Balbir vs State Of Madhya Pradesh

,,,,

Sheel Nagu, J",,,,

INTRODUCTION,,,,

The instant judgment decides three death references i.e. CRRE 0004/2002, CRRE 0002/2002, CRRE 0003/2002 seeking confirmation of death penalty",,,,

awarded to Chandu, Bhikam and Balbir alongwith three criminal appeal Nos. 632/02, 655/02, 674/02 by the same appellants against penalty of death",,,,

sentence and life imprisonment and also four criminal appeal Nos. 5172/17, 5174/17, 5177/17, 5179/17 filed by the State against acquittal of other six",,,,

surviving co-accused persons namely Madanlal, Siriya, Jagdish, Ramvaran, Bhagirath and Shriram.",,,,

HISTORY OF THE LITGATION:,,,,

All these cases arise out of a series of three incidents which took place in the night intervening 29th and 30th June, 1995 when in the first incident at",,,,

Mardan Singh's house, Devendra Singh, Shankar and Komal Singh were shot dead, whereafter in the adjoining house of Asharam Singh, Asharam",,,,

Singh and his wife Purnawati were shot dead and lastly in the further adjacent house of Betal Singh, Betal Singh was shot dead.",,,,

The aforesaid six murders gave rise to five FIR lodged, bearing Crime No. 37/95, 38/95 and 39/95 (as regards three murders of Devendra, Shankar",,,,

and Komal) which gave rise to S.T. No. 225/95, 319/95 and 370/96, crime No. 40/95 (as regards murder of Asharam and Purnawati) which gave rise",,,,

to S.T. No. 223/95, 320/95 and 240/96 and lastly Crime No. 41/95 (as regards murder of Betal Singh) which gave rise to S.T. No. 226/95, 321/95 and",,,,

238/96. Composite trials were conducted in each of three set of cases against ten (10) accused including Ramniwas who died during trial leaving,,,,

behind trial by three separate judgments. The Trial Court by three separate judgments delivered on the same date acquitted six (6) accused but,,,,

convicted Chandu, Bhikam and Balbir, who were awarded death penalty along with life imprisonment with conviction in supplementary offences for",,,,

which ancillary sentences with fine were awarded to each of the said three convicted persons in each of the three trials.,,,,

Assailing the convictions and sentences the appellants approached this Court in Crl. A. No. 674/2002, 632/2002, 655/2002 and this Court by",,,,

common judgment dated 18.09.2003 acquitted all the said three convicted persons by giving them benefit of doubt due to failure of prosecution to,,,,

establish source of light at the scene of crime and recovery of weapons not having been corroborated by forensic report which was not produced by,,,,

the prosecution.,,,,

When the matter was taken up to the Supreme Court by the State by filing Crl. A. Nos. 766-769/2005, the Apex Court by common judgment",,,,

rendered on,,,,

12.2010 found that the order of High Court was cryptic as minute examination of evidence was not conducted. Accordingly, the Apex court without",,,,

expressing any opinion on merits recorded that a more elaborate and comprehensive discussion on the evidence was required to be made and,",,,,

therefore, allowed all the appeals of State by setting aside the judgment of acquittal of the High Court dated 18. 09.2003 and remanded the case to the",,,,

High Court for fresh decision after reconsideration of evidence and in the meantime, directed all the acquitted accused persons to remain on bail.",,,,

In the second round, the High Court reconsidered the matter and passed common judgment dated 29. 06.2011 converting death sentences awarded",,,,

to Chandu, Bhikam and Balbir into life imprisonment and confirming the conviction and sentence for the ancillary offences.",,,,

Thereafter, the State as well as the three convicted persons took the matter to the Apex Court by filing Criminal Appeals bearing No. 1032/17,",,,,

1044, 1033-1035, 1042-1043, 1038-1039, 1040-1041, 1037 and 1036 all of 2017 which were decided by a common order dated 06.07.2017 by the Apex",,,,

Court disposing of all the appeals and remitting the matter to the High Court again for fresh decision in accordance with law after recording finding,,,,

that the High Court has not dealt with the matter in a satisfactory manner.,,,,

Consequent to the above, three death references bearing No. Cr.RE 4/2002, 02/2002 & 03/2002 alongwith Crl.A. No. 632/2002 (filed by Balbir),",,,,

655/2002 (filed by Chandu, Bhikam and Balbir )and 634/2002 (filed by Chandu and Bhikam) and alongwith four criminal appeals by the State bearing",,,,

No. 5272/2017 (State Vs. Chandu), 5174/2017 (State Vs. Chandu), 5177/2017 (State Vs. Madan Lal) and 5179/2017 (State Vs. Madan Lal) are now",,,,

before this Court for being heard and decided afresh. Since all the death references and the appeals arise out of the same incident, comprising of three",,,,

different episodes involving six murders which took place in the night intervening 29th and 30th June 1995, all have been heard analogously and are",,,,

being decided by the present common order.,,,,

CONTENT & CONTEXT:,,,,

Regarding S.T. No. 225/95, 319/95 and 370/96 involving murder of Devendra Singh, Shankar Singh and Komal Singh giving rise to criminal appeal",,,,

No. 655/02 alongwith CRRE No. 0004/2002 :-,,,,

(i) Prosecution story in short is that in the night intervening 29th and 30th June 1995 between midnight and 1:00 a.m. complainant Mardan Singh was,,,,

asleep on the roof top of his house alongwith deceased Devendra Singh, deceased Shankar Singh and deceased Komal Singh on different cots. The",,,,

other members of the family were sleeping inside the house on the ground floor. The roof top was illuminated by electric bulb. 6-7 persons armed with,,,,

weapons climbed the roof top. The noise of foot steps climbing the stairs awoke complainant Mardan Singh who in lying down position saw that the,,,,

persons who had climbed the roof top were accused Lalla@ Ramnivas Chandu, Madan lal, Bhikam, Balbir, Siriya and others. On reaching the roof",,,,

top, accused Lalla @ Ramnivas (deceased) shot two bullets into the head of deceased Devendra. The other deceased Shankar Singh who was",,,,

sleeping close to deceased Devendra woke up and with folded hands pleaded the assailants not to harm him. However accused Chandu shot,,,,

deceased Shankar Singh in the chest. At the same time, accused Bhikam Singh shot two bullets into the pelvic area of deceased Komal Singh and on",,,,

the left side of the neck. Moreso injured Ramsevak who was sleeping close to the deceased Komal Singh was also caused gun shot injury in the hand,,,,

by accused Balbir. Thereafter all the assailants climbed down the stairs of the house of complainant Mardan Singh and were heard saying that let us,,,,

go to Asharam's house. When the assailants were about to enter the house of Asharam, complainant Mardan Singh and injured Ramsevek climbed",,,,

down from the roof top and hid themselves in the house of Sughar Singh from where they heard intermittent gun shots being fried. When the noise of,,,,

gun shot subsided, they could hear screams and cries of the family members of deceased. Both the complainant and injured Ramsevak thereafter",,,,

came out from hiding and saw that deceased Shankar Singh and Komal Singh had died. While third deceased Devendra who was still breathing died,,,,

soon thereafter. Police came to the spot which led to lodging of Dehati Nalisi at 6:30 p.m. on 30/6/95 in which the motive behind the crime was,,,,

disclosed to be the animus nursed by accused Lalla @ Ramnivas (deceased) arising out of the deceased and their relatives having declined to accede,,,,

to the demand of assailants to make Awa (a piece of land for making mixture of mud and water to prepare earthen vessels by the potter). Necessary,,,,

formalities of investigation were conducted and Crime Nos. 37,38 and 39 of 95 were registered. Chargesheet was filed against ten accused except",,,,

Bhagirath leading to registration of S.T. No. 225/95 in which accused Shriram and Siriya were shown as absconding. On the arrest of Shriram and,,,,

Name of

appellants",Conviction u/S.,Imprisonment,Fine,

Chandu,449,5 years R.I.,"Rs.500/- with

default stipulation",

,302,Death Sentence,"Rs. 1000/- with

default stipulation",

,302/34,Life imprisonment,"Rs. 1000/- with

default stipulation",

,302/34,Life Imprisonment,"Rs. 1000/- with

default stipulation",

,307/34,5 years R.I.,"Rs. 500/- with

default stipulation",

Bhikam,449,5 years R.I.,"Rs. 500/- with

default stipulation",

,302,Death Sentence,"Rs. 1000/- with

default stipulation",

,302/34,Life Imprisonment,"Rs. 1000/- with

default stipulation",

,302/34,Life Imprisonment,"Rs. 1000/- with

default stipulation",

,307/34,5 years R.I.,"Rs. 500/- with

default stipulation",

Balbir,449,5 years R.I.,"Rs.500/- with

default stipulation",

,302/34,Life imprisonment,"Rs. 1000/- with

default stipulation",

,302/34,Life imprisonment,"Rs. 1000/- with

default stipulation",

,302/34,Life Imprisonment,"Rs. 1000/- with

default stipulation",

,307,7 years R.I.,"Rs. 1000/- with

default stipulation",

Name of appellants,,Acquitted u/S.,,

Madanlal, Ramvaran, Jagdish,

Ramvilas, Siriya and Bhagirath",,"148, 460, 302/149, 302/149,

302/149, 307/149 of IPC and

Section 25-A of Arms Act",,

Shriram,,120-B of IPC,,

Chandu, Bhikam and Balbir",,"460, 148 of IPC and Section

25-A of Arms Act",,

Name of

Appellant","Convicti

on u/S.",Imprisonment,Fine,

Balbir,302,"Death

Sentence","Rs.1000/-

with default

stipulation",

,449,"5Â Â Years'

R.I.","Rs. 500/-

with default

stipulation",

,302/34,"Life

Imprison

ment","Rs.1000/-

with default

stipulation",

Name of appellants,,Acquitted u/S.,,

Madanlal, Siriya,  Jagdish,

Ramvaran, Bhagirath,

Ramvilas, Chandu and Bhikam",,"148, 460, 302/149, 302/149

of IPC and Section 25-AÂ

of

Arms Act",,

Shriram,,120-B of IPC,,

Balbir,,"460, 148 of IPC and Section

25-A of Arms Act",,

Chandu,449,,5 years R.I.,"Rs. 500/- with

default stipulation

,302,,Death Sentence,"Rs. 1000/- with

default stipulation

Bhikam Singh,449,,5 years R.I.,"Rs. 500/- with

default stipulation

,302/34,,Life Imprisonment,"Rs. 1000/- with

default stipulation

Name of appellants,,Acquittal u/S.,,

Balbir, Â

Madanlal, Siriya,

Jagdish, Ramvaran,

Bhagirath, Ramvilas",,"148, 460, 302/149, 307/149 of IPC and

Section 25-A of Arms

Act",,

Shriram,,120-B of IPC,,

Chandu and Bhikam,,"148, 460, 307/149 and Section 25-A of

Arms Act",,

reliable and trustworthy by the learned trial Judge. The trail Judge has also given cogent reasons of inconsistency between Sec 161 Cr.P.C. statement,,,,

and testimony e.g. prosecution witness being closely related to deceased and unnatural conduct of non-disclosure to anyone about the incident for 3-4,,,,

days for holding that the testimonies of Bharat Singh (PW3), Mahendra Singh (PW4) and Suresh Singh (PW8) who were earlier proposed as eye",,,,

witnesses by the prosecution to be unreliable. This finding also cannot be found fault with.,,,,

Regarding Cr.Appeal No.632 of 2002 and Death Reference No.03 of 2002 (qua murder of Asharam and Purnawati).,,,,

(i) In this appeal where out of the 10 accused, 9 were acquitted leaving behind Balbir, who was convicted for the offence of murder and sentenced to",,,,

penalty of death, the trial Court has relied upon the sole eye-witness PW-1 Ashok to bring home the charges. Ashok is the son of deceased Asharam",,,,

and Purnawati.,,,,

(ii) The testimony of PW-1 reveals that in the night intervening 29.06.1995 and 30.06.1995, immediately after midnight PW-1 he was sleeping on the",,,,

roof of the front room of his house alongwith his wife. The parents of PW-1, deceased Asharam and his mother Purnawati were sleeping on the",,,,

ground floor alongwith other family members. PW1 testifies that at that time the roof top and Angan were illuminated by electric bulb. PW-1 woke up,,,,

to the noise of gun-shot and saw that 5-6 men including Chandu, Siriya, Balbir, Bhikam, Jagdish and Ramvaran were climbing down the stairs of the",,,,

adjoining house of Rameshwar PW-1 and heard Chandu exhorting while climbing down the steps that “Ab Asharam ko dekhna haiâ€. At that point,,,,

of time, Chandu, Lalla alias Ramniwas were wielding fire-arm, while others were armed with country made pistols. PW-1 testified that he knew the",,,,

accused including the appellant. PW-1 further reveals in his testimony that Chandu, Siriya, appellant Balbir, Bhikam, Lalla and both the brothers-in-law",,,,

of Bhikam (Jagdish and Ramvaran) entered the ground floor of the house of PW-1. Thereafter PW-1 testifies that he saw Chandu causing fire-arm,,,,

injury to his father deceased Asharam while Balbir shot Purnawati. This witness further deposes that there were 2-3 persons with Balbir and Chandu,,,,

whom he could not recognize. Thereafter PW-1 states that the assailants went towards the village. PW-1 further testifies that he climbed down the,,,,

steps and saw that his father had died and is mother was grievously injured. The police came in the morning and the report was lodged vide Ex. P-1,,,,

on the behest of PW-1, in which the motive was shown as the issue of dispute between the rival parties on the making of “Ava†(small piece of",,,,

land for kneading of mud with water for making earthen utensils by a potter). Necessary formalities of investigation were concluded. Unfortunately,",,,,

the mother of PW-1 Purnawati died the next day i.e. on 30.06.1995 in the hospital. This witness accepts long standing animosity between his family,,,,

and the appellant and other accused.,,,,

(ii)a. In para 53 of his testimony, PW-1 though states that at the time of incident, it was pitch dark due to moon-less night, but PW-1 adds that there",,,,

was an electric bulb lit and even without any natural source of light, one could recognize the person standing few feet away. PW-1 expresses",,,,

ignorance as to why the factum of bulb being lit at the spot not being mentioned in his diary statement Ex. P-1 despite the said witness specifically,,,,

stating that he disclosed this fact to the police. In support of the fact of spot being illuminated by an electric bulb, this witness states that a wire was",,,,

laid from Floor Mill of Ghanshyam with the help of which the electric bulb received energy. PW-1 also states that the bulb which was lit during the,,,,

fateful night was a 100 watt bulb with a small switch hung on a hook in the Angan. The wire was stated to be black in colour by this witness. This,,,,

witness admits that the spot map Ex. P-2 did not show any bulb at the spot.,,,,

(ii)b. The autopsy Surgeon PW-2 Dr. S.C. Agarwal testified that deceased Purnawati before her death was examined by him.,,,,

PW-2 found two gun-shot injuries as per the MLC report which were accompanied by tattooing and the third one was a cluster of 9 small abrasions,,,,

located above the said two injuries. Post Mortem of the deceased Purnawati was conducted by PW-13 Dr. Soni revealing only one gun-shot injury in,,,,

the abdominal area with fragment of bullets found lodged near the vertebral column. After conduction of post-mortem of deceased Ashararm, PW-2",,,,

found one fire-arm entry wound and one fire-arm exit wound with tattooing marks in the abdominal area where bullet had broken the pelvic bone and,,,,

had ruptured the intestines to exit from the iliac region. The death was opined to be caused within 8-24 hours of examination due to shock resulting,,,,

from excessive bleeding due to damage to vital organs.,,,,

(ii) c. As regards forensic evidence, the report Ex. P-47 in regard to the weapons used reveals that the weapon seized from the appellant was found in",,,,

functional condition. However, no opinion was expressed regarding time of its use. The other FSL report of Ex. P-47 regarding clothes and dari , blood",,,,

stains on these items were found which were opined to be human blood vide item no. 9-17 and 21-26. However, no opinion by the forensic expert is",,,,

expressed in regard to item no. 18, 19 and 20. In regard to item no. 13 and 26, i.e. lungi and piece of dari , the same were opined to be stained with",,,,

human blood group “Bâ€​.,,,,

(ii) d. The discrepancy regarding the availability of light at the time of incident, in regard to the version of incident in diary statement of PW-1 and his",,,,

testimony and the spot map, the unnatural act of PW-1 of staying back at home during the entire night waiting for the police to arrive in the morning at",,,,

6 a.m. without immediately rushing to report the matter, and further unnatural act of PW-1 not rushing down the stairs to save his parents from being",,,,

killed, have all been analyzed by the learned trial Judge and held to be not so grave to discredit the basic story of prosecution.",,,,

(iii) This Court after going through the evidence and the findings rendered by the Court below is of the considered view that the ocular and,,,,

circumstantial evidence, including the medical evidence clearly establish the prosecution story that it was the appellant who caused fatal gun-shot",,,,

injury to deceased Purnawati which incident was witnessed by the eye-witness PW-1. Despite PW-1 having been subjected to a prolonged cross-,,,,

examination by defence counsel, the said witness stood by his basic allegations against the appellant and could not be discredited. This Court does not",,,,

see any reason to take a different view than the one taken by the learned trial Judge in respect of the findings as regards charge of murder proved,,,,

against the appellant Balbir.,,,,

Regarding Cr.Appeal No.654 of 2002 and Death Reference No.02 of 2002 (qua murder of Betal Singh).,,,,

(I) In this appeal, trial was conducted against ten accused. During trial one of the accused Siriya died. Out of nine surviving accused, nine were",,,,

acquitted leaving behind Chandu and Bhikam who were found guilty for the offence of murder and other ancillary offences. Chandu was awarded,,,,

death sentence whereas Bhikam life sentence alongwith ancillary offences.,,,,

(II) The sole eye-witness PW-1 in this case is Munna Singh (brother of deceased betal) who testifies that on the fateful night, his brother deceased",,,,

Betal Singh was sleeping on the cot on the roof of the house while PW-1 himself was sleeping on the floor of the roof. PW-1 heard noises between 12,,,,

midnight and 1 AM of some persons approaching. PW-1 further reveals that he awoke and saw in the light radiating from the electric bulb that,,,,

Chandu, Bhikam, Lalla @ Ramnivas, all armed with firearm were visible on the roof top where PW-1 was sleeping. Appellant Bhikam shook",,,,

deceased Betal Singh awake while other appellant Chandu caused gun shot injury in the back of the deceased. This witness further testifies that,,,,

during the course of this incident someone fired towards him. PW-1 thereafter took evasive action and jumped from the roof and hid himself out of,,,,

fear. PW-1 also states that in the light from the electric bulb he saw that in the Angan two brothers-in-law of appellant Bhikam alonwith Balbir were,,,,

present while accused Madan, Amrita and Siriya were standing outside his house in the lane. PW-1 also states that after causing fatal injury to the",,,,

deceased, Betal, Lalla @ Ramnivas exhorted that let us go to the flour mill to kill Naresh whereafter they went towards the flour mill. During",,,,

examination-in-chief of PW-1, he recognized accused Ramvaran and Jagdish as the two brothers-in-law of appellant Bhikam by way of dock",,,,

identification in the court. PW-1 further states that he heard noise of gun shot coming from the direction of flour mill of Naresh whereafter PW-1,,,,

went back to his house to see his deceased brother lying dead in a pool of blood. This witness disclosed about past animosity between his family and,,,,

the accused. PW-1 further reveals that he thereafter started crying in grief, and that the police came in the morning at about 6-7 a.m. when report",,,,

was lodged in shape of Dehati Nalisi (Ex.P-1).,,,,

(III) PW-1 in Para 57 and Paras 64 to 68 of his testimony has revealed about source of light at the spot at the time of incident to be an electric bulb,,,,

temporarily hanging on top of a wooden poll erected adjacent to his house which was powered by electricity connection from flour mill of Naresh. In,,,,

Para 64 of his testimony PW-1 denies that at the time of incident it was pitch dark and further denies that it was so dark that one could not see a few,,,,

feet away. PW-1 also states that since there was light radiating from the electric bulb, there was visibility. PW-1 also states that he had disclosed the",,,,

fact of spot being lit by the light from the bulb and if the same is not contained in his earlier statement Ex.P-1, he cannot say why. PW-1 stated in",,,,

Para 65 of his testimony that the bulb was lit with the help of electric wire though there was no electric meter in his house. The bulb was tied to a,,,,

bamboo pole which was about 15 feet tall (12-13 Haath). This witness admits that the investigating officer had neither seized the bulb nor the electric,,,,

wire but had seen the bulb and the wire strung between the bamboo poll and the flour mill. In Para 67 of his testimony PW-1 reveals that the flour mill,,,,

was about 150 Kadam (about 200 feet) away. PW-1 further denies the suggestion that there was no source of light at the spot. This witness has,,,,

admitted having signed spot map (Ex.P-4) which inter alia mentions Bijli Ki Balli near the wall of the house of the deceased.,,,,

(IV) PW-2 is Dr. S.C. Agarwal who conducted postmortem of deceased Betal Singh testifies that he found one gun shot entry wound of size 1.5 cm.,,,,

at the back of the chest below right scapula bone, the corners of which were torn, which led to fracture of 8th and 9th rib and fracture of sternum",,,,

bone. The exit firearm wound of 6 x 3 cm, was much larger than the entry wound which has resulted into rupture of right lung and heart. The injury",,,,

was found to be sufficient to cause death.,,,,

(V) Seizure memo Ex. P-37 C which was proved by PW-12 Investigating Officer, relates to seizure of one country made firearm of .315 bore",,,,

alongwith four live cartridges from appellant Bhikam.,,,,

(VI) The minor discrepancies in the testimony of PW-1 especially regarding source of light at the spot of incident has been ignored by the learned trial,,,,

judge categorizing them to be not significant enough to demolish the entire testimony of eye-witness PW-1 who has clearly stated that he saw,,,,

appellant Chandu inflicting gun shot injury to the deceased with the aid and assistance of other appellant Bhikam. The testimony of PW-1 is of sterling,,,,

nature as he has clearly seen both appellants present and assaulting the deceased. Inconsistency between earlier statement u/S. 161 CrPC, Dehati",,,,

Nalisi and testimony are of minor nature which cannot discredit the reliable ocular evidence of PW-1. Mere non-seizure of bulb or electric wire or poll,,,,

on which bulb was hanging can at best demonstrate laxity on the part of the investigating agency but that by itself cannot render the prosecution story,,,,

untrustworthy which otherwise is supported by the statement of eye-witness PW-1, vividly implicating the appellants herein.",,,,

Consideration of appeals preferred by the State (vide Cr.A. Nos. 5172/17, 5174/17, 5177/17 and 5179/17 against acquittal of Chandu and Madanlal",,,,

State has separately filed appeals after allowing the petitions seeking leave to appeal assailing all the three impugned judgments separately in the said,,,,

three appeals acquitting accused Chandu and Madanalal and enhancement of sentence awarded by the impugned judgment.,,,,

As regards the case pertaining to murder of Davendra, Shankar and Komal giving rise to S.T. No. 225/95, 319/95 and 370/96.",,,,

(I) Apart from Chandu and Bhikam both awarded death sentences and Balbir awarded life imprisonment all the other six accused (except Ramvilas,,,,

who died during trial) have been acquitted.,,,,

(ii) Para 59 of the impugned judgment summarizes that the court while believing the testimony of Mardan Singh PW-1, Ramsevak PW-2 both eye-",,,,

witnesses has disbelieved the version of incident disclosed by Mahendra Singh PW-4, Bharat Singh PW-3 and Suresh PW-8. Discussion regarding",,,,

untrustworthiness of testimony of PW-3 Bharat Singh is contained in Para 56, 57 and 58 of the judgment finding that PW-3 has categorically averred",,,,

that he has not seen any of the accused on the date of the incident but merely heard voice of accused Chandu. Court also found that PW-3 came to,,,,

know about the names of the assailants from Suresh PW-8 who in turn merely revealed that he had disclosed to PW-3 that there has been shooting,,,,

with firearm in the village but had not disclosed the name of assailants to PW-3. This inconsistency between the version of PW-3 and PW-8 is crucial.,,,,

Moreso the court found that PW-3 disclosed about the incident after three days without any explanation for delay. As regards PW-4 Mahendra Singh,",,,,

the trial Court analyzed the testimony of this witness in Para 51 and 52 of the judgment and found that this witness is the real brother of the deceased,,,,

and yet did not disclose about the incident to the police for 3-4 long days. Lastly as regards PW-8 Suresh, the trial court has doubted the",,,,

creditworthiness of this witness in Para 55 and 56 by finding that this witness disclosing about the incident belatedly rendering his statement to be a,,,,

procured one. This finding recorded by the trial Court for acquitting accused cannot be found fault with. These findings are based on cogent,,,,

inconsistencies which are so glaring on the face of the record that the same cannot be ignored and are enough to discredit the prosecution story,,,,

thereby compelling the court to discard the version of this witness.,,,,

(iii) As regards PW-1 and 2 Mardan Singh and Ramsevak have been believed by the trial court merely for the sake of convicting Lalla @ Ramnivas,",,,,

Bhikam, Chandu and Balbir but not in respect of other acquitted accused. Their evidence deserves consideration qua acquitted accused. PW-1",,,,

Mardan Singh eye-witness testifies primarily against Lalla @ Ramnivas, Bhikam, Chandu and Balbir but not against other co-accused whom he has",,,,

merely seen standing outside the house in the lane at the time of incident with no overt act alleged against them. The motive of dispute arising due to,,,,

making of “Ava†was also basically between the deceased and Chandu, Bhikam and Balbir. The fact that other accused were related or friends",,,,

of the main accused does not make a difference and cannot implicate them in the crime unless there is cogent and reliable evidence to bring home the,,,,

charges either by way of specific overt act alleged against the accused or by way of established conspiracy between acquitted accused and the main,,,,

accused for murder of deceased which is conspicuously missing in the case.,,,,

(iv) The contention of learned counsel for the State that acquitted accused ought to be implicated with the aid of section 149 IPC does not impress this,,,,

court owing to absence of any evidence regarding meeting of mind between the convicted accused and the acquitted accused prior to the incident or,,,,

during the course of the incident.,,,,

(v) Para 68 of the impugned judgment succinctly and aptly deals this aspect by finding that believable and trustworthy evidence of participating in an,,,,

offence of murder is available only against four convicted accused and section 149 of IPC is attractive only when five or more persons formed,,,,

unlawful assembly for committing offence. For establishing offence with the aid of Section 149 presence of five or more accused is essential whereas,,,,

in the instant case trial court has rightly found cogent evidence only against four convicted accused and therefore, has rightly discarded the application",,,,

of Section 149 IPC. Moreso some of the acquitted accused have not been named in the Dehati Nalisi and FIR and further not in section 161 CrPC,,,,

statement.,,,,

(vi) After hearing learned counsel for the State and the counsel for the acquitted accused, this court does not find any good reason to differ with the",,,,

finding of acquittal rendered by the court below in respect of accused Madanlal, Siriya, Jagdish, Ramvaran, Bhagirath and Shriram.",,,,

(vii) Pursuant to the aforesaid analysis the findings rendered by the learned trial Judge in acquitting accused Madanlal, Siriya, Jagdish, Ramvaran,",,,,

Bhagirath and Shriram of the charge of murder cannot be found fault with therefore, is upheld.",,,,

As regards the case pertaining to murder of Asharam and Purnawati giving rise to S.T. No. 225/95, 319/95 and 370/96.",,,,

(i) The trial court found that out of two eye-witnesses PW-1 Ashok and PW-6 Bharat, only PW-1 Ashok was reliable and therefore discarded the",,,,

testimony of PW-6 Bharat for reasons mentioned in Para 41 to 43 of the impugned judgment. The trial Court found that PW-6 had not seen any of the,,,,

assailants committed the offence with his own eyes but merely heard voice of appellant Chandu. The trial Court also found that this witness disclosed,,,,

about the incident after 3-4 days which is unnatural. PW-6 was also found to be unreliable in absence of any bullet mark on the wall and ceiling to,,,,

corroborate his disclosure that he had made repeated blank fires inside the house. The trial Court also noticed various other major inconsistencies,,,,

between his earlier and subsequent versions and therefore testimony of PW-6 eye-witness Bharat Singh was rightly discarded.,,,,

(ii) This leaves us with the testimony of only one eye-witness i.e. PW-1 Ashok who had stated that he clearly saw Chandu and Balbir inflicting fatal,,,,

injuries with their respective firearm to both deceased Asharam and Purnawati. This witness does not allege any overt act of causing any injury by the,,,,

other co-accused except alleging that the other co-accused Siriya (deceased), Bhikam, Lalla @ Ramniwas accompanied Chandu and Balbir.",,,,

(iii) As regards motive this witness has stated that animosity between rival groups existed on the issue and make of “Ava†primarily between,,,,

Chandu and deceased Asharam. PW-1 in his testimony has not disclosed the version of incident that any of the other acquitted accused had entered,,,,

the house where both murders took place. These pieces of evidence clearly indicate that the prosecution could not establish beyond reasonable doubt,,,,

that there was commonality of intention between Chandu and Balbir on one hand and the acquitted accused on the other hand for causing murder of,,,,

Asharam and Purnawati.,,,,

(iv) Pursuant to the aforesaid analysis the findings rendered by the learned trial Judge in acquitting accused Chandu, Madanlal, Bhikam, Siriya, Jagdish,",,,,

Ramvaran, Shriram and Ramvilas of the charge of murder cannot be found fault with therefore, is upheld.",,,,

As regards the case pertaining to murder of Betal Singh giving rise to S.T. No. 226/95, 321/95 and 238/96.",,,,

(i) In regard to the murder of Betal Singh out of ten accused Siriya died during trial whereas Ramvilas died during pendency of criminal appeal while,,,,

Chandu was awarded with death sentence and Bhikam with life sentence and the remaining six accused were acquitted. State has challenged the,,,,

acquittal of said six accused in this appeal.,,,,

(ii) Munna PW-1 is the same eye-witness in the present case is the real bother of deceased Betal and has testified that he has specifically seen,,,,

Chandu inflicting gunshot injury to the deceased Betal while Bhikam and Lalla @ Ramnivas (deceased) being present armed with country made pistol.,,,,

This witness also saw that in the courtyard of the house on the ground floor bother-in-law of the Bhikam was also present alongwith Balbir while in,,,,

the lane outside the house acquitted accused were standing.,,,,

(iii) Thus this sole eye-witness has disclosed the presence of Chandu. The assailant who caused gunshot injury alongwith Bhikam and deceased Lalla,,,,

@ Ramniwas with no overt act alleged against other acquitted accused in the case. PW-1 has also mentioned about the motive of animosity between,,,,

the rival groups arising out of the making of “Avaâ€. There is no other revelation by the PW-1 in his testimony which may be strong enough to,,,,

implicate the acquitted accused. Thus in the considered opinion of this court, learned trial Judge has rightly convicted Chandu, Bhikam and Balbir while",,,,

acquitting other accused in the absence of cogent, reliable and trustworthy evidence of being involved in the murder of deceased Betal.",,,,

(iv) Pursuant to the aforesaid analysis the findings rendered by the learned trial Judge in acquitting accused Madanlal, Balbir, Jagdish, Ramvaran,",,,,

Bhagirath and Shriram of the charge of murder cannot be found fault with therefore, is upheld.",,,,

(v) Moreso the Apex Court in Hakeem Khan and Ors. Vs. State of M.P. reported in (2017) 5 SCC 719 has held after considering it's earlier verdicts,,,,

on the issue that power of interference by the Appellate Court in an order of acquittal is limited. The same is not available when in the given facts and,,,,

circumstances the view taken by the court blow to sustain a conviction could have been taken within the four corners of law and merely because,,,,

another view is possible in the given facts and circumstances could not be a good ground to interference. The Apex Court has categorically held that,,,,

the view taken by the acquitting court which may be a view which can legitimately be taken then no interference is called for by an appellate forum.,,,,

Interference can be made only if the facts and circumstances reveal that the view taken by the acquitting court could not have been taken at all within,,,,

the four corners of law. The relevant extract of the said decision is reproduced below for convenience and ready reference :-,,,,

“12. For all these reasons, we are of the considered opinion that the High Court clearly fell in grave error in setting aside the acquittal in the present",,,,

case. We have to remind ourselves that the law on reversal of acquittals is well settled and is stated in many judgments, but one of them needs to be",,,,

quoted here. In Murugesan Vs. State (2012) 10 SCC 383 this court went into the meaning of different expressions- “erroneousâ€, “wrongâ€",,,,

and “possibleâ€​, and has stated the law as follows:-",,,,

“33. The expressions “erroneousâ€​, “wrongâ€​ and “possibleâ€​ are defined in Oxford English Dictionary in the following terms:",,,,

'erroneous.- wrong; incorrect.,,,,

wrong.- (1) not correct or true, mistaken.",,,,

(2)unjust, dishonest, or immoral.",,,,

Possible.-(1) capable of existing, happening, or being achieved.",,,,

(2) that may exist or happen, but that is not certain or probable.",,,,

It will be necessary for us to emphasise that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or,,,,

otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court,,,,

upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a,,,,

possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority,,,,

perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion which can reasonably be arrived at regardless of the",,,,

fact whether it is agreed upon or not by the higher court. The fundamental distinction between the two situations have to be kept in mind. So long as,,,,

the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the",,,,

trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.â€​,,,,

Consideration of question of sentence:- Having found the appellants to be rightly convicted of the offence of murder and having concurred with the,,,,

findings of the trial court in respect of said conviction, this court has to now contemplate whether the punishment of death sentence deserves to be",,,,

confirmed or not. If confirmation is not possible, then what is the alternative sentence.",,,,

The Apex Court in the case of Mukesh and Anr. Vs. State (NCT of Delhi) and Ors. reported in (2017) 6 SCC 1 while lucidly explaining the,,,,

extenuating and implicating factors for deciding death penalty should be maintained or not held thus:-,,,,

“After referring to a catena of judicial pronouncements post Bachan Singh (supra) and Machhi Singh (supra), in the case of Ramnaresh and Ors.",,,,

v. State of Chhattisgarh (2012) 4 SCC 257, this Court, tried to lay down a nearly exhaustive list of aggravating and mitigating circumstances. It would",,,,

be apposite to refer to the same here:,,,,

“Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by",,,,

the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults,,,,

and criminal convictions.,,,,

(2) The offence was committed while the offender was engaged in the commission of another serious offence.,,,,

(3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or,,,,

device which clearly could be hazardous to the life of more than one person.,,,,

(4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits.,,,,

(5) Hired killings.,,,,

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim.,,,,

(7) The offence was committed by a person while in lawful custody.,,,,

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement,,,,

of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty Under Section 43 Code of Criminal",,,,

Procedure. When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.,,,,

When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a",,,,

niece staying with a father/uncle and is inflicted with the crime by such a trusted person.,,,,

(9) When murder is committed for a motive which evidences total depravity and meanness.,,,,

(10) When there is a cold-blooded murder without provocation.,,,,

(11) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.,,,,

Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or",,,,

emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.,,,,

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.,,,,

(3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.,,,,

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his,,,,

criminal conduct.,,,,

(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental",,,,

imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances",,,,

of the case, the accused believed that he was morally justified in committing the offence.",,,,

(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death,,,,

resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the,,,,

primary crime.,,,,

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.â€​,,,,

After considering the decision of the Apex Court in Mukesh (supra) this court is of the considered view that most prominent extenuating circumstance,,,,

dissuading this court from confirming death sentence awarded is that the offences were committed in the month of June, 1995 and the impugned",,,,

judgment pronounced on 26/11/02 awarding two death sentences to Chandu and one death sentence each to Balbir and Bhikam alongwith awarding,,,,

life sentences to Balbir and Bhikam in respect of different murders. Appellants Chandu, Bhikam and Balbir are awaiting the gallows since last more",,,,

than sixteen and a half years.,,,,

At the time of incident in 1995, Chandu was 50 years, Bhikam was 29 years and Balbir was 40 years old. All the three have already spent about 15",,,,

years in custody. To make a person, even if he is convicted, wait for death by way of punishment is an act which is abhorrent to the concept of rule of",,,,

law prevailing in a democratic system of governance.,,,,

The above discussion makes it clear that all the three appellants are awaiting confirmation of death sentence since last more than sixteen (16) years,",,,,

which is a good enough ground to convert their death sentence into life sentence.,,,,

Consequently, this court disposes of all the criminal death references and all the criminal appeals with the following directions:-",,,,

(i) Death reference 2/02, 4/02, 3/02 in respect of appellants Chandu, Bhikam and Balbir are annulled.",,,,

(ii) The conviction of the said appellants for the offence of murder is upheld and the sentence of death awarded is converted into life sentence, to run",,,,

concurrently.,,,,

(iii) The conviction qua all the offences qua all the appellants rendered by learned trial Judge of life sentence and other sentences are upheld.,,,,

(iv) Appeals filed by the State bearing Cr.A. No. 5172/17, 5174/17, 5177/17 and 5179/17 are dismissed.",,,,