A.M. Kapadia, J. - (1.) D.B. Criminal Murder Reference No. 2 of 2007 pursuant to submission of the proceedings made under Section 366(1) of the Code of Criminal Procedure ('the Code' for short) alongwith two companion appeals being DB Criminal Jail Appeal No. 835 of 2007 and DB Criminal Appeal No. 838 of 2007 filed under Section 374(2) of the Code; one through authority and another through Advocate by appellant Lalaram (A1' for short) arise out of judgment and order dated 7.9.2007 rendered in Sessions Case No. 56 of 2006 by the learned Additional Sessions Judge (Fast Track) No. 21, Pali, by which Al is convicted for offence of murder of five persons under Section 302 of the Indian Penal Code ('IPC' for short) as well as under Section 201 and 380 IPC and sentenced to death and fine of Rs.100, in default of payment of fine further undergo rigorous imprisonment for one year for the offence under Section 302 IPC with a direction that Al should be hanged by neck till his death subject to confirmation by this Court; rigorous imprisonment for 7 years and fine of Rs.100 in default of payment of fine further undergo rigorous imprisonment for one year for the offence under Section 201 IPC, and rigorous imprisonment for 7 years and fine of Rs.100, in default of payment of fine further undergo. rigorous imprisonment for one year for the offence under Section 380 IPC, further directing that all the sentences were ordered to run concurrently. S.B. Criminal Appeal No. 772 of 2007 has been filed under Section 374(2) of the Code against the same judgment and order by appellant No.l Bhana Ram and appellant No. 2 Budha Ram (A2 & A3 for short), who have been convicted for the offence under section 411 IPC and both of them have been sentenced to simple imprisonment for three years and fine of Rs. 500, in default of payment of fine further undergo rigorous imprisonment for six months for the said offence.
(2.) As the Criminal Murder Reference No. 2 of 2007, the two companion appeals DB Criminal Jail Appeal No. 835 of 2007 and DB Criminal Appeal No. 838 of 2007 as well as SB Criminal Appeal No. 772 of 2007 arise out of the same judgment and order, this court, proposes to hear the reference for confirmation of sentence of death and the appeals preferred by all the accused together and to deal with the merit of the case against the accused in light of all the material questions of law as well as facts, and to adjudicate upon the guilt of the accused and appropriateness of sentence of death awarded to Al as well as three years simple imprisonment awarded to A2 and A3 by this common judgment.
(3.) The facts emerging from the record of the case, more particularly, as disclosed in FIR and unfolded during trial are as under: 3.1 PW3 Mangu Khan Khokhar, Assistant Sub-Inspector, SHO Rohit, made a report stating therein inter alia that on 13.8.2006 at 7 p.m. one Dalpat Singh (PW1) informed him telephonically about one dead body floating in the Bhanwari Gavai pond (talab) of village Rohat and on receiving the said telephonic massage, he reached at Bhankari Talab and found a the dead body floating with mattresses and blanket. He, therefore, with the help of Dalla Ram and Bhima Ram got the dead body brought out of water, whose both the legs were tightened by rope and he was wearing Bushirt with strips on it, Sando Baniyan and Black pant. The clothes were stained with blood and the deceased was wearing 'Madaliya' in neck, earrings, five rings in fingers and from the pocket of his pant in a plastic bag Rs. 2300 along with identity cards of Bhimnath and his wife on which address of Pali was mentioned, visiting cards of an Advocate and others, and four slips of one mobile number etc. were found. There were injuries on his neck, mouth etc. The message was sent to SHO Kotwali Pali at 9.30 a.m. and then he himself reached at Bangur Hospital, Pali at 12.30 carrying with him dead body where he received message on wireless from the SHO, Pali that the house of Bhimnath was found at Plot No.23-24, Shastri Nagar, Karnal Colony, Pali and blood was seen in the courtyard of house. Then he making necessary arrangement at the hospital alongwith others reached at the house of Bhimnath and on checking found body of Bhanwarial at the staircase. On breaking the lock of rightside first room, dead bodies of Smt. Chhoti Devi, her sons Kalu and Shiva with injuries on their persons found which were got photographed. At the spot one tractor and a motorcycle were found missing. It was suspected that some unknown person has murdered all the five and to temper with the evidence the dead body of Bhimnath was thrown in Bhakari Gavai Talab. 3.2. On this report CR No. 357 of 2006 was registered at police station Kotwali, Pali for commission of offence under Section 302, 201, 380/404 IPC and investigation commenced. 3.3. During the course of investigation, inquest on all the five dead bodies was held in presence of panchas and thereafter bodies were sent for autopsy. Muddamal motorcycle, tractor, kulhari, pant, shirt, key and other articles recovered were sent to FSL for chemical analysis. Statements of panch witness as well as other witnesses were recorded and Al was arrested on 14.8.2006 vide Ex. P 92. During the course of further investigation, it was divulged that Al gave Kandora to Bhana Ram (A2) and Tanka and Nakaliya to Bhudha Ram (A3) which belonged to Chhota Devi, therefore, both the accused A2 & A3 were arrested on 20.8.2000 vide-Ex.P58 and P57 respectively and on the information supplied by them those articles were recovered from them. Those articles were identified by PW33 Smt. Kamla Devi, cousin sister of deceased Bhimnath, therefore, both accused were also booked for the offence under Section 411 IPC. 3.4. On completion at the investigation, as sufficient incriminating evidence was found against Al for committing murder of five persons, screening the offence as well theft for the offence of receiving stolen property knowing it to be stolen, punishable under Section 411 IPC, they were charge-sheeted in the court of learned CJM, Pali. 3.5. As the offence punishable under Section 302 of the IPC is exclusively triable by a Court of Sessions, the learned CJM, Pali committed the case to the Court of Sessions, Pali. 3.6. The learned Additional Sessions Judge (Fast Track) No. 21 Pali ('trial Court'for short), to whom the case was made over for trial, framed charge against Al for commission of the offences punishable under Section 302, 201 and 380/404 IPC and against accused A2 & A3 for the offence punishable under Section 411 IPC and charges were read over and explained to be tried, they were put to trial and tried by the learned Additional Judge (Fast Track) No. 2, Pali. 3.7. In order to bring home the charge levelled against the accused, the prosecution examined as many as 39 witnesses and rolled upon their oral testimony, they are as under: (1) PW1, Dalpat Singh -Informant, panch witness of the place of incident. (2) PW2, Sher Singh -Panch witness of the place of incident and recovery (3) PW3,Mangu Khan-Scribe of FIR. (4) PW4, Sukhiya - Deceased's neighbour (5) PW5, Chunni Lal-Neighbour, panch witness. (8) PW6, Nana Ram- Petrol pump employee. . (7) PW7, Ramesh -Owner of grocery shop. (8) PW8, Sanwal Ram - Panch witness of tractor recovery. (9) PW9, Chunni Lal-Panch witness of seizure of motorcycle. (10) PW10, Daya Ram -Saw the accused at petrol pump. (11) PW11, Bhaga Ram-Witnessed accused coming to repair shop for getting the motorcycle repaired. (12) PW12,Jabbar Singh-Panch witness of seizure of tractor. (13) PW13, Sukhnath -Panch witness of the dead body. (14) PW14, Prahlad Sharma -Sales Manager, TATA Indica. (15) PW15, Bhanwaroo Khan (Constable) - Panch witness of arrest. (16) PW16, Peera Ram -Panch witness of the seizure of the kulhari, mobile etc, (17) PW17, Bakal Das -Pujari. (18) PW18, Amreak Singh-Mechanic doing work of scooter and motorcycle repairing (19) PW19, Parvat Singh -Panch witness of lock and key. (20) PW 20, Vela Ram-Panch witness of the spot of dead body of deceased Bhimnath. (21) PW21, Babulal witness in respect of accused asking for mortgaging ornament. (22) PW22, Dr. G.N. Arora- Medical jurist. (23) PW23, Ashok Kumar -Seller of motorcycle (24) PW24, Dr. H.C. Jain-Medical Jurist. (25) PW25,Uda Ram-Seller of mobile to Bhimnath (26) PW26, Karan Pal Singh -Constable photographer (27) PW27, Rajesh-Constable Photographer, (28) P.W. 28, Puka Ram -Constable who brought article to FSL Jodh- pur. (29) PW29, Yogendra Singh -Sand Contractor. (30) PW30, Sajjan Singh-Incharge Malkhana. (31) PW31, Kishan Lal HLC, S.P. Office (32) PW32, Shanti -Sister of Bhimnath. (33) PW 33, Kamla Devi- Cousin sister of Bhimnath. (34) PW34, Sanwar Mal Bairwa-Talking with deceased Bhimnath on his mobile phone. (35) PW35, Pita Ram Parihar-Advocates (36) PW36, Mohan Singh -Incharge Police Station Kotwali, Pali. (37) PW37, Alka Gupta -Magistrate (38) PW38, Sanjay Gupta -Dy. S.P. (39) PW39, Kushal Singh -Dy. S.P. 3.8. To prove the culpability of the accused, the prosecution has also produced number of documents, like First Information Report, autopsy reports of five dead bodies, FSL Report, panchnamas of recovery, discovery as well as scene of offence, and relied upon the contents of the same. 3.9. After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required under Section 313 of the Code. In their further statements the accused denied the case of the prosecution by saying that they were falsely implicated in the case. However, they did not lead any evidence nor did they examine any witness in support of their defence. 3.10. On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the trial Court held that deceased Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal died a homicidal death on receiving injuries inflicted by axe (kulhari). Trial Court also held that on the basis of circumstantial evidence pitted by the prosecution, the prosecution has proved the complicity of Al for committing murder of Bhimnath, Chhoti Devi; Kalu, Shiva and Bhanwarlal. The trial Court has enumerated various circumstances appearing against the accused to prove his complicity in the murder of five persons. Trial Court has also held that the accused has caused dis- appearance of the evidence after committing the offence as well as committed theft of ornaments. In view of the above referred to conclusions, the trial Court held that the charge levelled against the Al for commission of offence under Section 302, 201 and 380IPC were fully established and as a result thereof the accused was to held liable for those offences. 3.11. The trial Court thereafter heard Al on the question of sentence. According to the trial Court, the accused had committed brutal and diabolic murder of five persons and as he had committed heinous, gruesome and diabolic multiple murders in a shocking manner, awarding of extreme penalty of death was imperative and on the basis of the above conclusions arrived at by the trial court. The trial court imposed death sentence on Al for commission of murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal vide his judgment and order dated 7.8.2007 rendered in Sessions Case No. 56 of 2007 which has given rise to DB Criminal Murder Reference No. 2 of 2007 as well as DB Criminal Jail Appeal No. 835 of 2007 and DB Criminal Appeal No. 838 of 2007 filed by Al. 3.12. In the said judgment, the trial Court has also held that after committing the murder and theft of ornaments, the stolen articles were sold to A2 and A3, who received the articles knowing them to be stolen articles, therefore, A2 and A3 also committed offence under Section 411 of the IPC and holding them guilty for the offence under Section 411 IPC each of them has been sentenced to simple imprisonment for three years and fine of Rs.500, in default of payment of fine further un- dergo imprisonment for six months for the said offence which has given rise to S.B. Criminal Appeal No.772 of 2007.;