A.K.PATNAIK, J. - (1.) THESE are appeals against the judgment of the High Court of Chhattisgarh in Criminal Reference No.1 of 2008 and Criminal Appeal No. 240 of 2008 confirming the conviction of the appellant and the death penalty imposed on him under Section 396 of the Indian Penal Code (for short 'IPC').
(2.) THE prosecution case very briefly is that on 26.11.2004, Shamim Akhtar (for short 'Shamim'), a scrap dealer and a resident of village Cher, Distt. Baikunthpur, Chhattisgarh, had gone to Raipur for selling scrap. He sold the scrap and received cash of Rs.1,70,000/- and returned to his house with the cash. His wife, Ruksana Bibi, kept the cash in different places of her house, which was to be deposited in the bank the next day. At about 6.00 p.m. on 26.11.2004, Sonu Sardar, the appellant herein, and Ajay Singh @ Fotu along with three other persons came with scrap to the shop of Shamim and left after selling scrap for Rs.480/-. THE appellant and Ajay Singh and three other persons, however, returned at about 7.00 p.m. on the same day and knocked on the door of the house of Shamim. When the door was opened, the appellant and Ajay Singh and three other persons demanded money from Shamim. One of these five persons then bolted the door from inside and two other persons caught hold of Asgar Ali, driver of Shamim, and one of them caught hold of Shamim. THEy kept a knife on the neck of Shamim and compelled him to give cash which he was having in his pocket. Shabana Khatun (for short 'Shabana'), the daughter of Shamim, who was present inside, tried to fight but an attempt was made by the appellant and his people to assault her and she somehow escaped through the back door and went to the house of Ramlal, a kilometer away from the house of Shamim. Shabana told Ramlal about the incident at her house and when Ramlal wanted to go to their house, Shabana asked him not to go because she was afraid that Sonu Sardar and others may kill him. That night Shabana stayed at the house of Ramlal and next morning at about 4-5 a.m., Shabana, Ramlal and his wife Dhanpatbai came to the house of Shamim and found that Yakut and Asna, 3 years old son and 5 years old daughter of Shamim, were crying near the dead bodies of Shamim, Ruksana Bibi, Yakub and Kumari Rana, 7 years old son and 9 years old daughter of Shamim. Shabana then went to Baikunthpur and narrated the incident to her uncle Nasim Akhtar, who reported the matter the Police. THE Police reached the spot and the FIR was lodged. THE dead bodies were sent for autopsy to the Community Health Centre, Baikunthpur, and a team led by Dr. Ashok Kumar carried out the post mortem. In course of investigation, the Investigating Officer recorded statements of several persons under Section 161, Cr.P.C. THE appellant and his co- accused, Ajay and Chhoti Bai, were arrested but the other persons absconded after commission of crime. Blood-stained T-shirt and turban of the appellant and an axe with broken handle, a rod and a knife were seized. Test Identification Parade was carried out on 01.12.2004 in which Shabana identified the appellant as well as Ajay as two of the five persons who had come to the house of Shamim on 26.11.2004 and were demanding money. THE seized articles were sent to the Forensic Science Laboratory, Raipur. After completion of investigation, a chargesheet was filed and Sessions Trial No.06/2006 was conducted by the Sessions Judge, Koriya, Baikunthpur (Chhattisgarh). In course of the trial, the prosecution examined 38 witnesses. Shabana was examined as PW-1, Ramlal was examined as PW-2, Nasim Akhtar was examined as PW-3 and Dhanpatbai was examined as PW-4. Dr. Ashok Kumar was examined as PW-36 and the Investigating Officer was examined as PW-37. A large number of documents and the seized articles were also exhibited. The trial court recorded the statements of the appellant under Section 313, Cr. P.C. After hearing the arguments, the trial court held that it was clear from the evidence of PW-1, PW-2, PW-3 and PW-4 that the appellant had committed the dacoity at the house of Shamim between 7.00 p.m. of 26.11.2004 and 4.00 a.m. of 27.11.2004 and thereafter committed murder of Shamim, Asgar, Ruksana Bibi, Yakub and Kumari Rana with rod, knife and axe and that the prosecution had succeeded in establishing the guilt of the appellant under Section 396, IPC, beyond reasonable doubt. After hearing counsel for the parties on the question of sentence, the trial court also held that the case falls in the category of rarest of rare cases and imposed the sentence of death on the appellant. By the impugned judgment, the High Court has confirmed the conviction of the appellant under Section 396, IPC, and also the sentence of death. Learned counsel for the appellant submitted that the appellant had been convicted on the sole testimony of Shabana (PW-1), a ten years old child who could not have identified the appellant as one of the five persons who committed the dacoity and murder on the night of 26.11.2004. She submitted that it is on the information received from PW-1 that PW-3 had lodged the FIR, but in the FIR the appellant has not been named. She argued that had PW-1 known the appellant, she would have told PW-3 the name of the appellant and PW-3 would have mentioned the name of the appellant in the FIR. She submitted that it will therefore not be safe for this Court to sustain the conviction of the appellant.
(3.) LEARNED counsel for the State, on the other hand, submitted that although PW-1 is a minor, her evidence was reliable and she had stood the test of cross-examination. He further submitted that PW-1 narrated the incident not only to PW-3, but also to PW-2 and PW-4 and the evidence of PW- 2 and PW-4 would show that PW-1 had clearly mentioned that out of the five persons, who had committed the dacoity and murder on the night of 26.11.2004, there was a sardar. He further submitted that PW-1 has also stated in her evidence that the appellant had gone to her father's shop 5 to 6 times before the 26.11.2004 to sell scrap and hence she could identify him as one of the five persons who had committed the dacoity and murder on the night of 26.11.2004. Moreover, at the time of the Test Identification Parade conducted by the Magistrate (PW-11), PW-1 identified the appellant as one of the five persons, who had come to the house of Shamim on 26.11.2004 and were demanding money. He submitted that the evidence of PW-1 that the appellant participated in the dacoity and murder on 26.11.2004 is corroborated by the recovery of the iron rod and axe on the statement of the appellant and by the fact that the seized T-shirt and turban of the appellant were blood-stained. We have considered the submissions of learned counsel for the parties and we find that during investigation a Test Identification Parade was carried out on 01.12.2004 and out of the ten persons who were presented, the appellant and Ajay Singh @ Fotu were identified by PW-1 as the two persons, who were amongst the five persons who had come to the house of Shamim and were demanding money from him. From the evidence of PW-2 as well as the evidence of PW-4, we find that PW-1, soon after she escaped from the house of Shamim, has mentioned that one of the five persons who had gone to the house of Shamim was a sardar. In her cross- examination, PW-1 has stated that she knew the appellant as he had come to their house for selling scrap. Moreover, the broken axe with broken handle and iron rod (Ext. P.24) were recovered pursuant to the statement of the appellant (Ext. P.16). PW-36, Dr. Ashok Kumar, after narrating the injuries on the dead bodies of Shamim, Asgar Ali, Ruksana Bibi, Yakub and Kumari Rana, has opined that the death has been on account of shock as a result of fatal injuries. The injuries described by them are not only incised wounds but multiple fractures of temporal and parietal bones and on the head which could have been caused by the axe and the iron rod. The report of the Forensic Science Laboratory (Ext.P.61) confirms presence of human blood on the clothes of the deceased persons, axe and iron rod (Ext. P.24) as well as the turban and T-shirt of the appellant (Ext. P.37) which had been seized. Thus, the conviction of the appellant is not only based on the oral testimony of PW-1, but also the evidence of PW-2, PW-3, PW-4, PW-36, the seized articles and also the report of the Forensic Science Laboratory. It is further established from the evidence of PW-1 and the Panchanama of the house of Shamim made on 28.11.2004 that only cash of Rs.65,760/- was available and the remaining cash out of Rs.1,70,000/- was missing. The prosecution has, in our considered opinion, proved beyond reasonable doubt that the appellant participated in the offence of dacoity and murder and has been rightly convicted for the offence under Section 396, IPC.;