ARIJIT PASAYAT, J. - (1.) CHALLENGE in this appeal is to the judgment of a Division Bench of the Allahabad High Court by which two Criminal appeals filed by accused Sattan, Uppendra, Hari Pal son of Kiran Singh and Hari Pal son of Ram Charan (Criminal Appeal No. 2140 of 1999) and Criminal Appeal No. 2237 of 1999 filed by accused Kripal, Brij Pal, Ram Pal and Devendra. A reference under Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Code') for confirmation of death sentence in respect of the accused appellants in Criminal Appeal No. 2140 of 1999 before the High Court was made. So far as Sattan, Upendra, Hari Pal son of Kiran Singh and Hari pal son of Ram Charan are concerned they were sentenced to two years R.I. each under Section 148 of the Indian Penal Code, 1860 (in short the 'IPC'), 10 years R.I. under Section 307 read with Section 149 IPC and death sentence in respect of offence punishable under Section 302 read with Section 149 IPC. The appellants in the Criminal Appeal No.2237 of 1999 were convicted and sentenced to life imprisonment under Section 120 B IPC alongwith appellants in Criminal Appeal No. 2140 of 1999 accused Mukesh, Dhirendra, Rakesh, Naresh and Pappu also faced trial. Out of them Pappu and Naresh died during the pendency of trial while Mukesh, Rakesh and Dhirendra absconded and trial so far as they are concerned were separated. One Rajveer was also charged in terms of Section 120B alongwith appellants in Criminal Appeal No. 2237 of 1999. The Criminal Appeal No.2237 of 1999 was allowed and conviction of Brijpal, Ram Pal and Devendra was set aside. So far as Criminal Appeal No.2140 of 1999 is concerned the conviction as recorded was maintained. Death sentence imposed was altered to life sentence. In the present appeals State has questioned alteration of the death sentence to life sentence in respect of appellant in Criminal Appeal No. 2140 of 1999 and the acquittal as recorded in Criminal Appeal No. 2237 of 1999 as maintained; While upholding the conviction of accused Sattan and Upendra directed acquittal of Hari Pal son of Kiran Singh and Hari Pal son of Ram Charan.
(2.) ACCORDING to learned counsel for the State the only appropriate sentence in a case of this nature was death sentence and the High Court erred in altering it to life sentence after upholding the conviction. Similarly, in respect of the acquittal in the case of the appellants in separate Criminal Appeal Nos.2237 and 2140 of 1999 is concerned, it is submitted that the High Court has not indicated any reasons as to why the conviction as recorded by the Trial Court suffered from any infirmity to warrant interference. Mr. M. Karpaga Vinayagam, learned Amicus Curiae supported the judgments of the High Court. The prosecution version as unfolded during trial is as follows: In the night between August 30 and 31, 1994 at about 12.30 five persons of Sheo Pal's family were gunned down in his house in village Saloni within the area of police station Bahadurgarh, Ghaziabad. Four others were injured, out of whom Neetu also succumbed to his injuries later on. This massacre was reported at the police station on the same night at 2.55 A.M. by one of the survivors, Smt. Bala, PW 1 widow of deceased Shiv Singh. With the registration of case police came into action and the Investigating Officer promptly rushed to the place of occurrence and recorded the statements of Smt. Bala, Neetu and Km. Guddi who all had received injuries in the course of ghastly incident. Inquest proceedings were held in respect of dead bodies of five persons, namely, Sheo Pal Singh, Smt. Kunti Devi, Shiv Singh, Manjeet and Khushal who were reported to have been shot dead by the assailants while asleep inside their house. Their dead bodies were sent for postmortem examination. The investigating Officer Shri Ram Babu Tiwari, P.W.9 also pr-epared site plan, Ex.Ka 48 after making spot inspection of the place of occurrence. Injured Neetu was sent for medical examination. Under the order of the Investigating Officer S.I. Shri D.K. Sharma collected samples of blood through memo Ex. Ka 26 from near the dead body of Kunti Devi. Similarly, samples of blood were collected from near the dead bodies of other deceased persons through memos Ex. Ka. 27 to Ex. Ka.3. The bed sheet lying on the cot of deceased Shiv Singh was also taken into possession through memo Ex. Ka. 3. The electric bulbs which are alleged to be giving light at the time of incident were also inspected and Memo Ex. Ka. 32was prepared. The Kurta of Injured Guddi which was stained with blood and had pellet marks was taken into possession through memo Ex. Ka.33. The pieces of blood stained bandh of cot of deceased Manjeet and Khushal were also taken into possession through memo Ex. Ka. 34. The Investigating Officer also found empty cartridges, bullet and wads at the scene of occurrence. They were also taken into police custody through EX. Ka.35. He also interrogated Madhu and Rikku and other villagers. A raid was made on the house of accused Mukesh, Sattan and Guddu but they were not found. During investigation complicity of other accused persons also came to light that they had hatched conspiracy for the commission of the crime in question. Some of the accused persons were arrested while others surrendered in court and after completion of investigation charge sheet was prepared against all the accused persons who had been either arrested by him or has surrendered in court and also against Upendra alias Guddu, Pappu, Dheeraj and Devendra who were then still absconding. Later on accused Pappu alias Amarjeet and Rajveer were also arrested. It was also revealed that accused Upendra alias Guddu was in jail after having been arrested in a case under Gangster Act. Similarly, accused Dheeraj was in jail in connection with case Crime No. 628 of 1993 under Section 307 I.P.C. Smt. Bala (PW.1) who is alleged to have herself received injuries during the course of incident got the first information report Ex. Ka. I scribed by Km. Guddi, her niece. Km. Guddi is also alleged to have sustained injuries during the course of the same incident but she was murdered before she could be examined in the trial court as a witness. The case as set out in the first information report in short was that some incident had occurred in the year 1986 between family members of complainant and accused Mukesh and Guddu sons of Rajveer and the matter was reported at the police station from complainant's side. A case was proceeding in court at Hapur some time before the present incident and the police had raided the house of accused Mukesh. Mukesh and Guddu, came to the house of Sheo Pal Singh and gave threats to them saying that they had not done good by getting his house raided. The accused persons were thus bearing enmity with Sheo Pal and others. It was further alleged in the report lodged by Smt. Bala that in the night between 30/31 August, 1994 at about 12.30 A.M. Mukesh and Guddu of her own village carrying country made pistols with them and accused Sattan of village Lohari also having a country made pistols alongwith 4-5 unknown persons who were also having weapons like pistols, Dalkati, Lathi etc. entered into her house. At that time electric bulbs were emitting light inside and out side the house. The family members of her Jeth, Sheo pal Singh were sleeping on cots outside the house. She herself (Smt. Bala) was resting inside the house, while her husband Shiv Singh was sleeping on the roof. The accused persons after making entry into the house immediately started hurling abuses by name to her Jeth Sheo Pal Singh saying that he was acting as an informer to police, hence he and his family would be eliminated completely. Hearing it Sheo Pal got up and started running but he was chased by accused Mukesh and Sattan and was shot dead in the Gher of Devendra. Mukesh and Sattan then said that entire family should be finished and thereafter accused persons killed Kunti Devi, wife; of Sheo Pal, Khushal son of Sheo Pal and Manjeet son of Shiv Singh. They also injured Neetu son of Sheo Pal, Guddi, daughter of Sheo Pal Singh and baby Kapil about 3 years old son of' Shiv Singh. Mukesh and Sattan with his associates climbed over the roof and murdered her husband Shiv Singh on the cot on which he was sleeping. On hearing the sound of firing, villagers were awakened and when they tried to come near the first informant's house, accused persons made indiscriminate firing and said that if any one dared to come nearer he would be shot dead and further that if anyone of them would give evidence he would meet the same fate as that of deceased persons. On the threats given by accused persons villagers retreated to their houses and closed their doors. The firing incident caused a panic in the village and the miscreants left the scene of occurrence brandishing their weapons. Before adverting further it may be relevant to place the following pedigree in order to show that all the deceased and injured persons were members of same family. JUDGEMENT_465_SUPREME2_2009Image1.jpg From the above pedigree it would be evident that all the nine members of family of Hukum Singh were present and sleeping in their houses when this ghastly incident occurred. Four were of Shiv Singh's family and rest belonged to Sheo Pal's family. All of them sustained injuries. Smt. Bala, Baby Kapil and Km. Guddi survived but before statement of Guddi could be recorded at the trial she was also murdered. Baby Kapil was a child of about three years old. Thus the prosecution was left with no alternative except to examine at the trial Smt. Bala, the sole surviving member of the above two families. At the trial from the prosecution side in all nine witnesses were produced. Smt. Bala (PW 1) widow of deceased Shiv Singh corroborated the facts stated by her in the FIR and further added that the assailants were ten in number, out of whom she identified Mukesh, Guddu, Rakesh, Naresh, Pappu, Sattan, Haripal son of Kiran Singh, Haripal son of Ram Charan, Dhirendra alias Dheeraj. She further stated that Rakesh and Dhirendra were having Balkati and rest had country made pistols. She also testified that Sheo Pal, his wife Kunti Dcvi, his son Khushal, her Husband Shiv Singh and her son Manjeet were murdered on the spot by the assailants with their respective weapons, Neetu son of Sheo Pal, Km. Guddi, Baby Kapil and she herself also suffered injuries at the hands of the accused persons. She further stated that had the matter between accused and deceased persons been not got compromised by accused Kripal, Rajveer, Devendra, Brij Pal and Ram Pal, the incident in question would not have occurred. In this way it was suggested that the aforesaid accused persons hatched a conspiracy with the actual assailants to get the entire family of Sheo Pal and Shiv Singh wiped out. She is the only eye witness examined at the trial. As noted above, the trial court found the evidence of the witnesses to be credible and cogent and directed conviction and imposed death sentence, so far as the Sattan, Upendra, Hari Pal son of Kiran Singh and Hari pal son of Ram Charan are concerned. It also found that the accusations relating to Section 120B of the Act have been established so far as the Kripal, Brij Pal, Devendra are concerned. The High Court analysed the evidence to hold that the accusations so far as the Sattan, Upendra, are concerned have been established. But further held that this was a case where there were certain mitigating circumstances which warranted alteration of the death sentence to life sentence. The mitigating and extenuating circumstances pointed out to take the view are as follows: "(i) that number of casualties cannot be sole criterion for awarding death sentence; (ii) that though in a criminal case compromise was filed, the police however at the instance of deceased Sheo Pal raided the house of accused Mukesh and Guddu alias Upendra and this excited the accused to commit the alleged crime; (iii) that PW 1(smt. Bala) the sole eye witness did not assign specific role to each of the two accused-respondents; (iv) that according to FIR story, the three named accused persons along with 4-5 others committed the crime and therefore, possibility of unknown persons having taken the active part could not be ruled out; (v) that there is nothing on record to show that accused- respondents Sattan alias Satyendra and Guddu alias Upendra acted in a brutal and cruel manner while committing the crime; (vi) that there is nothing on record to show that K. Guddu was murdered during pendency of the case by the present accused-respondents, so that there could be no evidence against them; (vii) that the assailants did not do away with Smt. Bala (PW 1) Km. Guddi (17 years), baby Kapil (3 years) and a child to screen the offence; (viii) that the assailants showed mercy on Smt. Bala and did not cause any harm to her; and (ix) that respondent Sattan alias Satyendra was a young boy of 20 years of age at the time of incident."
(3.) IT is submitted by learned counsel for the appellant that taking into consideration the aforesaid circumstances the High Court came to an abrupt conclusion that on consideration of aggravating and mitigating circumstances the case does not fall within the category of rarest of rare cases. Learned amicus Curiae appearing for the accused persons on the other hand submitted that six circumstances were highlighted by the High Court.;