State of Haryana Vs. Nirmal Singh and Another - Court Judgment

M.L. Singhal, J.

1. The prosecution case in brief is that Tale Ram s/o Nathan, Jat was resident of village Shahpur Turk, PS Sadar Sonepat. Smt. Krishna was his wife. They had three daughters named Nirmala, Punam @ Bimla and Neelam and two sons named Tinu and Parveen. Punam was married to Raj Kumar son of Ram Krishan, Jat resident of village Basoli (U.P.) about a year prior to 6/93. Nirmala was also married. Neelam, Tinu and Parveen were putting up with their parents Tale and Krishna in village Shahpur Turk. For many years, Tale had been putting up with Nathan at his house. All the children were born to Tale in village Shahpur Turk. Nathan was owing 4 acres of land. He was sonless. Nathan had transferred his land in the name of Tale. Transfer of the land by Nathan in favour of Tale had given rise to civil suit by the daughters of Nathan. Tale had been taken in adoption by Nathan.

2. Dharampal and Nirmal accused sons of Chander singh are collaterals of Tale. In January 1991 i.e. prior to this occurrence, in which Tale, Krishna, Neelam, Tinu and Parveen lost their lives, Dharampal accused had committed rape upon Punam @ Bimla. In the rape case, Punam and Neelam were prosecution witnesses and they appeared as prosecution witnesses. Dharampal was sentenced to 10 years' RI in the rape case. Dharampal had threatened them to resile and not to support the charge of rape and in case they persisted in supporting the charge of rape, he would liquidate all the members of their family. Despite those threats, she and Neelam did not relent. They did not feel cowed down. Her family also did not relent and feel crowed down and they deposed against Dharampal and supported the rape charge with vehemence. After Dharampal was convicted, he and Nirmal threatened to liquidate their entire family.

3. On 9-6-93, Punam @ Bimla and her husband Raj Kumar came to village Shahpur Turk from village Basoli to meet her parents. They reached village Shahpur Turk at about 6 p.m. After having taken their meals, they went upstairs and slept on the roof of their house while Tale, Krishna, Neelam, Tinu and Parveen slept in the courtyard of the house. Electric bulb was on, on one corner of that house. At about 3.30 a.m., Smt. Punam and Raj Kumar heard alarm 'Maar diye - maar diye'. Smt. Punam and Raj Kumar got up on hearing that alarm and they saw Dharampal armed with Kulhari and Nirmal armed with Barchhi dealing blows to Tinu, Parveen Neelam. Smt. Krishna got up and ran towards the village street for safety. Dharampal-accused chased Smt. Krishna and in the process he dealt Kulhari blow on the neck of Smt. Krishna while she was running. Smt. Krishna sustained that blow on the right side of her neck. Smt. Krishna fell on the ground. Dharampal dealt 2-3 more blows on Smt. Krishna. Thereafter, Dharampal came back to their house. Both the accused give injuries to Tale with their respective weapons i.e. Kulhari and Barchhi. Tale, Smt. Krishna, Neelam, Tinu and Parveen died at the spot on account of the injuries dealt brutally to them by Dharampal and Nirmal. Thereafter, Dharampal and Nirmal dragged the dead bodies and placed the dead bodies in one line in the street. Thereafter, Dharampal and Nirmal while leaving the spot with their respective weapons declared in fear inducing tone that if anybody dared appear against them and gave evidence, he would also meet the same fate. They further declared that two daughters of Tale were still alive and they would also kill them. Smt. Punam and Raj Kumar became terribly frightened. They did not dare come down. They were fearful that the accused would also kill them. Smt. Punam and Raj Kumar became terrified and remained terrified for quite sometime and they came down after the accused had left the spot and saw that Tale, Krishna. Neelam, Tinu and Parveen were dead or account of the injuries on their face, head, neck etc. Dharampal had come to the village on bail a few days earlier in that rape case. Dharampal joined his brother to settle scores with Tale, Krishna, Neelam, Tinu and Parveen on account of their inability to reconcile with 10 years' sentence inflicted on Dharampal in the rape case by the Court 10 years' sentence awarded to Dharampal by the Court generated venom in Dharampal and Nirmal to an extent that they brought about the elimination of the five members of the family of Smt. Punam's parents, rather the total effacement of that family. Smt. Punam went to many people of village Shahpur Turk and requested them to accompany her for reporting the matter to the police but none came forward to accompany her. Thereafter, she became unconscious as result of shock and the sight of ghastly tragedy. At about 10 a.m. she regained consciousness. Thereafter, she along with Karambir, Sarpanch went to Police Station Sadar, Sonepat and lodged FIR Ex. PR. Shri Chaman Lal, SHO, PS Sadar Sonepat accompanied Smt. Punam and Karambir to the spot and reached there. He took ASI Pirthi Singh and other police officials with him. He inspected the spot. He held inquest on the dead bodies of Tale, Krishna, Neelam, Tinu and Parveen and the inquest reports are Ex. PF/1, PG/1, PH/1, PJ/1 and PK/1 respectively. He despatched the dead bodies to Civil Hospital Sonepat for post-mortem examination together with applications Ex. PF/2, PG/2, PH/2, PJ/2 and PK/2 respectively which are requests for post-mortem examination on the dead bodies. He took into possession blood-stained earth from underneath the dead bodies of each of the deceased lying in the thoroughfare street. Thereafter, he took into possession the blood-stained earth from the place where Krishna had fallen after the receipt of injuries at the hands of the accused. SHO, PS Sadar, Sonepat, SI Chaman Lal took into possession blood-stained dari and blood-stained bed sheet from near the main gate after entering into the house of Tale which were lying on the ground. SI Chaman Lal saw 4 cots lying in the courtyard of the house. He took into possession blood-stained quilt having corresponding cuts lying on those cots, he took into possession blood-stained ban of the costs, a pair of leather shoes (Jutti) and also blood-stained earth from underneath the cot. Blood-stained dari, bed sheet, quilt and pair of juttis are P 43 to P 48 made into sealed packet. He took into possession blood-stained bichhona, two pillows, ban of the cot and also the blood-stained earth from underneath the second cot. These articles are P 49, P 50, and P 52, made into sealed packets. From the third cot, he took into possession, blood-stained bichhona, a butidar pillow, ban of the cot and also the blood-stained earth from underneath the third cot. Bichhona and pillow are P 52 to P 53 made into sealed packet. Thereafter, he inspected the fourth cot and took into possession the blood-stained ban, bath room chappal. Hawai Chappal is P 54. SI Chaman Lal got the spot photographed, he prepared rough site plan Ex. PT of place of occurrence. He took into possession the sealed packets containing the cloth of the deceased vide memo Ex. PU. These sealed packets were produced by UGC Krishan Kumar co. 308 before SI Chaman Lal.

4. On 12-6-93, he arrested Nirmal Singh near Civil Hospital, Sonepat. He took him into custody and interrogated him in PS Sadar, Sonepat in the presence of ASI Pirthi Singh and Kalu Ram PW. Nirmal Singh got recovered one Barchhi, one trousers and bushirt from near a tubewell lying underneath a heap of turi in pursuance of his disclosure statement Ex. PV. Those were sealed and taken into possession. On 21-6-93. He arrested Dharampal accused in village Revli in the presence of ASI Pirthi Singh and Sarup Singh PWs. Dharampal was found standing near the kotha of the tubewell. He climbed the roof of that kotha on seeing the police and thereafter he jumped from that kotha. He was taken into custody and interrogated. On interrogation, he got recovered Kulhari, pants and shirt in pursuance of his disclosure statement. Dharampal accused was not medically examined on 21-6-93 as he was complaining of pain. Kulhari and Barchhi are Exs. P 33 and P 34 respectively while pants and shirts got recovered by the accused are Exs. P 55 to P 58 respectively, Dharampal also got recovered one banian Ex. P 59.

5. After investigation, Dharampal and Nirmal Singh were challaned. Case was committed to the Court of Session by Mrs. Anita Chaudhary, Additional Chief Judicial Magistrate, Sonepat vide order dated 22-9-93.

6. Dharampal and Nirmal were charged under section 302/34, Indian Penal Code by learned Sessions Judge, Sonepat vide order dated 12-10-93 for each murder separately on five counts. In other words, they were charged five times. On each murder count, Dharampal and Nirmal pleaded not guilty to the charges and claimed trial.

7. With a view to bring home to the accused the charge of each of these murders namely the murder of Tale, krishna, Neelam, Tinu and Parveen, i.e. five members of one family, the prosecution examined Ranbir Singh PW 1, Shri Shiv Kumar, COC in the office of Additional Chief Judicial Magistrate, Sonepat PW 2; Shri Kewal Krishan, Copyist in the Court of Mrs. Vivek Bharti Sharma PW 3; Anil Kumar Draftsman, Railway Road, Sonepat PW 6; Smt. Punam PW 8, Shri Raj Kumar PW 9, Shri Chaman Lal, SI, SHO PS Sadar Sonepat PW 10; ASI Pirthi Singh PW 11. Affidavits Ex. PA, PB and PC respectively of UGC Krishan Chander No. 308, constable Jagminder Singh and constable Balbir Singh respectively were tendered in evidence. PWs Karambir and Sarup Singh were given up as won over by the accused. Affidavit Ex. PO of HC Satpal Singh No. 451 was tendered in evidence. Report of the Forensic Science Laboratory. Madhuban Ex. PN was tendered in evidence. Kalu Ram PW was given up as unnecessary. Affidavit Ex. PQ of constable Randhir Singh PW 7 was also tendered into evidence. Dr. Labh Singh, Medical Officer, General Hospital, Sonepat PW 4, Dr. Subhash Mathur, Medical Officer, General Hospital, Sonepat PW 5 were examined with a view to proving the conduct of the post-mortem examination on the dead bodies.

8. Accused when examined under S. 313, Cr.P.C. denied the imputations appearing appearing in prosecution evidence against them and stated that they are innocent and they have been implicated falsely as the land of Nathan was grabbed by Tale-deceased and his family and their father Chander Singh appeared as PW in a case. Daughters of said Nathan filed civil suit against said Tale. Tale cheated many persons. On that account, he had many enemies. Tale wanted to dispose of the land obtained by him from Nathan through fraud. His son-in-law objected. These are blind murders. In the morning of 10-6-93, police brought Smt. Punam and her husband Raj Kumar from their village Basoli situated in district Meerut and enshrined them as eye witnesses. Tale, his wife Krishna, his sons and daughter have been murdered by enemies of Tale who were disposed against him gruesomely due to his misdeeds and they were implicated falsely as their father and his family were supporting the daughters of Nathan in the civil case. They examined Karambir DW 1 and Mahabir DW 2 in their defence.

9. On the conclusion of the trial, learned Sessions Judge, Sonepat found the charge of murder of Tale, Krishna, Neelam, Tinu and Parveen proved against both Dharampal and Nirmal. He accordingly convicted them separately under section 302/34, Indian Penal Code for every murder i.e. the murder of Tale, the murder of Krishna, the murder of Neelam, the murder of Tinu and the murder of Parveen vide order dated 3-5-97. Vide order dated 5-5-97, he sentenced them to death on five counts for each murder separately. He sentenced each of them to pay fine of Rs. 50,000/- each on each count. He ordered that they will be hanged by the neck till they be dead. He ordered that death sentence passed upon them shall be executed but only after confirmation by this Court. It was ordered that in default of payment of fine, they would undergo RI for 2 years each. Learned Sessions Judge, Sonepat has forwarded the records of this case with a view to this Court confirming the death sentence passed upon Dharampal Nirmal on 5-5-97 in Sessions Case No. 65 of 1993/Sessions trial No. 4 of 1994 decided on 3/5-5-97 namely State v. Nirmal Singh and Dharampal sons of Chander Singh of village Shahpur Turk (case FIR No. 186 dated 10-6-93 under section 302/34, Indian Penal Code of PS Sadar Sonepat). It was registered as Murder Reference No. 4 of 1997.

10. Feeling that they have been unjustly convicted on the charge of murder of Tale, Krishna, Neelam, Tinu and Parveen on each of five counts and sentenced to death, Dharampal and Nirmal have knocked the door of this Court through this appeal namely Crl. Appeal No. 489-DB of 1997. As the murder reference and the criminal appeal are the off-shoot of the same occurrence which has culminated into the award occurrence which has culminated into the award of death penalty to Dharampal and Nirmal sons of Chander Singh on the charge of murder of five members of one family of their village, we would dispose of the murder reference and criminal appeal together through this common judgment.

11. We have heard Shri R. S. Cheema, Senior Advocate for Dharampal and Nirmal Singh-accused (appellants herein) and Shri Virender Singh, Deputy Advocate General, Haryana for the State of Haryana and have gone through the records of the case.

12. Dr. Labh Singh, Medical Officer, General Hospital, Sonepat PW-4 conducted post-mortem examination on the dead body of Tale Ram on 10-6-93 at 5.30 p.m. and found the following injuries on the dead body :-

1. Incised wound 12 x 2 cm on left side of face. Wound was bone deep. Clotted blood was present around the wound.

2. Incised wound 10 x 2 cm on the left side of face, 2 cm medical to wound No. 1. Wound was bone deep. Clotted blood was present around the wound.

3. Incised wound just below the chin. Neck was separated from the body. Only skin of posterior part of neck was attached with the body. All the structures of the neck had been cut. Clotted blood was present around the wound.

4. Incised wound 6 x 3 cm on chin. Bone had been cut and clotted blood was present around the wound.

5. Stab wound 12 cm x 1.5 cm on left side of chest, 2 cm from mid-line in 3rd intercostal space. Wound was entering into chest cavity. There was corresponding wound in chest.

6. Stab would 1.5 cm x 0.5 cm on left side of chest, 2nd inter-costal space. Wound was entering into chest cavity. There was corresponding wound in left lung.

7. Stab would 1.5 cm x 0.5 cm on the right side of chest in chest in supra clavicular area. Would was entering into cavity. There was corresponding wound in right lung.

13. In his opinion, the cause of death was due to extensive haemorrhage and shock as a result of injuries. Probable time that elapsed between injuries and death was instantaneous and that between death and post-mortem was within 24 hours.

14. On the same day at 6.10 p.m. he conducted post-mortem examination on the dead body of Krishna wife of Tale Ram and found the following injury on the dead body :-

There was big incised wound 17 cm x 5 cm on postero-lateral aspect of left side of face. Muscles and bones had been cut. All vessels had been cut. Tracheal rings also had been cut. Clotted blood was present around the wound.

15. In his opinion, the cause of death was haemorrhage and shock due to injury. Time that elapsed between injury and death was instantaneous and that between death and post-mortem was within 24 hours.

16. On the same day at 6.40 p.m., he conducted post-mortem examination on the dead body of Neelam and found the following injury on the dead body :-

An incised would across the neck, 2 cm below the chin. All the structures such as vessels and muscles had been cut. Tracheal rings had been cut. Vertibrae also had been cut partially. Posterior part of the skin of the neck was attached with the body. Clotted blood was present around the wound.

17. In his opinion, cause of death was due to extensive haemorrhage and shock as a result of injury. Probable time that elapsed between injury and death was instantaneous and that between death and post-mortem was 24 hours.

18. Dr. Subhash Mathur, Medical Officer, General Hospital, Sonepat PW 5 conducted post-mortem examination on the dead body of Parveen on 10-6-93 at 5.30 p.m. and found the following injury on the dead body :-

An incised wound 10 cm x 5 cm x muscle, vessels of neck deep present on the front and right side of neck, exposing all the vessels, trachea and oesophagus to atmosphere. Clotted blood was present around the neck.

19. In this opinion, cause of death was due to shock and haemorrhage due to injuries to great vessels of neck. Probable time that elapsed between injury and death was within few seconds and that between death and post-mortem was within 24 hours.

20. On 10-6-93 at 6 p.m. he conducted post-mortem examination on the dead body of Tinu son of Tale Ram and found following injury on the dead body :-

There was incise wound 9 cm x 3 cm x muscle, vessels, oesophagus, trachea deep on the right side and in front of neck, exposing trachea and oesophagus to atmosphere, surrounded by clotted blood. Corolid vessels of both sides were cut.

21. In his opinion, cause of death was shock and haemorrhage as a result of injuries to vital organs. Probable time that elapsed between injury and death was within few seconds and between death and post-mortem was within 24 hours.

22. Smt. Punam PW 8 and Raj Kumar PW 9 have given an eye-witness account of the occurrence. Smt. Punam is daughter of Tale. At the relevant time, she was not resident of village Shahpur Turk. She was a married girl putting up with her husband Raj Kumar at village Basoli district Meerut. As per her, she and her husband Raj Kumar had come to village Shahpur Turk on 9-6-93 from village Basoli for seeing her parents in village Shahpur Turk and they had reached there at about 6.30 p.m. After having take diner, she and her husband had gone to the roof of their house to sleep while her father Tale, her mother Krishna, her sister Neelam and bothers Tinu and Parveen had slept in the courtyard of their house in village Shahpur Turk. Smt. Punam stated that she did not notice whether any neighbours were also sleeping on their roofs or not. It was submitted that if they had really been at village Shahpur Turk on the night intervening 9/10-6-93, she would have stated whether any neighbour had slept on the roof or not. Suffice it to say, people these days are highly self-centered. They do not care to notice what is happening in the house of his neighbour or whether he is asleep on the roof of his house or he is asleep elsewhere. At that time, one electric bulb was on, on one corner of their house. There was electric bulb on the electric pole in the street near their house. At about 3.30 AM, they heard an alarm 'Maar diye - maar diye'. They got up after hearing the alarm and saw Dharampal armed with Kulhari and Nirmal Singh armed with Barchhi dealing blows with their respective weapons to her brothers and sister. Her mother Krishna got up and ran towards the village street. Dharampal chased her mother. In that process, he gave Kulhari blow hitting on the neck of her mother while she running. Her mother sustained that blow on the right side of her neck. As a result of that blow she fell on the ground. Dharampal dealt 2-3 other blows on her mother with Kulhari. Thereafter Dharampal returned to their house. Dharampal and Nirmal dealt blows to her father Tale with Kulhari and Barchhi respectively. In the carnage, her father Tale, mother Krishna, sister Neelam and brothers Tinu and Parveen died at the spot as a result of the injuries dealt to them by Dharampal and Nirmal. To the same effect is the deposition of Raj Kumar PW 9. As per Smt. Punam and Raj Kumar PWs, who claimed to have witnessed the carnage, carnage took place at about 3.30 AM. Matter was reported to the police at 10 AM on 10-6-93. It was submitted by the learned counsel for Dharampal and Nirmal-appellants that if Smt. Punam and Raj Kumar had witnessed the occurrence, which according to them took place at 3.30 AM, they could have reported the matter to the police much earlier. It was submitted that the fact that the matter was reported to the police at 10 AM is suggestive of the fact that Smt. Punam and Raj Kumar were brought from village Basoli and enshrined as eye-witnesses. Smt. Punam PW 8 has stated that she became unconscious at the sight of this carnage which took a heavy toll of 5 members of her parental family. She also stated that while leaving with their respective weapons, Dharampal and Nirmal had held out threats that if any one deposed against them, he would also meet the same fact. They further held out threat that 2 daughters of Tale were still alive and that they would also kill them. She and Raj Kumar became frightened. They could not muster courage to come down apprehending that they would also be killed. After they had left the place, they both came down and found that Tale, her mother, sister and 2 brothers were dead. She went to the people of village, requested them to accompany her to report the matter to the police but none agreed. She became unconscious as a result of shock and at the sight of ghastly scene. At about 10 AM, she regained consciousness and thereafter she along with Karambir Sarpanch went to PS Sadar, Sonepat and lodged the report. We have to examine what she and Raj Kumar PWs have stated about the belated reporting of the matter to the police in the light of the submissions made by the learned counsel impugning their presence at the spot at the relevant time and further what they have stated fits in with human probabilities and natural human conduct and whether it explains delay satisfactorily in the lodging of the report.

23. It was submitted by the learned counsel for the appellants that as per Smt. Punam on 9-6-93, she and her husband Raj Kumar and Subedar Kalu Ram had left village Basoli by bus at 1 PM for coming to village Shahpur Turk. They dropped at village Barot. From there, they boarded another bus which brought them to Sonepat. From Sonepat, Kalu Ram left for village Dipalpur. While she and her husband hired a rickshaw at Sonepat for village Shahpur Turk at 6 PM. They reached village Shahpur Turk at about 6.30 PM. On the night of 9/10-6-93, no co-villager had met them. They did not see any Panch, Sarpanch or Lambardar of the village on reaching village Shahpur Turk. Learned counsel for the appellants submitted that as per her, she was married only a year prior to 6/93. She visited her parental house 2-3 days after her marriage which was her first visit. Visit in question was her second visit to the house of her parents. He submitted that in villages people note with curiosity the visit of a newly married girl with her husband and if she had come to village Shahpur Turk on 9-6-93 with her husband, it would have been natural for the people of the village to note her visit and if her visit was not noted by any one of the villager, that would suggest that it is only a story which she and her husband have cooked that they came to village Shahpur Turk on 9-6-93 for meeting Tale and his family. It was submitted that in rural India atmosphere is quite different. People note with curiosity the visit of the son-in-law of the village with his newly married bride. In urban India, the atmosphere may be different. In urban India people may feel indifferent when one or the other is passing by them. It was submitted that if Smt. Punam and Raj Kumar had really come to village Shahpur Turk on 9-6-93, they would have noticed someone or the other on way to village Shahpur Turk. In our opinion, simply because Smt. Punam and Raj Kumar went unnoticed when they were on their way to village Shahpur Turk or they did not notice any one when they were on their way to village Shahpur Turk cannot induce us to infer that they were not present at the spot.

24. It was submitted that if Smt. Punam had really been with her parents/brothers and sisters on the night intervening 9/10-6-93, she would have slept with her parents and sister while Raj Kumar would have slept with his brothers-in-law. It was submitted that in rural India particularly where people are orthodox and conservative, a married girl is not allowed to sleep with her husband away from the rest of the family as rural society is tradition bound and a son-in-law has to observe some decency vis-a-vis his wife when he is at the place of his in-laws. Suffice it to say, Smt. Punam denied when it was suggested to her if there is custom in their village that a married girl is not allowed to sleep with her husband at her parents house. We are entering 21st century. We (Indians) are shedding conservatism and orthodoxy and are becoming westernised. Influence of the west is reaching rural India also where taboos are being given up. Even otherwise we cannot denounce their presence on the night intervening 9/10-6-93 on the basis of this mere surmise or conjecture. We have to focus our attention to determining whether their presence at the spot at the relevant time was probable or they had been brought from village Basoli to village Shahpur Turk in the morning of 10-6-93 with a view to setting the law in motion on concrete appreciation of evidence. Village Basoli is at a distance of 40-50 Kilometers from village Shahpur Turk. Learned counsel for the appellants submitted that distance of 40-50 kilometres can be covered in a span of 1 1/2 to 1 3/4 hours. If someone had been sent to Smt. Punam and Raj Kumar at village Basoli in the very early morning, they could well have reached village Shahpur Turk at about 9 AM and one could report the matter thereafter. Suffice it to say, the entire family of Tale was effaced from this horizon. He, his wife krishna, daughter Neelam and sons Tinu and Parveen were effaced from this horizon. There was no inmate of the house of Tale left behind who could take it upon himself to send someone to village Basoli for bringing Smt. Punam and Raj Kumar from village Basoli to village Shahpur Turk. It would be far fetched to assume that someone of village Shahpur Turk or police took it upon himself/itself as a duty and sent someone to village Basoli who brought Smt. Punam and Raj Kumar to village Shahpur Turk in the morning of 10-6-93.

25. It was submitted that if Dharampal and Nirmal were to snuff out the entire family of Tale, they would not have done it within the sight of Smt. Punam and Raj Kumar. They would have done it in stealth or they would have snuffed out Smt. Punam and Raj Kumar also so that there was no eye-witness left to depose about this carnage. Suffice it to say, Smt. Punam has stated that there was parapet of the height of 1-2 feet on the roof and they were witnessing the carnage through window in the opening show in the site plan. How could Dharampal and Nirmal notice the presence of Smt. Punam and Raj Kumar who were peeping through that opening and witnessing the carnage when they were busy accomplishing their task of snuffing out the members of the family of Tale quickly.

26. Learned counsel for the appellants submitted that as per the Draftsman, there was no parapet wall. He stated that he did not notice point K. Point 'K' is a point where near the corner of the northern and eastern part of the ceiling electric bulb was said to have been shown laying installed in the site plan prepared by SI Chaman Lal. Anil Kumar Draftsman PW 6 has also shown point 'K' Anil Kumar has shown point 'M' wherethrough Smt. Punam and Raj Kumar PWs are alleged to have witnessed the occurrence. Chaman Lal SI, SHO, PS Sadar Sonepat has also shown point 'M' through which they have witnessed the occurrence.

27. Learned counsel for the appellants has submitted that police came to know of this incident at about 6 a.m. They sent someone to village Basoli to inform Smt. Punam and Raj Kumar and they came to village Shahpur Turk in response to that message. In support of this submission, he sought to draw our attention to the statement of Karambir, Sarpanch of the village. Karambir stated that about 3 1/4 years ago, he came to know that Tale etc. had been murdered. Many people of the village collected there. On learning about the murder of Tale and others, he also reached there. He came to PS Sadar Sonepat and informed about the occurrence. At about sun-rise, the police reached the spot. Police made enquiries from the people of the village and, thereafter some persons were sent to call daughters of Tale deceased who were married in UP. Tale's daughter reached Shahpur Turk at about 11-30 a.m. along with her husband. Smt. Punam, on the other hand, has stated that she and her husband had come from village Basoli to see her parents to village Shahpur Turk and had reached village Shahpur Turk in the evening of 9-6-93. This carnage took place at about 3-30 a.m. on 10-6-93. She became unconscious due to the shock and at the sight of ghastly scene. After she regained consciousness, she requested many people of the village to accompany her to the police station. None agreed to accompany her to the police station. Eventually, she took Karambir, Sarpanch of the village to PS sadar, Sonepat where she reported the matter. In our opinion, Karambir, Sarpanch has sided with Dharampal and Nirmal accused as the entire family of Tale stands snuffed out. His daughter are married in UP. There is no surviving member of the family of Tale in village Shahpur Turk. Karambir DW-1 has supported Dharampal and Nirmal as he wants to earn the credit of having helped them in times of need. He appears to have weighted the relative pros and cons of toeing the line of Smt. Punam or toeing the line of Dharampal and Nirmal and after having so weighted the pros and cons, he has thought that he should toe the line of Dharampal and Nirmal as they are his co-villagers. For the same reason, we are not prepared to believe Mahabir DW-2 who too has stated that Smt. Punam was called by the police along with her husband and pitasara from UP and they reached at about 11-30 a.m. Karambir DW-1 and Mahabir DW-2 are conspicuously silent about the identity of the persons who had been allegedly sent by the police to village Basoli to the daughters of Tale. If there had been some truth in what Karambir and Mahabir have stated, they would have also stated as to who told the police that Smt. Punam is the daughter of Tale and is married to Raj Kumar of village Basoli. Tale has another daughter named Nirmal. She also happens to be married. They are conspicuously silent as to why no one was sent to bring Nirmal and her husband from UP. We are quite aware that where the murder committed is particularly cruel, foul and revolting one, is is necessary to examine the evidence with more than ordinary care lest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law as observed by Their Lordships of the Hon'ble Supreme Court in Kashmira Singh v. State of Madhya Pradesh, AIR 1952 SC 159 : (1952 Cri LJ 839). In this case we are aware that while scrutinizing and appreciating the evidence of the prosecution, we should not shirk this stupendous duty cast on us by the principles governing the appreciation of evidence in criminal case. We are aware that fouler the crime, stricter will be the weighing of evidence. If someone had been sent to village Basoli to bring Smt. Punam and her husband Raj Kumar at about 6 a.m. from village Shahpur Turk, their reaching village Shahpur Turk at about 10 a.m. would not have been possible because the special report reached the Magistrate at 1 p.m. Smt. Punam would have fallen unconscious the moment this news had been disclosed to her that her father, 2 brothers, mother and sister had been murdered. She would not have come out from the state of unconsciousness for quite long and even after recovering from the state of unconsciousness, she would not have been able to maintain her calm/cool for quite sometime. Murder scene would have been difficult to be structured and how could she have deposed to the structured scene of murder and the participation of the assailants in snuffing out the lives of Tale etc. on having been grossly tutored. A tutored version cannot take the character of a natural version. Village Basoli is at a distance of 40-50 kilometres from village Shahpur Turk. We are also aware of this principle governing the appreciation of evidence in criminal cases that the evidence of close relations of the victims should be scrutinised closely and with greater care and caution as they may have the tendency to exaggerate or add facts. We are also aware of this principle that where on the evidence, two possibilities are available or open, one going in favour of the prosecution and the other going in favour of an accused, the accused should be given the benefit of doubt and acquitted. Punam and Raj Kumar could not have reached village Shahpur Turk at about 10 a.m. if somebody had been sent from village shahpur Turk to village Basoli for bringing them even if some jeep or car had been sent for bringing then or if someone had been sent to village Basoli by bus. We are also not aware whether there is any direct bus service from village Shahpur Turk to village Basoli. Accused led no evidence to show that there was any direct bus service available to village Basoli from village Shahpur Turk. If Raj Kumar and Punam had been brought from village Basoli and enshrined as eye-witnesses, they would have made statements fully synchronising with the injuries which find mention in the inquest reports and they would have given a complete recount of the injuries and the recount of injuries would have been in complete accord with the injuries found by Dr. Labh Singh and Dr. Subhash Mathur on the post-mortem examinations. Fact that they have not given a complete recount of the injuries but they have stated only generally that Dharampal and Nirmal caused injuries to Parveen, Tinu and Neelam etc. shows that their version is natural. Similarly, if they had to dipose to structured version, they would have stated that only one Kulhari blow was given to Smt. Krishna on her neck by Dharampal. They would not have stated that Dharampal chased Smt. Krishna and in that process he gave Kulhari blow hitting on the neck of Smt. Krishna while she was running and as a result, she fell and Dharampal dealt 2-3 other blows on Smt. Krishna with Kulhari Doctor found only one injury on the neck of Smt. Krishna. Fact that their statements are neutral, shows that they were not brought from village Basoli and enshrined as eye-witnesses.

28. Learned counsel for the appellants submitted that Raj Kumar had not known the accused. If he had not known the accused earlier, how could he name them in statement recorded by the police under S. 161, Cr.P.C. Raj Kumar P.W. 9 stated that he had not seen Dharampal accused at the time of his marriage. He did not see him even at the time when he came to his in-laws house to take back his wife to his house. He and his wife visited his in-laws twice or thrice prior to 9-6-93 and on that occasions also, he had not seen Dharampal accused He had seen Nirmal accused in his marriage and thereafter also during his visits to his in-laws. Learned counsel for the appellants has submitted that Raj Kumar PW-9 has told a lie that he saw Nirmal in his marriage. Where was the occasion to invite Nirmal in his marriage when his brother Dharampal had raped his wife Punam and Dharampal was being tried on the charge of rape. Suffice it to say Raj Kumar has quite candidly stated that the assailants of his father-in-law, mother-in-law, sister-in-law and brother-in-law were Dharampal and Nirmal sons of Chander Singh. He has denied the suggestion that Nirmal used to reside outside Shahpur Turk being in service. He has rather stated that during the days of his marriage, Nirmal was residing in village Shahpur Turk and he was residing in village Shahpur Turk even after his marriage. Learned counsel for the appellants has submitted that Punam and Raj Kumar were chance witnesses. Their presence in village Shahpur Turk was absolutely unexpected. If they had reached village Shahpur Turk at about 6 p.m., they would have met someone at village Shahpur Turk and someone must have noticed them going in rickshaw. Village abadi starts at a distance of 50 yards from the house of Tale. It was submitted that the non-examination of someone by the prosecution that he had seen Punam and Raj Kumar in village Shahpur Turk on 9-6-1993 will impinge upon their presence in village Shahpur Turk on 9-6-93. Suffice it to say as observed earlier why should anybody come forward from village Shahpur Turk to depose that he had seen them in village Shahpur Turk on 9-6-93 in the evening. After the snuffing out of the entire family of Tale, how could anybody be expected to come forward to depose something which might have gone towards the proof of this carnage by Poonam and Raj Kumar PWs.

29. It was submitted by the learned counsel for appellants that gher of the accused is situated across the place of occurrence. Other house situate opposite to the house where occurrence took place are the house of Bhim Singh and Ved Singh. House where the occurrence took place abuts the house of one kesho and adjoining the house of kesho is the house of Charan Singh. It was submitted that it is strange that nobody came and witnessed the occurrence although the carnage lasted for about 20 minutes. As observed earlier, why should anybody come forward. If anybody had come forward, he would have incurred the displeasure of the assilants. For fear of reprisals, people avoid coming forward and be cited as witnesses.

30. It was submitted by the learned counsel for the appellants that according to Smt. Punam and Raj kumar, occurrence took place at about 3.30 a.m. FIR was lodged by them at 10 a.m., SI Chaman Lal stated that he completed the recording of the FIR at about 10.30 a.m. Special reports were handed over to constable Randhir singh at 11 a.m. It is strange that the special report reached the hands of the Magistrate at 1 p.m. It was submitted that in fact the FIR came into being shortly before 1 p.m. and that was why it was delivered to the Magistrate at 1 p.m. If it had been really recorded at 10-10.30 a.m., it would reach the Magistrate in no time. There is a distance of 6 1/2 kilometers from village Shahpur Turk to PS sadar, Sonepat. There is distance of 4 kilometers from PS sadar, Sonepat to the Court of the Magistrate. It was submitted that there is 8-9 hours' delay in the loading of the FIR and the lodging of the FIR became delayed because Smt. Punam and Raj Kumar had to be brought from village Basoli and enshrined as eye-witnesses. Suffice it to say, constable Randhir has stated that Ilaqa Magistrate was on leave. His effort was to deliver the special report to the Ilaqa Magistrate and it was when he came to know that Ilaqa Magistrate on leave that he delivered the special report to the other Magistrate. He stated that Smt. Anita Chaudhary, Additional Chief Judicial Magistrate, was Sonepat was the Ilaqa Magistrate of PS Sadar Sonepat. In those days, she was on leave. He further stated that it was not in the knowledge of the police officials posted as PS Sadar, Sonepat that Smt. Anita Chaudhary was on long leave on account of illness in the month of June 1993. A observed earlier, supposing Smt. Punam and Raj Kumar were brought from village Basoli, U.P., they could not have reached before 12 noon. After the receipt of the news of the ghastly carnage which had taken heavy toll viz. the entire family of her parents, she would not have been able to maintain her calm and cool. She would have gone in grave shock and she would not have recovered from that shock so soon. In village Shahpur Turk, no one was left alive so far as her father's family was concerned. There is a distance of 40-50 kilometers between village Basoli and Shahpur Turk. It appears that village Basoli was not connected with direct bus service to village Shahpur Turk. Buses had to be changed on the way. 2 1/2-3 hours had to be spent in the journey. There is no evidence that some taxi was engaged for sending someone to village Basoli for bringing Smt. Punam and Raj Kumar. There is no evidence that the police gave some official conveyance to the one who is supposed to have been sent to village Basoli for bringing Smt. Punam and Raj Kumar. Argument raised by the learned counsel for the appellants is all conjectural and does not stand even a moments scrutiny. It was submitted that in fact the occurrence took place about 12 night and if the occurrence took place at about 12 night, Smt. Punam and Raj Kumar PWs are discrepant as to the time of occurrence vis-a-vis the medical evidence. Dr. Labh Singh who performed post-mortem examination found semi-digested food on the post-mortem examination of Tale, Krishna and Neelam Similarly, Dr. Subhash Mathur who performed post-mortem examination on the dead body of Parveen found semi-digested food in the stomach. He found semi-digested food particles in the stomach of Tinu. It was submitted that food assumes the shape of being semi-digested within 3-4 hours of its ingestion. In support of this submission, he drew our attention to page 175 of Dr. Parikh's Medical Jurisprudence and Toxicology where Dr. Parikh has observed that 'in general, milk leaves the stomach rapidly but the large vegetable meals consumed in India do not usually leave the stomach under 4 hours. Chapattis digest to a pulp fairly quickly, within about 2 hours, but do not leave the stomach quickly when other foods are present with them. Dals of all kinds retain their form for 2 to 3 hours, and rice grains retain their form up to 3 to 4 hours. If meat has been eaten along with vegetable foods, it is seldom distinguishable as such after 3 hours, and after 4 hours both green vegetables and roots are also indistinguishable. In general, if at autopsy, one finds that the stomach is full it would suggest that the victim died within 2 hours of taking the last meal if food was distinguishable and 4 hours if food was indistinguishable.'

31. It was submitted that in this case Smt. Punam has stated that she, her husband, her parents, brothers and sisters took meals at 9 p.m. and her husband went on the roof at about 9 p.m. Raj Kumar PW 9 stated that they had taken their dinner after sun set. While his father-in-law and others took their meals after he had taken his meals. He stated that as he had gone to the roof of the house after taking meals, he cannot say how much time thereafter his father-in-law, mother-in-law and others had taken meals. In our opinion, nothing turns on this argument. If Smt. Punam and Raj Kumar are found to have come from village Basoli to village Shahpur Turk on the evening of 9-6-93 and were eye-witnesses to the occurrence, it is not material whether the occurrence took place at 1 a.m. or at about 3.00 a.m. Question is whether their presence in village Shahpur Turk on the night intervening 9/10-6-93 is believable or not. It was submitted that the Investigating Officer has stated that he reached the spot 12 noon. Smt. Punam has stated that the police reached the spot at about 10.30 a.m. accompanied by her and Karambir, Sarpanch. ASI Pirthi Singh stated that they reached the spot at about 11 a.m. Ranbir Singh PW 1 (photographer) has stated that he reached the spot at about 7-8 a.m. 15-20 police officials were present at the spot including SI Chaman Lal, Photographer may have stated so on account of the influence of the defence. We cannot disbelieve ASI Pirthi Singh who has stated that they reached the spot at 11 a.m. SI Chaman Lal has stated that they reached the spot at about 12 noon. According to them, they reached the spot and started investigation after the case had been registered at 10.30 a.m. We are not supposed to take the ipse dixit of prosecution witnesses as it is. We have to put it to a closer scrutiny before the same is accepted. SI Chaman Lal categorically stated that prior to the arrival of Punam at the police station, he had no information about this carnage. It was submitted that the investigated had thus commenced much earlier than the registration of the FIR. To fortify this submission, learned counsel submitted that in the inquest report, the name of Raj Kumar finds mention in different ink and if Raj Kumar had been present at the time of the preparation of the inquest at the spot, his name would have found mention in the same ink. No weight can be attached to this argument as name of Karambir figures in the inquest report as having identified the dead bodies apart from Raj Kumar. Even otherwise Karambir, Sarpanch accompanied Smt. Punam to PS Sadar, Sonepat. Karambir was present when SI Chaman Lal was recording the statement of Smt. Punam. In the karvai police, there is clear mention that Smt. Punam came to the police station accompanied by Karambir Sarpanch and got the FIR recorded. If Karmabir had not accompanied Smt. Punam to the police station, how could he figure in police station, how could he figure in police karvai recorded at the foot of that statement. In the FIR, Raj Kumar figures as having witnessed the occurrence along with Smt. Punam. Karambir Sarpanch could have immediately pointed out that Smt. Punam was not correct and she and Raj Kumar were not there at all. These are merely inquest reports. In the inquest reports, investigating officer has to mention the injuries. He has to mention the name of witness who were to identify the dead bodies. If Raj Kumar's name finds mention in the inquest report in different ink that is because the investigating officer was remiss not attaching importance to the preparation of the inquest reports. It was submitted that in the FIR, there is no mention of Smt. Punam that she had gone unconscious, she became late in reporting the matter to the police. Suffice it to say, FIR is not an encyclopedia in the case. In the FIR, essential facts should find mention. Even otherwise, Smt. Punam was a witness to the elimination of her father, mother two brothers and sister and their effacement from this horizon. How could she maintain her cool and state every minute detail. No question was put to SI Chaman Lal in his cross examination so that he could explain why the name of Raj Kumar in different ink in the inquest reports and therefore, we cannot take that the name of the Raj Kumar in the inquest reports in different ink figures because he had arrived afterwards. In the case diary, photographer is shown to have reached the spot at 11 a.m.

32. We are aware of the principle that while appreciating evidence, courts cannot give different treatment to prosecution witnesses vis-a-vis defence witnesses. PWs and DWs are entitled to the same treatment. In Dudh Nath Pandey v. State of U.P., 1981 Cri App R (SC) 152 : (1981 Cri LJ 618), the Hon'ble Supreme Court held that the courts had to overcome their traditional instinctive disbelief in defence witnesses. Quite often they tell lies but so do the prosecution witnesses. In this case, however, Karambir Sarpanch appears to have come in defence of the accused keeping in view the helplessness of the survivors of the family of Tale. After the elimination of Tale, his wife, two sons and daughter, there is no survivor in village Shahpur Turk of Tale's family. Only two daughters are left named Smt. Punam and Nirmal and they are married putting up with their in-laws. Karambir Sarpanch appears to have appeared in the defence of the accused so that he is able to remind the accused and their family that he stood by them when they were facing charge of murder of 5 persons of their village. Mahabir DW 2 appears to have come in the defence of the accused for the same reason. Smt. Punam and Raj Kumar got up 3.30 a.m. on hearing the alarm 'Maar diye - maar diye'. It was submitted that Smt. Punam and Raj Kumar must have been in deep slumber. Entire operation took only a few minutes. How could Smt. Punam and Raj kumar, who were roused from deep slumber by the alarm raised state what they claim to have observed when they were not entertaining any previous apprehension. Suffice it to say when there was hue and cry being raised, they must have immediately woke up. Smt. Punam have stated that they saw Dharampal armed with Kulhari and Nirmal armed with barchhi dealing blows to her brothers and sister. Her mother Krishna got up and ran towards the village street. Dharampal chased her mother and in that process he gave kulhari blow hitting on the neck of her mother while she was running. She had sustained that blow on the right side of her neck Dharampal gave 2-3 other blows on the person of her mother Krishna with Kulhari. Thereafter Dharampal came back to their house. Then Dharampal and Nirmal gave blows to her father with kulhari and barchhi respectively. Smt. Punam has thus not give photographic picture of the injuries dealt on her brothers, sister, mother and father. Doctor found as many as 7 injuries on the dead body of Tale. If Smt. Punam had given photographic recount of those injuries, her statement could have been open to criticism on that account. Smt. Punam may have exaggerated so far as the injuries dealt on Smt. Krishna are concerned Doctor found only one big incised wound on the postero lateral aspect of the left side of the face of Smt. Krishna. He found that muscle and bones had been cut. All vessels had been cut. Tracheal ring had also been cut. Smt. Punam stated that her mother krishna got up and ran towards the village street. Dharampal chased her mother and in that process he gave kulhari blows hitting on the right side of her neck. As a result, she fell down. Dharampal gave her 2-3 more blows with kulhari. Doctor did not find these 2-3 injuries on the dead body of Smt. Krishna. Smt. Punam may have exaggerated the role of Dharampal in this regard or she may have forgotten the actual number of injuries dealt by him. Fact, however, remains that the attribution is directed to Dharampal so far as Krishna is concerned. So far as Tale is concerned, injuries found by the doctor on his dead body have been attributed to both Dharampal and Nirmal. So far as her brothers and sister are concerned, regarding them, she has stated only generally that Dharampal and Nirmal dealt blows to them with their respective weapons. In this behalf also, either she was exaggerated or she forgot the exact recount of the injuries dealt although the doctor found only one injury on each of them. Exaggeration on the part of Smt. Punam or her failure to give exact recount of the injuries synchronising with those found on the post mortem examination of the dead bodies, does not induce us to infer that she was not present at the spot. For this reason, we are not prepared to say that Raj Kumar also was not present at the spot. Raj Kumar also appears to have suffered from the same vice. In our considered opinion, Smt. Punam along with her husband Raj Kumar had come to village Shahpur Turk on 9-6-93 from village Basoli in the evening to see her parents and brother and sister. Smt. Punam and her husband could not have been brought from village Basoli on 10-6-93 for being enshrined as eye witnesses as they could not have reached village Shahpur Turk at about 9-9.30 a.m. Assuming that they had reached village Shahpur Turk at 9-9.30 a.m. on 10-6-93, how could she have composed herself on seeing five dead bodies of her father's family laid in the street in a line. She would have felt gravely aghast, unable to regain her cool for quite some time and even after she had regained her cool, she would not have been able to give a recount of occurrence. Recount of the occurrence given by her is quite natural and probable fits in with human probabilities and the ordinary course of human conduct.

33. Assuming that the occurrence took place at about 12 night, even then people would have come to know of the carnage committed in Tale and his family only on the morning of 10-6-93. Who could be prepared to run the risk of informing the people and thus incurring the displeasure of the assailants If some of the family of Tale in village Shahpur Turk had remained alive, then of course it could have been expected that the police was informed of the occurrence at about 6 a.m. We have thus to believe SI Chaman Lal who has stated that they came to know of the carnage when Smt. Punam came to the police station and made statement Ex. PR disclosing about the carnage.

34. Learned counsel for the appellants submitted that there was no motive behind this carnage. Smt. Punam has stated that prior to this carnage, accused Dharampal had raped her. In the rape case, she and her sister Neelam (victim of this carnage) had appeared as prosecution witnesses. Dharampal accused was sentenced to 10 years R.I. in the rape case. He had extended threat that in case they supported the charge of rape against him, he would finish her entire family. Despite that threat, they stood their ground and supported the charge of rape against Dharampal. Learned counsel for the petitioners submitted that this motive has been coined by Smt. Punam so that there was no criticism against the prosecution that Dharampal and Nirmal were not senseless as to indulge in senseless and brutal killings of Smt. Punam's father, mother Krishna, her two brothers and sister Neelam. He submitted that Punam and Neelam had not supported the charge of rape and they had resiled and if they had resiled, there was no occasion for Dharampal to have nursed any animosity against Smt. Punam, Neelam and their family. In support of this submission, he drew our attention to certain recitals of evidence appearing in judgment Ex. PF whereby Dharampal was convicted of the charge of rape and sentenced to undergo R.I. for 10 years and to pay some fine. On 30-3-92, Smt. Punam and Neelam had appeared as prosecution witnesses. They made their statement in chief. That day lawyers were on strike. Shri Raj Kumar, Clerk of Shri Rizak Ram, Advocate appeared before the court and told the court that they must be examined as the matter had been compromised and they would not support the charge of rape. To the misfortune of Dharampal, they supported the charge of rape. This is the observation of learned Additional Sessions Judge who tried the rape case. They could not be cross-examined on 21-5-92. On 21-5-92, she stated that she had not known Dharampal earlier and she did not name him while lodging the FIR and Thanedar himself had recorded his name and her signatures were obtained on blank paper. She stated that on 30-3-92, she had made statement against Dharampal on threat given by the thanedar that in case she did not support the prosecution, her father would be sent to jail. She also stated that thanedar had shown her the accused Dharampal and had ask her to name him in Court. She was subjected to cross examination by the Public Prosecutor for the State on whose request the Court had declared her hostile or adverse to the prosecution. In her cross-examination by the Public Prosecutor for the State, she stated that 2 days prior to 21-5-92, the dispute between them had been compromised in the village and that the defence counsel had told her to make statement in Court which she had actually made during cross examination by him. She further admitted that the statement made by her on 21-5-92 was on account of compromise otherwise she had correctly named the accused in the FIR and had made true statement in Court on 30-3-92. Similar is the position so far the statement of Neelam made by her in the said case is concerned. She, too, stated that Dharampal came to her house when she and her elder sister Bimla were sitting outside the house and asked Bimla to give him change of Rs. 2/- and when Bimla went inside the kotha, Dharampal followed her and on hearing her cries, she went inside the Kotha and and found Dharampal raping Bimla. During cross examination on 21-5-92 by defence, she stated that she had not known Dharampal since earlier and that on 30-3-92, she had made statement under police pressure but when she was cross examined by the Public Prosecutor for the State, she admitted that she had resiled in the wake of compromise that had taken place 2 days before 21-5-92 between them and otherwise whatever she had stated on 30-3-92 that was her true version. Believing Smt. Punam and Neelam, Additional Sessions Judge found the charge of rape proved against Dharampal and sentenced him to 10 years RI and fine. Dharampal felt that Punam and Neelam had stood their ground so far as the charge of rape was concerned and as a consequence, he was sentenced to 10 years RI Learned counsel for the appellants submitted that assuming that Dharampal had some motive, he could have motive to extinguish the lives of Smt. Punam and Neelam. He could have no motive to extinguish the lives of Tale, Krishna, Tinu and Parveen, more so, when none of them had appeared in the rape case. He further submitted that so far as Nirmal accused is concerned, he could absolutely have no motive to motive to extinguish their lives as he was not an accused in the rape case. Nirmal accused is the real brother of Dharampal. If Smt. Punam was to allege motive falsely, she could allege motive against the other brothers of Dharampal also Dharampal and Nirmal have 3 elder brothers named Rajbir, Prem and Subhash. Chander singh is their father. If Smt. Punam had meant to tarnish the father and other brothers of Dharampal and Nirmal, there could be no difficult. Murders are 5 and each of them could have been assigned one or the other injury. Smt. Punam did not do so. She imputed motive to Dharampal alone. According to her, Dharampal could not tolerate his conviction in the rape case and he was holding her and his sister Neelam responsible for his conviction in the rape case and therefore, the aforesaid threat to them that in case they deposed against him, he would finish the entire (member) of their family and they deposed against him without being cowed down by that threat and thus paid the price. Dharampal was sentenced on rape charge on 4/6-7-92. He applied for bail to the High Court and High Court allowed him bail vide order dated 27-5-93. He furnished the necessary bail bonds and Chief Judicial Magistrate accepted the bail bounds on 4-6-93. This is what has been stated by Shiv Kumar COC in the office of Chief Judicial Magistrate, Sonepat. According to the prosecution, thus Dharampal came to the village, joined his brother Nirmal to avenge the ignominy he was suffering in the wake of the conviction and sentence in the rape case and executed the threat on the first available opportunity. In this case the motive is not that material because where eye witness account is there, the existence or non existence of motive loses much of its relevance. If eye witness account is there, court has to appreciate eye witness account. In this case, however, there is strong motive and motive fits in strongly with the probabilities of the case and natural human conduct.

35. Faced with this position, learned counsel for the appellant submitted that motive lay else where. There was a civil suit between Tale Ram and Nathan's daughters Hoshiari, Kessar and Murti regarding the property received by Tale from Nathan. Nathan had taken Tale to his fold. Otherwise Tale belonged to village Dipalpur. It was submitted that, no wonder, Tale and his family sacrificed at the altar of the property belonging to Nathan being claimed by his daughter vis-a-vis Tale. It was submitted that Tale was not a man of good character. He had kept a woman. No wonder, he and his family was sacrificed by some one who was feeling sore over his keeping that woman and retaining her effects and turning her out. It was submitted that Nirmal had abducted Tale's wife and therefore there is false implication. It was also submitted that Tale's sister-in-law was married in village Bhathgaon. Her husband was on visiting terms with Tale's family and Tale was objecting to the visits to his house as he was suspecting him of illicit intimacy with his wife i.e. Krishna. Nirmala daughter of Tale was betrothed to Subedar's son at village Badkhalsa. That engagement broke. Subedar threatened to take revenge. It was submitted that no wonder this carnage was authored by Subedar. It was submitted, no wonder, motive lay there. Suffice it to say cannot go on surmises and conjectures. We cannot reject the eyes witness account on mere surmises and conjectures particularly when the motive suggested for the carnage fits in absolutely :

36. In the case diary, the photographer is shown to have arrived at the spot at 11 a.m. and this appears to be correct also because photo studio opens at 9 or 10 a.m.

37. In Nafe Singh v. State of Haryana, 1996 (2) Rec Cri 199, it was observed that exact time of death cannot be ascertained from the presence of some undigested food in the stomach. It all depends as to what kind of food was taken by the deceased. If it is precisely known as to what kind of meals a person had taken, it may be possible to give some definite time between his last taking meals before death. Similar view was taken in Rajpal v. State of Haryana, 1996 (3) Rec Cri 360 (Punj & Har) where it was held that state of contents of stomach found at the time of medical examination is not a safe for determining the time of occurrence. Time required for digestion varies according to the health of a person.'

38. Smt. Punam and Raj Kumar PWs are ruralites. They are from rural area. It was observed by their Lordships of the Hon'ble Supreme Court in Shivaji Sahabrao Bobade v. State of Maharashtra, 1973 SCC (Cri) 1033 : (1973 Cri LJ 1783) that courts are not to judge the evidence of ruralites by the same standard of exactitude and consistency as that for urban witnesses. It was further observed that the eye witness cannot be expected to enumerate photographic picturisation of an attack. Proof of motive satisfies the judicial mind about the likelihood of the authorship of the crime but is absence only demands deeper forensic search and cannot undo the effect of evidence otherwise sufficient. Photographic picturisation of blows and kicks and hits and strikes in an attack cannot be expected from witnesses who are not fabricated and little turns on indifferent incompatibilities. Punam and Raj kumar have rural background and therefore, if they have not been able to give an exact recount of the injuries here or there dealt on Tale and others, we will not reject their testimony. We have to appreciate that Tale and others were taken unwares. It dawned on Punam and Raj Kumar like bolt from the blue when they found Tale and his family being axed to death and as such how could they depose with mathematical certainty so far as the role played by each of the assailants is concerned vis-a-vis each of the victim in their elimination. In our opinion, the learned Sessions Judge justifiably found the charge of murder of Tale, Krishna, Neelam and he justifiable convicted them on each separate count for each murder.

39. Now the question arises as to what should be the sentence that should be imposed upon Dharampal and Nirmal so that it commensurates with the act which has been imputed to them and which has been brought home to them. The commission of murder of 5 members of a family has been imputed to them which virtually amount to elimination of the entire line of Tale Ram but for his married daughters Punam and Nirmal. With the elimination of Tale and his two sons, the prospect of continuing the progeny/clan of Tale further have dismally come to an end. They have been effected from this horizon. Learned counsel for the appellants submitted that now death sentence can be awarded in the rarest of rare cases. Before the Court proceeds to make choice whether to award death sentence or life imprisonment, the court has to draw up a balance sheet of the aggravating and mitigating circumstances attending the commission of murder. Court are expected to exhibit sensitiveness in the matter of award of sentence particularly the sentence of death because life once lost cannot be brought back. Hon'ble Supreme Court has emphasised in case more than one that for determining the proper sentence in a case, while the Court should take into account the aggravating circumstances, it should not overlook or ignore the mitigating circumstances. The manner in which the crime was committed, the weapon used and the brutality or the lack of it are some of the considerations which must be present to the mind of the Court. Death sentence, being an exception to the general rule, should be awarded in the rarest of rare cases for special reasons to be recorded after balancing the aggravating and mitigating circumstances in the facts and circumstances of a given case. The number of persons murdered is a consideration but that is not only consideration for imposing death penalty unless the case falls in the category of rarest of the rare cases. Courts must keep in view of the nature of the crime, the brutality with which it was executed, the antecedents of the criminal, the weapons used etc. Hon'ble Supreme Court has observed that it is neither possible nor desirable to catalogue all such factors and those depend upon case. Learned counsel for the appellants drew our attention to Anshad v. State of Karnataka, 1994 SCC (Cri) 1204. Learned counsel for the appellants submitted that Dharampal was 25 years old while Nirmal was 22 years old. They were extremely young and in extreme youth. If one does not something in the heat of moment when one is in extreme youth, death sentence will not be the proper penalty on him. In Amrit Lal Someshwar Joshi v. State of Maharashtra 1994 SCC (Cri) 1604 : (1995 Cri LJ 400), their Lordships of the Hon'ble Supreme Court observed that the age of the accused is a mitigating circumstance and that if accused is young, he should not be sentenced to death but it is not an inflexible rule that he cannot be sentenced to death. Other aggravating circumstances have to be taken into account. 'When the question of choice of sentence is under consideration, the court must not only look to the crime and the victim but also the circumstance of the criminal and the impact of the crime on the community' are the observations of the Hon'ble Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 : (1980 Cri LJ 636). Further, when the culpability assumes the proportion of extreme depravity, special reason can legitimately be said to exit. In Amrit Lal Someshwar Joshi's case (1995 Cri LJ 400) (Supra), the Hon'ble Supreme Court has observed that young age of the accused cannot be the sole consideration for awarding him lesser penalty. In Bachan Singh's case (supra), the Hon'ble Supreme Court observed that the provision of death penalty as an alternative punishment for murder in Section 302, is not unreasonable and it is in public interest and, therefore, it can be said that this provision in section 302 violates neither the letter or the ethos of Article 19 of the Constitution of India. Through a reading of Section 354(3) and 235(2) and other related provisions of the Code of Criminal Procedure, 1973 it is quite clear that for making the choice of punishment or for ascertaining the existence or absence of special reasons, in that context the court must pay due regard both to the crime and the criminal what is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of a particular case. More often than not, these two aspects are so inter-twined that it is difficult to give a separate treatment to each of them. This is so because style is the man in many cases. The extremely cruel or obsolete manner of the commission of the murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstance of the crime and the circumstances of the criminal in two separate water tight compartments. In a sense, to kill is to be cruel, and therefore, all murders are cruel but cruelty may very in its degree of culpability and it is only when the culpability assumes the proportion of extreme depravity special reasons can legitimately be said to exist.'

40. In Surja Ram v. State of Rajasthan 1996 (3) Cri LR 467 : (1997 Cri LJ 51), the Hon'ble Supreme Court has observed that while considering the punishment to be given to the accused, the court should be alive not only to the right of the criminal to be awarded just and fair punishment by administering justice tampered with such mercy as the criminal may justly deserve but also to the rights of the victims of the crime to have the assailant appropriately punished and the society's reasonable expectation from the Court for the appropriate deterrent punishment conforming to the gravity of the offence and consistent with the public abhorrence for the heinous crime committed by the accused. In Surja Ram's case (supra), sentence of death imposed upon Surja Ram was maintained where Surja Ram was proved to have in a cool and calculated manner intended to wipe out the entire family of his brother, selected opportune moment and brutally murdered his real brother and his family while asleep when there was no provocation from the deceased. There was no material on record from which it could reasonably be inferred that the accused had any occasion to reasonably feel aggrieved for any unjust and improper conduct on the part of the deceased brother. Such brutal and merciless murders of absolutely innocent persons when there was no occasion to come in conflict and in a cool and calculated manner, shocks the conscience of the society and the crime falls in the category of rarest of rare cases.' According to the prosecution, the charge that stood proved against Surja Ram was that he had killed his own brother, his two minor sons and his bua when they were asleep and he had also attempted to kill his brother's wife and brother's daughter in a most cool and calculated manner by ensuring that none of the victim could after any resistance because they were asleep at the time of being attacked, constituted the offence committed by the accused as one of the rarest of rare cases for which the extreme penalty of death was warranted. There the argument of the learned counsel was that the appellant felt deeply aggrieved at the conduct of his brother in the matter of land and the recent quarrel which he had with for not allowing the appellant to put fencing as desired by them in the compound of their residential complex and the appellant unfortunately fell victim to his deep seated ill feeling towards his brother and members of the family of the said brother and lost his normal frame of mind for which he could not restrain himself and being actuated by an urge for vengeance murdered them and attempted to murder the other two. Those submissions made by the learned counsel did not weight with the courts. In Raja Ram Yadav v. State of Bihar, AIR 1996 SC 1613 : (1996 Cri LJ 2307), the Hon'ble Supreme Court did not maintain death sentence although the murders had been committed in pre-meditated and calculated manner with extreme cruelty and brutality and the distinguishing feature that weighed with the Hon'ble Supreme Court was that the case rested on the solitary testimony of a child witness and it was not sufficient enough to act upon his deposition even it true for putting out a life.

41. In Sheikh Abdul Hamid v. State of M.P., AIR 1998 SC 942, death sentence was not maintained on the accused although he had killed his wife and children as there was no evidence as to how murders had taken place and further the case rested on circumstantial evidence. Hon'ble Supreme Court felt that there was no evidence that it was a cold blooded murder and there was nothing on the record to show the murder had taken place nor that it was a cold blooded one and thus the case was not falling in the category of rarest of rare cases calling for extreme penalty of death.

42. In Krishan v. State of Haryana, AIR 1997 SC 2598 : (1997 Cri LJ 3180), the allegation was that the accused had killed the deceased in jail by inflicting kassi blows on his head when he was already serving sentence of life imprisonment. Hon'ble Supreme Court observed that the case was not falling within the category of rarest of rare cases. There the facts were that when the deceased was getting himself shaved by Ramphal barber in the jail, accused came there with kassi in his hand and inflicted two successive kassi blows on the head of Ranbir with whom he had a property dispute as a result of which he fell down and later died. Hon'ble Supreme Court observed that felonious propensity of an offender is a factor which requires consideration while imposing the death sentence but that cannot be made the sole basis for such sentence as all other including motives, manner and magnitude have also to be taken into consideration. In Suresh v. State of U.P., AIR 1981 SC 1122 : (1981 Cri LJ 746), the Hon'ble Supreme Court converted the sentence of death into one of imprisonment for life on the accused Suresh against whom the charge was that he had murdered a house wife whose domestic servant he was and also her 3 year old son and injured another 5 year old son. Conversion of sentence of death into one of imprisonment for life was ordered because the Hon'ble Supreme Court felt that the accused was a trusted servant of the family and he was taken in by a sudden impulse of sex or theft which made him momentary insensible and he had been in jail for 10 long years. Further the death sentence was resting on the testimony of a witness who was a child aged 5 years and the Hon'ble Supreme Court felt that the extreme sentence cannot seek its support from the evidence of this kind which even if true is not safe enough to act upon for putting out a life.

43. In Allauddin Mian v. State of Bihar, AIR 1989 SC 1456 : (1989 Cri LJ 1466), the Hon'ble Supreme Court observed that where in a case of murder, the material for choice of sentence was scanty and the motive for crime was obscure and the killings were not for gain and the charge showed that the target was the father of the deceased and not the two infant daughters who were killed and the killing was not in contemplation of any of the accused and infants were the victims of the offenders are resulting from frustration at the escape of their target i.e. father. There was nothing so uncommon about the crime so as to make the case an exceptional one and the mere fact that the infants were killed, without more, was not sufficient to bring the case within the category of the rarest of rare cases.

44. In Machhi Singh v. State of Punjab, AIR 1983 SC 957 : (1983 Cri Lj 1457), the Hon'ble Supreme Court observed that the extreme penalty of death need not be inflicted excepted in gravest case of extreme culpability. Before opting for 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. 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, only provided option to impose 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 mitigating circumstances before the option is exercised.

45. In the instant case, murders committed are foul, cruel and brutal showing extreme depravity and lack of human heart and compassion. Neck of Tale, Krishna, Neelam, Parveen and Tinu was chopped off hanging only with tag of flesh. Murders committed demonstrate how barbaric, cruel and brutal Dharampal and Nirmal accused are. According to Smt. Punam, conviction of Dharampal in the rape case and 10 years sentence on her testimony and on the testimony of her sister Neelam lit a flame of revenge in Dharampal. During the trial of the rape case also Dharampal was threatening her and Neelam that in case they supported the charge of rape, he will snuff out them and their entire family. After Dharampal was convicted and sentenced on the charge of rape, he thought of translating that threat into action and he translated that threat into action at the earliest, the moment, he found an opportunity to do so. When he was being tried in the rape case, he did not think of translating that threat into action because he felt that they had resiled. He could not visualise that they had resiled. He could not visualise that they had supported the charged of rape and no wonder he was convicted and sentenced on their testimony. Venom in him continued increasing after he had been sentenced on the charge of rape and sent to jail and the moment he came out of bail in that case on 4-6-93, he felt that he could well translate his threat into action and he joined his brother Nirmal with him. It appears that he joined his brother Nirmal with him because he thought that he might not be able to execute the threat of eliminating the entire family of Tale single handedly. He joined Nirmal, armed himself with kulhari and Nirmal with barchhi. They selected night time for the termination of life of Tale and his entire family feeling that in night time, people would be asleep and there will be no eye witness to the carnage and that these will be blind murders and we know that the investigation in this part of the country so far as blind murders are concerned, is not at all scientific and rather is conservative and blind murder hardly ends into conviction. It was misfortune of Dharampal and Nirmal Singh that Punam and Raj Kumar who were beyond the pale of being noticed by them, were eye witness to the carnage. Learned counsel for the appellants submitted that so far as Nirmal is concerned, the imposition of death penalty is not called for he can, at the best, be said to have dealt blows on Tale alone along with Dharampal. So far as the others are concerned, there is only injury each on them and that could be attributed to Dharampal. It was submitted that if he had been sharing the venom of Dharampal, he too would have participated in the causing of injuries to Smt. Krishna, Neelam, Tinu and Parveen. It is true that there is only one blow each so far as krishna, Parveen, Tinu and Neelam are concerned. That blow is on their neck. That blow could be with kulhari. In this case, however, Nirmal cannot escape death penalty because murder of two sons, daughter and wife of Tale had already take place. Murder of Tale took place last of all the murders. If Nirmal had not shared the venom with Dharampal, he would have stopped short and asked his brother not to kill Tale or he would himself have not dealt any blow with barchhi to Tale. Infliction of injuries by Dharampal and Nirmal both on Tale suggests that both Dharampal and Nirmal are men of high depravity and criminality denude of human compassion and human heart altogether. It is true that Dharampal was 25 years old at the time of commission of this carnage and Nirmal was 22 years old and Dharampal has wife and children. If Dharampal and Nirmal are executed, Dharampal's family would be exposed to starvation. This may be mitigating circumstance for the award of lesser penalty but in this case the aggravating circumstances calling for death penalty for out number the mitigating circumstances. In fact mitigating circumstances is only which is that Dharampal was 25 years old and Nirmal was 22 years old when they committed the murder of Tale aged 44-45 years, his wife Krishna aged 40 years, daughter neelam aged 16-17 years, sons 12-13 and 10-11 years old. Upon taking an overall global view of all the circumstances in the light of this proposition that when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, the option to impose sentence of imprisonment for life cannot be senselessly exercised and after according full weightage to the mitigating circumstance and drawing up a just balance between the aggravating and mitigating circumstances, we feel that death sentence will be the only sentence that will meet the ends of justice. Award of imprisonment for life will be no imprisonment indeed because we know that after earning remissions and paroles, a person hardly spends 10 years both day and night in the four-walls of the jail. Five years or so, they have already remained in jail and they will come out of jail after remaining there for another about 5 years and after coming out of jail, they will feel emboldened that they are still alive, will enjoy with their family and what the society has done to them though they eliminated the entire line of their co-villager Tale. After getting out of jail, no wonder they eliminate Punam, her family and Punam's sister Nirmal and her family. Dharampal and Nirmal do not deserve to remain in human society. They have forfeited their right to remain members of an orderly society because of their having acted brutally, shockingly, desparately, irrationally in eliminating the entire family of Tale, If, there had been little human tinge in them, their ire would have directed them only to eliminating Neelam and Punam. What was the fault of Tale who did not appear at all in the rape case what was the fault of Krishna what was the fault of two sons of Tale i.e. Tinu and Parveen who were 10-11 and 12-13 years old. Dharampal and Nirmal are savage and brutes. They committed murder of Tale and four members of his family in premeditated and calculated manner. It is certainly the rarest of rare case where death sentence will be the only proper sentence that will commensurate with the gravity of the crime and the circumstances in which the same was committed. If the death penalty imposed upon them by the learned Sessions Judge is diluted, that will be going against the just aspirations of the society expected from the administrators of law and justice. Nirmal appellant is equally barbaric, brute, denude of human compassion and human heart. He too has forfeited his right to remain a member of an orderly society. Let we live and others live is absolutely alien to them.

46. For the reasons give above, we maintain the death sentence awarded to Dharampal and Nirmal along with fine imposed upon them as they snuffed out five innocent lives and brought about the total elumination of the line of Tale, their co-village. Snuffing out the lives of five innocent persons did not take place on account of some provocation in the heat of moment, but it was a premeditated and calculated act executed by them through a chalked out plan at night time thinking that the ghastly, barbaric and brute murders might go unnoticed and the police might work on the theory that these are blind murders. They do not deserve any leniency. So, death sentence passed upon them is confirmed. Fine imposed is also maintained. Entire amount of fine if recovered, shall go to Nirmala and Punam alias Bimla, daughters of Tale. Criminal Appeal fails and is dismissed. Murder reference is answered in the affirmative.

47. Appeal dismissed.