- (1.) THE appellants in Cr. Appeal No. 499/05 were arrayed as A1 and .A2 in S.T. No. 140 of 1996/Trial No. 16/2003 before Addl. Judicial Commissioner, F.T.C. No. VIII, Ranchi, and along with them, Basant Mahto was also arrayed as A3. Charges were framed against the appellants along wih Basant Maho for the offence under Section 302 read with Section 34 and 120B IPC on the allegations that at about 9.00 p.m. on 26.6.1995, the appellants and Basant Mahto, in pursuance of a conspiracy hatched, committed the murder of Shiv Kumar Nath Mishra (Dl), Deo Dahi Devi (D2), their daughters Munni Kumari (D3) and Neelam Kumari (D4), by using sharp cutting weapons, inflicting several injuries on their persons. Learned Trial Judge, while acquitting Basant Mahto of all the charges and also acquitting the appellants under Section 120B IPC, found the appellants guilty for the offence under Section 302 read with Section 34 IPC and awarded death sentence to them. The appellants, aggrieved by the said order of conviction and sentence, preferred the above appeal and the Death Reference is by the Sessions Judge for confirmation by this Court.
(2.) AS the appeal and the reference arise out of a common sessions case, both are being disposed of by the following common judgment. The facts, as could be discerned from the oral and documentary evidence, can briefly summarized as follows : The first appellant is the elder brother of D1 and the second appellant is the son of first appellant. Dl was residing at village -Manatu. He (Dl) was apprehending danger to his life at the hands of his elder brother, the first appellant herein, on account of disputes between them as regards enjoyment of the landed property. He expressed his apprehension to PW 4, Hari Nandan Tiwari, who is his brother -in -law. Thereafter, Dl was assured by PW 4 that nothing will happen to him. On the date of incident, at about 7.00 p.m., PW 4 along with Govind Singh, PW 2, went to the village - Manatu and they wanted to go to the house of Shiv Narayan thakur, PW 1, to find out the situation in the village since his brother -in -law, Dl, on earlier occasion, expressed apprehension to his life. While they were proceeding to the house of Shiv Narayan Thakur, PW 1, they found appellant No. 1, appellant No. 2 and three others standing fn front of the house of A3 Basant Mahto (acquitted by the trial court) and on seeing PW 2 and PW 4, the appellants bolted the door from inside and therefore, the witnesses became suspicious. Later, they went to the village and returned to the house of Dl at about 9.00 p.m. At that time, they found some persons standing at the door of the deceased D1. On seeing the witnesses, the persons, who were standing a the door, switched on Torch Light and asked them not to come there. Therefore, PWs 2 and 4 retreated towards the eastern boundary of the house and at that time, they heard groaning and mourning sounds emanating from the house of Dl. It is the further case of the prosecution that PWs 2 and 3, who also reached the scene of occurrence just before the arrival of PWs 1 and 4, saw the appellants coming out of the house with an amputated hand of one of the deceased in his hand. Thereafter, PWs 1 to 4 entered the house after the appellants left the place and found Dl to D4 laying dead with injuries all over the body. On the next date, at about 10.30 a.m. PW 4 went to the police station and gave a complaint to the Police Officer. The said complaint was reduced into writing and investigation was taken up by the Police Officer (not examined during trial) and the complaint given by the PW 4 was not also marked. After the investigation was taken up, the inquest was conducted (inquest report was also not marked) and seizure list was prepared. The body was sent by the Police Officer to the hospital for the purpose of autopsy.
(3.) ON receipt of the requisition, PW 5, the Medical Officer attached to the RMCH, conducted autopsy on the dead body of Dl, Shiv Kumar Nath Mishra. He found the following injuries : - (i) 7 cm x 3 cm x bone beep on left elbow back cutting the underlying soft tissues, the blood vessels and the lower part of the left humerus bone completely. (ii) 4 cm x 1 cm x bone deep, 3 cm x 1 cm x bone deep on the back of left fore -arm cutting the underlying bones partially. (iii) 9 cm x 2 cm x bone deep on left are lateral side cutting the underlying bone partially. (iv) 15 cm x 4 cm x bone deep on left cheek and adjoining temporoparietal bone and adjoining left fronto lateral neck upper part cutting the underlying soft tissues, the blood vessels, the zygomatic, mastoid and the temporal and the parietal and the left external ear completely. On inspection of the wound, five tags of tissues were projecting out indicting minimum six blows and the second and third and fourth cervical vertebrae were cut completely. (v) The left upper limb as amputated from the axilla and the left upper limb was lying separately. There was infiltration of blood clots in the soft and bony tissues at all the sides of incised wound. There was presence of blood clots in the cranial cavity. The Doctor also noticed the following post -mortem injuries on the dead body of D1 : - (i) The soft tissue of the right hand and the left hand including the fingers and the area of the decapitated wound, distal part of the left amputated upper limb were eaten away by animal. He issued post mortem certificate. Ext. 2, with his opinion that the death was on account of head injuries associated with haemorrhagic shock, which could have been caused by heavy sharp cutting weapon. Thereafter, he proceeded to conduct autopsy on he dead body of Munni Kumari, D3. He found the following injuries : - (1) 13 cm x 4 cm x bone deep on left fronto parietal region obliquely cutting the underlying bones and brain matter. (ii) 9 cm x 2 cm x bone deep on left occipital region obliquely cutting the underlying bone completely. (iii) 7 cm x 2 cm x bone deep on left occipital region 1/2 cm below the preceding injury with the chipping of the occipital bone. (iv) 6 cm x 2 cm x bone deep on left lateral neck upper part cutting the underlying soft tissue, the blood vessels and the second cervical vertebra partially. (v) 4 cm x 1 cm x bone deep on the back of the neck cutting the soft tissues, the blood vessels and the third cervical vertebra partially. He issued post mortem certificate, Ext. 2/2; with his opinion that the death was on account of head injuries associated with haemorrhagic shock, which could have been caused by heavy sharp cutting weapon. The Doctor thereafter commenced the autopsy on the dead body of Neelam Kumari, D4, and -he found the following injuries and noted them in the post mortem certificate, Ext. 2/3 : - (i) 12 cm x 2 cm x bone deep on left occipital parietal region cutting the underlying bones and the brain mater situated transversely. (ii) 10 cm x 2 cm x bone deep on left occipital parietal region situated vertically cutting the underlying bones and the brain matter. (iii) 7 cm x 2 cm x bone deep on left fronto parietal region obliquely cutting the underlying bones and brain matters. (iv) 14 cm x 2 cm x bone deep on right fronto parietal region cutting the underlying bones and brain matters. (v) 2 cm x 1 cm x bone deep cutting underlying bones completely. (vi) 6 cm x 2 cm x bone deep on left palm lateral side cutting the underlying bones partially. (vii) Linear cut 26 cm x skin deep on both scapular and inter -scapular region. (viii) 28 cm x skin deep linear cut on soft scapular and inter -scapular region situated 3 cm above the preceding injury. In the said certificate, he has also given his opinion that the death could have been on account of injuries sustained by the deceased, which were caused by heavy sharp cutting weapon. The Doctor finally commenced the autopsy on the dead body of D2. He found the following injuries : - (i) 17 cm x 3 cm x bone deep on left cheek and adjoining left lateral neck situated transversely cutting the underlying soft tissues, blood vessels and the left mandible bone completely. (ii) 16 cm x 4 cm x bone deep on left side of face and adjoining left temporo parietal region transversely cutting the underlying soft tissues, the blood vessels and the left mastoid bone chipped situated 2 cm above the preceding injury. (iii) 5 cm x 2 cm x soft tissues on left lateral neck middle part cutting the underlying soft tissues and the blood vessels partially. (iv) 10 cm x 2 cm x bone deep on left frontal region cutting the underlaying bone completely, above downwards. (v) 7 cm x 1 cm x soft tissue left shoulder front. (vi) 11 cm x 4 cm x bone deep on left fore -arm, obliquely cutting the underlying soft tissues, the blood vessels and the bone completely. (vii) 7 cm x 1 cm x bone deep on left palm medial side cutting the underlying soft tissues, bones completely. (viii) 3 cm x 1 cm x bone deep on right thumb front cutting the underlying soft tissues and the bone partially, fix) Linear cuts 9 cm x skin deep and "7 cm x skin deep on left scapular region parallelly. (x) 12 cm x 2 cm x bone deep on right fronto parietal region, antero -posterior cutting the underlying bone and the brain matter. (xi) 10 cm x 2 cm x bone deep on right fronto parieto temporal region situated obliquely cutting the underlying soft tissues, the blood vessels and the bones partially. He issued Ext. 2/1. the post mortem certificate, with his opinion that the death could have been on account of head injury associated with haemorrhagic shock due to the injuries suffered and that they could have been inflicted with a weapon like "farsa".;