JUDGMENT [ENTITY], J.
1. By [CASE NUMBER] original accused No. 4 [ENTITY] s/o [ENTITY] has questioned the correctness and legality of the finding of conviction recorded for the offences punishable under [SECTION] read with [SECTION] as also [SECTION], [SECTION] and [SECTION] of [ACT] and sentence to life imprisonment awarded on 14-12-1988 by the Additional Sessions Judge, Chandrapur and by [CASE NUMBER], the State has claimed enhancement of sentence by awarding capital punishment. Similarly, by [CASE NUMBER], original accused No. 2 [ENTITY] and original accused No. 3 [ENTITY] have challenged their conviction for the above said offences, whereas by [CASE NUMBER], State has claimed enhancement of sentence by awarding capital punishment against them.
2. Precise facts leading to these appeals are as thus :
In the morning of 21-4-1984 PW 1 [ENTITY] found three injured persons lying near the bridge on Wani-[ENTITY] highway. This spot is about 1 km. from township of [ENTITY]. He, therefore, lodged First Information Report (Exh. 215). The Police Authorities, in pursuance thereof, drew a spot panchanama (Exh. 27). It was revealed that hands of all the three injured persons were tied from behind. The Police Authorities took the injured persons to General Hospital, Chandrapur.
The injured persons were identified. All of them were residents of [ENTITY], District Chandrapur. One of them was [ENTITY]. He was declared already dead PW 34 Dr. [ENTITY], who conducted post-mortem, noticed the following injuries :
"One lacerated wound on left cheek, one abrasion on left wrist medially, second abrasion on left side of chest, third abrasion on left submandible region skin deep".
The corresponding internal injuries were fracture of left frontoparietal region, left orbital, crushing of left maxillary region of face and fracture in many pieces, fracture of left fourth rib anteriorly and clots in trachea and lyrinx. Both lungs were also deeply congested.
Another victim was Professor [ENTITY]. He succumbed to injuries at about 1 p.m. on 21-4-1984 in the Hospital. His post-mortem was conducted by P.W. 25, Dr. [ENTITY] on 21-4-1984 at about 6.30 p.m. He noticed that victim [ENTITY] suffered total 11 injuries. Two of them were abrasions over nose and cheek, eight contusions over temporal region, left eye, scalp, occipital region, right shoulder, left palm, above right knee and one laceration on left ear. On post-mortem, collection of huge blood under scalp, fracture of temporal bone and temporal perietal bone were revealed.
Third victim was [ENTITY]. He suffered, as per P.W. 34, Dr. [ENTITY] vide certificate (Exh. 94), lacerated would on left cheek, swelling on left side of face and contusion on left eye. His condition was serious.
3. On 4-5-1984, P.W. 36 [ENTITY], Executive Magistrate recorded dying declaration of [ENTITY] vide Exh. 102.
The Investigating Agency :
On 19-5-1984 arrested accused No. 1 [ENTITY]. He was a resident of [ENTITY].
On 22-5-1984 arrested accused No. 3 [ENTITY] and accused No. 4 [ENTITY]. Both of them were residents of village Pathekheda, District Betul (Madhya Pradesh).
On 30th and 31st May, 1984, at the behest of accused Nos. 1 and 4, discovered certain incriminating articles.
On 15-6-1984 recorded statement of third victim [ENTITY], who anyhow survived after medical treatment.
On 15-6-1984 arrested accused No. 2 [ENTITY], resident of Hinganghat, District Wardha.
On 30-6-1984, at his behest, discovered certain incriminating articles.
All the four accused were tried as per charge at Exh. 5. Their defence was of total denial. It is reported that before examination of accused under [SECTION] of [ACT], accused No. 1 [ENTITY] escaped from jail custody and he could not to be traced and apprehended till today.
4. P.W. 37 [ENTITY], third victim, deposed that he had seen all the four accused at the spot of incident and our of them, accused Nos. 1 and 2 assaulted him and thereafter he became unconscious, P.W. 57 [ENTITY] claimed to have been deceased [ENTITY] and [ENTITY] coming from Wani and proceeding towards the spot of incident. None had witnessed the assault on deceased [ENTITY] and [ENTITY]. The learned Additional Sessions Judge accepting the version of P.W. 37 [ENTITY], P.W. 57 [ENTITY] and various circumstances as brought, recorded the impugned finding of conviction. He observed that murder of two innocent persons was brutal and heinous. However, since the conviction is based on circumstances, he has declined to award capital punishment against accused persons.
During the pendency of these appeals, original accused No. 2 [ENTITY] and original accused No. 3 [ENTITY] escaped from the Jail custody. They could not be traced and arrested till today. We have, therefore, by our order dated 4-2-1993 dismissed [CASE NUMBER] filed by them and heard the appeal of original accused No. 4 [ENTITY].
5. The principal ground of attract of Shri [ENTITY], the learned Counsel appearing for appellant-accused No. 4 [ENTITY], is that accused No. 4 [ENTITY] was completely stranger to P.W. 37 [ENTITY]. He was not an ordinary resident of [ENTITY]. At the spot of incident, P.W. 37 [ENTITY] had no sufficient opportunity to see accused No. 4 prem. As such, in the absence of test identification parade, his testimony of having seen accused No. 4 at the spot with other accused cannot safely be accepted.
The broad proposition as canvassed is not legally sound in view of ratio laid down by Supreme Court in [PRECEDENT], and [PRECEDENT], . Absence of test identification parade by itself is not fatal and ipso facto it does not bring discredit to the claim of witnesses. Eye account is to be appreciated taking into account the attending and other circumstances.
The learned Additional Sessions Judge has appreciated the testimony of P.W. 37 [ENTITY] and examined it in great detail in Paras (12) and (13) of the impugned judgment. With the assistance of the learned counsel for the parties, we have gone through the reasoning of the learned Additional Sessions Judge.
6. P.W. 37 [ENTITY], at the relevant time, was a Dumper Operator working in Majri Colliery. On 20-4-1984 after completing his duty by 8 p.m. he was returning on [ENTITY] along with P.W. 57 [ENTITY]. He parted the company of P.W. 57 [ENTITY] at a place known as Patala. P.W. 37 [ENTITY] thereafter, at about 9 p.m., proceeded towards his home at [ENTITY]. He then says about the incident as thus :
"The head light of my [ENTITY] was working that day. When I came near a bridge from where [ENTITY] is about on Kilometer I saw 4 persons standing at the bridge, on my left hand side. I had seen those persons with the help of the headlight of my [ENTITY] from a distance of about 15 to 20 feet. Once of the 4 persons gave me a single to stop the [ENTITY] by raising his hand. I lowered the speed. When I approached the people, my [ENTITY] was in slow motion. I stopped the [ENTITY]. I thought that some of them wanted to go to [ENTITY] and they wanted lift from me, therefore they had asked me to stop the vehicle. One of the 4 persons was armed with a pipe. He dealt a blow on my temporal bone. (The witness had pointed out the position by showing the place on his body). He had dealt a blow on right side of the temporal bone. I will be able to identify the rod if shown to me. [SECTION] is the said rod. I was given a blow with the ball portion of [SECTION]. I will be able to identify the person who had dealt blow to me (The witness identifies accused No. 2 [ENTITY] as the said person). One of the 4 persons held me by the collar and dealt a fist blow on my mouth. I will be able to identify the said person. He is [ENTITY]. I know [ENTITY] by his face since before the incident. (Points out to accused No. 1 [ENTITY] as the person). The remaining 2 persons did not do anything. However, they were standing by the side of the assailants referred above. I will be able to identify the said 2 persons. The said 2 persons are presented in Court. They are sitting in accused's dock. (Points out to accused No. 3 [ENTITY] and accused No. 4 [ENTITY] as the aforesaid persons). I do not know the names of the 2 persons whom I have now pointed out. I know the names of accused No. 1 [ENTITY] and accused No. 2 [ENTITY] since before the incident. I had seen accused nos. 3 and 4 even prior to the incident on one or two times with accused No. 1 [ENTITY]. After a blow was given to me on my mouth, I became unconscious."
Shri. [ENTITY] heavily relied on the omission as brought out in cross-examination of P.W. 37 [ENTITY], which is formulated by a question. This omission was regarding working condition of headlight of the [ENTITY] and in the said light, P.W. 37 [ENTITY] having seen four accused persons standing at a bridge and one of them having asked P.W. 37 [ENTITY] to stop his vehicle. In reply to the question as formulated, P.W. 37 [ENTITY] has answered :
"I had stated. However, I cannot assign any reason why police had not written it."
According to Shri [ENTITY], the omission as pointed out, is material and brings discredit of the testimony of P.W. 37 [ENTITY]. He urged that the omission is not natural and in the absence of working condition of headlight of [ENTITY], the witness had no opportunity to see the accused persons near the spot. We are unable to accept the submission.
P.W. 37 [ENTITY] has specifically stated that he had said so. However, he could not assign any reason for omission in the Police Statement. This omission was not put to the Investigating Officer, who recorded the Police Statement. As much, defence cannot successfully exploit the omission as pointed out. Shri [ENTITY], in the alternative, has argued that in cross-examination, this witness has admitted that as it was a dark night, he could not identify the assailants and could not see their faces properly. In the submission of Shri. [ENTITY], this admission is candid and that completely nullifies the claim of this witness of having seen the accused persons.
7. It is pertinent to note that statement of this witness was a recorded on 15-6-1984. Though he was discharged from the Hospital, he had not completely recovered. He took about five months for restoring to normalcy and he resumed his duties thereafter. On the fateful day, he suffered a brutal assault and survived owing to sheer luck. Amount of tension and apprehension on his mind can simply be imagined. His reluctance to disclose the names of accused due to fear and further danger was writ large. In his examination-in-chief and also cross-examination, he has specifically stated that he was under apprehension of accused Nos. 1 and 2 and he had not disclosed their names because of fear. This he has reasserted in his cross examination. This state-of-affairs completely amplifies the mental condition of this witness when he tendered his Police statement. This witness, it appears, was apprehending further danger and making an effort to avert it. In view of this, his positive version in a substantive testimony during examination in-chief, as discussed, does not suffer from any discredit and the same can be accepted as a truthful version. The learned Additional Sessions Judge, according to us, has, therefore, rightly accepted the same.
The claim of P.W. 37 [ENTITY] of having seen appellant [ENTITY] with accused No. 1 [ENTITY] on earlier occasions has not even casually been questioned. As such, it can safely be inferred that he was knowing the appellant by face. Moreover, as per his detailed account, he had sufficient opportunity to see accused No. 4 [ENTITY] at the spot of incident. His identifying the accused in the Court without there being any previous test identification parade has, therefore, rightly been accepted.
8. Shri [ENTITY] then submitted that from the deposition of P.W. 37 [ENTITY], it could not safely be presumed that he had seen accused No. 4 [ENTITY]. Otherwise, he would have given his description in the Police statement. Shri [ENTITY] pointed out from the testimony that the witness is saying that he gave description of the assailant. According to Shri [ENTITY], the "Assailant" as referred to by the witness, connotes only original accused Nos. 1 and 2. No doubt, it is true that in the testimony the witness has referred accused Nos. 1 and 2 as persons who gave blows with rod and fist. However, from the entire test of deposition, we do not feel that this witness has confined the term 'assailant' only to those two accused persons. The term 'assailant', according to us, refers to the group of persons, who were present near the spot of incident. We, however, mention at this stage that the prosecution claim does not squarely rests on the testimony of P.W. 37 [ENTITY].
9. Shri [ENTITY] then submitted that even accepting the testimony of P.W. 37 [ENTITY], no overt act in any manner is attributed to accused No. 4 [ENTITY]. Accused No. 4 [ENTITY] was simply standing. He has not even been implicated for any offence with the aid of [SECTION] of [ACT]. He is, therefore, not liable to be convicted for any offence. We find it difficult to accept this submission.
Undisputedly, from the testimony of P.W. 37 [ENTITY], presence of accused No. 4 [ENTITY] with others has fully been established. Accused No. 4 [ENTITY] in his examination under [SECTION] of [ACT] has not offered any plausible explanation as to how and what for he was present at the spot of incident at the odd hours. In reply to question Nos. (46) and (47), he has merely denied and thereby has given a false answer. His presence at the spot leads to an irresistible inference that though he was not the assailant as per the testimony of P.W. 37 [ENTITY], he was one of the participants in the mission with accused Nos. 1 and 3.
10. Shri [ENTITY] then urged that there is no direct evidence as regards assault on deceased [ENTITY] and [ENTITY]. Appellant-accused No. 4 [ENTITY], therefore, cannot be implicated along with others merely on the strength of a discovery. Even otherwise, that circumstance is neither clinching nor has satisfactory been established :
P.W. 57 [ENTITY], as discussed earlier, was a pillion rider on [ENTITY] driven by P.W. 37 [ENTITY]. He got down at a place known as Patala. After sometime, he had seen deceased [ENTITY] and [ENTITY] coming from Wani and proceeding towards [ENTITY]. In the morning of next day, as per spot panchnama (Ext. 27), [ENTITY] and [ENTITY] along with P.W. 37 [ENTITY] were found lying in an injured condition on the same spot, where the Appellant was found standing with others. Hands of all the three victims were tied from behind.
11. P.W. 25, Dr. [ENTITY] had opined that the injuries as sustained by deceased persons could be caused by a branch of Gulmohar tree. ([SECTION]).
On Memorandum (Exh. 37) recorded at the behest of accused No. 1 [ENTITY], one Gulmohar tree was pointed out at a distance of about 300 feet from the spot of incident. A panchanama was accordingly drawn vide Exh. 38, P.W. 67 [ENTITY], Range Forest Officer vide Exh. 198 certified that [SECTION] is a branch of the same tree. On 31-5-1984 on a memorandum (Exh. 41) tendered by accused No. 4 [ENTITY], a branch of Gulmohar tree ([SECTION]) duly wrapped in a full pant of accused No. 4 [ENTITY] was discovered and seized vide panchanama (Exh. 42) dated 31-5-1984, along with the full pant (Art. 54). As per Chemical Analyser's report (Exh. 240), human blood was found on both these articles. The discovery at the instance of accused No. 4 [ENTITY] thus implicates him in the incident as a person participant alone with others. This aspect has been discussed by the learned Additional Sessions Judge in Para (16) of the impugned judgment. We have gone through the reasoning and we accept the same.
12. On memorandum dated 30-5-1984 (Exh. 35) at the instance of accused No. 1 [ENTITY], a steel rod (Article 47) was discovered and seized vide panchanama (Exh. 36). P.W. 37 [ENTITY], in his testimony, identified the same as an instrument of offence used by accused No. 2 [ENTITY]. This aspect has been considered by the learned Additional Sessions Judge in para (16) of the impugned judgment.
On memorandum (Exh. 131) recorded on 31-5-1984 at the behest of accused No. 1 [ENTITY], a bengali shirt (Article 50) of accused No. 1 and a goggle (Article 51) and a wrist watch (Article 52) of deceased [ENTITY] were discovered and seized vide panchanama (Exh. 132). Chemical Analyser's report (Exh. 240) indicates blood stains of blood group 'B' on the bengali shirt (Article 50) of accused No. 1 [ENTITY]. Undisputedly, blood group 'B' was of deceased [ENTITY]. Furthermore, P.W. 48 Late widow of deceased [ENTITY] identified goggle (Art. 51) and wrist watch (Art. 52) as belongings of deceased [ENTITY].
On 23-6-1984, on a memorandum (Exh. 78) at the behest of accused No. 2 [ENTITY], the investigating agency discovered a wrist watch (Article 58) of deceased [ENTITY]. The same was identified by his relations, namely, P.W. 28 [ENTITY], P.W. 29 [ENTITY] and P.W. 30 [ENTITY]. On 31-5-1984, on memorandum (Exh. 39), a branch of Gulmohar tree (Article 53) stained with blood was discovered at the behest of accused No. 3 [ENTITY] and the same was seized vide panchanama (Exh. 40). These circumstances have been discussed in great detail by the learned Additional Sessions Judge in paras (19) to (23) of the impugned judgment. The same has been rightly accepted and we agree with the finding as recorded.
13. The circumstances as referred to incriminate accused Nos. 1, 2 and 3 in the incident leading to homicidal death of two persons. Appellant-accused No. 4 [ENTITY] was their associate and was present at the spot. He has not otherwise explained his presence. Inevitably, it can be inferred that his presence and association was for a common purpose and mission, with others. It is also apparent from the evidence of P.W. 37 [ENTITY] that appellant-accused No. 4 [ENTITY] was by the side of other three accused persons when assault took place on him. This definitely indicates that he with others shared the intention, which was common to them. He further participated in the incident as explicit from the discovery of [SECTION].
14. Besides this, appellant-accused No. 4 [ENTITY] had continuous association and common mission with other accused even before and after the incident. As per testimony of P.W. 69 [ENTITY], Police Station Officer, Hinganghat, he received a telephonic call intimating that all the four accused persons have assembled in the Rathi Garden of Hinganghat. He, therefore, went there to apprehend them. On seeing this witness, all the accused ran away leaving their belongings at the spot. This witness had seized all those articles vide panchanama (Exh. 49). Even from their subsequent conduct, it is explicit that they were actively associated with each other and acting as per their common design.
After the incident in question, on 15-5-1984 accused Nos. 1, 3 and 4 committed robbery at Baitul. P.W. 71 [ENTITY] proved the report (Exh. 204) lodged by complainant [ENTITY] and also the charge-sheet (Exh. 205) filed in the Court of Chief Judicial Magistrate. According to him, prosecution was pending. Certainly it was a case of dacoity on a national highway. This circumstance was put to appellant-accused No. 4 [ENTITY] in his examination under [SECTION] of [ACT]. He explained that the allegations therein were false. However, he admitted pendency of prosecution against him and other accused persons.
15. After their arrest in the instant case, all the four accused persons tried to cut the iron bar of a lavatory of the Jail so as to manage escape. P.W. 59 [ENTITY], Jail Superintendent lodged report in that behalf vide Exh. 175. P.W. 64 PSI [ENTITY] proved the charge-sheet (Exh. 189) for an offence punishable under [SECTION] read with [SECTION] of [ACT].
During the course of hearing, it was pointed out that the circumstances arising out of testimony of P.W. 59 [ENTITY] and P.W. 64 PSI [ENTITY] were not put to appellant-accused No. 4 [ENTITY] during his examination under [SECTION] of [ACT]. We have, therefore, by our order dated 5-2-1993 directed production of accused No. 4 [ENTITY] in this Court. On 10-2-1993 we have put these circumstances while examining him under [SECTION] of [ACT]. He has admitted that prosecution is pending before the Chief Judicial Magistrate, Chandrapur. However, he has denied the accusation thereunder. He has further admitted his conviction for the said offence.
16. Taking into account the chain of events, it is clear that even before the incident in question, accused No. 4 [ENTITY] was associated with accused Nos. 1, 2 and 3. P.W. 69 [ENTITY] has seen them together at Hinganghat. P.W. 37 [ENTITY] has also seen accused No. 4 [ENTITY] with accused Nos. 1, 2 and 3 at the time of incident. As discussed earlier, even after the incident, they were together forming a gang and they operated with a common mission and their action was concerned. Taking these aspects into account coupled with presence of accused No. 4 [ENTITY] as deposed by P.W. 37 [ENTITY] and other incriminating circumstances as discussed, we hold that appellant-accused No. 4 [ENTITY] along with accused Nos. 1, 2 and 3 was involved in the incident leading to homicidal death of [ENTITY] and [ENTITY]. He has, therefore, rightly been held guilty for the offence punishable under [SECTION] of [ACT]. The learned Additional Sessions Judge has discussed this aspect in para (25) of the impugned judgment. The reasoning and findings as recorded are just and proper and do not suffer from any illegality. The appeal as presented by appellant-accused No. 4 [ENTITY] is, therefore, liable to be dismissed.
17. By [CASE NUMBER] State has pressed for enhancement of sentence and awarding of capital punishment against accused No. 4 [ENTITY]. We have heard the learned counsel for both the parties. They have invited our attention to the decisions in [ENTITY]ia v. State of Rajasthan, AIR 1978 SC 1248 : (1978 Cri LJ 1251); [PRECEDENT], and [PRECEDENT], . There is a unanimity at the bar that ultimate punishment could be awarded in a criminality of rarest of its own kind. It is reiterated that life imprisonment is a rule whereas awarding of death punishment is an exception and it depends on the circumstances.
18. The learned Additional Sessions Judge has discussed this aspect in para (28) of the impugned judgment. He has observed that -
"the offence committed by the accused persons is brutal and heinous The accused persons otherwise deserve maximum punishment of hanging for offence punishable under [SECTION] of [ACT], but in my opinion, capital punishment in the present case will not be proper because accused are found guilty of murder of [ENTITY] and [ENTITY] on the basis of circumstantial evidence. Had there been direct evidence, I would have definitely imposed capital punishment to accused persons "
Undisputedly, the conviction is based on the circumstantial evidence. However, in the crime of such nature, when there is a dacoity at a remote place or highway, normally there could not be any direct evidence. The prosecution tries to substantiate the charge, ordinarily on circumstantial evidence. The only rule is that in case of circumstances, they need to be examined cautiously and carefully. Furthermore, the circumstances are required to be established satisfactorily and they need to be clinching to lead to sole and only inference as regards culpability of the accused.
Once the circumstances are fully established, they indicate guilt of the accused. Such circumstances in their indication, do not flicker like a mental set up of an individual, who deposes in the Court in the form of a direct oral evidence. They, in their indication, do not oscillate like a human mind which depends on the capacity to observe and other vagaries. As such, once the circumstances are taken to have been established, the learned Additional Sessions Judge need not have refrained the law to take its own course.
Here we find that the learned Judge fell in error. Having held the accused persons guilty of the offences and their acts were heinous and brutal, it would have been more appropriate for the learned Judge to award capital punishment.
19. Menace of road-side robbery and dacoity has a tremendous growth in these days. This menace has posed a serious threat to the public order. Its impact on minds of people cannot be transcribed in written words. In order to check this menace, punishment needs to be deterrent and the accused persons are to be dealt with the iron hands.
In the instant case, for the accused persons, life of innocent persons has become a playful thing. They have been over dominated with the sole and single motto to rob people and particularly passers-by on the highway. Their planning for criminality and its execution have been ruthless. They have absolutely no value for human lives. Petty gain and belongings of victims, in their design, have a high pedestal than their lives. This kind of criminality has become a part of life-style of appellant-accused No. 4 [ENTITY]. His culpability in the crime is graviest and brutality is of the highest degree. Any leniency may risk the life of others. Taking these features into account, we find that life imprisonment as awarded could hardly cure him from the criminality which has become chronic in his way of life. Since life imprisonment, in our opinion, cannot render any reformative treatment to accused No. 4 [ENTITY], we feel that he is unfit to live in the society. We, therefore, award him capital punishment.
20. In the result, [CASE NUMBER] presented by original accused No. 4 [ENTITY] s/o [ENTITY] is hereby dismissed. The findings of conviction recorded by the Additional Sessions Judge, Chandrapur against him is hereby confirmed.
[CASE NUMBER] presented by State against original accused No. 4 [ENTITY] s/o [ENTITY] is hereby allowed. The sentence of life imprisonment as awarded by the Additional Sessions Judge, Chandrapur vide order dated 14-12-1988 against accused No. 4 [ENTITY] s/o [ENTITY] is hereby set aside. Instead, we award death sentence against accused No. 4 [ENTITY] s/o [ENTITY]. He be hanged till death. In view of death sentence, we do not award separate sentence for other offences for which the conviction is confirmed.
[CASE NUMBER] presented by original accused No. 2 [ENTITY] and original accused No. 3 [ENTITY] s/o [ENTITY] is already dismissed by order dated 4-2-1993.
[CASE NUMBER] presented by State against original accused No. 1 [ENTITY], original accused No. 2 [ENTITY] and original accused No. 3 [ENTITY] s/o [ENTITY] shall remain pending.
21. Order accordingly.