HIGH COURT OF CHHATTISGARH AT BILASPUR Coram : Hon’ble Shri T.P.Sharma and Hon’ble Shri Rajeshwar Lal Jhanwar, JJ. Criminal Reference No.1 of. 2008 Petitioner In the matter of Staie of Chhattisgarh Versus Respondents 1. Sonu Sardar, S/o Shri Gyani Singh Vishkarma, aged about 23 years,- 2. Ajay Singh @ Fotu, S/o Shri Gyani Singh Vishwakarma, aged about 21 years, Student. Both R/o Sanjay Nagar, Amlai, Shahdol (M-P.) RIMINAL REFERENCE FOR CONFIRMATION OF DEATH SENTENCE UNDER SECTION 366 OF THE CODE OF CRIMINAL PROCEDURE Criminal Appeal No. 240 of 2008 Appellant (in iain 1. Sonu Sardar, S/o Shri Gyani Singh Vishkarma, aged about 23 years, R/o Sanjay Nagar, Amlai, Shahdol (M.P.) 2‘ Ajay Singh @ Fotu, S/o Shri Gyani Singh Vishkarma, aged about 21 years, R/o Sanjay Nagar, Amlai, Shahdol (M.P.) Versus State of Chhattisgarh, Baikunthpur, Koriya. APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL ’ PROCEDURE Respondent through P.S. Criminal Appeal No. 532 of 2008 Appellant (in jail) Chhoti Bai, Wife of Late Shri Tanaji Kekadi, aged about 48 years. Occupation Selling of Pots (Chini Mitti), Resident of Sonamani, ’14 Block, Chirmiri, Police Station Chirmiri, District Koriya (C.G.) Versus Respondent State of Chhattisgarh, Through : The Police Station, Baikunthpur, District Koriya (C.G.) CRIMINAL APPEAL UNDER SECTION 374 (2) OF THE CODE OF CRIMINAL PROCEDURE, 1973 C Present : Dr. Shailesh Ahuja and Smt. Anju Ahuja, c0unsel for the appellants in Cr‘A.N0.240/2008 Shri P. P, Sahu, counsel forthe appellant in Cr.A. No.532/2008 Shri Ashish Shukla, Addl. Public Prosecutor] G.A. forthe State/respondent in Cr.Ref.No.01/2008 and in Cr.A.240/2008 & Cr.A.N0.532/2008. JUDGMENT (Passedon 8‘ March,2010) The following Judgment ofthe Court was delivered by T.P.Sharma, J. Reference for confirmation of death submitted by Sessions Judge, Baikunthpur, Dist. Korea in Criminal Reference No. 1 / 2008, Criminal Appeal No. 240/2008 filed on behalf of appellant Sonu Sardar and A; Singh @ Fotu against their conviction and sentence under Section 396 o. the l.P.C. and Criminal Appeal No. 532/2008 filed on behalf of Chhoti Bai against her conviction and sentence under Section 412 l.P.C. arising out of Sessions Trial No. 6 / 2006 vide common judgment dated 27.02.2008 are being disposed of by this common judgment 2. Sessions Judge, Baikunthpur, Dist. Korea has submitted reference under Section 366 of the Code of Criminal Procedure (for short ‘the Code’) for confirmation of death sentence passed in Sessions Trial No. 6 / 2006 against the appellants — Sonu Sardar, Ajay Singh @ Fotu for commission of murder of 5 persons while committing the dacoity punishable under Section 396 l.P.C. p 3. The appellants — Sonu Sardar and Ajay Singh @ Fotu hat/e preferred an appeal under Section 374 (2) of the Code against their conviction and sentence under Section 396 of the l.P.C. on the ground that without any clinching, credible and reliable evidence and in absence of rarest of rare case for imposing capital punishment, the Court below has sentenced the appellants by imposing capital punishment and thereby committed illegality. 4. The appellant — Chhoti Bai has preferred another appeal against her conviction and sentence under Section 412tofthe l.P.C. on the ground that without any iota of evidence against her for commission of the . aforesaid offence, the Court below has convicted and sentenced this appellant as aforesaid and thereby committed illegality. 5. Vide judgment of conviction and order of sentence dated 18.02.2008 in Sessions Trial N0. 6/2006 (old S.T‘No.78/2005), the learned Sessions Judge, Baikunthpur, Dist. Koriya has, after holding the appellants — Sonu Sardar and Ajay Singh @ Fotu guilty under Section 396 of the l.P.C. for the commission of murder of 5 persons namely Shamim Akhtar, Ali Asgar, Ruksana Bibi, Yakub and Ku. Rana during the course of commission of dacoity and considering the case of rarest of rare. imposed the capital punishment i.e. death penalty against them. The learned Sessions Judge has also convicted the appellant -— Chhoti Bai under Section 412 of the l.P.C. for intentionally and knowingly receiving the property of dacoity and sentenced her to rigorous imprisonment of 7 years and fine of Rs.2,000/— in default to further undergo R.l. for 6 months. 6. Brief case of the prosecution is that on fateful day of 26.1 1.2004, the deceased Shamim Akhtar, a scrap dealer and resident of village Cher, Dist. Baikunthpur had gone to Raipur for selling scrap and after selling the scrap for Rs.1,60,000/- to P.W.30 Sanjay Kumar Khaitan and after receiving additional amount of Rs.10,000/- he came to his house with total amount of Rs.1,70,000/—. Ruksana Bibi (since deceased), wife of the deceased Shamim Akhtar, kept the money in different places in her house for depositing the same in the Bank on second day. At about 6.00 p.m. on 26.11.2004 the appellants — Sonu Sardar and Ajay Singh @ Fotu along with other three persons came with scrap to the shop of deceased Shamim Akhtar and after selling the scrap for an amount of rs.480/-, they returned. On the same date, after an hour at about 7.00 p.m. while house of deceased Shamim Akhtar was closed from inside, the appellants ~ Sonu Sardar and Ajay Singh @ Fotu along with 3 other persons knocked the door. At that time, the deceased Shamim Akhtar, his driver Asgar Ali, wife Ruksana Bibi, son — Yakub and daughter — Ku. Rana (since deceased), another daughter P.W.1 Ku.Shabnam Khatun, younger son and daughter - Yakut and Asana were present inside the house. They opened the door, the appellants — Sonu Sardar and Ajay Singh @ Fotu and other three persons discussed with Shamim Akhtar. Thereafter, out of 5 persons, one person bolted the door from inside and two persons caught hold of driver Asgar Ali and one person caught hold of Shamim Akhtar and pointed knife over their neck. They threatened Shamim Akhtar and compelled to give money which he was having in his pocket. P‘W.1 Shabana Khatun, who was present at the time of incident, tried to combat them but they also tried to assault her whereupon she somehow escaped from their clutches through back door and straightaway went to the house of Ramlal, one kilometer away from the place of incident. Taking the advantage that the house of Shamim Akhtar is situated far away from the residential areas, the appellants committed the dacoity of the goods kept inside the house and brutally killed Shamim Akhtar, his driver Asgar Ali, wife Ruksana Bibi, son — Yakub and daughter — Ku. Rana and caused injuries to younger son and daughter - Yakut and Asana and afxt commission of the offence while fleeing from the spot they focused the light upon the house of Ramlal by torch. 7. At about 4.00 A.M. .W.1 Ku. Shabana and wife of-P.W.2 Ramlal went on to the house of Shamim Akhtar. Yakut and Asana opened the door, they went inside and found the dead bodies of aforesaid 5 persons and the articles kept in the house were found in disturbed position. Shabana immediately came back and went on to her uncle P.W‘13 Nasim Akhtar and narrated the incident. P.W.3 Nasim 'Akhtar and other persons immediately went on to the spot and saw the dead bodies in injured condition and injured Yakut and Asana. Immediately, the matter was“ reported to the police, who came and recorded Dehati Nalishi vide EXP 3 and Dehati merg of the deceased persons was recorded vide Ex.P.yto P.8 and on the basis of Dehati Nalishi and Dehati merg, F.l.R. vide Ex.P.30 was lodged and merg of aforesaid persons vide Ex.P.31, 32, 33, 34 and 35 was also lodged. After summoning the witnesses vide Ex.P.9 & P.18, inquest over the dead bodies of Shamim Akhtar, Asgar Ali, Ruksana Bibi, Yakub and Ku. Rana was prepared vide Ex.P.10 to Ex.P.14. Spot map was prepared vide Ex.P.15. Dead bodies were sent for autopsy to Community Health Center, Baikunthpur. Autopsy of the dead body of Shamim Akhtar was conducted vide Ex.P.44 by the team of Dr. Ashok Kumar P.W.36 and Dr. Ashish Karan, who found the following injuries: i) lncised wound over anterior surface of middle part of the P neck transverse in direction, size 2 1/2" x 2" ii) Incised wound over trachea beiow the glotis. iii) incised wound over right side of sterno-mastoid muscie. Major blood vessels and anotid artery were found cut. iv) Lacerated wound over left temporal and parietal bone region size 4 1/2” x 2". v) Multiple fractures of temporal and parietal bone were found. vi) Brain materialpame out from lacerated wound side. vii) One abrasion over right abdomen near the umbilicus region of 5" x 1 2" Mode of death was shock as a result of injuries over the neck. Death was homicidal in nature. Likewise, autopsy of the dead body of Asgar Ali was conducted vide Ex.P.45 by them and found the following injuries: i) Lacerated wound over left side of the head of 7" x 3". ii) Multiple fractures underlining the left temporal, parietal and occipital bone. Brain material came out through wound. Presence of extradural and intradural hemorrhage was found. iii) incised wound over left side of lateral surface of arm of 1" x W Mode of death was shock as a result of multiple head injuries. Death was homicidal in nature. The team of Doctors has also conducted the autopsy of the dead body of Ruksana Bibi vide Ex.P.‘46 and found the foliowing injuries: i) Multiple stab wounds over anterior surface, right iateral and left lateral surface of middle part of neck, 8 in number of 1" x 1/2" x2" depth. ii) One stab wound on right carotid blood vessel dividing blood vessel in two parts. The injury was through and through. iii) One stab wound was found over trachea and glottis in two sides. One incised wound was found over left carotid artery. v) One incised wound of 2".x ‘/2" over left flexer surface of left Wrist region. vi) One abrasion of 2" x 1/2" over right cheek. Mode of death was shock as a result of multiple stab wounds over neck. Death was homicidal in nature. Iso conducted autopsy of the dead body'of Yakub Similarly, they have a vide Ex.P.47 and found the foHow'mg in§uries: incised wound in front part of 3" x 2” x 1" middle part of the neck, slight oblique in direction. i) One incised wound over trachea and glotis, trachea was found cuti ii) One iii) lncised muscles, wound right side over of major righ blood vessels, carotid vesse were found cut. Mode of death was shock as a result of fatal injury found over the trachea. Death was homicidal in nature. Upon conduction of autopsy over the dead body of Ku. Ran 6 years, they found the following injuries vide Ex.P.‘48: i) Oneiincised wound of 3" x 2" x 2" middle part slight oblique in direction. ii) lncised wound over right side sterno-cledomastoi iii) Trachea and glotis were found cut. iv) Major carotid blood vessels of the neck was also found cut. Mode of death was shock as a result of fatal iniuries over trach and right side of major blood vessels. Death was homicidal nature. n of the offence all the 5 persons fled from the spot to Bilaspur. Blood stained and plain soils were recovered from the spot near the dead bodies vide Ex.P.19 to Ex.P.23. The appellants — Sardar and Ajay @ Fotu along with other accused persons incl accused Tukaram, called appellant — Chhoti 8. After commissio Sonu udin‘g. Bai, mother of TukaramKat ,n Bilaspur and gave her an amount of Rs.25,00 and while she was going back from B d from her vide Ex.P.26. Sealed cloths after autopsy of the deceased persons was seized vide Ex.P.27. The house of the deceased of silver, 27 grams of gold and cash amount of Rs.65,760/- Panchnama thereof was prepared vide OI-, the property of datgt’ftty ilaspur to her residence at Sonamani the police at Khadgawan and an amount — Chirmiri, she Was searched by of Rs.25,710/— was seize persons was searched and panchanama was prepare Ex.P.28. Upon search of house of deceased Shamim Akhtar, orna of 195 grams were found in different rooms. Ex.P.ZQ. t side of sterno—cledomastoid ls a, aged about over front part of the neck‘ d muscles. ea in d vide ments 10‘ Seized articles were sent for chemical examination to Foren§ic Science Laboratory, Raipur. Axe atong with broken handle and broken handle were compared by the Expert of F.S.L. vide Ex.P.55 and found that broken handle and handle attached to the axe was part and parcel of the same handle. Seized articles were sent for chemical examination Ex.P.GO. Presence of blood oi/er cloths of appellant — Sonu Sardar, axe, iron rod, knife and broken handle of axe recovered from the appellants was found vide F.S.L. report Ex.P.61. Those seized articles were also sent for further examination to Serologist and presence of human blood over T. shirt and turban (Pagdi) of appellant — Sonu Sardar, knife recovered at the instance of appellant — Ajay Singh @ Fotu was confirmed ) vide Ex.P.56 but the origin of blood was not determined on the axe, handle, iron rod o’n the ground that blood was disgrutntled. Photograpk of iron rod and axe were taken during the course of investigation and were exhibited as articles B—1 to B—4. ldentification parade of the appellants was conducted vide Ex.P.1 in which Ku. Shabana Khatun P.W.1 had identified the appellants as Sonu Sardar and Ajay Singh @ Fotu on the basis of their previous transaction and frequent presence in her scrap shop. 11, Statements of witnesses were recorded under Section 161 of the Code, After completion of investigation, charge sheet was filed before the Court of Chief Judicial Magistrate, Koriya who in turn committed the case \e to the Court of Sessions, Koriya. 12. in order to prove the guilt of the present appellants, the prosecuSen has examined as many as 38 witnesses. The present accused / appellants were examined under Section 313 of the Code in which they denied all the circumstances appearing against them and claimed their innocence and false implication. 13. Appellant a Sonu Sardar have taken defence that they used to sell kitchen articles i.e. filters and pitchers in their trolleys. Police had asked them that whether they have entered Musafari and on their refusal, the police arrested them and after taking signatures on some papers, falsely implicated them in the present case. Appellant Ajay Singh has atso taken the defence that he is residing with his elder brother’s (Sonu Sardar) in« or laws’ house situate at Domantola, Chirmiri along with his yaunger brother and his elder brother used to sell kitchen articles at Baikunthpur. At that time, police personnel came, asked him and his younger brother and caused serious injuries to his younger brother and then faisely implicated him, Appellant -— Chhoti Bai has taken defence that she was in possession of Rs‘10,000/— received as a result of death claim of her husband and Rs.15,000/- is her own income. The police took her to P.S. Khadgawan and put her under compulsion to admit that the money, which she was having, of looted in dacoity and then only the police will release her. 14. After appreciating the evidence available on record, learned Sessions Judge convicted the appellants — Sonu Sardar and Ajya Singh @ Fotu under Section 396 of the l.P.C. for the commission of murder of 5 persons while committing the offence of dacoity and considering the case to be rarest of the rare case imposed the capital punishment of death and also convicted appellant — Chhoti Bai under Section 412 of the l.P.C. and sentenced her to rigorous imprisonment for 7 years and fine of Rs.2000/— in default to further undergo RJ. for six months. 15. Dr. Shailesh Ahuja with Smt. Anju Ahuja, learned counsel for the appellants — Sonu Sardar and Ajay Singh, Shri P.P.Sahu, learned counsel for the appellant -Chhoti Bai and Shri Ashish Shukla, Assistant Public é Prosecutor / Government Advocate are heard at length. Judgment impugned and records of the lower court perused. 16f Learned counsel for the appellants vehemently argued that present case is based on the circumstantial evidence and evidence of Ku. Shabana Khatun P.W.1, who is relative and highly interested witness. Her evidence does not inspire confidence, trustworthy and is not safe to rely. lt was submitted that at the time of examination she was only aged 1O years. Her evidence clearly revealed that she is completely tutored witness. Appellant — Sonu Sardar was not unknown to her. She did not state her uncle Nasim Akhtar P.W.3. at the time of alleged report, the name of Sonu Sardar as an assailant and even she did not know the duty to speak truth. lt was further submitted that at the time of test identification, only one turbaned person i.e. appellant — Sonu Sardar was put into identification parade and identification of Sonu Sardar was ’not even impossible for any stranger, therefore, the test identification is not in accordance with law and is against the natural justice. According to the statement of Shabana Khatun P.W.1, assailants had caused serious injuries to her father Shamim Akhtar, driver Asgar Ali and there was endangering to life of all the persons present in the house but instead of taking help of Ramlal P.W.2 to save her father — Shamim Akhtar and mother — Ruksana Bibi, brother and sister — Yakub and Ku‘ Rana, she herself has stopped him for visiting the place of incident which shows her unnatural conduct. Relating to other circumstances as to the appellants, it was contended that the appellants have not made any confessional statement leading to the discovery of the weapons of offence which were recovered from‘the open place. Her evidence also reveals that thke present appellant have not taken even single pie despite that they were made culprits for commission of dacoity and murder which is not natural. Out of 7 persons, accused persons have killed 5 persons leaving two children namely Yakut and Aasna, which is also unnatural. It was also submitted that the evidence adduced by the prosecution reveals that after the incident house of the deceased persons was searched out and upon search gold, silver ornaments and amount of Rs.65,760/- were found in the house which shows that the appellants have not committed the dacoity. At the time.of commission of the offence, appellant — Ajay Singh @ Fotu was below the age of 18 years, therefore, the conviction and\ sentence imposed upon him is not sustainable under law. His case is required to be tried and decided by the Juvenile Justice Board. Age ofg’he appellant - Sonu Sardar is 23 years and is young and poor labourer, who has not committed the murder and dacoity. The prosecution has not adduced evidence to show that the appellant — Sonu Sardar has committed murder and dacoity. According to the prosecution, 5 persons have committed the said offence and three persons are still at large and in the absence of three persons and their role attributed, sole liability cannot be fastened against the appellant Sonu Sardar. This is not the case of rarest of rate for imposing death penalty to youth appellant aged about 23 years. 11 17. Learned counsel for the appellants — Sonu Sardar and Ajay Singh @ Fotu placed reliance in the matter of Pradeep Kumar v. State of U.P.1 in which the Apex Coutt has held that sending a Juvenile below 16 years to jail, after offence committed by him, is contrary to the provisions of the U.P. Children Act. They also placed reliance in the matter of Umesh Singh and another, etc., v. State of Biharz wherein the Supreme Court has held that offence committed by the Juvenile and conduction of the trial upon a Juvenile along with other accused is illegal and in such case the Supreme Court has confirmed the conviction and set aside the sentence imposed upon them. Reliance in the matter of Bhola Bhagat v. State of Bihar3 was also placed in which the Supreme Court has held that if the plea of accused/juvenile that he was a child at the time of commission offence, the Courts are required to discharge its duty to examine and hold enquiry if necessary to determine the age of the accused/juvenile. Learned counsel placed further reliance in the matter of Gopinath Ghosh v. The State of West Bengal" in which the Apex Court has held that in case of conviction to juvenile by the Court other than Juvenile Justice Board, the conviction and sentence of the juvenile is not sustainable under law. Counsel for the appellants also placed reliance in the matter of Gurpreet Singh v. State of Punjab5 in which the Supreme Court has requisitioned the report relating to the age of the appellant even in S.L.P. Learned counsel for the appellants placed reliance in the matter of Perumal & anr. v. State5 wherein it was held that the trial and conviction of the juvenile by the regular Court is not sustainable under law. 18. Learned counsel for the appellants have also placed reliance in the matter of Harinath and another etc., v. State of U.P.7 wherein it was held by the Supreme Court that failure to state identity of the accused/appellant in F.l.R. raises reasonable doubt about the complicity of the accused in crime. They further placed reliance in the matter of Orsu Venkat Rao v. State of A_P.a in which the Supreme Court held that evidence of child ‘AIR 1994 SC m4 3 2A1R2000 sc 21 n 4 AIR 1998 so 236 5 AIR 1984 SC 237 6 (2005) 12 SCC 615 1989 (3) Crimes 506 7 AIR 1988 SC 345 s (2004) 13 SCC 243 witnesses if found against the natural course of conduct and probabilities, then their evidence does not inspire confidence and was not safe to act upon. Re\iance in the matter of State of Rajasthan v. Khumaa was placed in which the Apex Court has held that in case of circumstantial evidence, circumstances should be of such conclusive nature as to exclude every possibility except the accused being guilty of charged offence. Further in the matter of State of Haryana v. Jagbir Singh & Anr.” was placed wherein it has been held by the Supreme Court that in case of circumstantial evidence in order to sustain conviction, circumstances must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent withhis innocence. 19. They have also relied on Kishore Chand v. State of Himachal Pradesh“ in which the Apex Court has held that in absence of direct evidence based on circumstantial evidence, the circumstances relied on must be fully established. Reliance was also placed in the matter of Jagdish Yadav v.'State of Bihar” in which observing that findings of the trial Court that the appellant was leader of the dacoits not supported by ‘I \ the evidence on record held that differentiating the case of the appellant from that of other accused is not permissible and the case should not be fatlen under the category of rarest of the rare for imposing death penalty. /lt was also relied upon by them in the matter of Anshad and others w V State of Karnataka“ wherein it was held by the Apex Court that in case of death penalty, the Court is required to consider the factors balancitée of aggravating and mitigating circumstances and aiso to consider all circumstances to‘be adduced by the prosecution. Learned counsel also placed reliance in the matter of Sarwan Singh Rattan Singh v. State of Punjab” in which it was held that as a whole the prosecution story may be true; but between “may be true" and “must be true" there is inevitably a tong distance to travel and whole of this distance must be covered by ”M 9 2004 (i0) 33R t4 "’ 2004 (1) ANJ (so)