Prakash Tatia, J.
1. These three D.B. Criminal Appeals have been preferred to challenge the judgment and order dated 29.9.2004 passed by the learned Addl. Sessions Judge.Bali passed in Sessions Case No. 61/99 (39/02), by which the trial Court convicted the appellant Bhanwar Singh @ Chhatar Singh and Madho Singh under Section 302, IPC as well as under Section 302/120B, IPC, whereas convicted appellant Kishan Chand under Section 302/120B as well as under Section 302.115, IPC. The accused Kishan Chand has been acquitted of charge under Section 302/34, IPC. The accused Bhanwar Singh @ Chhatar Singh and Madho Singh have been sentenced to undergo life imprisonment under Section 302, IPC with fine of Rs. 20,000/- to each and in default thereof, to undergo sue months rigorous imprisonment. They have also been sentenced to undergo life imprisonment under Section 302/120B, IPC with fine of Rs. 5000/- and in default thereof, to undergo two months' rigorous imprisonment. Kishan Chand has been sentenced to undergo life imprisonment for charge under Section 302/120B, IPC with fine of Rs. 5000/- and default thereof, to undergo two months rigorous imprisonment and further seven years' rigorous imprisonment for offence under Section 302/115, IPC with fine of Rs. 1000/- and in default thereof, to undergo one month's rigorous imprisonment. The sentences have been made to run concurrently.
2. The D.B. Criminal Appeal No. l 146/2004 has been preferred by the three appellants convicts Bhanwar Singh @ Chhatar Singh, Madho Singh and Kishan Chand, as represented appeal, whereas Kishan Chand also preferred another appeal which is D.B.Criminal Jail Appeal No. 305/2006 through jail authorities. The State also preferred appeal which is D.B.Criminal Appeal No. 930/2005 seeking capital punishment of the convicts Bhanwar Singh and Madho Singh. All these appeals are being decided by this common judgments.
3. As per prosecution case, on 26.6.1999, the SHO, Desuri Duda Ram received one telephonic message by unidentified person that at village Aana , Madho Singh and his father Bhanwar Singh '@ Chhatar Singh have attacked with 'gaties' upon three brothers Dhan Raj, Bhim Raj and Dev Raj and killed them. The said information was entered in the Rojnamcha (Ex.P.43). After entering the said information in the Rojnamcha, Shri Duda Ram, SHO, Police Station, Desuri along with Head Constable Kalu Ram and other constables went to the spot where Leela Ben gave written report (Ex.P.16). The report was sent with Head Constable Kalu Ram for recording FIR. The SHO inspected the site and prepared site map (Ex.P.l) and also prepared site report (Ex.P.2). He found bodies of Dhan Raj, Bhim Raj and Dev Raj on spot and prepared the memo for the bodies of above three victims, as Ex.P.3, Ex.P.4 and Ex.P.5 respectively. From spot, blood soil and sample soil were taken and they were duly sealed in different container and their memo Ex.P.6 was prepared. The pLaln soil from near the dead bodies of the above victims were taken separately and their memo Ex.P.7 was prepared. The seals were duly fixed on these samples. From the spot, turban of accused Bhanwar Singh and one lathi of bamboo were seized and for that seizure memo Ex.P.8 was prepared. The turban and lathi were also duly sealed. The Panchnama for the bodies of three deceased Dhan Raj (Ex.P.17), Bhim Raj (Ex.P,18) and Dev Raj (Ex.P.19) were prepared. The clothes of deceased were taken in custody and they were duly sealed and for that also seizure memos were prepared. The bodies of deceased Dhan Raj, Dev Raj and Bhim Raj were -sent for postmortem and postmortem reports Ex.P.28, Ex.P.31 and Ex.P.32 were obtained. After post-mortem, the hodies were handed over to the relatives of the victims for last rites. The photos of the spot were taken and photos with negatives were also submitted along with challan in the trial Court. During investigation, one sale-deed (Ex.P.21), Patta (Ex.P.22) were obtained from Champa Lal and their photo-stat copies were kept and the original were returned to Champa-Lal. The application for permission to raise construction which was submitted to the Gram Panchayat by Champa Lal was also obtained. In total 48 document were produced by the prosecution and exhibited in the trial Court. The statements of 25 witnesses were recorded under Section 161, Cr.P.C.
4. In the written report submitted by Leela Ben (Ex.P.16) on 26.6.1999 at 1.30 p.m., the compLalnant Leela Ben w/o Champa Lal stated that in front of house of one Jawat Raj, her (family's) one plot is situated near the house of Nath Mal, wherein there is latrine and one well constructed by the compLalnant (compLalnant's family). The said plot was purchased by registered sale deed from accused Chhatar Singh's father Vijay Singh and thereafter, they obtained Patta for the land in question. Today, i.e. on 26.6.1999 itself, to clean the said plot through contractor Kisture s/o Magnaji r/o Aana, three labours Lumba Ram Meghwal, one Mota Ram and another Sama Ram were engaged, who came on spot at about 9 a.m. When the labours started clearing the plot, the accused Kishan Chand's wife who was residing in the house of Chhatar Singh went to Chhattar Singh's well to inform Chhatar Singh about cleaning of the plot by these persons. After receipt of said information, Bhanwar Singh @ Chhatar Singh and his son Madho Singh at about 12 noon came and entered in the plot and started fighting with the labours, upon which the compLalnant's husband's younger brothers (devars) Bhim Raj, Dhan Raj and Dev Raj went to save the above labours. They went in succession one after another. They all have been killed by Chhatar Singh and Modho Singh one after another by inflicting injuries by lathis and gaties and all the three have died on the spot. In the report Ex.P.16, the compLalnant mentioned that her husband is heart patient and his condition is not good, therefore, she is submitting report. Thereafter, the investigation started.
5. In the trial Court, the statements of the accused were recorded under Section 313, Cr.P,C. In the statements recorded under Section 313, Cr.P.C, both accused Chhatar Singh and Madho Singh stated that the plot in question is their properly and it was never sold to the complainant party. The accused Madho Singh and Bhanwar Singh @ Chhatar Singh both were in possession of the plot in dispute since generation. The complainant party tried to encroach upon the plot. When they came to know about this fact at their well, then they came from their well to the plot and they found that the victims Dhan Raj, Dev Raj and Bhim Raj were trying to capture their land, upon which both the accused tried to make these persons understand but all the three victims started beatings with lathis to both the accused and, therefore, they had apprehension for their lives. According to above two accused, a false case has been registered against the accused.
6. Kishan Chand, after denying the allegations, stated that against him a false case has been registered. It will be relevant to mention here that the accused-appellant Kishan Chand's wife Rani Devi was also accused but she was absconding and, therefore, she has not been tried along with above three accused, however, Kishan Chand's wife Rani Devi surrendered and latter on tried separately and was acquitted by the trial Court vide judgment dated 13.11.2006. It appears that accused Bhanwar Singh @ Chhatar Singh and Madho Singh contested the case only with the plea of right of self-defence, whereas appellant Kishan Chand contested the case on facts stating that he has been wrongly implicated in the case by the compLalnant and the prosecution agency.
7. The trial Court after considering the evidence produced by the prosecution as well as the defence evidence produced by the accused and their documents Ex.D.l to Ex.D.17 as well as oral statements of DW-1 Sayar Kanwar, DW-2 Ratan Singh Advocate, DW-3 Tarun Singh Chauhan, DW-4 Ramesh Thakur and DW-5 Hukam Singh, convicted the appellants and sentenced them as mentioned above. Hence appeals have been preferred by the accused.
8. The State has preferred D.B.Criminal Appeal No. 930/05 for enhancement of life imprisonment to accused Madho Singh and Chhatar Singh to capital punishment with the plea, that the accused Bhanwar Singh @ Chattar Singh and Madho Singh brutally and cold-bloodedly murdered three persons in daylight for no reason successively, one after another of one family, therefore, they should have been sentenced to death. According to the learned public prosecutor as well as the learned Counsel for the compLalnant Shri Pradeep Shah, it was a case for award of death sentence in view of the judgment of the Hon'ble Apex Court delivered in the case of State of Rajasthan v. Kheraj Ram 2003 (2) WLC (SC) Criminal 457 wherein the trial Court imposed the death sentence. Reference was made to this Court for confirmation of death sentence and the accused preferred appeal against the said conviction and order of death sentence. The Rajasthan High Court acquitted the accused but Hon'ble the Apex Court set aside the Division Bench judgment of this Court and upheld the death sentence imposted by the trial Court holding that the death sentence is most appropriate in the facts of the case. The learned public prosecutor and the learned Counsel for the compLalnant further relied upon the two judgments of the Hon'ble Apex Court delivered in the cases of Dayanidhi Bisoi v. State of Orissa 2003 (2) WLC (SC) Criminal 183 and Gurdev Singh and Anr. v. State of Punjab 2003 (2) WLC (SC) Criminal 372.
9. The learned Counsel for the appellants Shri Doongar Singh vehemently submitted that in fact the prosecution has suppressed important material facts and obtained the written report from Smt. Leela Ben and did not investigate the allegations of commission of crime fairly which is apparent from the steps of the investigating agency. Firstly it is the case of prosecution that the written report was submitted by Leela Ben on the same day, i.e. on 26.6.1999 on spot in the village to the SHO which was sent to the Police Station for recording formal FIR and the formal FIR (Ex.P.42) was registered at 2 p.m. at Police Station Desuri. Said FIR was sent to the Court of Judicial Magistrate which is situated in the small town, Desuri itself, on 28.6.2008, i.e. After two days and when the concerned SHO was asked to explain this delay, he merely stated that sending of FIR is work of Munshi of the Police Station, therefore, it is clear that the FIR was sent to the Court after inordinate delay. According to the learned Counsel for the appellants, the site was inspected immediately and the site inspection map was prepared in the presence of the compLalnant Leela Ben herself and same is the position of the site inspection report (Erx.P.2). The site is inspected immediately and its report, therefore, has its own value and this is check against subsequent improvements which may be made by compLalnant. The compLalnant stated that the whole of the plot shown in Ex.P.l and marked as 1,2,3 ,4 is compLalnant's plot. A gate has been shown at point 'D' and no gate has been shown at mark 'X'. Contradicting it, in the statement, the compLalnant as well as complalnant's husband Champa Lal stated that whole of the plot was not thejr's but half of the plot was their's, then in that situation, the site inspection map (Ex.P.1) and site report(Ex.P.2) are wrong and in view of the site map (Ex.P.1) and site report (Ex.P.2) prepared on the basis of the information given by the compLalnant herself, their statements are false. It is also submitted that the compLalnant's case was that the plot was divided by fence but there was no mark of division of plot. It is also submitted that according to the prosecution case, all the three persons were killed within the plot i.e., within the boundary marked 1,2,3,4 as shown in Ex.P.l and it is not the case of the prosecution that any of the victims came towards the way of the house of the accused Bhanwar Singh @ Chhatar Singh and Madho Singh. Then the blood on the soll on the way towards the house of Bhanwar Singh @ Chhatar Singh and Madho Singh could have been of these two accused persons. The prosecution witnesses do not state a single word about the injuries of these two accused inspite of the fact that the two accused suffered injuries by which the blood oozed out in such large quantity that it fell down on the way to their house. Therefore, it is clear that the compLalnant and the prosecution have not disclosed the complete facts before the Court. From the site report and map it is clear that the eyewitnesses could not have seen the incident.
10. The learned Counsel for the appellants further vehemently submitted that the prosecution failed to prove that the complainant party was owner of the plot and further submitted that according to the prosecution, the compLalnant sought permission to raise construction of house vide their application (Ex.P.23) but that permission was not granted by the Gram Panchayat. The compLalnant's case was that they wanted to separate their plot from the plot of the accused by constructing wall in between compLalnant's and appellants' plot whereas Ex.P.23 shows that the compLalnant sought permission to construct house and not for any boundary wall. It is also submitted that the accused submitted their application seeking permission to raise construction of their house over the disputed land and the copy of the letter has been placed on record by the accused as Ex.D.12.
11. The learned Counsel for the appellants further submitted that the accused were detained by the police at about 3 p.m. or at the most at 4 p.m. and they were examined by the doctor on requisition given by the police itself and the accused Bhanwar Lal's injury report is Ex.D.l, who suffered three injuries and accused Madho Singh's injury report is Ex.D.9 who suffered seven injuries, and those injuries have been proved from the medical evidence, documentary as well as by the statements of Dr. Ashwini Kumar(PW-15). Inspite of detaining the accused at 3 p.m. or at the most 4 p.m., their arrest has been shown at about 8 or 9 p.m. in the arrest memos of both the accused. The accused could not have suffered injuries in any other incident nor could have inflicted injuries upon themselves during this period and the trial Court without considering thesis detail facts, observed that the injuries of appellants Bhanwar Singh and Madho Singh are not proved to be suffered during the same incident merely on the basis of their memos showing their arrest at about 8 or 9 p.m.
12. The learned Counsel for the appellants further submitted that from the photos placed on record by the prosecution it is clear that there was only one gate and the incident occurred within the plot of the appellants Madho Singh and Bhanwar Singh @ Chhatar Singh. Therefore, it is fully established from the prosecution evidence itself and from the defence evidence that the compLalnants trespassed in the plot of the appellants No. l and 2 to grab the land with the help of labours and appellants No. l and 2 when received information of the overtact of the victims, they reached on the spot and they were attacked by the compLalnants. Finding the grave danger to their lives, according to the learned Counsel for the appellants, the accused used the 'gaties' from the reverse side, i.e. from the side of wooden handle as admitted by the prosecution witnesses. It is also submitted that the recoveries of gaties from Madho Singh and Bhanwar Singh in pursuance of the alleged information under Section 27 Evidence Act, vide recovery memos Ex.P.24 and Ex.P.26, clearly shows that the prosecution created false evidence against the appellants. It is submitted that it is highly improbable to think that the appellant who went bare handed at the place of occurrence and as per the prosecution case, lifted the gaties from the plot itself and which were not belonging to the accused and inflicted injuries upon the victims then in that situation, they would not take the gati to their own house. It is also submitted that the recoveries has not been proved by the independent witnesses.
13. The learned Counsel for the appellants vehemently submitted that Kishan Chand was the tenant or servant of appellants No. l and 2 and was residing near the plot in question of appellants No. l and 2 and, therefore, he was supposed to take care of interest of the appellants and on finding that the complainant party want to grab the plot of appellants No. l and 2, then in ordinary course, he only told the victims and their family members to not to grab the plot and when the complainant party did not stop and started overt act then he merely informed the fact to appellants No. l and 2 who were far away from the plot in question. The entire prosecution story that Kishan Chand himself demanded some money from the complainant party for himself and for accused, is absolutely unbelievable story set up by the compLalnant. It is also submitted that there was no role of appellant Kishan Chand in this dispute nor he could have demanded any money from the complainant party, as admittedly, he was not cLalming any right, title or interest in the plot in dispute nor he could have acted on behalf of the appellants.
14. The learned counse for the appellants further submitted that so far as charge under Section 120B, IPC is concerned, there is no evidence on record either direct or circumstantial and the witnesses produced to prove this fact of conspiracy by the prosecution are the planted witnesses which is defer from their statements. Even if the statements of these witnesses PW-10 Chela Ram, PVV-11 Manroop and PW-19 Nathu Ram @ Nathu Lal are considered as such then also their statements do not prove hatching of any conspiracy by the appellants No. l and 2 for committing any offence.
15. The learned Counsel for the appellants also submitted that there were 50-100 persons who collected nearby the spot, apart from the fact that the plot in question is situated in habited colony but not a single independent witness and not a single neighbour has been produced by the prosecution. All the witnesses are highly interested witnesses in the false case lodged by the compLalnant.
16. The learned Counsel for the appellants further submitted that firstly, the prosecution failed to prove any case against the appellants, secondly, the appellants used the force and inflicted the injuries in their right of self-defence and, therefore, entitled to be acquitted and thirdly, there was no intention to kill any person and fourthly, in alternative, it is a case of sudden and grave provocation and on spur of moment the injuries might have been inflicted by appellants No. l and 2 but without any intention and knowledge that the victims may die, therefore, the conviction of appellants No. l and 2 may be altered to conviction under Section 304 Part 1 or Part II, IPC but so far as appellant No. 3 Kishan Chand is concerned, he deserves to be acquitted only.
17. The learned public prosecutor and the learned Counsel for the compLalnant submitted that it is a case of brutal murders, one after another, of three persons of one family and this fact is not only proved by the ocular evidence but in fact is an admitted fact. The prosecution witnesses PW-2 Leela Ben, PW-4 Champa Lal, PW-5 Mota Ram and PW-7 Lumba Ram are the eye-witnesses who fully supported the prosecution case. PW-5 Mota Ram and PW-7 Lumba Ram are independent witnesses and their presence on the spot cannot be disputed because of the reason that according to the appellants themselves, the dispute arose because of the overtact of the complainant party by engaging labours for raising construction of wall or for any purpose but on the plot in question Itself. It is also submitted that the learned Counsel for the appellants did not dispute i.e medical report and post-mortem reports of the three victims. The post-mortem reports and the injuries on the body of the three persons clearly reveals that the three persons have been killed but not by inflicting injuries by reverse side of gaties but they have been killed by such heavy object which in ordinary course can cause death by one blow. In this case, three persons have been killed with repeated injuries from sharp and pointed side of the gaties. It is submitted that testimony of eye-witnesses is beyond doubt and reliable then conviction can be based only on the basis of such ocular evidence and without there being any supporting evidence. It is submitted that the complainant party is the owner of the plot and that fact has been proved by the complainant party by placing on record the registered sale-deed and Patta -Ex.P.20 (Ex.P.21) and Ex.P.22 (Ex.PP.22A). The complalnant's seeking permission for raising construction of house is one of supporting circumstance and admittedly, the construction permission was not granted by the Gram Panchayat and the complainant party only wanted to clean the plot by removing the stones etc. from the land and had intention to construct a wall to separate their plot which became as one plot as the compLalnant gave their plot to appellants No. l and 2 for their family purpose and for temporary use. It is submitted that it is not the case of the compLalnant that they did not inflict injuries upon the victims and the victims had not died because of those injuries only. It is submitted that there was no danger to appellants No. l and 2 in any manner because of simple reason that admittedly, the victims had no weapon with them, not even the lathis. It is also submitted that in view of the statements of the accused recorded under Section 313, Cr.P.C, if the victims had lathies with them then from evidence, it is proved that the victims went on the spot one after another and not together and so it could not have caused any fear in the mind of the two appellants. It is also submitted that it is not a case of even exceeding right of private defence by, the accused but it is clear case of coldblooded intentional murder of three persons of one family by appellants No. l and 2 after hatching criminal conspiracy with the help of appellant No 3 Kishan Chand and his wife. On other points also, the learned Counsel for the compLalnant and the learned public prosecutor supported the judgment of the trial Court.
18. We considered the submissions of the learned Counsel for the appellants and the learned public prosecutor as well as the learned Counsel for the complainant and perused the entire record.
19. So far as sending of FIR to the concerned Court after two days is concerned, for that, the prosecution gave explanation that in the month of June, the Court had morning hours and FIR was registered after Court hours on 26.6.1999 on Saturday. 27.6.1999 was Sunday and, therefore, the Court was closed and, therefore, the report was submitted in Court on 28.6.1999. The delay in sending the FIR to the Court stands fully explained. Here we may observe that sending FIR to the Court with promptness is essential and delay in sending the FIR to the Court may cause suspicion but in a case where no inference can be drawn of manipulation during this period in support of the prosecution, then it is not necessary to reject the prosecution case only on the ground of delay in sending the FIR to the Court. In this case, the prosecution case is that the complainant party started some work of cleaning of plot in dispute and finding this, appellant No. 3 Kishan Chand, a tenant residing near the plot informed the accused appellants No. l and 2 by going to their well where appellants No. l and 2 were and appellants No. l and 2 came on spot and within five minutes, the incident occurred and three persons of the complainant party died and these facts have not been disputed by the appellants in any manner, rather the appellants No. l and 2 admitted in their statements under Section 313, Cr.P.C, then no question of manipulation can arise. The learned Counsel for the appellants even after arguing that there is delay in sending FIR to the Court, could not suggest that what inference the appellants want to draw out of this alleged lapse of the investigating agency It will be worthwhile to mention here that the appellants substantially could not dispute that the report was submitted by Smt. Leela Ben on spot to the SHO and it is also not in dispute that name of the accused have been mentioned in the said written report and it is the case of the appellants No. 1 and 2 themselves that they were detained by the police within a short period by 3 p.m. or 4 p.m. only, therefore, in these facts and circumstances, late sending of the FIR to the Court has not affected the merit of the case of the prosecution in any manner.
20. The prosecution has placed on record the copy of the registered sale-deed( Ex.P.21) and copy of Patta(Ex.P.22A). The prosecution witnesses PW-2 compLalnant Leela Ben herself stated that the half of the plot in question was purchased by her father-in-law from accused Chattar Singh's father Vijay Singh for a consideration of Rs. 250/- and they constructed some structure over the plot in dispute. PW-4 Champa Lal also stated that the land in question was purchased by his father from Vijay Singh by registered saledeed (Ex.P.21) and they obtained Patta for the land which is Ex.P.22. He stated that to protect the plot, they put fence on all four sides of the plot and in the western side, they constructed wall upto 4 ' to 5'. As per the prosecution case, the complainant party was not living in the village and because of some religious function, they came to the village and applied for construction permission from Gram Panchayat by giving application Ex.P.23. The complainant party was under impression that they will get permission for raising construction within 2-3 days. Since the plot in question which was separated by thornfence, was temporarily given to the compLalnant for marriage purpose of accused Chhatar Singh, who removed the fence with permission of compLalnant party, therefore, the compLalnant thought fit to clean the plot for raising construction and before that it was necessary to construct boundary wall. Therefore, from registered sale-deed (Ex.P.22) and Patta (Ex.P.23), the compLalnant and the prosecution fully proved that the compLalnants were owner of the property in dispute by registered sale-deed and they had a patta in their favour. The accused produced witnesses in defence and one of whom is DW-1 Sayar Kanwar. Sayar Kanwar is wife of accused Chhatar Singh and mother of Madho Singh. She orally stated that she is owner of plot and she stated that from the time she came in the house of Chattar Singh after marriage, she saw her family's possession over the plot in dispute. She stated that the plot was never sold by her father-in-law to the Champa Lal's father. However, in cross-exarnination, she admitted that she has no knowledge if the plot was sold by her father-in-law before her marriage. The sale-deed is proved to be executed before the marriage of DW-1 Sayar Kanwar with Chhatar Singh, therefore, her evidence is no evidence for proving the title of the property in favour of the accused.
21. Another witness produced by the accused-appellants is DW-2 Ratan Singh, Advocate, but he was of the age of 80 years and he stated that he cannot identify the signatures on Ex.P.21 because of his poor eye-sight. Therefore, from the statement of DW-2 Ratan Singh also, no benefit goes to the appellants nor genuineness of the sale-deed Ex.P.21 is effected in any manner. The defence also produced witness DW-4 Ramesh Thakar, Hand Writing Expert. He admitted in his statement that he gave the opinion about the signature on sale-deed on the basis of the signatures available on the photo-state copies of the sale-deed but he did not even examine the original documents. He even admitted that he gave the opinion in the Court about signatures without examining the signatures even by magnifying glass. He admitted that he did not get the enlargement of the signatures on the documents. Virtually from the evidence of DW-4 Ramesh Thakur it is proved that his evidence is no evidence in the eye of law for holding to be an expert opinion and that the document which was examined was not signed by the author of the document. In fact, his examination of document in the manner in which he examined itself shows that the documents were not examined by the person of competence and that fact has been noticed by the trial Court in detail from para No. 91 to 96 of the impugned judgment.
22. it is true that in site map (Ex.P.l) and site report (Ex.P.2), there is no sign of division of plot but that is absolutely immaterial. Not showing two gates or there was one gate for the plot is also not material fact. The site was inspected on 26.6.1999 itself, the date on which three persons of compLalnant Leela Ben's family were murdered in day-light and her husband was not well and, therefore, if she could not give detail facts to the investigating officer, which in substance, in the facts of this case, are not material then neither the site map (Ex.P.l) nor the site report (Ex.P.2) can be discarded nor they affected the credibility of the witnesses Smt. Leela Ben or Champa Lal in any manner.
23. The question is that on a plot, admittedly, and as per the admitted case of the accused, the compLalnant's labours were working and as per the prosecution evidence, three persons of the compLalnant, the victims who died, came on the spot one after another and each one was killed by appellants No. l and 2 by inflicting severe injuries on their bodies. From the evidence available on record, it is fully established that the victims had no weapon with them and the accused suffered minor superficial and simple injuries in an event where they successively killed three persons in short time of 5 to 7 minutes and if they suffered some injuries of such nature and had not been noticed or disclosed by the prosecution witnesses, then not expLalning of the injuries on the body of appellants No. l and 2 is absolutely insignificant in the peculiar facts of this case. Even if the blood on the way to home of appellants No. l and 2 has not been proved to be of the victims going to that place of way, then injuries of the accused are also of such gravity that sufficient quantity of their blood could have fallen to such distant place from the place of occurrence.
24. At this juncture, it will be worthwhile to look into the injuries on the bodies of victims:
(1) Deceased Dhan Raj:
(i) Stab wound of size 3 cm x 1 cm x 5 cm elliptical in shape at left carotid region directed downwards and backwards. Left carotid artery is punctured,
(ii) Stab wound of size 5 cm x 3 cm x 8 cm at mid axillary line of left chest wall at' level of 4th and 5th ICS and through and through wounds directed medially backward and downwards. Pupils are fixed and dialate. All wounds were ante-mortem.
(2) Deceased Bhim Raj:
(i) stab wound in 3rd inter coastal space of Right side 3 cm above and medial to Rt. Nipple, measuring 2 cm x 3 cm x 7 cm medially downward and backward.
(ii) Stab wound measuring 5 cm x 3 cm x 8 qm through and through to chest wall on Rt. Side of chest at 7th inter coastal space in auto axillary line.
(iii) Stab wound on Rt. Lower coastal region 2 cm x 3 cm x 5 cm directed downward medially.
(iv) Stab wound at central lower part of chest directed medially downward 2 cm x 1 cm x 3 cm.
(v) Stab wound 4 cm below Rt. Axilla on lat. wall of chest 1 cm x 1 cm x 2 cm at 5th inter coastal space.
(vi) Stab wound on lat. wall of Rt. Chest near axilla 1 cm x 1 cm x 2 cm .
(vii) Lacerated wound on left parietal top 4 cm x 1 cm x bone deep.
All wounds are ante mortem and elliptical in shape with sharp cutting edges.
(3) Deceased Dev Raj:
(i) Stab wound 4 cm x 12 cm on chest wall medial to left nipple through and
through with profuse bleeding.
(ii) Lacerated wound through and through on mid of upper lip.
(iii) Stab wound 4 x .5 x 4 cm upto bone deep on Rt. Shoulder with profuse bleeding.
(iv) Stab wound 4 x 2 x 8 cm through and through on and axillary line.
All wounds are elliptical in shape and ante-mortem with sharp cutting edges.
The injuries suffered by the accused are as under:
(1) Accused Bhanwar Singh @ Chhatar Singh:
(i) lacerated wound 6 cm x 1/2 crn x 1/2 cm back of skull below with irregular margins occipital region.
(ii) Tini bruise on Rt. Eye brow of size 1/4 cm x 1/4 cm.
(iii) 1/2 cm x 1/2 cm bruise below Rt. Eye near nose.
(2) Accused Madho Singh:
(i) lacerated wound 6 cm x 1/2 cm x 1/2 cm on left side at saggital parietal suture near region of posterior fontanelle . Margins are irregular.
(ii) Lacerated wound 4 cm x 1/2 cm x 1/2 cm on Rt.side at fronto saggital region near posterior fontanelle plane.
(iii) Abrasion 1/2 cm x cm/ 1/4 cm x 'A cm on Rt. Hand between middle and ring fingers.
(iv) Abrasion 4cmx1/2 cm/ 1/2 cm x 1/4 cm on pinna and lobule of Rt. Ear.
(v) c/o of pain on Rt. Upper limb.
25. In the above circumstances, the contention of the learned Counsel for the appellants that they exercised their right of private defence cannot be accepted. The appellants failed to prove that there was any sort of danger of causing harm by any of the persons of the complainant party which could have created a fear for their body much less to their lives. The appellants failed to prove that they had any danger for their any of the property from the victims. The learned Counsel for the appellants did not dispute that gaties were on the spot. The injuries suffered by the victims were by blows of gaties and the prosecution case is also the same that the victims died because of the injuries inflicted by gaties. Involvement of appellants No. l and 2 is admitted fact. The right of private defence has no place in the present case in the facts of this case, Normally there can not be direct evidence for mental state of person and, therefore, intention of person for doing an act is required to be judged from the act of the person with all surrounding circumstances. In the present case, the prosecution fully established the fact that there was clear intention of the appellants No. l and 2 to kill any person who comes from the side of the complainant party and this fact is established because of the reason that their lust did not satisfy by killing one person or by two persons of the complainant party and they inflicted injuries upon third person and killed him too, after killing two persons. Therefore, the trial Court was fully justified in holding appellants No. 1 and 2 guilty for charge under Section 302, IPC.
26. So far as charge for offence under Section 302/120B, IPC is concerned, the prosecution produced three witnesses, who are PW-10 Chela Ram, PW-11 Manroop and PW-19 Nathu Ram @ Nathu Lal.
27. PW-10 Chela Ram stated that he was standing on a chauraha of the village and he heard from appellant No. 3 Kishan Chand, who was saying to appellants No. l and 2 that four businessmens' brothers have come to the village and in your 'bara' (plot in dispute), kill all four persons. He stated that they were talking about Champa Lal, Devi Singh and two more brothers, however, admittedly, the prosecution did not prove that Champa Lal had any brother Devi Singh. He was cross-examined at length but from his examination-in-chief itself, it appears that his statement as such appears to be not safe for reliance. He appears to be alleged chance witness. His statement is not supported by any other evidence. Even it is not the case of the prosecution nor there appears to be any reason for Kishan Chand who had no cLalm over the plot in dispute to instigate appellants No. l and 2, who are cLalming their ownership over the plot, to kill victims. The other witness PW-11 Manroop, who says that he was searching his she-buffalo and when he reached near 'Arhat' of Bhanwar Singh, he found Bhanwar Singh, Madho Singh and Kishan Chand talking, who were saying that OK we go to the field and start the work of Champa Lal and we may talk to Champa Lal whether he brought, Jhe permission from Gram Panchayat or not. It is all evidence of PW-11 Manroop in examination-inchief. The third witness is PW-19 Nathu Ram @ Nathu Lal.. He stated, that he was sitting with one Chela Ram Bawari and the accused were standing near the 'Aakhaliya'. He stated that accused Kishan Chand was saying to other accused that he will get bail of the accused and you kill some one. He stated that why they were talking so, he has no knowledge. He also stated that in those persons, the accused Kishan Chand's wife was also present. His statement as such and in the light of his cross-examination cannot be relied upon.
28. So far as other circumstantial evidence involving appellant Kishan Chand is his demanding money for allowing the complainant party to occupy the plot is concerned, that evidence is if accepted as such, even then there appears to be no just cause for hatching conspiracy for killing three persons or instigating the accused persons for eliminating any of the victims. As per the prosecutipn evidence, the only act of the accused Kishan Chand, was that on finding the labours or the complainant party on the plot in dispute, he and his wife went to inform appellants No. l and 2 and appellants No. l and 2 came on the spot. His giving information to his landlord in the facts and circumstances, was the act of person interested in accused appellants No. l and 2 and that act of the accused cannot be condemned. The charge of abetment of offence punishable with death or imprisonment for life, if offence is committed on the basis of such evidence, cannot be sustained. The prosecution failed to establish the charge under Section 302/120B, IPC against the appellants Bhanwar Singh @ Chhatar Singh and Madho Singh as well as against accused-appellant Kishan Chand, The prosecution further failed to prove the charge under Section 302/115, IPC against appellant Kishan Chand.
29. In view of the above reasons, D.B.Criminal Appeals No. 1146/04 and No. 305/05 deserve to be allowed so far as appellant Kishan Chand is concerned and his conviction under Sections 302/120B and 302/115, IPC is set aside and he is acquitted for charge under the above lections. He may be released forthwith if not needed in any other case. So far as appeal of appellants Bharwar Singh @ Chattar Singh and Madho Singh are concerned, that is partly allowed and their conviction for charge under Section 302/120B IPC is set aside and they are acquitted for charge under Section 302/120B, IPC, Consequently, the sentences awarded to the appellants Bhanwar Singh @ Cha.ttar Singh under Section 302/120B, IPC are set aside. However, their conviction under Section 302, IPC is maintained.
30. The State has preferred D.B.Criminal Appeal No. 930/05 seeking enhancement of the sentence and for awarding the death penalty for appellants Bhanwar Singh @ Chhatar Singh and Madho Singh. The death penalty is awarded only in rarest of rare case. Hon'ble Apex Court in the case of Kheraj Ram (supra) considered the various earlier judgments 0f the Hon'ble Apex Court on the question in what circumstances death penalty can be imposed or should be imposed. Hon'ble the Apex Court held that extreme penalty of death need not be inflicted except in gravest cases of culpability. Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'. Life Imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a Just balance has to be struck between the aggravating and the mitigating circumstances before the option ts exercised. It has been further held in the case of Khera) Ram (supra) that for the under mentioned circumstances, the death penalty can be imposed only:
(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting or dastardly manner so as to arouse intense and extreme indignation of the community.
(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. Murder by hired assassin for money or reward or a cold blooded murder for gains of a person vis-a-vis whom the murderer is in a dominating position or in a position of trust, or murder is committed in the course for betrayal of the motherland.
(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is'committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.
(4) When the crime is enormous in proportion. For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.
(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-a-vis whom the murderer is in a dominating position of a public figure generally loved and respected by the community.
31. We considered the facts in detail of the case in hand and are of the view that in the preserjt case, though three persons have been killed by appellants No. l and 2 but appellant Bhanwar Singh @ Chattar Singh was of the age of 65 years as assessed by the trial Court in the year 2004 and according to the appellant Bhanwar Singh himself, he was of the age of 70 years in the year 2004. The appellant Bhanwar Singh appears to be old person by now of quite advance age. Appellant Madho Singh was of the age of 24-25 years in the year 2004. He is now of the age of about 28 to 29 years. Both the appellants are behind the Bar since the year 1999 and nine years have passed to the incident. The age of the appellant No. l Bhanwar Singh is sufficient for not awarding the death sentence. Appellant No. 2 Madho was with his father at the time of incident and was of young age and in that young age, seeing the act of his father, appellant Madho Singh also committed the same crime which his father committed.
The death penalty will be not punishment which only can be .adequate punishment. Therefore, we do not find any merit in D.B.Criminal Appeal No. 930/06 preferred by the State for awarding death penalty to accused Bhanwar Singh @ Chhatar Singh and Madho Singh.
32. In the result the D.B.Criminal Appeal No. 1146/04 of appellants Bhanwar Singh @ Chhatar Singh and Madho Singh is partly allowed and the conviction of appellants Bhanwar Singh @ Chhatar Singh for offence under Section 302/120B, IPC and sentence thereunder are set aside. Their conviction and sentence under Section 302, IPC are maintained. The appeal of appellant Kishan Chand is allowed and he is acquitted for charge under Section 302/120B and 302/115, IPC and consequently, his sentence is set aside and he be released forthwith. His D.B.Criminal Jail Appeal No. 305/06 also stands disposed of in the light of this judgment.
33. D.B.Criminal Appeal No. 930/05-State v. Bhanwar Singh @ Chattar Singh and Ors. is dismissed.