Narayan Roy, J.
1. Heard Counsel for the parties.
2. The Death reference and the Criminal Appeals have been heard together and are being disposed of by this common judgment.
3. Appellant Rajo Yadav, Babloo Yadav, Manoj Yadav, Sanjay Yadav and Bishwa Nath Yadav have been found guilty for an offence under Section 302 read with Section 140 of the Indian Penal Code and have been sentenced to death, whereas appellant Shatrughan Yadav has been found guilty under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and also to pay a fine of Rs. 25,000/-. Appellant Rajo Yadav and Babloo Yadav have also been found quality under Sections 27 and 35 of the Arms Act. However, no separate sentence has been passed under these counts.
4. The prosecution case, as disclosed in the fardbeyan (Ext. 5) briefly stated is that in the night of 23/24.2.1997 while he was sleeping in his verandah and his father, step-mother, step-brother and step-sister were sleeping in a room by side, at about 12.30 a.m. all of a sudden 8-9 persons variously armed entered into his house by breaking open the Tati. His own sister and aunt were sleeping in a separate room and remaining family members also sleeping in the adjoining rooms and no sooner the miscreants entered into his house, they started abusing and appellant Babloo Yadav threatened him at the pistol point asking him not to raise alarm else he would be killed. Two or three of them tied his hands with rassi and thereafter they dragged his father (Ram Charitra Sah), step-mother (Ram Kumari Devi), step-brothers (Rahul, aged about 7 years, and Rohit, aged 5 years) and step-sister (Reena, aged about three years) to the courtyard and appellants Babloo Yadav and Rajo Yadav fired shots and thereafter all of them with the help of Dabiya, farsa and lathi assaulted his father, step-mother and his two step-brothers and step-sister as a result of which all of them numbering five succumbed to the injuries on the spot. Out of the assailants the informant identified Rajo Yadav, Babloo Yadav, Manoj Yadav, Sanjay Yadav, Bishwa Nath Yadav and Shatrughan Yadav in the light of lantern and moonlight, and rest could not be identified by name. The motive disclosed in the fardbeyan (Ext. 5) appears to be that his father Charitra Sah, the deceased, had married a lady of Yadav community, namely, Ram Kumari Devi (deceased), who happened to be Bhua of appellant Rajo Yadav and for this reason, the above named accused-persons were aggrieved, which resulted into the murder of all the five persons named aforesaid and prior to this occurrence, appellant Rajo Yadav for the reason aforesaid kidnapped the sister of the informant, which was reported to the police and a case was registered.
5. On 24.2.1997 at about 5.15 a.m. P.W. 16 Sri Ram Singh, Officer-in-Charge, Madehpura Police Station, recorded the fardbeyan of P.W. 6 Ram Chandra Sah at his darwaja in village Sripur, Police Station Madehpura, District Madehpura and on the basis of the fardbeyan a formal First Information Report (Ext. 6) was drawn up against the appellants and some unknown persons and after due investigation police submitted charge-sheet against the appellants for an offence under Section 302 of the Indian Penal Code read with Sections 27 and 35 of the Arms Act. After taking cognizance of the offence, the case was committed to the Court of Sessions, where upon conclusion of the trial the appellants were found guilty and they have been convicted and sentenced, as referred to above.
6. The defence of the appellants is plea of innocence and false implication.
7. The prosecution in all examined 16 witnesses in support of its case. Out of them P.W. 1 Tetari Devi, P.W. 2 Saraswati Devi, P.W. 3 Sattan Sah, P.W. 4 Fulo Devi, P.W. 5 Manju Kumari and P.W. 6 Ram Chandra Sah are the eye-witnesses of the occurrence, P.W. 7 Dr. Uma Shankar Bhagat is the Medical Officer, who held autopsy over the dead body of deceased Ram Kumari Devi, P.W. 8 Dr. Mithilesh Kumar is the Medical Officer, who held autopsy over the dead body of deceased Ram Charitra Sah, P.W. 13 Dr. Ganesh Kumar, Civil Assistant Surgeon, held, autopsy over the dead body of deceased Rahul Kumar, whereas P.W. 14 Dr. Rajendra Gupta, Medical Officer, held autopsy over the dead bodies of deceased Reena Kumari and Rohit Kumar P.W. 16 Sri Ram Singh is the Investigating Officer of the case, P.W. 15 Rajendar Prasad Singh is a Judicial Magistrate, who recorded statements of P.Ws. 5 and 6 under Section 164 of the Code of Criminal Procedure (hereinafter to be referred to as 'Code'), P.Ws. 9, 10, 11 and 12, namely, Shivendra Kumar alias Shivajee Yadav, Jagdeo Yadav and Shyam Sunder Prasad Yadav and Chandan Kumar, respectively, are witnesses of seizure.
8. P.W. 6 Ram Chandra Sah is son of the deceased Ram Charitra Sah alias Charitra Sah from his first wife. He is said to be the eye-witnesses of the occurrence. This witness in his evidence has given first account of the occurrence by saying that in the fateful night he was sleeping on a chowki in the verandah of his house, whereas his parents, brothers and sister were sleeping in a room. All of a sudden, 10-12 persons entered into his house by bratking open the lock and when he woke up he was assaulted by accused-persons and his hands were tied with the chowki and thereafter they entered into the room, where his father, step-mother, step-brothers and step-sister were sleeping and dragged them to the court yard, where all of them were done to death at the hands of the accused-persons by means of lathi, Dabiya, etc. Out of the accused-persons, he identified Rajo Yadav, Babloo Yadav, Bishwa Nath Yadav, Sanjay Yadav, Manoj Yadav and Shatrughan Yadav. In his evidence he has disclosed the genesis of the occurrence by saying that his father had married his step-mother out of love and since she belonged a different community, the accused-persons had nursed a grudge against his father and as a sequel to that, they committed this offence. This witness identified all the six accused-persons in the dock. This witness has been subjected to a lengthy cross-examination, but he has stood the test of cross-examination and has reiterated his version as disclosed in the fardbeyan and also in examination-in-chief except certain minor contradictions, which cannot be said to be prejudicial to the defence case. This witness in his cross-examination has stated in categorical terms that some of the assailants were his villagers and some were outsiders and total number of assailants was 10-15 and all were armed with weapons ands they had assaulted the deceased persons. A suggestion was put to him that at the time of occurrence neither there was patrolman nor any electric bulb was burning at the place of occurrence. This witnesses has answered the suggestion in affirmative, but he has not denied the fact, as stated in the examination-in-chief that it was a moon-lit night and there was a torch, in the light of which he recognized the accused persons. In his cross-examination, he has categorically stated that, the night of the occurrence was a moon-lit night and the accused-persons had also opened fire. He has given description of his courtyard by saying that it was 15 x 10 cubits in length and breadth, respectively, from the evidence of P.W. 6, the informant, it is manifest that the courtyard was a very small one and he had seen the occurrence in the moonlit night and also by means of a torch light and had identified six of the accused-persons, namely, Rajo Yadav, Babloo Yadav, Bishwa Nath Yadav, Sanjay Yadav, Manoj Yadav and Shatrughan Yadav.
9. P.W. 1 Tetari Devi, is wife of younger brother of deceased Charitra Sah, she in her evidence has stated that 10-12 persons came from west, side and tied Ram Chandra Sah, the informant (P.W. 6), and they assaulted her Bhainsur, deceased, and other deceased persons. From her cross-examination, it appears that while deposing in Court she fainted and became unconscious and hence the case was adjourned for her evidence and subsequently, she was examined and she deposed the appellant Manoj Yadav and Bishwa Nath Yadav killed her Bhainsur. She further states that appellant Manoj Yadav assaulted with a gun, whereas appellant Bishwa Nath Yadav, assaulted with farsa and after assaulting all the deceased persons the accused persons fled away and out of them she identified appellant Manoj Yadav and Bishwa Nath Yadav. In her cross-examination this witness has stated that appellant Manoj Yadav used to visit her Bhainsur, the deceased. She has further stated in her cross-examination that in the fateful night, she was sleeping in her house and on hearing hulla and sound of firing she became fearful and when she came out to the courtyard she saw the deceased persons lying there and seeing the ghastly murder of five persons she became nervous and started weeping. She has further stated that her family members and villagers were disclosing the names of the murders and she also heard the names of the assailants at that place. In her cross-examination, she has categorically stated that she had seen all of the accused-persons committing murder. This witness refers to the names of appellant Manoj Yadav and Bishwa Nath Yadav.
10. P.W. 2 Saraswati Devi is wife of another younger brother of deceased Charitra Sah. She in her evidence has stated that in the fateful night at about 12.30 a.m. she woke up on hulla and no sooner, she came out she saw accused Babloo Yadav and Bishwa Nath Yadav and others assaulting the deceased persons, namely, Charitra Sah, Ram Kumari Devi, Rahul, Rohit and Reena by means of lathi and Dabiya. In her cross-examination this witness has stated that on hearing sound of alarm she became fearful. At one place she states that she came to know about the names of appellants Babloo Yadav and Bishwa Nath Yadav by the villagers, who were saying that appellants Babloo Yadav and Bishwa Nath Yadav were the murders. In her cross-examination, she has-further stated that deceased Charitra Sah had eloped with a girl of another caste and used to live with her at Saharsa. She has further stated that Charitra Sah was not coming to his village out of fear. On reading the evidence of P.W. 2 in its entirely, it appears that she had seen the occurrence and she has given the clear picture of the case by saying that the deceased persons were done to death at the hands of the accused-persons, cut of which she identified appellants Babloo Yadav and Bishwa Nath Yadav. It is also manifest from her evidence that though the deceased persons were living at Saharsa and were not coming to their village out of fear, but on the date of occurrence, the deceased persons had come to the village and were sleeping in the house.
11. P.W. 3 Sattan Sah is younger brother of deceased Ram Charitra Sah. This witness in his evidence has stated that on the fateful night at about 12.30 a.m. he was in his house and hearing hulla he came out of his house and saw 10-15 persons there. He further states that he saw accused Bishwa Nath Yadav and he ordered to kill and out of fear he rushed back into his room. He further states that the accused-persons killed Charitra Sah, Ram Kumari Devi, Rahul, Rohit and Reena by means of lethal weapons and thereafter the accused-persons fled away. He has further stated that since his brother had married with Ram Kumari Devi, daughter of Gore Yadav, this occurrence took place and out of the accused-persons, he recognized Manoj by his voice. In his cross-examination, this witness has stated that he was not on visiting terms with Bishwa Nath Yadav from before. At the same time, he further states that accused Bishwa Nath Yadav was known to him earlier too.
12. P.W. 4 Fulo Devi is mother of deceased Charitra Sah. After examination-in-chief, this witnesses has been declared hostile. However, there is probative value of her evidence, inasmuch she saw 12-14 persons in the fateful night in her house and they were the assailants of the deceased persons and she had seen her son, daughter-in-law and grand-children lying dead. This witness in course of her cross-examination became unconscious and fell down in the dock. However, she was not further cross-examined.
13. P.W. 5 Manju Kumari is daughter of deceased Charitra Sah from his first wife. This witness in her evidence has stated that in the fateful night she was sleeping in the house with Tetari Devi (P.W. 1) and when she woke up she saw 20-25 persons in her house and had seen them committing murders of her father, step-mother and step-brothers and sister, in her evidence she has stated that she could recognise Bishwa Nath Yadav, Babloo Yadav and Manoj Yadav amongst the assailants. She identified accused Bishwa Nath Yadav, Babloo Yadav and Manoj Yadav as well. However, in her cross-examination, this witness states that she was not acquainted with accused Babloo Yadav and Bishwa Nath Yadav from before and for the first time, she had seen them in the Court. She also states in her cross-examination that she had seen accused Manoj Yadav for the first time at the time of her deposition in the Court.
14. P.W. 16 Sri Ram Singh is the Investigating Officer of the case. This witnesses in his evidence has stated that on 24.2.1997 he was posted as Officer-in-Charge at Madhepura Police Station and he has recorded the fardbeyan (Ext. 5) of the informant (P.W. 6) and proved the same. In his evidence, he has stated that the place of occurrence was the courtyard of the house of deceased Ram Charitra Sah at village Sripur, which was made of Tati/mud. he has further stated that the entrance of the courtyard of the house is from the northern direction, where a gate of bamboo, Tati and tin was fitted. He has also given the description of the rooms around the courtyard, which is said to be the place of occurrence. He has further stated in his evidence that at the place of occurrence he was informed that the accused-persons had dragged all the five deceased persons in the courtyard and committed their murder by means of farsa, Dabiya and lathi and the assailants had also opened fire. He had found copious blood at the place of occurrence and also at the verandah. He thereafter, prepared the inquest report of the five dead bodies and recorded statement of the witnesses and on search he found the accused-persons absconding. He further states that appellants Rajo Yadav and Babloo Yadav were still absconding, whereas he arrested appellants Manoj Yadav, Sanjay Yadav and Shatrughan Yadav, whose names were mentioned in the First Information Report. In his evidence, he has further stated that he had seized a blood stained farsa in course of search from the house of accused Rajo Yadav and a seizure list was prepared. He further states that he had also recovered a lathi from the house of accused Manoj Yadav which also was blood stained and prepared the seizure list his evidence he has further stated that in course of inspection of the place of occurrence he seized two bullets stuck in wood near the near of deceased Ram Charitra Sah and he had also seized a rope from near the chowki placed at the verandah of the house. In his cross-examination, however, this witness has stated that he had not arranged test identification parade of accused Shartudghan Yadav and he had not seized any lantern from the place of occurrence.
15. P.Ws. 9 to 12 are witnesses of seizure prepared by the investigating officer (P.W. 16) at the place of occurrence and also at the house of some of the accused-persons. P.W. 9 Shivendra Kumari alias Shivajee Yadav in his evidence has stated that his co-villager Charitra Sah, his wife Ram Kumari Devi and three of their children were Killed. He has further stated that Charitra Sah had married a lady of Yadav community and it was an inter-caste marriage. He has also stated that deceased Ram kumari Devi was Phuphi (father's sister) of accused Rajo Yadav. But, so far as the seizure list prepared at the house of accused Rajo Yadav is concerned, this witness has declined to depose that blood-stained farsa was seized from the house of accused Rajo Yadav by P.W. 16 and a seizure list was prepared by P.W. 16, where he had put his signature. However, in paragraph 7 of his cross-examination he identified his signature put on Ext. 9 where his signature has been marked as Ext. 2. However, in paragraph 9 of his cross-examination, he has clarified by saying that no search was made in his presence nor any seizure list was prepared and his signature was obtained on a plain paper. This witness happens to be a Branch Post Master in Postal Department and in the capacity of public servant he had put his signature upon the seizure list. He identified his signature (Ext. 2), but he could not rise to the occasion due to caste bias and in the background of the case. However, this witness appears to be a witness of seizure, as he identified his signature put on the seizure list.
16. P.W. 11 Shyam Sunder Prasad, who is one of the seizure witnesses at the relevant time, was Lecturer, Department of Botany in Murliganj College. He in his cross-examination has admitted the fact that on 24.2.1997, the Sub-Inspector of Police prepared a seizure list, on which he had put his signature. He has also gone one step ahead in identifying his signature put on the seizure list Ext. 9/2. Though this witness in his cross-examination has denied the fact that a seizure list was prepared in his presence and he had put his signature after going through the seizure list.
17. Likewise P.Ws. 10 and 12, who are witnesses of the seizure, have deposed almost in similar fashion, but they do not deny the fact that they had put there signatures on the respective seizure lists.
18. P.Ws. 7, 8, 13 and 14 are the Medical Officers, who held autopsy over the deceased persons. From their evidence, it is manifest that multiple ante-mortem injuries were found on all the five deceased persons, which were sufficient in natural course to cause death. The evidence of the doctors, as referred to above fully corroborates the prosecution version of the case. The eye-witnesses of the occurrence have consistently deposed that all the five deceased persons, who were dragged in the court-yard, where they were brutally assaulted by means of Dabiya, farsa and lathi by the appellants and other accused-persons. The evidence of the doctors, in this view of the matter, has fully proved the manner of occurrence, as disclosed by the prosecution witnesses.
19. On scrutiny of the evidence, as referred to above, it appears that it is a case of ghastly and gruesome murder of five persons including three children ranging in between 3 to 7 years. It is further manifest that the offence appears to be caste oriented and the occurrence had taken place due to caste bias as deceased Ram Charitra Sah had married a lady of Yadav, family, namely, Ram Kumari Devi. It has also come in evidence of the informant (P.W. 6) and his family members that deceased Charitra San having married a lady of Yadav community, was living at Saharsa and even his three children, now deceased, were also living with them and in the fateful night, he along with his wife and children had come to his native village, the place of occurrence. Deceased Charitra Sah, as it appears, had apprehended certain dangers at the hands of Yadav community and he wanted to stay away from his native village.
20. From the evidence, it is manifest that five persons including the children were done to death in their own house in presence of other family member, who merely remained silent spectators due to horrors committed by the accused-persons. From the trend to the evidence of the eye-witnesses, it appears that they were very much terrified seeing the occurrence and even at the time of their evidence in Court, P.W. 1 Tetari Devi and P.W. 4 Fulo Devi became unconscious while narrating the story of ghastly murder of five of their kith and kin. In this background, the Court is duty bound to scrutinize the evidence of the horrified witnesses carefully and with all objectivities and has to take account of their evidence on totality of their deposition by reading in between the lines. Certain contradictions have been shown in the evidence of the eye-witnesses, namely, P.Ws. 1 to 6.
21. Mr. Prakash Narain Pandey, learned Senior Counsel appearing on behalf of the appellants, submitted that there are vital contradictions in the deposition of the eye-witnesses to the extent that all of them have not given the full narration of the occurrence and they have not named all the appellants consistently. Earned Counsel further submitted that the means of the identification was not produced before the Investigation Officer. Special reference in this regard has been made to the evidence of P.W. 6, the informant, by saying that he is his evidence has stated that he identified the appellants by means of a torchlight and also in the moon-lit night, whereas from the evidence of the investigating officer (P.W. 16), it would appear that the torch was not produced to him by P.W. 6. Earned Counsel further submitted that P.W. 6 in his cross-examination has, stated that the accused-persons had also covered their faces and, therefore, he could not have identified either of the accused-persons.
22. From bare reading of the evidence of P.W. 6, it would appear that in course of the occurrence, he identified appellants Rajo Yadav, Babloo Yadav, Manoj Yadav, Sanjay Yadav, Bishwa Nath Yadav and Shatrughan Yadav, whereas P.W. 1 identified appellants Bishwa Nath Yadav and Manoj Yadav, P.W. 2 identified appellants Babloo Yadav and Bishwa Nath Yadav, P.W. 3 identified appellants Manoj Yadav and Bishwa Nath Yadav, P.W. 4 identified appellant Bishwa Nath Yadav, and P.W. 5 identified appellants Babloo Yadav, Manoj Yadav and Bishwa Nath Yadav. It has come in the evidence of the witnesses that 10-15 miscreants had entered into the house. P.W. 6 nowhere in his evidence has stated that appellants Rajo Yadav, Babloo Yadav, Manoj Yadav, Sanjay Yadav, Bishwa Nath Yadav and Shatrughan Yadav had covered their faces. Their obviously means that some of the accused-persons might have covered their faces in course of occurrence. The contradictions, which have been shown in the evidence of the eye-witnesses, are not vital in mature nor it would prejudice the case of the appellants. The contradictions shown are minor contradictions and in the background of the case, where five persons have been done to death, in my opinion, it should not weigh before the Court in sifting the chaff from the grain to find out the truth. The evidence of the eye-witnesses is very descriptive and they have remained firm in deposing that the appellants along with others had entered into their house and after dragging the deceased persons committed their murder in a most gruesome manner. These witnesses have spelt out the truth and they are trust-worthy witnesses.
23. In the background and circumstances of the case, in my opinion, the minor variations in prosecution evidence should be ignored at the face of the credible evidence as held in case of Sukhdeo Yadav v. State of Bihar : 2002CriLJ80 .
In Baleshwar Mandal v. The State of Bihar : 1997CriLJ4084 the Apex Court has held that the eye-witnesses account as available on record cannot but be termed to be trustworthy and by reason thereof, the lapses stand over shadowed by the testimony of the eye-witnesses.
24. The evidence of the Investigating Officer, as referred to above, fully corroborates the prosecution version of the case. This witness had found sufficient blood in the courtyard of the house and had seen mark of violence on the Tati, which was fixed on the outer gate. He had also found a rope near the Chowki, where P.W. 6, the informant, was sleeping and has hands were tied at the time of commission of the occurrence. All the eye-witnesses in their evidence have said that they could identify the appellants in the moon-lit light. The source of identification of the appellants has been disclosed by the material witnesses.
25. The prosecution witnesses have fully proved the factum of occurrence and also the manner of occurrence. The eye-witness, who have given vivid pictures of the occurrence, have disclosed the names of all the appellants except appellant Shatrughan Yadav. Appellant Shatrughan Yadav has been named by P.W. 6 in his evidence, but he has not been named in the fardbeyan lodged by the informant (P.W. 6) nor P.W. 6 disclosed his name before the Investigating Officer (P.W. 16).
26. The prosecution witnesses, thus, fully proved the charges levelled against the appellants beyond all reasonable doubts except appellant Shatrughan Yadav. Presence of appellant Shatrughan Yadav in the occurrence appears to be doubtful at the face of the evidence of the prosecution witnesses, inasmuch as that his name has not been disclosed at the item of recording of the fardbeyan of P.W. 6 nor his name was disclosed in course of investigation and for the first time, his name has been disclosed only by P.W. 6 in the trial.
27. All the appellants have been convicted under Section 302 read with Section 149 of the Indian Penal Code. All the appellants except appellant Shatrughan Yadav have been sentenced to death, whereas appellant Shatrughan Yadav has been sentenced to undergo rigorous imprisonment for life and to pay a fine of rupees twenty, five thousand. There is overwhelming evidence on record to prove that all the appellants after forming unlawful assembly had come to the place of occurrence with a common object to commit murder of the deceased persons. It appears to be a murder in a pre-planned way and most calculated manner. From the evidence, it Is manifest that other family members of the deceased were present In the house, but only Charitra Sah, his wife and children begotten by them were chosen by the appellants and they, ultimately, became prey to their lust and, thus, they succeeded in achieving common object, for which they had come prepared to take revenge and to eliminate the entire off-springs of Charitra Sah and Ram Kumari Devi.
28. In these views of the matter, the conviction of the appellants, Rajo Yadav, Rajo Yadav, Babloo Yadav, Bishwa Nath Yadav, Manoj Yadav and Sanjay Yadav, is, thus, upheld.
29. However, so far as appellant Shatrughan Yadav is concerned, his involvement in this case appears to be doubtful and accordingly, order of conviction and sentence passed against him is set aside and he is acquitted of the charges levelled against him, as such, he is directed to be released forthwith, if not required in any other case.
30. In the background of the case, as discussed above, the question now arises as to whether death sentence awarded to the appellants, namely, Rajo Yadav, Babloo Yadav, Bishwa Nath Yadav, Manoj Yadav and Sanjay Yadav, would be the only adequate punishment to be given to them.
31. Precisely, the prosecution case is that deceased Charitra Sah had married a lady of the family of the Yadav family and it was an inter-caste marriage and he used to live with her Saharsa. The lady, whom he married, namely, Ram Kumari Devi deceased was puma of appellant Rajo Yadav. All the appellants belong to one and the same community. The appellants, as it appears, were opposed to this marriage and they were so much offended the they could not reconcile to the past events and prepared themselves to take revenge from Charitra Sah, his wife and children and they with a common object committed murder of all the five deceased-persons satisfying their lust leaving none out of the wedlock of deceased Charitra Sah and Raj Kumari Devi. In other words, it can be said that the appellants were so much obsessed and offended by such circumstances that they lost their oriental balance and in retaliation committed the offence. It is manifest from the evidence that so long Charitra Sah was living at Saharsa, the spirit of revenge to be taken by the appellants remained under control and when Charitra Sah brought the woman and the children in the village, it ignited the grudge of the appellants, which they had nursed from before to take revenge from Charitra Sah. To me, thus, it appears that the appellants committed the ghastly murder of the deceased persons under the influence of extreme mental and emotional disturbances. It further appears to me that the appellants did not commit this crime for any gain but did it in rage because of loss of family prestige and social stigma. It is true that the offence committed by the appellants gruesome and they have not even spared the children in between the ages ranging from 3 to 7 years. It is also true that the deceased persons were attacked in the mid-night while they were asleep and they were dragged from their rooms to the court-yard and lined up to fell prey to their lust. But, the question remains as to whether under such a circumstance, it would be the rarest of rare cases for awarding death sentence to these appellants.
32. Before a Constitutional Bench of the apex Court in Bachan Singh v. State of Punjab : 1980CriLJ636 , a basic question was raised as to whether the death penalty was constitutionally valid. The Court held that the penalty of death was constitutionally valid. However, it further held that it was impossible to lay down standard but certain guidelines were given to be followed by the Courts, The discretion in the matter of sentence is to be exercised by the Judge judicially after balancing all the aggravating and mitigating circumstances of the crime and the case should be one of the rarest of rare cases. Apart from the other circumstances, one relevant circumstance to be considered in such situation is not only the crime but the criminal also and the Court has to take a note of the probability that the accused can be reformed and rehabilitated and the Court while determining the sentence should consider the factor as to whether the offence was committed under the influence of extreme mental or emotional disturbances.
33. In case of Panchi and Ors. v. State of Uttar Pradesh 1998 (2) SCC (Cri.) 1561 the apex Court held:
We have extracted the above reasons of the two Courts only to point out that it is the savagery or brutal manner in which the killer perpetrated the acts on the victims including one little child which had persuaded the two Courts to choose death sentence for the four persons. No doubt, brutality looms large in the murders in this case particularly of the old and also the tender-aged child. It may, that the manner in which the killings were perpetrated not by itself show any lighter side but that is not very peculiar or very special in these killings. Brutality of the manner in which a murder was perpetrated may be a ground but not the sole criterion for judging whether the case is one of the 'rarest of rare cases' as indicated in Bachan Singh case. In a way, every murder is brutal and the difference between one from the other may be on account of mitigating or aggravating features surrounding the murder.
34. In case of Om Prakash v. State of Haryana : (1994)ILLJ360SC the apex Court while dealing with a case of cold blooded murder of seven members of a family while asleep in the night, most of them being women and children who had given no provocation to the accused not had caused any harm to them, held:
Considering the aforesaid background of the matter, the question would be whether the case of the appellant could be one of the 'rarest of the rare' cases so that death sentence is required to be imposed. In our view, even though this is true some act on the part of the appellant, yet it is a result of the human mind going astray because of constant harassment of the family members of the appellant as narrated above. It could be termed as a case of retribution or act of taking revenge. No doubt, it would not be a justifiable act at all, but the accused was feeling mortally justifiable on his part. Hence, it would be difficult to term it as the 'rarest of the rare' cases. Further, this is not a crime committed because of lust for wealth or women, that is to say, murders are neither for money such as extortion, dacoity or robbery, nor even for lust and rape, it is not an act for anti-social element kidnapping and trafficking in minor girls or of an anti-social element dealing in dangerous drugs which affects the entire moral fiber of the society and kills a number of persons; nor it is a crime committed for power or political ambitions or part of organised criminal activities, it is a crime committed by the accused who had a cause to feel aggrieved by the injustice meted out to his family members at the hands of the family of the other party who, according to him, were strong enough physically as well as economically and having influence with the authority which was required to protect him and his family. The bitterness increased to a boiling point and because of the agony suffered by him and his family members at the hands of the other party and for not getting protection from the police officers concerned or total inaction despite repeated written prayers goaded or compelled the accused to take the law in his own hands which culminated in the gruesome murders; may be that his mind got derailed off the track and went astray or beyond control because of extreme mental disturbances caused by the constant harassment and disputes. Further, considering the facts and circumstances, it cannot be said that he would be menace to the society, there is no reason to believe that he cannot be reformed or rehabilitated and that he is likely to continue criminal acts of violence as would constitute a continuing threat to the society. He was working in BSF as a disciplined member of the armed forces aged about 23 at the relevant time, having no criminal antecedents.
35. The facts, as enumerated above, manifestly make it clear that the accused appellants committed the offence though ghastly in nature under the influence of extreme mental and emotional disturbances and I do not find any other aggravating and mitigating circumstance to award the extreme penalty to these appellants nor I find it one of the rarest of rare cases to sentence these appellants to death. The appellants being conservative and influenced by caste bias could not reconcile to the events for marriage of Charitra Sah with Ram Kumari Devi and losing all mental balances they committed the offence in retaliation. In my considered view, therefore, the ends of justice will be met if sentence of death awarded to these appellants is converted into life imprisonment.
36. In the result, I am of the view that this case cannot be treated as one of the rarest of rare cases, where lesser sentence of imprisonment of life would not at all be adequate. Hence, I alter the sentence of death penalty as awarded to the appellants, Rajo Yadav, Babloo Yadav, Bishwa Nath Yadav, Manoj Yadav and Sanjay Yadav, by awarding the sentence of rigorous imprisonment for fife to each of the appellants and also a fine of Rs. 10,000/- (ten thousand) each and for default of payment of fine, each of them shall suffer rigorous imprisonment for tow years.
37. Death Reference is, accordingly, answered and Criminal Appeal Nos. 261 of 2001 and 270 of 2001 filed by the appellants, Rajo Yadav, Babloo Yadav, Bishwa Nath Yadav, Manoj Yadav and Sanjay Yadav, are dismissed with alteration in the sentence. So far as Criminal Appeal No. 270 of 2001 filed by appellant Shatrughan Yadav is concerned, the same is allowed is part to the extent indicated above.
Prabhat Kumar Sinha, J.
38. I agree.