain that as Inspector Ram Japit Kumar had neither taken over charge of the investigation of the case at any point of time, much less investigated the same, no adverse inference can be drawn against the prosecution on account of his non-examination and non-furnishing of explanation for his not taking over charge of investigation. Thus, he having not conducted any investigation, the evidence of Inspector Ram Japit Kumar could not be of any avail either to the prosecution or the defence. That apart, it is well settled that non-examination of any witness would not affect the prosecution case, but in a given case non-examination of a material witness may affect the same. Reference in this connection may be made to the decision of this Court in the case of Masalti (supra). It is well settled that non-examination of investigating office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y took away inmates of the house after tying their hands, taken them first to the temple and thereafter near the canal where their legs were also tied and there some of them were done to death at the point of firearm, but a vast majority of them were massacred by slitting their throats with pasuli. One thing is clear that all these acts were done by the accused persons pursuant to a conspiracy hatched up by them to completely eliminate members of a particular community in the village and to achieve that object, they formed unlawful assembly and different members of that unlawful assembly had played different role. In view of these facts, merely because the appellants are not said to have assaulted either any of the deceased or injured persons, it cannot be inferred that they had no complicity with the crime, more so according to the evidence they were also armed with deadly weapons, like firearms, bombs, etc., but did not use the same. Reference in this connection may be made to a decision of this Court in the case of Masalti (supra) where it was laid down that where a crowd of assailants, who were members of an unlawful assembly, proceeds to commit the crime in pursuance of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-arms and the others with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assembly. The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with firearms. It cannot be said that discretion in the matter has been improperly exercised either by the trial Court or by the High Court. Therefore, we see no reason to accept the argument urged by Mr. Sawhney that the test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable. [ Emphasis added ] In the case of Bachan Singh vs. State of Punjab, AIR 1980 SC 898, before a Constitution Bench of this Court validity of the provision for death penalty was challenged on the ground that the same was violative of Articles 19 and 21 of the Constitution and while repelling the contention, the Court laid down the scope of exercise of power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t following the decision in Bachan Singh (supra), observed that in rarest of rare cases when collective conscience of the community is so shocked that it will expect the holders of the judicial power centre to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty. The community may entertain such a sentiment in the following circumstances: I. When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community. For instance, when the house of the victim is set aflame with the end in view to roast him alive in the house; when the victim is subjected to inhuman acts of torture or cruelty in order to bring about his or her death; and when the body of the victim is cut into pieces or his body is dismembered in a fiendish manner. II. When the murder is committed for a motive which evinces total depravity and meanness. For instance when a hired assassin commits murder for the sake of money or reward or a cold-blooded murder is committed with a deliberate design in order to inherit property or to gain control ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. The Court thereafter observed that in order to apply these guidelines the following questions may be answered:- (a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence? (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender? Ultimately, in the said case of Machhi Singh (supra ), the Court obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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