Shiva Kirti Singh, J.
1. The Death Reference and the two connected Appeals have been heard together and are being disposed of by this common judgment.
2. Appellant, Ganesh Sah, has been convicted for offences under Sections 302 and 120B of the IPC for which he has been sentenced to death and RI for 7 years respectively. His wife, appellant Dana Devi has also been convicted for the same offences. For the offence under Section 120B of the IPC, she has been awarded the same sentence of RI for 7 years but for offence under Section 302, IPC, she has been sentenced to life imprisonment and also a fine of Rs. 50,000, out of which Rs. 40,000 is payable to wife of deceased Suresh Sah and in default, she is to undergo RI for a further period of two years. Her sentences are to run concurrently.
3. The alleged occurrence took place on 31-8-1999 at 11 pm. The Fardbeyan of informant Ripal Devi (PW1) was recorded on 1-9-1999 at 5.00 am at the place of occurrence which is house of deceased Ram Avatar Sah, his wife deceased Draupati Devi and his son deceased Suresh Sah which is at a distance of 8 km from the concerned Khanpur police station. Informant Ripal Devi is daughter of deceased Ram Avatar Sah as well as sister of appellant Ganesh Sah who along with his wife and another has faced this trial for the murder of his parents and his brother. According to the Fardbeyan, the appellants had committed the offence with the help of and in conspiracy with accused Yoga Poddar (since acquitted) and the two absconding accused Arjun Sah son of appellant Ganesh Sah and Lalit Kumar Sah, his brother-in-law. In the Fardbeyan the informant claimed that on account of illness of her mother deceased Draupati Devi, she had come to her parents village from her husband's place about 1 1/2 month ago. In the night of the occurrence, her father, mother and brother, the three deceased, went to sleep outside after taking meal at about 9.00 pm. Her father and brother slept on Khat and Chauki in open Sahan land and her mother slept in Dalan. The informant slept with her daughter near the door. On hearing sound of crying and sobbing from outside at about 11 PM, she woke up and came out from house. She saw appellant Ganesh Sah assaulting at the neck of her younger brother Suresh Sah with a Garansi (a sharp cutting weapon) and her co-villager Yoga Poddar was cutting the neck of her father with a Garansi in hand. Accused Lalit Kumar Sah had tightly pressed the legs of her father. On her raising alarm, the said three accused started fleeing towards west. In the meantime she saw accused Arjun Sah and appellant Dana Devi and an unknown person coming out from Dalan. Arjun was armed with Dabia (a sharp cutting weapon) and the unknown person was having Garansa. They also started fleeing towards west. She recognized all of them in moonlit night and in the light of torch. She found that necks of her father and brother were half cut and they had died. Then she went to see her mother in the Dalan situated by the side and found cut injury on her neck and also an injury in her back and she was unconscious. She saw blood oozing out of the wounds. On her cry and alarm many co-villagers came to whom she disclosed about the occurrence. Her brother Suresh Sah deceased, had come from Ranchi only a day before and his wife had gone to her parents village on the occasion of Rakesha Bandhan. The informant further disclosed that her father had about 5-6 Bighas of land. Her elder brother appellant Ganesh Sah had separated from his parents after marriage about 16-17 years ago. At that time her father had verbally gifted him 1.25 Bighas of land for livelihood. About 3 years ago appellant Ganesh Sah got further 10 Kathas of land registered by his father in favour of his wife on false promise that he would take care of his food etc. When he stopped providing him food, her father took back 1.25 Bighas of land from Ganesh and thereafter he executed sale deed (Exhibit 4) for 15 Kathas of land each in favour of the informant and also in favour of her sister Hemanti Devi. Since then Ganesh, his son Arjun and Dana Devi used to threaten her parents and Suresh Sah for their life. In case of altercation in the past her uncle Ram Pratap Sah and his sons usually favoured Ganesh Sah and hence, they did not come to the place of occurrence immediately after hearing her alarm at the time of occurrence although they were sleeping at a close distance. She further alleged that Lalit Kumar Sah brother-in-law (wife's brother) of Ganesh Sah and his son had come to house of Ganesh Sah only a day before and while taking their meal they had threatened that they did not hesitate in kidnapping and killing during day time hence there was no reason to be afraid in the night. The informant claimed that her elder brother Ganesh, his son Arjun, Dana Devi, her co-villager Yoga Poddar, Lalit Kumar Sah and an unknown person had committed murder and assault with common intention due to dispute on the issue of partition of land.
4. After recording Fardbeyan, Sub-Inspector of Police, Sidheshwar Ravidas (PW 18) investigated the case and submitted charges-sheet against the three accused persons including appellants. The other two accused, as noticed earlier, remained absconding. In course of investigation, the IO Inspected the place of occurrence where dead bodies of deceased Ram Avatar Sah and Suresh Sah were found lying. He saw blood in huge quantity where the dead bodies were found. He found injured Darupati Devi lying unconscious. She was sent to Sadar Hospital for treatment. Draupati Devi died on the same day and he got autopsy of all. the three dead bodies done. He recorded the statement of witnesses. While continuing investigation against the absconding accused, he submitted chargesheet against the accused who faced trial because they pleaded not guilty to the charges.
5. In course of trial the prosecution examined 18 witnesses in all whereas defence examined only one witness Ram Shankar Rai only to show inter se relationship between prosecution witnesses such as PWs 2, 4, 6, 7, 12, 15 and 16 and to allege that there was some difference between appellant Ganesh Sah and PW 2 Sastrughan Sah on account of a dispute over Rs. 50 since about 9-10 years ago.
6. PW 1, Ripal Devi is the informant. She was examined in part on 18-12-2000. On that date in 3 paragraphs of her examination-in-chief she claimed that on the date of the occurrence she was in the house of her parents and she was sleeping near the door of the house with her daughter and her father and brother were sleeping outside in the Sahan and her mother was sleeping in the Dalan (Varandah) and in the occurrence of that date her father, mother and brother was murdered. Thereafter she was next examined in chief on 21-5-2001. On that date she claimed that she woke up in the night and found her mother injured and lying unconscious in Dalan and her brother and father were lying dead and their necks had been cut. Since she did not claim to have seen the assault and did not claim to identify the assailants, she was declared hostile and cross examined by the prosecution. She admitted her signature on the Fardbeyan (Exhibit 1) but she claimed that she had fainted at that time. Thus, she disowned her earlier statement recorded in the Fardbeyan but her attention was drawn to her such statement made earlier which was also affirmed by the IO (PW 18). She denied suggestion of the prosecution that she had subsequently went in collusion with the accused persons and was, therefore, concealing the truth. In cross-examination on behalf of the accused persons she stated that she had not seen anybody when she saw her injured mother and the two other deceased and that nobody came on her hulla (alarm) at that time and that on seeing the deceased persons she had fainted. She explained that her signature was obtained when she slightly regained consciousness but the contents were not read over to her. She denied any dispute between her father and the accused persons.
7. PW3, Ramjee Paswan, PW 5 Rameshwar Rai and PW 16, Ramji Mahto, a cousin of PW 12 have been declared hostile. PW 13, Budhu Mahto and PW 14 Budhan Paswan have been tendered only for cross-examination. These five witnesses are of no help to the prosecution. PW 2, Satrughan Sah, PW 4, Surendra Sah, brother of PW 2, PW6 Ram Punit Sah, brother of PW 15 have claimed to be eye witnesses of the alleged occurrence and/or of accused persons fleeing away just after the occurrence. PW 7, Tirpit Narayan Sah, is a formal witness who has proved the inquest report of deceased Draupati Devi as Exhibit 2, PW 8, Dhirendra Kumar Choudhary is another formal witness who has proved the inquest reports of the other two deceased as Exhibits 1 and 1 /1. PW 9, Laxmi Pd. Singh is father of PW 10 Usha Devi who is wife of deceased Suresh Sah. Both of them were admittedly in another village on the date of occurrence and have supported the prosecution case as hearsay witnesses in respect of the actual occurrence. They have deposed to support the alleged motive for the occurrence.
8. PW11, Mohan Sah is a cousin of PWs 2 and 4. He claims to have seen only appellant Ganesh Sah running away after he went towards place of occurrence on hearing alarm. According to him, others had already fled away. He claims to have heard the names of assailants at the place of occurrence and has supported rest of the prosecution case only as a hearsay witness.. PW 12, Baidyanath Mahto, has also deposed on the same lines as PW 11 but he claimed to have seen the appellants along with Arjun Sah, Shambhu Sah and one unknown person fleeing away. He saw Garansa in hand of Ganesh and Dabia in the hand of Arjun. When he reached at the place of occurrence he saw the two deceased whose necks were cut and saw Draupati Devi in injured condition. The informant gave out names of the accused persons who had committed the murder and also the motive. PWs 11 and 12 did not name co-accused Yoga Poddar (since acquitted). At this stage only it would be relevant to notice that the IO has deposed that PW 11 had not claimed to have seen any accused fleeing away and PW 12 had also not made such claim before him.
9. PW 15, Anandi Sah is father of PWs 2 and 4. He has claimed to have woken up on hearing the cry of Ripal Devi (PW1) and when he reached at the place of occurrence he was given the name of the appellants as well as of Arjun Sah and Lalit Sah as the assailants of the two deceased and of Draupati Devi (deceased). He has admitted that he saw nothing with his own eyes except the dead bodies and thus, he is only a hearsay witness.
10. PW 17, Dr. Vijay Kumar conducted autopsy on the body of deceased Suresh Sah and deceased Ram Avatar Sah on 1-9-1999. He found incised wound on the neck of both deceased besides some other incised injuries all caused by sharp incised weapon such as Katta and the death had been caused due to those injuries within 24 hours. He conducted autopsy of deceased Draupati Devi on 2-9-1999 and found incised wound on her neck besides two other incised injuries caused by sharp cutting weapon like Katta. Death had been caused due to those injuries within 24 hours. He proved the postmortem reports as Exhibits 3, 3/1 and 3/2.
11. Now, it will be useful to discuss the evidence of PWs 2, 4 and 6 who have claimed to be eye witnesses of the alleged occurrence and/or of accused persons fleeing away. PW2, Satrughan Sah is son of PW 15 and brother of PW 4. He has claimed that at the relevant time in the night he had got up to look for his ox which had broken its tether. In course of the same he saw in the light of his torch the two appellants and Arjun Sah, Shambhu Sah and Lalit Sah fleeing from the place of occurrence which was Darwaza of Ram Avatar Sah; deceased. At the place of occurrence PW 1. Ripal Devi disclosed that those persons had assaulted her, mother and two deceased. He claims to have seen the injured and the two deceased at the place of occurrence. He did not name Yoga Poddar. He has claimed that some villagers (not examined) came to the place of occurrence and went away. He admitted that he had not shown the torch to the SI of Police. He has replied in cross-examination that Ripal Devi (PW1) had not fainted; rather she was crying and narrating everything at the place of occurrence. He has denied any enmity with the accused persons.
12. PW 4, Surendra Sah has claimed that at the relevant time at about 11 o'clock in the night he had gone to ease himself. As he reached near the Darwaza of Ram Avatar Sah (deceased) he saw Ganesh Sah, Arjun Sah, Yoga Poddar, Lalit Sah, Shambhu Sah and Dana Devi. Ganesh and Yoga were armed with Garansa and rest three had Dabia. Ganesh cut the neck of his brother Suresh Sah, Yoga Poddar was standing there. Ram Avatar had already been killed. Dana Devi inflicted injury with Dabia on the neck and shoulder of Draupati Devi. Shambhu and Lalit had caught hold of Suresh Sah (deceased). When Ripal Devi began to cry all the accused persons fled away. He claimed to have a torch in his hand but further claimed that since the night was moonlit hence in that brightness he recognized the accused persons. His attention was drawn to his earlier statement before the IO in order to elicit contradictions and improvements. The IO affirmed that PW 4 had stated before him that Ganesh and Yoga were armed with Garansa and thereafter he had generally stated that accused persons were armed with Dabia and Garansa. No significant contradiction has been obtained from the IO.
13. PW 6, Ram Punit Sah is brother of PW 15 and uncle of PWs 2 and 4. He has claimed that on the relevant date at about 11 o'clock in the night his sleep was broken when his son, who was sleeping with him, got up for urination. He was sleeping on the rooftop of his house. He saw nearly 6-7 persons near the house of Ram Avatar Sah who were assaulting Ram Avatar and Suresh. Ganesh gave Garansa blow to Suresh. Lalit had caught hold of Ram Avatar and one unknown person was inflicting Garansa blow on Ram Avatar but as his face was in the other direction hence he could not recognize him. Wife of Ram Avatar Sah was sleeping in a hut made of straw in front of the house. Dana Devi and Arjun Sah were inflicting Dabia blow on her. In the meantime he heard voice of Ripal Devi. He got down and reached at the place of occurrence. All the accused started fleeing. Dana Devi and Arjun Sah came out of the hut where Draupati Devi was present. According to him, Arjun had Dabia in hand and rest were having Garansa. He has also not named Yoga Poddar. He has clarified that he saw the occurrence and the accused persons in the moonlight. His attention was drawn to some of his statements with a view to elicit contraction vis-a-vis his statement before the IO. PW 18 the IO has deposed that PW 6 had given general statement that the accused persons were armed with weapons and had not attributed specific weapon to specific accused nor he had stated before him that he had seen any particular accused person assaulting a particular person.
14. On behalf of the accused persons it was first submitted that since the informant PW 1 has disowned the Fardbeyan and the witness of Fardbeyan PW 6 has not deposed that Fardbeyan was recorded in his presence and that he signed on that as a witness, the Fardbeyan which is the basis of the FIR, cannot be treated as statement of informant Ripal Devi (PW1). It was further submitted that on 30-9-1999 itself a protest petition had been filed by PW 1 against the investigating officer and the order dated 18-12-2000 passed by the trial Court shows that on that day also a petition was filed on behalf of the informant praying not to record her evidence. The order dated 14-3-2001 shows that the learned Additional Public Prosecutor had filed a petition alleging that the informant was not prepared to support the prosecution case, hence other relatives of the informant have come forward to support the occurrence. The order dated 21-5-2001 shows that prayer of the prosecution not to proceed with further examination of the informant as a prosecution witness was rejected at the instance of the defence and then the informant, PW 1 was further examined only to be declared hostile. These facts were highlighted to make out a case that since beginning the informant had realized that Fardbeyan was not based on her statement and, therefore, she did not support the prosecution case.
15. On behalf of the State, learned APP submitted that even if the informant has turned hostile, her evidence in Court is sufficient to prove the time and place of the occurrence and since she has admitted her signature on Fardbeyan which is clear and legible, her claim that she had fainted and signed in semi conscious state cannot be accepted. It must be held that the informant has been gained over because appellant Ganesh is her own elder brother and the other appellant is wife of Ganesh. It was further submitted that there is distinct possibility that she has been gained over by lust for property or for money, as deposed by PW 10, wife of Suresh Sah, deceased.
16. On considering the evidence of PW 1, the contents of the Fardbeyan over which she has admitted her signature and the evidence of the IO who has claimed that she herself gave the statement recorded in the Fardbeyan, it is clear that the informant PW 1 has been subsequently gained over and hence, she has refused to support the prosecution case against the accused persons including the appellants. As a result, the prosecution cannot gain anything from the contents of the Fardbeyan. But at the same time learned APP is correct in submitting that the case of the prosecution cannot be thrown out only because the informant has turned hostile. According to him, the evidence of PWs 2, 4 and 6 is sufficient to show the complicity of both the appellants in the murder of the three deceased because those witnesses are disinterested co-villagers and all of them have named the appellants. While PW 2 saw them fleeing and when he rushed to the place of occurrence PW 1 disclosed the name of the appellants amongst the accused persons who had assaulted her mother and the two deceased, PW 4 had seen the actual occurrence of assault on the deceased persons and has named the appellants who were involved in the assaulting the deceased. PW 6 has his house near the place of occurrence and has claimed to have seen the occurrence and identified the appellants from his rooftop. When he got down and came to the place of occurrence he saw accused persons fleeing. It was further submitted that although PWs 11 and 12 had not claimed before the IO that they had seen the appellants and other accused fleeing away, after shifting the chaff from the grain, from their evidence it is clear that they had rushed to the place of occurrence on hearing alarm and they learnt the name of the appellants and some others as the miscreants or as the assailants of the deceased.. Similar is the evidence of PW 15. According to learned APP, the defence has failed to establish any previous enmity or any reason which could suggest that these witnesses who are co-villagers are interested in falsely implicating the appellants in such a ghastly crime and if their evidence is found reliable, then the involvement of both the appellants in the alleged occurrence is proved beyond any doubt.
17. On behalf of the appellants it was submitted that since the appellant Ganesh Sah had separated long back from his father, there was no motive for him to commit such a crime and in any case there was no immediate reason to commit such heinous offence when even the land dispute had become old. On the other hand, learned APP has submitted that the motive for the occurrence has been proved by the witnesses, particularly PWs 9 and 10 who are father-in-law and wife of deceased Suresh Sah. It was further submitted that the fact that Suresh Sah, one of the deceased used to reside outside and had come back only a day earlier appears to be the immediate reason for eliminating all those who could resist appellant Ganesh Sah in taking over the land of his father, Ram Avatar Sah (deceased).
18. On going through the evidence of witnesses as well as Exhibit 4 which shows that on 3-9-1996 deceased Ram Avatar Sah had transferred 15 kathas of his agriculture land in favour of his daughter Ripal Devi (PW 1), it is found that the prosecution has successfully established motive for the appellant Ganesh Sah to commit murder of his father, mother and brother.
19. From the materials on record another circumstance of significance is evident. It has come in the evidence of the IO in cross examination that the accused persons live in a portion of that very house where occurrence took place and the family of the informant is in the other part. It is also clear from the evidence of the witnesses as well as the IO that the appellant had run away after the occurrence and were not available to the IO either for arrest or interrogation. The act of the appellants in running away from the common house after a ghastly occurrence in which father, mother and brother of the appellant Ganesh Sah were murdered, is also a strong circumstance against the appellants. Ordinarily, as an elder son of the deceased Ram Avatar. Sah and deceased Draupati Devi, appellant Ganesh Sah should have reported the matter to the police but clearly he fled away along with his family members.
20. On behalf of the appellants it has been submitted that the FIR appears to have been ante dated and concocted because it is claimed to have been instituted at Khanpur police station on 1 -9-1999 but was seen by the Chief Judicial Magistrate, Samastipur not on the next day i.e. 2-9-1999 but on 4-9-1999 and there is no explanation for such inordinate delay. No doubt, delay in sending the FIR to CJM may raise doubt about its genuineness and in appropriate case it may raise suspicion regarding truthfulness of the prosecution case. However, in the present case, the informant (PW 1) happened to be own sister of appellant Ganesh Sah and very close to the three deceased and, she has turned hostile subsequently. She had no reason to be a party to ante dating of the FIR. She has admitted her signature on the Fardbeyan which is very clear and legible. It falsifies her claim that she signed in semi conscious state. PWs 2, 4, 6, 11, 12 and 15 have also deposed that she was crying but had disclosed the details of the occurrence to them. Further, no question was put to the IO suggesting that the FIR was ante dated or that it was sent to CJM after delay. Hence, no opportunity was given to the IO to explain his conduct or to explain that there was no inordinate delay on his part in sending the FIR to Court. Similarly, no similar suggestion was given to PW 1 who admitted her signature on the Fardbeyan that it was recorded on same other day. Thus, it is found that the delay of two days in perusal of the FIR by the learned Magistrate has not prejudiced the accused persons of this case and it also does not affect adversely the prosecution case specially when the informant has turned hostile and the prosecution is dependent upon evidence of witnesses like PWs 2, 4 and 6 as corroborated by PWs 11, 12 and 15.
21. While cross examining the IO (PW 18) it was elicited in paragraph 3 of his deposition that the IO had received another Fardbeyan from Samstipur police station which he entered in the case diary on the basis of statement of one Ras Behari Sah. The said Fardbeyan by a neighbour Ras Behari Sah who had gone with the injured Draupati Devi to the hospital was entered in the case diary because before that the present case had already been instituted on the basis of Fardbeyan of PW 1. The defence did not muster courage to cross examine the IO further regarding contents of the statement of Ras Behari Sah which was in the Fardbeyan sent from Samastipur PS and which is entered into the case diary, because it does not suit the defence.
22. With regard to claim of the witnesses regarding identification of the accused persons, a criticism has been advanced that no torch was produced before the IO. In respect of means of identification it has come in the evidence of the witnesses that the occurrence took place on a moonlit night and such claim has not been challenged in cross examination nor anything contrary has been deposed by the defence witness. Usually, people in rural areas live without electricity and they develop ability to identify people from a reasonable distance even in moonlight especially when the person is known from before. Hence, in this case the claim of the witnesses like PWs 2, 4 and 6 that they identified the appellants, cannot be doubted because it was a moonlit night and the appellants being co-villagers were well known to those witnesses from before.
23. On a proper consideration of the medical evidence which corroborates the prosecution case and the relevant facts and circumstances and on the basis of material discussed above, it is found that the trial Court has rightly convicted the appellants for the offences under Sections 302 and 120B of the IPC. Their conviction is, therefore, maintained.
24. So far as award of death sentence to appellant Ganesh Sah is concerned, I find that he has participated in such a ghastly offence on account of his mental perception of partiality on the part of his father deceased Ram Avatar Sah in not giving him proper share of land. Land dispute leading to murders is not very unusual or rare in our society especially in rural areas.
25. Hence, in my opinion, this case cannot be treated as rarest of rare cases so as to warrant death sentence against appellant Ganesh Sah. Hence, the Death Reference in respect of his sentence is answered in negative and sentence of death awarded to him for offence under Section 302, IPC is commuted to sentence of life imprisonment and also a fine of Rs. 50,000/- (Fifty thousand) and in default, he will undergo further rigorous imprisonment for two years. If the fine is realized then Rs. 40,000/- (Forty thousand) out of the same must be paid to Usha Devi w/o deceased Suresh Sah. His punishment of RI for seven years for the offence under Section 120B of the IPC requires no interference. His sentences shall also run concurrently. We find no good reason to interfere with the sentence awarded to appellant Dana Devi.
26. With the aforesaid modification in sentence, the appeal of Ganesh Sah is dismissed. The appeal of Dana Devi is also dismissed.
Madhavendra Saran, J.
27. I agree.