G.D. Saxena, J.
1. The aforesaid two Criminal Appeals and Capital Sentence Reference arise out of the impugned judgment and order of conviction and sentence dated 9th May, 2011 rendered in Special Sessions Trial No. 61/2010 by the Special Judge (Dacoity), Dabra, district Gwalior. Since the judgment and order challenged in these criminal appeals is one and the same which is the subject matter of the Capital Sentence Reference made by the learned trial Judge, all the appeals and the reference are herewith, taken up together for disposal. (2) The appellants-accused Kalli @ Gopal, Sonu @ Sunil and Hariom stood their trial on the charges for the offences punishable under Sections 460, 302/34, 397/34 of I.P.C. read with Section 13 of the MPDVPK Act whereas appellants-accused Veeru and Virendra stood their trial on the charges for the offences punishable under Sections 392/120-B of I.P.C. read with Section 13 of the MPDVPK Act before the Special Judge and they were convicted and sentenced as following :--
(a) for the offence punishable under Section 302/34 of I.P.C.,appellants-accused Kalli @ Gopal, Sonu @ Sunil and Hariom were sentenced to death with a fine of Rs. 5000/- each, in default of payment of which they were further directed to undergo rigorous imprisonment of six months;
(b) for the offence punishable under Section 460 of I.P.C. appellants-accused Kalli @ Gopal, Sonu @ Sunil and Hariom were sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs.5,000/- each, in default of payment of which they were further directed to undergo rigorous imprisonment of six months;
(c) for the offence punishable under Section 397 of I.P.C. appellants-accused Kalli @ Gopal, Sonu @ Sunil and Hariom were again sentenced to undergo rigorous imprisonment for a term of ten years and to pay a fine of Rs.1,000/- each, in default of payment of which they were further directed to undergo rigorous imprisonment of three months;
(d) for the offence punishable under Sections 392/120-B of I.P.C. the remaining accusedappellants Veeru and Virendra were sentenced to imprisonment for a term of seven years and to pay a fine of Rs. 1,000/- each in default of payment of which these accused were directed to undergo rigorous imprisonment of three months; and
(e) for the offence punishable under Sections 11/13 of the MPDVPK Act, all the appellantsaccused were again sentenced to undergo rigorous imprisonment for a term of seven years and to pay a fine of Rs.1,000/- each, in default of payment of which they were further directed to undergo rigorous imprisonment of three months. All the sentences were directed to run concurrently.
(3) At the time of pronouncement of the judgment, accused Hariom, Veeru and Virendra were absent before the trial court and thus they were directed to be summoned through arrest warrant, as mentioned in para 78 of the judgment. Obviously, the sentence of death was passed without hearing them and behind their back, in violation of the provisions contemplated in Section 235 of Cr.P.C. Under the circumstances this court vide order dated 28/9/11 in Ref. No.1/11, by setting aside their death sentence for the alleged offence, remitted their case back to the trial court for hearing them on the question of sentence in the light of law laid down by the Apex court in the case of Santa Singh Vs. State of Punjab (AIR 1976 SC 2386). This court therefore has to consider the case only with respect to two of the accused/convicts, namely, Kalli @ Gopal Sharma and Sonu @ Sunil and not of the remaining three absconders, i.e, accused Hariom, Veeru and Virendra.
(4) The prosecution case as it appears in the evidence is that in the intervening night of 8th and 9th September,08, Shri Neeraj Bhargava, Advocate r/o Bilaua informed on phone to the complainant Abhay Kumar Sharma (PW-9) son of the deceased Bharosilal Sharma, a resident of 69- Krishna Bihar Thatipur, Gwalior that the doors of the house of his father Bharosilal are not found opened and on knocking the doors nobody is responding. On receiving such an information, the complainant accompanied with his mother Smt. Rukmani Devi, wife of deceased went to village Bilaua. On reaching the house, they found some persons gathered there. On their request his neighbour Phoolsingh climbed on the staircase lying there and then could be able to saw from the ventilator that Bharosilal Sharma was lying dead in his house. Complainant immediately rushed to the police station for reporting the incident. Accordingly, an F.I.R. was lodged. In the presence of police, the house of Bharosilal was opened. The dead-body was sent for postmortem. The investigation was launched. Meanwhile, other sons of the deceased, namely, Ajay Sharma, Aman Sharma and Ashok Sharma reached Bilaua. Their casediary statements were recorded. During investigation, on information to the police, accused Kalli, Hariom, Virendra, Sonu and Veeru were arrested. On their information, weapon of crime and the properties looted in the incident were recovered from their possession. The properties were identified in test identification parade by the witnesses. The weapon of crime and other blood stained articles seized from the spot were sent for chemical examination to the State Forensic Science Laboratory. After investigation, the charge-sheet was filed before the criminal court. The learned trial Judge after hearing the parties and on consideration of the material available found all the charges against the appellants as proved to the hilt and he recorded the judgment of conviction and passed the sentences against them vide impugned Judgment dated 9th May, 2011, as detailed above.
(5) The learned Public Prosecutor appearing for the State while supporting the death sentence awarded by the learned trial Judge to accused Kalli @ Gopal Sharma and Sonu @ Sunil contended that on 7th and 8th September 2008, in the midnight in the house deceased Bharosilal Sharma, who was an aged/infirm person retired from the Bank, was taking rest. The accused who were personally known to him from before and usually visited him, under a plan of robbery entered into his house and after committing robbery brutally killed him. It is true that son of deceased, lodged the F.I.R. against unknown miscreants but during investigation, it is gathered that just before the incident, all the accused who were well acquainted with the deceased and were having his blind faith and were also knowing with the activities of the house and area of the town, drawn up a plan to rob him. During commission of robbery, the deceased woke up and due to apprehension and identification the accused caused six incised wounds on his body by sharp edged weapon to wit, knife 'Chhuri'. Thus, the deceased who was their well wisher and had faith on them was looted and killed by the accused, hence, the trial Judge rightly convicted and sentenced them death penalty. It is accordingly prayed that the Death Sentence as awarded by the trial Judge may be confirmed. He placed reliance on the following decisions:-
(i)Suresh Chandra Behari Vs. State of Bihar (AIR 1994 SC 2420);
(ii)Karamjeet Singh Vs. State of Delhi Administration (AIR 2000 SC 3467);
(iii)Dayanidhi Bisoi Vs. State of Orissa (AIR 2003 SC 3915);
(iv)Vikram Singh Vs. State of Punjab (2010 AIR SCW 1465);
(v)Ramesh Vs. State of Rajasthan (2011)3 SCC 685.
(vi) Narayan Prasad Vs. State of M.P. (AIR 2006 SC 204);
(vii)Rafiq Ahmad Vs State of UP (2011) 8 SCC 300; and;
(viii) Ghure Lal Vs. State of Rajasthan (2011) 11 SCC 694.
(6) The contentions put forth on behalf of the learned counsels appearing for the accused/appellants are that the impugned judgment dated 9th September 2011 of the learned trial Judge is per se illegal and against the evidence on record. It is submitted that in the present case which is based on circumstantial evidence, the chain against the accused is incomplete which does not connect the appellants/accused with the alleged crime. More so, the recovery of alleged mobiles from the accused is not proved. It is not evident from the record as to who is owner of the alleged mobiles or whether they were gifted to the deceased for his personal use. Hence, the witnesses regarding the recovery of mobiles are not trustworthy. It is further contended that the identification of looted articles by witnesses Smt. Rukmani Devi, wife of deceased and Ahaby Kumar raises doubt. The other ornaments of looted property and their identification raises suspicion to place reliance on them. Moreover, the hatching of conspiracy is not proved beyond doubts. Statements of prosecution witnesses for proving the prosecution case on account of contradictions and omissions in material particulars contained therein became doubtful. The investigation of the crime is wholly shaky and doubtful. The recovery of the weapon of crime is also not connecting the accused with the crime. On the basis of the above arguments, it is prayed that the conviction and sentence awarded by the learned trial Judge, by allowing the appeals be set aside and the accused/appellants be acquitted of the charges levelled against them. In support of the said contentions, reliance is placed on the decisions, namely, Sharad Birdichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622), Kanu Ambu Vish Vs. The State of Maharashtra 1971 CAR 181 (SC), Naba Kumar Das Vs. State of West Bengal 1974 CAR 23 (SC), Maluwa Vs. The State of Madhya Pradesh 1975 CAR 322 (SC), Caetano Piodado Fernandes and Another Vs. Union Territory of Goa Daman and Diu Panji 1977 CAR 37 (SC), Milkiyat Singh Vs. The State of Rajasthan 1980 CAR 372 (SC), Surinder Pal Jain Vs. Delhi Administration 1993 CAR 254 (SC), State of U.P. Vs. Arun Kumar Gupta (AIR 2003 SC 801), Pradeep Narayan Madgaonkar Vs. State of Maharashtra (AIR 1995 SC 1930), Chandmal Vs. State of Rajasthan (AIR 1976 SC 917), Mohammad Aman Vs. State of Rajasthan (AIR 1997 SC 2960), Santa Singh Vs. State of Punjab (AIR 1956 SC 526), Kansa Behara Vs. State of Orrisa (AIR 1987 SC 1507), State of M.P. Vs. Nissar (2007) 5 SCC 658, State of Madhya Pradesh Vs. Indar Singh 2010(3) MPWN (SN) 13, State of Orrisa Vs. Bramhananda (AIR 1976 SC 2488), State of Goa Vs. Pandurang Mohite (AIR 2009 SC 1068), Gopal Singh Vs. State of Madhya Pradesh (2010) 3 SCC (Criminal) 1189 and lastly Dolat Singh Vs. State of Madhya Pradesh 2006(1) JLJ 58.
(7) We have heard learned counsel for all the appellants and also the learned Public Prosecutor for the State. We have also perused the prosecution evidence as recorded in the statements of the witnesses and the exhibits tendered and proved by it. We have also gone through the statements of the accused-appellants recorded under Section 313 Cr. P. C. and the impugned judgment.
(8) Before we proceed to examine the rival contentions raised at the Bar in seriatim, it would be expedient to keep in view that the present case is based on circumstantial evidence and there is no eye witness in the instant case. It is well to remember that in case of circumstantial evidence the Court will have to bear in mind the cumulative effect of the circumstances in a given case and weigh them as an integrated whole and missing links may be fatal to the prosecution case. Where the case of the prosecution rests purely on circumstantial evidence motive undoubtedly plays an important part in order to tilt the scales against the accused. It is also well settled that the accused can be convicted on circumstantial evidence only if the circumstances are wholly inconsistent with the innocence of accused. Even where the circumstances raise a serious suspicion against the accused, however grave it may be, it cannot take the place of proof. A Court of judicial conscience, while deciding a criminal case wherein the evidence is purely of circumstantial nature the fact and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond all reasonable doubt and the facts and circumstances should not only be consistent with the guilt of the accused but they must be such in their effect as to be entirely incompatible with the innocence of accused and must exclude every hypothesis consistent with the innocence of the accused.
(9) Now, we propose to examine the circumstantial evidence of the present case on the anvil of the five golden principles formulated by their Lordships of Hon. Apex court in the case of Sharad Birdichand Sarda Vs. State of Maharashtra (AIR 1984 SC 1622).
(10) Abhay Kumar Sharma (PW-9), son of deceased deposed that he is working as a teacher and residing at Gwalior. His brothers are in service and they are residing at different places outside the town of Bilaua, district Gwalior. His father Bharosilal Sharma after retirement from Bank, was residing at Towm Bilaua while his mother Smt. Rukmani Sharma was residing with him at Gwalior. On 9th September 2008 at about 8 p.m., in the evening Shri Neeraj Bhargava, Advocate from Town of Bilaua informed him on phone that the doors of the house of his father are not found opened from the day and on knocking he is not responding. The witness then informed about the same to his all remaining brothers and mother and at about 10 p.m., in night, he with his mother proceeded to take care of his father to the Town of Bilaua. On reaching the house of his father at about 10.30 in night, he saw that the front door of the house and front window of first floor of the house were opened. The neighboring persons were also gathered on the spot. On his request, his neighbor Phoolchand climbed on the roof through staircase and saw that his father was lying dead. The blood on his hand was seen. He alongwith his maternal aunt Smt. Lajja Sharma and brother Aman Sharma then went to police station Bilaua for lodging the report (Ex.P/3) which was recorded at at about 11.30 p.m. in night. Thereafter police personnels reached on the spot and for safety and security purposes sealed the house. The force was deployed for security. On next day, on 10th September 2008, at about 9 a.m., he accompanied with police reached the house and by way of roof he saw that his father was dead. The injuries caused by sharp edged weapon on his neck, hand, and abdomen were also seen. Thereafter the police opened the house. The Almira of the room was lying opened and all goods of the Almira were in scattered state. On that day, Safeena Form (Ex.P/ 4), Memo of dead body (Ex.P/5), Spot map (Ex.P/22) and seizure memo (Ex.P/6) of blood stained soil were prepared. He was inquired into by the police. Later on, he found that one necklace of silver, one pair of golden ear-ring and two mobiles of his father were misplaced. At later stage of investigation, he identified the stolen property as mentioned above in the Nagar Panchayat Bhawan Bilaua vide identification memo (Ex.P/21). Smt. Rukmani (PW-8) wife of deceased Bharosilal in her statement fully supported the evidence of Abhay Kumar (PW-9) and the entire prosecution version.
(11) Ashok Kumar Sharma (PW-3) states that on information through his brother on 9th September 2008, he came to know that his father Bharosilal, who was residing in village Bilaua was killed and some properties including the mobile provided by him during last Mumbai visit were stolen away. He reached next day to village Billaua where his father was residing and was killed by miscreants. He further stated that he knew the assailants Kalli Gheewala, Veeru and Virendra, who usually visited his father for his massage. His father had a sympathetic attitude towards them. These persons generally asked his father to arrange for them a suitable job while he was always opposing for their entry in father's house. On 24th February 2008, when he visited the village to attend the marriage of his cousin sister, one Suresh, a milk-vendor informed about the conspiracy of committing loot in the house of his father hatched by accused in the house of accused Virendra, just before the incident which was informed by him to the I.O.
(12) Col. Ajay Sharma (PW-6), son of deceased deposed that on 9th September 2008 at 10 o' clock, in night his brother Abhay Shrma informed that his father is not well and therefore he (his brother) alongwith his mother proceeded to Bilaua. Thereafter, his brother informed that his father is murdered. He reached Bilaua after cremation of his father. He stated that prior to the incident, a property dispute arose which was decided by the court in favour of his father. On spot, his brother andneighbors informed that his father was murdered by causing injuries by sharp-edged weapon. One Necklace of silver, one pair of golden ear-ring and two mobiles which were used by his father and kept in Almira were stolen away. He stated that in the month of December of last year, he visited and stayed with his father for 4-5 days and during that period he met with accused Kalli @ Gopal Gheewala, who usually came to his father for selling Ghee. Kalli also used to come in the house for massage of his father.
(13) Yogesh Bhargava (PW-7) stated that on 8th or 9th day of September 2008, his neighbor Bharosilal was murdered. He entered into the house with police force and other persons including deceased's son Abhay Kumar. Police prepared Safina Form (Ex.P/4). Then, he visualized the dead body of Bharosilal and inspected the room where Bharosilal was murdered. A memo of deadbody of Bharosilal was prepared as per Ex.P/5. During recovery of articles, a mosquito net and blood stained clothes were also seized. He stated that after one and quarter to month, while he accompanied with Dinesh, a resident of Dabra was returning back to his village Bilaua and reached at the Community Health Centre Dabra, the police arrested the accused, namely, Kalli @ Gopal and Sonu in his presence vide arrest memos (Ex.P/7 and Ex.P/ 8) and he signed over the memos as Panch witness. On information by these accused, a mobile and knife (a weapon of crime) were also recovered vide seizurememos (Ex.P/12 and P/13). Accused Virendra was arrested vide arrest memo (Ex.P/15) and accused Veeru was arrested vide arrest-memo (Ex.P/16). Accused Virendra in police custody informed the looted property, i.e., one necklace of silver and one golden pair of ear-ring and two mobiles to police vide memorandum (Ex.P/20). The police seized the pair of ear-rings from accused Veeru.
(14) Suresh Chand (PW-5) deposed that one year ago just one day before incident at about 8 p.m. in night, he and Mohan Sharma while coming from their agricultural fields to their home, saw that in front of house of Virendra Kushwah, Virendra Kushwah, Veeru Dheemar residents of the locality and three other persons not residents of the village were designing some plan. Due to curiosity, they could not stop them from hearing their plans secretly. Then the witness came to know that the persons collected there were making plan to commit theft in the house of Bharosilal, an old and ailing person residing alone in his house and it was expected by these persons that during commission of theft, a lot of valuables and cash would be available to them. On next day evening, he heard that unknown miscreants murdered Bharosilal. After passing of sometime, he informed sons of Bharosilal about the conspiracy hatched in between the accused as they heard just before intervening of the fateful night. Mohan Sharma (PW-1) turned hostile and did not support the statement of witness Suresh Chand (PW-5) about the knowledge of hatching conspiracy of committing theft in the house of Bharosilal between the accused, just before the fateful intervening night of the incident. Murarilal Chourasia (PW-13) a Corporate of Ward No. 4,Town Bilaua deposed that on 19th December 2009, an identification parade was arranged in his presence in Nahar Panchayat building at Bilaua. Before his presence, witnesses Rukmani Sharma, wife of deceased and Abhay Kumar, son of late Bharosilal identified their theft properties, i.e. two mobiles, one necklace and one pair of golden earrings from the mixed articles of similar kind. The Identification Memo (Ex.P/21) bears his signature.
(15) Arun Kumar Goswami (PW-10) deposed that being a bus driver of school bus, he used to drop the children to their school. On the day of incident, when he was going on duty, his mobile was not in a workable order, so he asked his brother Sonu to arrange for the time being a cell phone for him. Sonu made available cell phone of his friend in which the witness inserted his own SIM No. 9826321813 and kept the set for use for 2-3 days. However, since the said set was also not receiving any calls, he returned the said cell phone to the fried of his brother. In para 2 of his statement, the witness stated that the name of the friend of his brother is Hariom.
(16) Yashpal Singh (PW-15) Inspector and In-charge of the Police Station Bilaua conducted the inquiry in Marg No. 22/2008 under Section 174 of Cr.P.C. He issued the Safina Form (Ex.P/4) and invited the witnesses for identification of the dead body lying on the spot. Thereafter, he prepared the memo of dead-body vide Ex.P/5. He prepared the spot-map (Ex.P/22) and seized the female maxi gown of brown coloured stained with blood, vide Ex.P/6. After marg inquiry, he wrote the FIR (Ex.P/35) and made arrangements for postmortem of the dead body by sending a requisition memo (Ex.P/24) to the Civil Hospital Dabra. On 11th September 2008 he recorded the case diary statements of Col. Ajay Sharma, Abhay Sharma, Ashok Sharma. By that time, the unknown miscreants could not be traced out. On his transfer from Police Station, he handed over the casediary for further investigation to his successors.
(17) D.P. Sharma (PW-12) Assistant Sub Inspector of the Police Station Bilaua deposed that on 1st November 2008, during his posting at the Police station Bilaua, he conducted part of the investigation. He arrested accused Sonu vide arrest memo (Ex./25). After arrest, during custody, the accused informed the looted property (cell phone)used by deceased Bharosilal. Accordingly, a memorandum (Ex.P/13) was prepared. Thereafter, accused Sonu produced the cell phone from his room, which is recovered vide memo (Ex.P/14).
(18) J.P. Dangi (PW-14) stated that he was posted on 14th October 2008 as Inspector and In-charge of the Police Station Bilaua.He received the case-diary of Crime No. 99/2008 from Police Station and conducted further investigation in the matter. He received the call details of theft mobile sets from Cyber sell of Office of the Police Superintendent, Gwalior. On the basis of report, he made an inquiry about the suspects and on 18th October 2008 he arrested accused Kalli @ Gopal Sharma vide arrest memo (Ex.P/7) and accused Hariom vide arrest-memo (Ex.P/8). He arrested accused Virendra vide memo Ex.P/15 and Veeru vide arrest memo (Ex.P/16). After arrest, during custody, the accused Kalli @ Gopal Sharma informed about the knife (Chhuri) vide memorandum (Ex.P/11) and at his behest the weapon hidden in the bushes at the bank of tank was recovered vide recovery memo (Ex.P/13). Accused Hariom informed about the mobile looted in the incident vide memorandum (Ex.P/9). On his production, mobile 'Nokia' bearing the Cell No. 9406586386 written on battery in red letters was seized vide recovery memo (Ex.P/10). Accused Virendra after arrest informed the looted property, i.e., a necklace (Hansali) of silver vide memorandum Ex.P/19. On its production, the same was seized vide recovery memo. During custody, the accused Veeru informed about two golden ear-rings. A memorandum (Ex.P/18) was prepared and thereafter accused Veeru produced the looted property, i.e., a pair of ear-rings vide recovery memo (Ex.P/20). At subsequent stage of investigation, on 16th October 2011, he recorded the case diary statements of Abhay Kumar, Rukmani Devi and Suresh Chandra. He sent the looted properties recovered from the accused for identification to Nagar Panchayat Biaua. A corporate namely, Murari Lal Chaurasia conducted the identification parade of properties looted belonging to Abay Kumar, son of deceased and Rukmani Devi wife of deceased. He sent the properties, weapon of crime (knife) and blood stained clothes for chemical examination to the State Forensic Laboratory Gwalior and report of Chemical Examiner is received vide Ex.P/26. On perusal of the report (Ex.P/26) of the Chemical Examiner, it appears that presence of human blood was found on the clothes of deceased and on a Maxi, a female garment seized from the spot. However, human blood on weapon of crime was not confirmed but presence of the same was dictated.
(19) Dr. R.K. Gupta (PW-11) deposed that he while posted as Casualty Medical Officer in the Community Health Centre Dabra, on memo of Police Station Bilaua for performing autopsy on the dead body of Bharosilal Sharma which was identified by Abhay Sharma, son of deceased and Manav Sharma and brought by Constable Omkar Singh No. 1697 of Police Station Bilaua, on 10th September 2008 at about 2.40 p.m., he conducted postmortem and found following external injuries:-
“(i) Incised wound admeasuring 6 cm. x 1 cm. x 1 cm. on right side of chin;
(ii) Incised wound admeasuring 4 cm. x 1 cm. x 1 below just 1st wound;
(iii) Incised admeasuring 6 cm. x 3 cm. x 2 cm left forearm anteriorly middle;
(iv) Incised wound admeasuring 6 cm. x 1cm. x 1 cm. just 2 cm. below Injury No. 3;
(v) Incised wound admeasuring 6 cm. x 1cm x 1 cm just 2 cm. below Injury No. 4; and
(vi) Incised wound on Abdomen 3“ below admeasuring 3 cm. x 2 cm. x deep up to peritoneum. Part of intestine was coming out from the wound.”
(20) On dissection, blood about 500 ml. was present in peritoneum cavity. The doctor opined that cause of death was shock and haemorrhage due to excessive bleeding caused by multiple wounds. Time of death was approximately 36 hours from the examination. The postmortem report is Ex.P/24, written and signed by him. Though mode of death was not mentioned in the postmortem report (Ex.P/24) as well as court statement by the witness, but the death seems to be homicidal in nature.
(21) On evaluation of the entire evidence of prosecution, ocular, investigation, identification of property recovered from the accused, report of the Chemical Examiner coupled with medical, the following circumstances emerged before the trial court:-
(1) that, the present incident in connection with loot/robbery occurred on 8th September 2008, after bolting the doors from inside the house of deceased Bharosilal Sharma, who was residing alone, hence, there was no chance of visualizing the incident. The prosecution version is totally dependent on circumstantial evidence, confirmed by the postmortem report (Ex.P/24).
(2) that, it is natural that on 9th September 2008 as usual when resident of the house did not appear to be seen and was not responding on knocking the doors by the relatives and friends of the deceased, on doubt of un-happenings, well wisher Shri Neeraj Bhargava, Advocate from Bilaua informed on phone to Abhay Kumar Sharma, son of deceased that Bharosilal is not responding on knocking the doors. Immediately, Abhay Kumar Sharma and Smt. Rukmani Devi wife of deceased, who, on account of her regular treatment for joint pain was living with her son at Gwalior, departed the place for Bilaua to know welfare of the deceased;
(3) that, after arrival of Abhay Kumar Sharma (PW-9) at the residence of his father in night, his neighbour Phoolsingh climbed through stairs on the first floor. Phoolsingh, after peeping through the ventilator of the room found that his father Bharosilal was dead and blood was oozing from hand of deceased. The witness immediately at 11-30 p.m. in night lodged the Marg Intimation Report (Ex.P/3) at the Police station Bilaua. On next day, i.e., on 10th September 2008 in morning, the marg intimation was inquired into. Safina Form was prepared and memo of dead body and seizure memo of the articles lying on the spot were prepared. Thereafter, the dead body was referred for postmortem at about 1 p.m. to Community Health Centre at Dabra and on that day, case-diary statement of complainant Abhay Kumar Sharma was recorded. F.I.R. was lodged in the evening on 10th September 2008;
(4) that, on 10th September 2008, Ashok Kunmar Sharma, in his case-diary statement disclosed that the cell phone No. 9406586386 generally used by his father Barosilal, which was also found missing. Another cell phone No. 9928120429 which was made available by his son to the deceased was also found missing in the incident of theft/loot;
(5) that, the investigation of the present crime initially was conducted by Yashpal Singh (PW-15) Inspector and In-charge of the Police Station Bilaua but by that time the names of the assailants were not dictated;
(6) that on transfer of Yashpal Singh (PW-15), his successor Inspector J.P. Dangi (PW-14) conducted the subsequent investigation. On 16th October 2008 he recorded the case-diary statements of witnesses Abhay Kumar, Rukmani Devi and Suresh Chand. In the meantime, he also received the call details of theft mobile sets from Cyber sell of the Office of the Superintendent Police, Gwalior. On 18th October 2008, he came to know the names of assailants from Cyber cell of S.P office Gwalior and just within two days, after getting the said information and receiving the call details of theft mobile sets, made arrest on 18th October 2008 of the culprits/accused, namely, Kalli @ Gopal Sharma, Hariom Parihar, Virendra Kachhi and Veeru. On their informations, he seized Chhuri from accused Kalli @ Gopal, one necklace “Hasali” of silver from accused Virendra, one golden pair of ear-rings from accused Veeru;
(7) that, the accused can not be benefited for the inaction/latches of the investigation;
(8) that on 2nd November 2008, D.P. Sharma ASI of Police Station Bilaua arrested accused Sonu and recovered from him one mobile phone bearing SIM No. 97321820;
(9) that, as per medical evidence it is clear that in the midnight of 8 th and 9th September 2008 the incident took place and during incident Bharosilal Sharma was put to death by the accused or any one of them. Looking to the nature of incised wounds seen on the body of deceased Bharosilal the death of him appeared to be homicidal in nature;
(10) that the identification parade of properties, which were seized/recovered in between 18th October 2008 to 2nd November, 2008 was conducted on 10th December 2008 which can not be said delayed because the persons who have to identify the articles were residents of Gwalior, i.e., outsiders; and (11) that the motive of the incident is apparently clear that the incident was committed for committing loot/theft in the house of Bharosilal and during incident of theft, Bharosilal was killed by the accused.
(22) On perusal of the record of trial Judge, it is clear that the trial Judge framed the charges against accused who were five in number for offence punishable under under Sections 460, 302/34 and 397/34 of I.P.C. read with Section 13 of the MPDVPK Act. At this stage,it would be useful to know the mandate of the sections basing the charges against the accused.
Section 460 IPC.- All persons jointly concerned in lurking house trespass or house breaking by night punishable where death or grievous hurt caused by any one of them.-
“If at any time of the committing of lurking house trespass by night or house breaking by night any person guilty of such offence shall voluntarily cause or attempt to cause death or grievous hurt to any person, every person jointly concerned in committing such lurking house tress pass by night shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”
Section 397 IPC.- Robbery or dacoity with attempt to cause death or grievous hurt.-
“If at any time of commencing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less seven years.”
Section 302 IPC.- Punishment for murder.-
“Whoever commits murder shall be punished with death or punishment for life and shall also be liable to fine. “
(23) Apparently, the learned trial Judge did not frame the charge against any of the accused for commission of offence punishable under Section 396 I.P.C., which is as follows -
Section 396 IPC.- Dacoity with murder.-
“If any one of five or more persons who are conjointly committing dacoity commits murder in so committing dacoity every one of those persons shall be punished with death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine.”
(24) In the case of Narayan Prasad Vs. State of M.P. (AIR 2006 SC 204), the Hon. Apex Court by upholding the judgment of conviction passed by the Division bench of this court at Jabalpur dated 27.8.1999 while reversing the acquittal of the accused persons by the trial court accepting the State appeal and convicting the appellants namely, Kishan Lal, Mihilal, Labru, Ramswaroop, Mukundi, Phulloo and Mustapha Khan for the offences of dacoity and murder under Section 395 and 396 I.P.C. and sentencing each one of them to life imprisonment on both counts with a fine of Rs.1000/- each, in default of which they were to suffer further rigorous imprisonment for two years each, observed that:-
“It is also unlikely that the police will plant these ornaments so as to implicate these accused persons. Some delay in identification parade or identification of property is likely in cases of dacoity at midnight and the recovery of the ornaments. The delay is natural in such cases, it is not fatal as to throw the prosecution case outright. We failed to understand the reasoning given by the learned trial court as it has proceeded purely on mechanical way and threw the prosecution case. The fact that the recovery of these huge quantity of the ornaments have been made at the instance of the accused persons duly identified by PW-10 and PW-20 and there is no possibility of planting the case against the accused persons by the police. Delay in recovery in such cases is not unusual.”
(25) In the case of Rafiq Ahmad Vs. State of UP (2011) 8 SCC 300, it is further held:-
“In Iman Ali v. State of Assam the Court had the occasion to explain the distinction between the scope, liability and punishment for an offence under Section 396, as opposed to Section 302 IPC. The Court noticed that the offence under Section 396 was no less heinous than an offence under Section 302 though in the latter case, it was obligatory on the part of the Court to record reasons for not awarding death sentence.
The Court while sustaining the enhancement of punishment from sentence of life imprisonment to sentence of death by the High Court on the ground that there was a direct evidence to show that the accused had committed the alleged murder, held as under:
“3. The learned counsel for the appellants in challenging the justification for the order of enhancement of sentence by the High Court, relied on the principle laid down by this Court in Dalip Singh v. State of Punjab, which was explained in the following words:
‘39. … In a case of murder, the death sentence should ordinarily be imposed unless the trying Judge for reasons which should normally be recorded considers it proper to award the lesser penalty. But the discretion is his and if he gives reasons on which a judicial mind could properly be found an appellate court should not interfere. The power to enhance a sentence from transportation to death should very rarely be exercised and only for the strongest possible reasons. It is not enough for an appellate court to say, or think, that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge and the only ground on which an appellate court can interfere is that the discretion has been improperly exercised, as for example, where no reasons are given and none can be inferred from the circumstances of the case, or where the facts are so gross that no normal judicial mind would have awarded the lesser penalty.’
It appears to us, however, that, in the present case, this principle is of no assistance to the appellants for challenging the step taken by the High Court. This Court cautioned the appellate court against interfering if the discretion of the trying Judge is exercised for reasons recorded by him and if it appears from the reasons that he had exercised a judicial mind in not awarding the sentence of death. In the present case, as mentioned by the High Court and as is apparent from the judgment of the Court of Session, the trial court awarded the sentence of imprisonment for life without giving any reasons at all for adopting that course. It is true that the appellants were not convicted in the present case for the offence of murder simpliciter under Section 302 IPC but that, in our opinion, is immaterial. The conviction of the appellants under Section 396 IPC, was not based on constructive liability as members of the gang of dacoits. There was clear finding by the Court of Session which has been upheld by the High Court that each of these appellants committed a coldblooded murder by shooting two inmates of the house simply with the object of facilitating commission of dacoity by them. Those persons were shot and killed even though they had not even tried to put up any resistance. The offence under Section 396 IPC, was therefore, no less heinous than an offence under Section 302 IPC. In these circumstances, when the Court of Session gave no reason at all for not awarding the sentence of death and for sentencing them to imprisonment for life only, it cannot be held that the High Court was not justified in interfering with that order. (Para 30)”
On the conjoint reading of Sections 396 and 302 IPC, it is clear that the offence of murder has been lifted and incorporated in the provisions of Section 396 IPC. In other words, the offence of murder punishable under Section 302 and as defined under Section 300 will have to be read into the provisions of offences stated under Section 396 IPC. In other words, where a provision is physically lifted and made part of another provision, it shall fall within the ambit and scope of principle akin to “legislation by incorporation” which normally is applied between an existing statute and a newly enacted law. The expression “murder” appearing in Section 396 would have to take necessarily in its ambit and scope the ingredients of Section 300 IPC. In our opinion, there is no scope for any ambiguity. The provisions are clear and admit no scope for application of any other principle of interpretation except the “golden rule of construction” i.e. to read the statutory language grammatically and terminologically in the ordinary and primary sense which it appears in its context without omission or addition. These provisions read collectively, put the matter beyond ambiguity that the offence of murder, is by specific language, included in the offences under Section 396. It will have the same connotation, meaning and ingredients as are contemplated under the provisions of Section 302 IPC. (Para 62)
(26) In the cited case the trial Judge convicted the accused for offence under Section 302 I.P.C. in connection with dacoity incident and sentenced him for life imprisonment which was confirmed by the Apex court in the manner aforesaid.
(27) Admittedly, there is no eye-witness in the present case. The prosecution has relied on circumstantial evidences in order to substantiate the charges leveled against the accused, namely, Kalli @ Gopal and Sonu @ Sunil. The prosecution also has taken help of hatching criminal conspiracy made between the accused which was heard by Suresh Chand (PW-5), an independent witness of the incident, while passing through the way. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, his evidence regarding hatching criminal conspiracy can be accepted being passed the test of credibility. Hence, in our opinion, there is ample evidence on record to show that accused did every thing to murder him. The offences punishable under Sections stand proved against the accused, i.e., beyond all shadow of reasonable and probable doubts.
(28) Thus, we find no reason to disagree with the findings, recorded by the learned trial Court to hold accused guilty of the alleged offences and thus, uphold the judgment and order of conviction. The learned trial court has noticed the circumstantial evidences, which are of such strong nature that any person will reach similar towards the guilt of offenders along and no other alternative hypothesis.
(29) In the present case,we are now concerned with the issue as to whether the death sentence, imposed on appellants are to be affirmed or not.
(30) In the case of Bachan Singh Vs. The State of Punjab reported in AIR 1980 SC 898, the Hon. Supreme Court noticed the following mitigating circumstances to exercise the Courts discretion, before exercise of option of death sentence.
"(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct."
(31) In the case of Machhi Singh and others Vs. State of Punjab reported in AIR 1983 SC 957, the Apex Court again noticed the aforesaid mitigating circumstances and held as follows :-
"33. In this background the guidelines indicated in Bachan Singh's case (supra) will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from Bachan Singh's case :
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability; (ii) 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';
(iii) Life imprisonment is the rule and death sentence is an exception. In other words 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;
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.
34. In order to apply these guidelines inter alia the following questions may be asked and answered :
(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender ?
35. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the Court would proceed to do so."
(32) Again, in the case of Dalbir Singh and others Vs. State of Punjab (1979) 3 SCC 745, in para 14 of the judgment, the Apex Court held and observed as follows :
"14. The sentences of death in the present appeal are liable to be reduced to life imprisonment. We may add a footnote to the ruling in Rajendra Prasad case. Taking the cue from the English legislation on abolition, we may suggest that life imprisonment which strictly means imprisonment for the whole of the men's life but in practice amounts to incarceration for a period between 10 and 14 years may, at the option of the convicting court, be subject to the condition that the sentence of imprisonment shall last as long as life lasts, where there are exceptional indications of murderous recidivism and the community cannot run the risk of the convict being at large. This takes care of judicial apprehensions that unless physically liquidated the culprit may at some remote time repeat murder."
(33) Murder itself is a heinous crime. The evidence, as on record, and the circumstances of the present case do reveal that it was a cold-blooded murder and the victim was helpless and undefended. There was no fault on his part except that he was having blind faith on the accused, who usually visited his house. The offence committed by the accused is exceptionally a heinous one and the manner of its execution shows the extreme atrocity and cruelty towards the deceased. But even though, whether the aforesaid mitigating circumstances call for death sentence, an exception to the Rule of life imprisonment.
(34) Appellants Sonu @ Sunil and Kalli @ Gopal are aged about 21 and 27 years, respectively, at present. There is no criminal antecedent cited against them to allege that they are harden criminals. There is no probability to suggest that the criminal acts of violence would constitute a continuing threat to the society. On the other hand, there is a probability that the accused can be reformed and rehabilitated.
(35) For the reasons aforesaid, we are persuaded to hold that sentence of imprisonment for life will be adequate in the circumstances of the crime. Accordingly, we convert the death sentence to life imprisonment in respect to the appellants, namely, Kalli @ Gopal Sharma and Sonu @ Sunil with imposition of fine of Rs. 25,000/- (Rs. Twenty five thousands only) against each of the accused. If the fine amount is not paid, same shall be recoverable from the properties of the accused and the accused shall also serve additional imprisonment of more five years in the event of default.
(36) The death reference is answered accordingly and the appeals are hereby dismissed but with modification in sentence, as ordered above.