HARJIT SINGH BEDI, J. - (1.) THESE appeals by special leave arise out of the following facts.
(2.) RAJVINDER Kaur (PW1) was the youngest daughter of Maya Kaur and Baldev Singh Sardar. In addition to RAJVINDER Kaur the couple had another daughter Sulakshana, and two sons Ranprit Singh and Amrit Singh and the entire family was residing in a small township near Panvel City on the outskirts of Mumbai. While studying in school RAJVINDER Kaur fell in love with Ravinder Singh and the relationship culminated in a secret marriage between the two, as RAJVINDER's family did not approve of the relationship on the premise that Ravinder Singh belonged to an inferior caste and was also financially weak. It appears that after Sulakshana's marriage, Baldev Singh and Maya Kaur decided that it was appropriate that RAJVINDER Kaur too should be married off. A suitable boy was accordingly selected by them for her but before a final decision could be taken RAJVINDER Kaur told the proposed bridegroom of her love affair with Ravinder Singh. He nevertheless still agreed to the marriage. Faced with this difficult situation, RAJVINDER Kaur informed her parents that she was already married with Ravinder Singh. This information caused consternation in her family and faced with hostility she left home and shifted in with her husband and his family. She was, however, repeatedly threatened by her relatives including her parents that she would have to suffer the consequences of her misconduct. Maya Kaur and Nirmal Kaur, RAJVINDER's maternal aunt, also demanded the return of the ornaments that she had been wearing when she had left her parents home, but she told them that they could collect these articles from the police station ( in the presence of the police) as she had already lodged a complaint. On 30th May 1999 at about 8.30 p.m. RAJVINDER Kaur was informed that her mother and maternal aunt had come to visit her. She accordingly invited them upstairs to the first floor and on their demand handed over the ornaments to her mother. Maya Kaur and Nirmal Kaur also told RAJVINDER Kaur that her maternal uncle (Mama) Bhagwan Singh (accused No.3) had also come to visit her and was waiting downstairs. Lakhmindar Kaur, RAJVINDER's mother-in-law told Maya Kaur to call her brother upstairs. In the meantime, it appears Ravinder Singh went out on to the balcony to get his shirt and saw some persons armed with weapons in their hands hanging around suspiciously and apprehending mischief, he asked his brother Harvindar Singh to immediately call some of his friends. Harvindar Singh rushed downstairs in an attempt to do so but soon returned with a patch of blood on his shirt on the abdomen and fell in the prayer room. RAJVINDER Kaur then saw accused No.4 Jagpal Singh, husband of Nirmal Kaur, accused No.5 Kawaljit Singh, cousin of Maya Kaur and Nirmal Kaur accused No.6 Bakhtavar Singh, maternal uncle of Maya Kaur, accused No.7 Kuldip Singh, a close relative of Maya Kaur, Baldev Singh and Bhagwan Singh climbing the stair case with weapons in their hands. Maya Kaur and Nirmal Kaur however left the place and went out of the gate. RAJVINDER, sensing danger shouted for help but somebody entered the balcony and pushed her therefrom and she fell on the ground floor sustaining severe injuries. She also heard some voices speaking in Punjabi suggesting that she be killed and somebody replying that she was already dead. RAJVINDER Kaur, grievously hurt, went crawling to the house of one Narula, a neighbour, and informed him of the assault on her family on which he called the police. The Police reached the site after a short time and found that Ravinder Singh, husband of RAJVINDER Kaur, her brother-in-law Harvindar Singh, and her- in-laws Dilip Singh and Lakhwinder Kaur had all been killed. A formal FIR was thereupon registered at about 3.30 a.m. on 1st June 1999 at the Police Station, five kilometers distant, at the instance of PW7 Sub-Inspector Vikram Bhimrao Patil. On the completion of the investigation, the accused were charged as under:- JUDGEMENT_1042_TLPRE0_2007Html1.htm After an elaborate discussion the trial court sentenced Bhagwan Singh, Jagpal Singh, Kanwarjit Singh, Bakhtawar Singh, Maya Kaur and Nirmal Kaur guilty for the offences under Sections 302, 307 read with Section 120 B of the IPC and sentenced the first four to death and the other two to life imprisonment under Sections 302/120B and to lesser term of imprisonment for the other offences. Kuldip Singh and Baldev Singh were however acquitted. As four of the accused had been awarded the death penalty, the trial Judge made a reference to the High Court under Section 366 of the Cr.P.C. The accused also filed appeals challenging their convictions and the matters were heard by a Division Bench of S.S. Parkar and J.N. Patil, JJ. Parkar, J. was of the opinion that a death sentence in the circumstances was not justified and that the involvement of Kawaljit Singh too had not been proved. He accordingly opined that the death sentence should not be confirmed and that Kawaljit Singh was liable to an acquittal. Patil,J. was, however, of the opinion that the death sentence imposed by the trial court and the conviction of Kawaljit Singh were justified on the facts and the evidence. On account of a difference of opinion on these matters amongst two Hon'ble Judges, the matter was referred to a third Judge Palshikar,J. under Section 392 of the Cr.P.C. On a re-appreciation of the evidence Palshikar,J. ordered the acquittal of the accused under Sections 302/120B and 307/120B and 307/34 of the IPC and directed that Mayakaur Sardar, Nirmal Kaur Sardar,Bhagwan Singh Randhava, Jagpal Singh Toor, Kanwarjit Singh Pullar @ Rana Randhava and Bakhtawar Singh Randhava undergo imprisonment for life under Section 302/34 of the IPC. The murder reference was accordingly declined.
(3.) THE matter was thereafter placed before the Division Bench of Parkar and Patil, JJ. and appropriate orders were passed. It is in these circumstances that two sets of appeals have been filed before us, one by the accused appellants challenging their conviction and sentence and the other by the State of Maharashtra praying for the award of the death sentence to the accused. Mr. Vijay Kotwal, the learned senior counsel for the accused-appellants has first and foremost argued that the incident had happened in the evening of 30th May 1999 but Rajvinder Kaur(PW1), the solitary eye witness, had not disclosed the names of the accused to the police till the 8th of June 1999 which clearly revealed that she had not seen the incident and that she had been forced to become an eye witness to the murders. It has also been pleaded that in the case of a single witness it was essential that the testimony should be without blemish and as she had made significant improvements and changes in her statements from those made to the police from time to time, no reliance could be placed on her testimony and as such could not by itself form the basis of a conviction. It has been emphasized that there was no evidence to show as to the reasons that had prompted the police to arrest the accused well before 8th of June, 1999 in the absence of any evidence against them. It has also been pleaded that the recovery of the identity card of accused No.3 (Bhagwan Singh ) from near the dead body and the recovery of the various articles at the instance of the accused on their statements under Section 27 of the Evidence Act clearly revealed that the investigation made by the police was an unfair and biased one and finally that there was no evidence as to the involvement of Kawaljit Singh. The Government Advocate has however pointed out that the two ladies Maya Kaur and Nirmal Kaur had admitted their presence at the place of incident and PW4 Yogeshkrishan Lohar who was a neighbour of the deceased family too had deposed that on the night of the incident he had heard the sound of an auto rickshaw and on looking out had seen two women and two or three Sardars getting down therefrom which clearly showed that all the accused had come together. It has also been highlighted that Rajvinder Kaur had been completely traumatized by the incident, the assailants being her parents family and the victims being her in-laws, her husband and brother-in-law and in this view of the matter, it was not surprising that she had not been able to give out the names of the accused till the 8th of June 1999, and that in this situation some discrepancies in her depositions were to be expected. It has been submitted that there was no inflexible rule of law that the non-disclosure of the names of the accused at the very initial stage must a fortiori result in an acquittal of the accused. It has also been argued that the recovery of the various articles clearly incriminated the accused-appellants and no interference was called for on findings of fact arrived at by two courts. It has finally been pleaded that the death penalty ought to be re-imposed on the four accused as per the judgment of the Sessions Judge.;