Bhagwati Prasad, J.
1. By this judgment, we propose to dispose of the appeals filed by the accused appellant and the reference made by the learned Additional Sessions Judge, Sri Karanpur.
2. The appeals and the reference arise out of the judgment of the learned Additional Sessions Judge, Karanpur dated 26-3-1998 passed in Sessions Case No. 26/1997. The accused appellant Baisakha Singh was tried for offences under Sections 460, 302, 307 and 324, I.P.C. The trial Court has convicted the accused appellant for offences under Sections 302, 307 and 460, I.P.C. and awarded death sentence under Section 302, I.P.C. life imprisonment with fine of Rs. 500/-and in default of fine to further undergo 6 months imprisonment under Sections 307 and 460, I.P.C. on each count.
3. The investigation was initiated by the police on the basis of a statement recorded of PW-2 Neetu Rani Ex. P. 1 which was made the basis of FIR. In her statement PW-2 Neetu Rani said that while she along with her mother deceased Sarjeet Kaur, her sister deceased Veerpal Kaur and injured sister Rajani Kanta, brother deceased Sukhdev Singh and injured brother Manjeet Singh was in the house at about quarter to 8 or 8 p.m. Some one knocked at the door. At that time her father had gone to market to fetch milk. In response to the knocking of the door her sister Veerpal Kaur opened the door. At the door accused Baisakha Singh was there. He was holding a knife and entered into the house. He accosted Veerpal Kaur that you wanted to take divorce from me, therefore, I will kill you and your family. While saying these words the accused inflicted knife injury to Veerpal Kaur. Veerpal Kaur cried due to the injuries, whereupon her mother Sarjeet Kaur tried to intervene. The accused inflicted injuries to her mother also. Both the women after getting hurt tried to rescue themselves and in the process ran outside the gate and fell on the road and succumbed to the injuries.
4. The accused did not stop there and went inside the room where her younger brothers Sukhdev and Manjeet were sitting. He caused fatal injuries to Sukhdev and injuries to Manjeet. After this accused went inside the internal room where he caused injuries to her sister Rajani. Out of fear Neetu came out of the house and in the street she made a hue and cry. Hearing the cries of Neetu, Kishan Lal PW-1 and Malkiyat Singh PW-15 came there, to whom she narrated the whole incident. The injured Manjeet Singh and Rajani were removed to the hospital by KishanLal and in the meantime the police arrived at the scene. This statement was sent to the Police Station, Padampur for registering a case and on the basis of which the FIR. Ex. P. 25 was recorded by the Police.
5. After investigation, a challan was present and the accused was committed to the Court of Additional Sessions Judge, Sri Karanpur where the trial was held for the aforesaid offences.
6. After recording the evidence, the learned Additional Sessions Judge, Sri Karanpur has found the accused appellant guilty of the charges levelled against the accused and convicted and sentenced the accused appellant as aforesaid.
7. The learned Additional Sessions Judge vide his judgment found that the testimony of the eye-witness, PW-2 Neetu Rani, and injured eyewitnesses PW-3 Manjeet Singh and PW-4 Rajani was reliable. The learned Additional Sessions Judge also held that PW-1 Kishan Lal and PW-15 Malkiyat Singh had arrived soon after the occurrence and had seen the accused fleeing away soon after the incident with the knife and have identified the accused. Learned Additional Sessions Judge has also held that the testimony of the witnesses is corroborated by the medical evidence as well as by the FIR. The learned Additional Sessions Judge has further sought corroboration from the recovery of knife at the instance of the accused which was found blood stained. Thus, the learned Additional Sessions Judge came to the conclusion that the charges framed against the accused have been found proved and convicted and sentenced the accused appellant as aforesaid.
8. Being aggrieved by his conviction and sentences the accused appellant has preferred the appeals and the learned Additional Sessions Judge who has awarded the extreme penalty of death sentence has also made the reference for confirmation of the death sentence.
9. Learned counsel appearing for the accused appellant has urged that in the statement of eyewitness Neetu Rani the motive deposed is that the deceased Veerpal Kaur wanted divorce from the accused appellant. This motive does not stand proved as no documentary evidence has been produced by the prosecution to establish that the deceased Veerpal Kaur has filed any case for divorce and when the prosecution has come with a definite case that the motive was asking of the divorce and when no divorce case has been filed, therefore, the prosecution case should not be believed.
10. The further argument of the learned counsel for the appellant is that when the occurrence had taken place at about 8 p.m. it was dark, no sufficient material has been brought on record by the prosecution to show that there was sufficient light to identify the accused then in the absence of sufficient light it cannot be said that the witnesses were in a position to identify the assailant.
11. It has been further argued by the learned counsel for the appellant that the presence of Neetu Rani at the scene of occurrence is doubtful. Had she been present at the time of occurrence in the house and the killer had killed three other persons then she could not have escaped the assault because he could have spared a potential eye-witness who could depose against him. Therefore, Neetu Rani was not present in the house at the time of occurrence when the incident had taken place.
12. Learned counsel for the appellant has further argued that according to the prosecution case itself the police had received a telephonic message and that message has been withheld by the police. As a matter of fact, that was the FIR and, therefore, the statement of Neetu Rani Ex. P. 1 could not have been made the basis of the investigation.
13. Learned counsel for the appellant has further urged that there was a lady named Usha present at the scene of occurrence but she has not been produced by the prosecution to support its case. When an independent witness who was present as the scene of occurrence at the time of the incident is withheld then it cannot be said that the prosecution has acted fairly.
14. It has also been stressed on behalf of the accused appellant that there are material contradictions in the statements of the eye-witnesses. Each eye-witness contradicts the place of presence of other eye-witness and on this count, the testimony of the eye-witnesses should be disbelieved.
15. It has also been urged by the learned counsel for the appellant that for the injuries caused to Manjeet Singh and Rajani no offence under Section 307, I.P.C. can be said to be made out against the accused appellant.
16. As regard the offence under Section 460, I.P.C the argument of the learned counsel for the appellant is that the accused had entered into the house after knocking the door. Therefore, he has made no preparation to conceal his presence. Therefore, the offence under Section 460, I.P.C. cannot be said to be made out against the accused appellant.
17. It has also been urged by the learned counsel for the appellant that the recovery pressed into service against the accused could not have been relied as the recovery of knife is doubtful and further the knife was not produced and shown to the Doctor so as to clarify as to whether such injuries could be caused by the weapon of the offence. The accused had also injuries on his person and those injuries show that the manner of occurrence was not such as has been deposed by the prosecution witnesses.
18. Learned Public Prosecutor replying to the arguments of the learned counsel for the accused appellant has urged that it is wrong to state that the prosecution has not brought any material to show the motive. The witnesses have only stated that the accused appellant told that Veerpal Kaur wanted divorce from the accused. This was so stated by the witnesses. Thus, it was a special knowledge of the accused and Veerpal Kaur whether she wanted to divorce the appellant. These are the words uttered by the accused. Therefore, no documentary evidence regarding this motive could be produced.
19. Replying to the argument of sufficiency of light for identification, the learned Public Prosecutor appearing for the State has urged that the accused has been identified by the two injured witnesses. The parties were intimately known to each other. Therefore, the question of identification becomes secondary because in the month of April at 7.45 or 8. p.m. the light is not so faint as canvassed by the learned counsel for the appellant. In any case by that time the household lights were already on and previously known person proclaiming to kill the whole family could easily be identified by the sister and brother-in-laws and the neighbours who had deep intimacy with the accused as such.
20. As regards the presence of witness Neetu Rani, the doubt expressed by the defence was unfounded. She was very much in the family. A girl of 14 years of age hardly remains out of the house in those hours of night. In the small township like the place of occurrence she was supposed to be by the side of her mother at the time of preparing meals and, therefore, it cannot be said that Neetu Rani was not present at the time of occurrence in the house because she was not hurt. May be that she did not fall in the way of the accused when he was on a killing spree.
21. As regards the FIR., the learned Public Prosecutor appearing for the State has urged that FIR is one which gives the idea of commission of a cognizable offence. The telephonic message as given to the police officer did not communicate the commission of a cognizable offence and, therefore, the Ex. P. 1 was rightly treated to be the basis for the FIR.
22. As regards non-production of Usha, learned counsel appearing for the State has urged that she was not present and her non-production is therefore of no consequence.
23. As regards the contradictions in the statements of different witnesses regarding the place of presence of the witnesses, suffice it to say that the injured witnesses are of tender age and people of that age are hardly stationary and their pin pointed presence therefore, cannot be certified and on this count nothing can be said.
24. As regards the offence under Section 307, I.P.C. is concerned, learned counsel appearing for the State has urged that for committing offence under Section 307 it is not necessary that fatal injury should be there or the injury should be such grave which shows the intention of the killer. Some times the injury may fall short of graveness and may remain a simple injury alone.
25. As regards the offence under Section 460, I.P.C. the learned Public Prosecutor appearing for the State has candidly admitted that there was no element of lurking house trespass so as to constitute offence under Section 460, I.P.C. Therefore, the offence under Section 460, I.P.C. is not made out against the appellant.
26. As regards the recovery of knife pressed into service against the accused appellant, the learned Public Prosecutor has urged that there is nothing wrong in seeking corroboration from the recovery. The recovery has rightly been believed and it is always not necessary to show the weapon of offence to the doctor to get it certified that whether the injury could be caused by the weapon of offence.
27. As regards the injuries of the accused, it has been stated by the learned counsel appearing for the State that the injuries were trivial one. Such injuries like mere abrasion etc. found on the person of the accused appellant and a small cut on the finger could be caused in the way the accused had inflicted injuries to the deceased and injured eye-witnesses. Therefore, it cannot be said that non-explanation of the injuries of the accused has caused serious prejudice to the prosecution case.
28. We have heard the learned counsel for the accused appellant as well as the learned Public Prosecutor appearing for the State and have also perused the record.
29. Eye witness PW-2 Neetu Rani in her statement has stated that while she was with her mother at that time she heard the knocking of the door. Her elder sister Veerpal Kaur went to the door and opened the door. At that time the accused got in and caused injuries to her saying that you want to seek divorce from me, I will kill you and your family. On sustaining the injuries her sister shouted and her mother went to rescue her sister. The accused caused injuries to her mother as well. By sustaining knife injuries the two injured fell outside their house and, thereafter the accused went inside the room and there he caused injuries to Sukhdev and Manjeet Singh and subsequently to Rajani. She came out of the house and in the lane she made shouts. PW-1 Kishan Lal and PW- 15 Malkiyat Singh reached there and she narrated the incident to them.
30. She has been cross-examined at length. Defence of the accused has been of a denial. A doubt has been expressed that she was not in a position to identify the accused. A reading of the statement of this witness lends assurance to the mind of the Court that she is a witness who could be relied upon. From her cross-examination nothing has been brought on the record to shake the testimony of this witness.
31. Further the child injured eye-witnesses PW-3 Manjeet Singh and PW-4 Rajani too have stated about the assault on them by the accused and there is no reason whatsoever not to believe these children of tender age to falsely implicate the accused appellant as their assailant.
32. The testimony of PW-1 Kishan Lal and PW-15 Malkiyat Singh also lends assurance to the mind of the Court that soon after the occurrence when the accused was fleeing from the scene of occurrence they had seen him fleeing and have identified him. In this background, the argument of the learned counsel for the appellant that the motive alleged does not fit in the manner of occurrence and as there was darkness, therefore, the identification was not possible does not stand to reason. They are insufficient to persuade this Court not to place reliance on the testimony of the eye-witness and injured eye-witnesses and the witnesses, who had seen the accused fleeing with knife soon after the occurrence.
33. With the over all assessment of the testimony of the eye-witness PW-2 Nitu Rani, injured witnesses PW-3 Manjeet Singh and PW-4 Rajani and the testimony of PW-1 Kishan Lal and PW-15 Malkiyat Singh who saw the accused fleeing, the complicity of the accused in the crime is established beyond reasonable doubt. It was the accused who was responsible for causing injuries to the deceased and the injured eyewitnesses.
34. The question raised regarding sufficiency of light cannot be blown out of proportion. The time was 7.45 or 8 p.m. In the month of April at this hour the darkness is not deep enough so as to disable the already known persons to identify the assailant. The injured eye-witnesses PW-3 Manjeet Singh and PW-4 Rajani themselves were assaulted. In this background it cannot be said that the witnesses had no occasion to identify the assailant. The household lights were also on and darkness was not very deep. Both the parties were known very intimately.
35. The FIR was based on a statement recorded at 8.30 p.m. i.e. within 30 minutes of the occurrence. This report contains all the material details about the incident. Therefore, it lends sufficient corroboration to the statement of PW-2 Neetu Rani. The telephonic message being cryptic could not be treated as FIR. On this count the defence version that the telephonic message was the FIR and the same has been suppressed cannot be believed.
36. The defence has tried to show that one Usha an independent witness was present at the time of occurrence. A suggestion in this regard has been given to PW-2 Neetu Rani regarding which she has denied that at the time of the occurrence any such woman was present and had seen the occurrence. Therefore, by mere suggesting it cannot be said that such an independent witness was present.
37. The contradictions indicated by the defence in the statements of the witnesses does not go to the root of the prosecution case and, therefore, on this count also the testimony of the eyewitnesses cannot liable to be shaken.
38. Taking an overall view of the prosecution case we are of the view that the prosecution has succeeded in bringing out a case against the accused that he had entered into the house and caused injuries to the deceased persons and injured eye-witnesses. In this background it can safely be said that the offence under Sections 302 and 307, I.P.C. is correctly made out against the accused.
39. As regards offence under Section 460, I.P.C. is concerned, suffice it to say that the accused has not made any attempt to conceal his presence for entering into the house. Therefore, no offence under Section 460, I.P.C. can be said to be made out on this score. The appeal of the accused is liable to be accepted. Consequently, to this extent that the offence under Section 460, I.P.C. is not made out against the accused, the appeal of the accused appellant is accepted.
40. Having held that the accused has rightly been convicted under Sections 302 and 307, I.P.C. we are left with the question as to what sentence would meet the ends of justice. The learned Additional Sessions Judge has awarded the extreme penalty of death to the accused Baisakha Singh under Section 302, I.P.C.
41. The learned counsel for the appellant has relied upon Suresh v. State of U.P. AIR 1981 SC 1122 : 1981 Cri LJ 746, A. Devendran v. State of T.N. 1998 SCC (Cri) 220, Raja Ram Yadav v. State of Bihar 1996 SCC (Cri) 1004 : 1996 Cri LJ 2307; Sheikh Abdul Hamid v. State of Madhya Pradesh AIR 1998 SC 942 and Mukund alias Kundu Mishra v. State of Madhya Pradesh 1997 Cri LJ 3182 : AIR 1997 SC 2622 and has urged that the accused at the time of commission of the crime was a young man of 20 years of age. He is not a hardened criminal. His act cannot be said to be one which can show that there was a premeditation to commit the act which he has committed. A young man feeling deprived of the company of his wife had gone to the house of his in-laws in an emotionally enraged condition. Though he has committed the crime but he does not have the credential of a habitual criminal. It was psychological imbalance which turned his in an abnormal personality at the time of commission of the crime. The manner of occurrence also cannot be said to be grossly diabolical or gruesome. It was an act of enlargement of the feeling and, therefore, the extreme penalty of death should not be awarded to the accused appellant.
42. We have considered the arguments of the learned counsel for the appellant.
43. The Hon'ble Supreme Court in the case of Suresh (supra) has held that when an accused of the age of just about 21 years commits an offence on a sudden impulse which made him insane momentarily he is not entitled to be awarded the extreme penalty of death though he had committed double murder of his wife and son and injured his another son. It has been observed by the Hon'ble Supreme Court that it appears that though he was not insane at the time of offence in the sense that he did not know the nature and the consequences of what he was doing. But he had lost his mental balance.
44. In another case A Devendran (supra) the Hon'ble Supreme Court has observed that where there is no proof of extreme culpability the extreme penalty need not be given.
45. We find in this case that though triple murder has been committed and two minors have been injured but the culpability is not of that magnitude which can be termed to be extreme cruelty. The' accused was young man. He has been deprived of the company of his wife. He was suffering from deprivation sickness. Being enraged he lost his control and in our view awarding of life imprisonment will serve the ends of justice. In that view of the matter the accused is awarded sentence of imprisonment for life under Section 302, I.P.C. The death sentence is converted into imprisonment for life.
46. In the result, the sentence awarded to the accused under Section 302, I.P.C. is altered from death sentence to imprisonment for life and in this view of the matter the reference made by the learned Additional Sessions Judge is rejected. The appeals of the accused appellant are partly allowed. As regards sentence part is concerned, since the life imprisonment is awarded under Section 302, I.P.C. no separate sentence is required to be passed under Section 307, I.P.C.
47. In the result, the appeals of the appellant as regards conviction under Sections 302 and 307, I.P.C. are rejected and qua conviction under Section 460, I.P.C. is accepted and his conviction and sentence under Section 460, I.P.C. are set aside. The death sentence is converted and he is awarded imprisonment for life and a fine of Rs. 500/- and in default of payment of fine to further undergo 6 months imprisonment and no separate sentence is awarded under Section 307, I.P.C. as he has been awarded imprisonment for life under Section 302, I.P.C. .