[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ------------------------------------------------------------------------------------------ (1) D.B. CRIMINAL MURDER REFERENCE No. 2/2007 STATE V/S LALARAM Mr. JPS Choudhary, P.P. Mr. Suresh Kumbhat for accused. (2) D.B. CRIMINAL JAIL APPEAL No. 835/2007 LALARAM V/S STATE Mr. Suresh Kumbhat for appellant. Mr. JPS Choudhary, P.P. (3) D.B. CRIMINAL APPEAL No. 838/2007 LALARAM V/S STATE Mr. Suresh Kumbhat for appellant. Mr. JPS Choudhary, P.P. (4) S.B. CRIMINAL APPEAL No. 772/2007 BHANARAM AND ANR. VS. STATE Mr. Shambhoo Singh for appellants. Mr. JPS Choudhary, P.P. Date of Judgment : 21.11.2008 HON'BLE SHRI AM KAPADIA,J. HON'BLE SHRI DEO NARAYAN THANVI,J. JUDGMENT BY THE COURT (PER HON'BLE MR.A.M.KAPADIA, J.): 1. D.B. Criminal Murder Reference No. 2 of 2007 pursuant to submission of the proceedings made under Section 366(1) of the Code of Criminal Procedure ('the Code' for short) alongwith two companion appeals being D.B. Criminal Jail Appeal No.835 of 2007 and D.B. Criminal Appeal No.838 of [2] 2007 filed under Sec.374(2) of the Code; one through jail authority and another through Advocate by appellant Lalaram (‘A-1’ for short), arise out of judgment and order dated 07.09.2007 rendered in Sessions Case No.56 of 2006 by the learned Addl. Sessions Judge (Fast Track) No.2, Pali, by which A-1 is convicted for offence of murder of five persons under Section 302 of the Indian Penal Code ('IPC' for short) as well as under Sec.201 and 380 IPC and sentenced to death and fine of Rs.100, in default of payment of fine further undergo rigorous imprisonment for one year for the offence under Sec. 302 IPC with a direction that A-1 should be hanged by neck till his death subject to confirmation by this Court; rigorous imprisonment for 7 years and fine of Rs.100, in default of payment of fine further undergo rigorous imprisonment for one year for the offence under Sec. 201 IPC; and rigorous imprisonment for 7 years and fine of Rs.100, in default of payment of fine further undergo rigorous imprisonment for one year for the offence under Sec. 380 IPC, further directing that all the sentences were ordered to run concurrently. S.B. Criminal Appeal No. 772 of 2007 has been filed under Section 374(2) of the Code against the same judgment and order by appellant No.1 Bhana Ram and appellant No.2 Budha Ram (A-2 & A-3 for short), who have [3] been convicted for the offence under Sec.411 IPC and both of them have been sentenced to simple imprisonment for three years and fine of Rs.500, in default of payment of fine further undergo rigorous imprisonment for six months for the said offence. 2. As the Criminal Murder Reference No. 2 of 2007, the two companion appeals D.B. Criminal Jail Appeal No.835 of 2007 and D.B. Criminal Appeal No.838 of 2007 as well as S.B. Criminal Appeal No. 772 of 2007 arise out of the same judgment and order, this Court proposes to hear the Reference for confirmation of sentence of death and the appeals preferred by all the accused together and to deal with the merits of the case against the accused in light of all the material questions of law as well as facts, and to adjudicate upon the guilt of the accused and appropriateness of sentence of death awarded to A-1 as well as three years simple imprisonment awarded to A-2 & A-3, by this common judgment. 3. The facts emerging from the record of the case, more particularly, as disclosed in FIR and unfolded during trial are as under: [4] 3.1 PW3 Mangu Khan Khokhar, Assistant Sub Inspector, SHO Rohit, made a report stating therein inter-alia that on 13.08.2006 at 7 PM one Dalpat Singh (PW1) informed him telephonically about one dead body floating in the Bhanwari Gavai pond (talab) of village Rohat and on receiving the said telephonic message, he reached at Bhanwari Talab and found a the dead body floating with mattresses and blanket. He, therefore, with the help of Dalla Ram and Bhima Ram got the dead body brought out of water, whose both the legs were tightened by rope and he was wearing Bushirt with strips on it, Sando Baniyan and Black pent. The clothes were stained with blood and the deceased was wearing, ‘Madaliya’ in neck, earrings, five rings in fingers and from the pocket of his pant in a plastic bag Rs.2300 alongwith identity cards of Bhimnath and his wife on which address of Pali was mentioned, visiting cards of an Advocate and others, and four slips of one mobile number etc. were found. There were injuries on his neck, mouth etc. The message was sent to SHO Kotwali Pali at 9:30 AM and then he himself reached at Bangur Hospital, Pali at 12:30 carrying with him dead body where he received message on wireless from the SHO, Pali that the house of Bhimnath was found at Plot No.23-24, Shastri Nagar, Karni Colony, Pali and blood was seen in the courtyard of the house. Then he making necessary arrangement at the hospital, [5] alongwith others reached at the house of Bhimnath and on checking found dead body of Bhanwarlal at the staircase. On breaking the lock of rightside first room, dead bodies of Smt. Chhoti Devi, her sons Kalu and Shiva with injuries on their persons found which were got photographed. At the spot one tractor and a motorcycle were found missing. It was suspected that some unknown person has murdered all the five and to temper with the evidence the dead body of Bhimnath was thrown in Bhakari Gavai Talab. 3.2 On this report CR No.357 of 2006 was registered at Police Station Kotwali, Pali for commission of offence under Sec. 302, 201, 380/404 IPC and investigation commenced. 3.3 During the course of investigation, inquest on all the five dead bodies was held in presence of Panchas and thereafter bodies were sent for autopsy. Muddamal motorcycle, tractor, Kulhari, pant, shirt, key and other articles recovered were sent to FSL for chemical analysis. Statements of Panch witness as well as other witnesses were recorded and A-1 was arrested on 14.08.2006 vide Ex.P/92. During the course of further investigation, it was divulged that A-1 gave Kandora to Bhana Ram (A-2) and Tanka and Nakaliya to Bhudha Ram (A-3) which belonged to Chhota Devi, therefore, [6] both the accused A-2 & A-3 were arrested on 20.08.2006 vide Ex.P/58 and P/57 respectively and on the information supplied by them those articles were recovered from them. Those articles were identified by PW33 Smt. Kamla Devi, cousin sister of deceased Bhimnath, therefore, both accused were also booked for the offence under Sec.411 IPC. 3.4 On completion of the investigation, as sufficient incriminating evidence was found against A-1 for committing murder of five persons, screening the offence as well theft for the offence under Sec.302, 201, 380 IPC and against A-2 and A-3 for the offence of receiving stolen property knowing it to be stolen, punishable under Sec.411 IPC, they were chargesheeted in the Court of learned CJM, Pali. 3.5 As the offence punishable under Section 302 of the IPC is exclusively triable by a Court of Sessions, the learned CJM, Pali committed the case to the Court of Sessions, Pali. 3.6, The learned Addl. Sessions Judge (Fast Track) No.2, Pali (‘trial Court’ for short), to whom the case was made over for trial, framed charge against A-1 for commission of the offences punishable under Sec. 302, 201 and 380/404 IPC. [7] and against accused A-2 & A-3 for the offence punishable under Sec.411 IPC and charges were read over and explained to them. As the accused pleaded not guilty to the charge and claimed to be tried, they were put to trial and tried by the learned Addl. Sessions Judge (Fast Track) No.2, Pali. 3.7 In order to bring home the charge levelled against the accused, the prosecution examined as many as 39 witnesses and relied upon their oral testimony, they are as under: (1) P.W.1, Dalpat Singh – Informant, Panch witness of the place of incident. (2) P.W.2, Sher Singh – Panch witness of the place incident and recovery. (3) P.W.3, Mangu Khan – Scribe of FIR. (4) P.W.4, Sukhiya – Deceased’s neighbour (5) P.W.5, Chunni Lal – Neighbour, Panch witness. (6) P.W.6, Nena Ram – Petrol pump employee. (7) P.W.7, Ramesh – Owner of grocery shop (8) P.W.8, Sanwal Ram - Panch witness of tractor recovery. (9) P.W.9, Chunni Lal - Panch witness of seizure of motor cycle. (10)P.W.10, Daya Ram – Saw the accused at petrol pump. (11)P.W.11, Bhaga Ram - Witnessed accused coming to [8] repair shop for getting the motorcycle repaired. (12)P.W.12, Jabbar Singh - Panch witness of seizure of tractor. (13)P.W.13, Sukhnath - Panch witness of the dead body. (14)P.W.14, Prahlad Sharma – Sales Manager, TATA Indica. (15)P.W.15, Bhanwaroo Khan (Constable) - Panch witness of arrest. (16)P.W.16, Peera Ram - Panch witness of the seizure of the Kulhari, mobile etc.. (17)P,.W.17, Bakal Das – Pujari. (18)P.W.18, Ameek Singh – Mechanic doing work of scooter and motorcycle repairing. (19)P.W.19, Parvat Singh – Panch witness of lock and key. (20)P.W.20, Vela Ram - Panch witness of the spot of dead body of deceased Bhimnath. (21)P.W.21, Babulal – witness in respect of accused asking for mortgaging ornament. (22)P.W.22, Dr. G.N. Arora – Medical Jurist. (23)P.W.23, Ashok Kumar – Seller of Motorcycle. (24)P.W.24, Dr. H.C. Jain – Medical Jurist. (25)P.W.25, Uda Ram – Seller of mobile to Bhimnath (26) P.W.26, Karan Pal Singh – Constable photographer. (27) P.W.27, Rajesh - Constable Photographer. [9] (28) P.W.28, Puka Ram – Constable who brought articles to FSL Jodhpur. (29) P.W.29, Yogendra Singh – Sand Contractor. (30) P.W.30, Sajjan Singh – Incharge Malkhana. (31) P.W.31, Kishan Lal – HLC, S.P. Office (32) P.W.32, Shanti – Sister of Bhimnath. (33) P.W.33, Kamla Devi – cousin sister of Bhimnath (34) P.W.34, Sanwar Mal Bairwa – Talking with deceased Bhimnath on his mobile phone. (35) P.W.35, Pita Ram Parihar – Advocate (36) P.W.36, Mohan Singh – Incharge, Police Station Kotwali, Pali. (37) P.W.37, Alka Gupta - Magitrate (38) P.W.37, Sanjay Gupta – Dy. S.P. (39) P.W.38, Kushal Singh – Dy. S.P. 3.8. To prove the culpability of the accused, the prosecution has also produced number of documents, like First Information Report, autopsy reports of five dead bodies, FSL Report, Panchnamas of recovery, discovery as well as scene of offence. And relied upon the contents of the same. 3.9 After recording of the evidence of the prosecution witnesses was over, the trial Court explained to the accused [10] the circumstances appearing against them in the evidence of the prosecution witnesses and recorded their further statements as required under Section 313 of the Code. In their further statements the accused denied the case of the prosecution by saying that they were falsely implicated in the case. However, they did not lead any evidence nor did they examine any witness in support of their defence. 3.10 On appreciation, evaluation, analysis and scrutiny of the evidence adduced by the prosecution, the trial Court held that deceased Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal died a homicidal death on receiving injuries inflicted by axe (Kulhari). Trial Court also held that on the basis of circumstantial evidence pitted by the prosecution, the prosecution has proved the complicity of A-1 for committing murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal. The trial Court has enumerated various circumstances appearing against the accused to prove his complicity in the murder of five persons. Trial Court has also held that the accused has caused disappearance of the evidence after committing the offence as well as committed theft of ornaments. In view of the above referred to conclusions, the trial Court held that the charge levelled against the A-1 for commission of offence under Section 302, 201 and 380 IPC [11] were fully established and as a result thereof the accused was held liable for those offences. 3.11 The trial Court thereafter heard A-1 on the question of sentence. According to the trial Court, the accused had committed brutal and diabolic murder of five persons and as he had committed heinous, gruesome and diabolic multiple murders in a shocking manner, awarding of extreme penalty of death was imperative and on the basis of the above conclusions arrived at by the trial Court. The trial Court imposed death sentence on A-1 for commission of murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal vide his judgment and order date 07.09.2007 rendered in Sessions Case No. 56 of 2007 which has given rise to D.B. Criminal Murder Reference No. 2 of 2007 as well as D.B. Criminal Jail Appeal No.835 of 2007 and D.B. Criminal Appeal No.838 of 2007 filed by A-1. 3.12 In the said judgment, the trial Court has also held that after committing the murder and theft of ornaments, the stolen articles were sold to A-2 & A-3, who received the articles knowing them to be stolen articles, therefore, A-2 & A-3 also committed offence under Sec.411 of the IPC and holding them guilty for the offence under Sec.411 IPC each of them has [12] been sentenced to simple imprisonment for three years and fine of Rs.500, in default of payment of fine further undergo imprisonment for six months for the said offence, which has given rise to S.B. Criminal Appeal No. 772 of 2007. 4. Mr. Suresh Kumbhat, learned counsel for the A-1, submitted that there is no eye witness to the incident of murder of five persons by A-1, and, therefore, the prosecution case entirely rests on the circumstantial evidence. According to him, the circumstances pitted by the prosecution against A-1 are not forming full chain and there are gaps and hence they cannot be made basis for conviction. It is also emphasized by him that the evidence tendered by the prosecution is not sufficient to prove unerringly that A-1 was responsible for the alleged offences. So far as the circumstance that A-1 was serving with deceased Bhimnath is concerned, learned counsel contended that there is no clinching evidence on record to show that the accused was lastly serving with the deceased. It is also emphasized by him that the clothes put on by the accused were blood stained have also not been proved by the prosecution and so far recovery of the articles are concerned, prosecution has not proved recovery of those articles beyond reasonable doubt. [13] 4.1 On the aforesaid premises, according to him, a doubt is raised in the prosecution case and hence conviction of the accused for the offence punishable under Section 302, 201 and 380 of the IPC for murdering Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal as well as disappearance of evidence and theft is not well-founded and the same deserves to be set aside. He has also pointed out that the trial Court has failed to appreciate the evidence in its true perspective and spirit which has resulted in reaching to a wrong conclusion. 4.2 In the alternative, he has submitted that the trial Court was not justified in relying upon the judgments of Supreme Court for the purpose of imposing death sentence on the accused inasmuch as facts of those cases were quite different from the facts obtaining in instant case. After placing reliance on the decision of the Supreme Court in Panchhi and Ors. v. State of UP, (1998) 7 SCC 177, he has contended that brutality of the manner in which a murder is perpetrated may be a ground, but not the sole criterion for judging whether the case is one of the 'rarest of rare cases' as indicated in Bachan Singh v. State of Punjab, AIR 1980 SC 898, and as the trial Court has taken into consideration only brutality of the manner in which the murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal was committed, but, has failed to take into [14] consideration mitigating features surrounding murder of the deceased persons, the death sentence imposed on the accused deserves to be commuted to life imprisonment. 4.3 Mr. Kumbhat has also pointed out that when the Court records conviction on the basis of the circumstantial evidence, it should be slow in imposing death sentence on the accused. 4.4 On the aforesaid premise, it is prayed that Criminal Confirmation Case No. 2 of 2007 should be dismissed and the Criminal Appeal No. 772 of 2007 filed by A-1 may be allowed and A-1 may be acquitted of the offences with which he was charged. 5. Mr. JPS Choudhary, learned PP for the State, has vehemently opposed the contentions advanced by Mr. Suresh Kumbhat, learned counsel for the accused. According to him, it is true that there is no eye witness to the incident and, therefore, the case against A-1 is proved on circumstances pitted by the prosecution against him. In this connection, the prosecution has adduced oral as well as documentary evidence by which the circumstances pitted by the prosecution have been amply proved and there is no iota of doubt in the prosecution case. It is also emphasized by him that the circumstances pitted [15] against A-1 by the prosecution to prove complicity of the accused in commission of the offence are cogently and firmly established by the prosecution and the circumstances established by the evidence of witnesses are of sterling quality and unerringly point towards guilt of A-1 and if all the circumstances taken cumulatively they are forming a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by A-1 and none else. Mr. Choudhary has further contended that by adducing and producing evidence of sterling quality, the whole inexplicable tangle of the case has been completely untangled before the Court and the trial Court has correctly appreciated the evidence on record and reached to the most appropriate conclusions. According to him, the impugned judgment and order convicting and sentencing A-1 for the offence punishable under Section 302 of the IPC does not call for interference of this Court in exercise of powers under section 374(2) of the Code. 5.1 In respect of imposition of death sentence upon A-1, Mr. Choudhary, learned PP, has submitted that the way in which the ghastly, diabolic and dastardly murder of five innocent persons has been committed by A-1, no sympathy can be shown to him and this can be called a rarest of rare cases. [16] 5.2 Mr. Choudhary while dealing with the alternative plea raised by Mr. Kumbhat, learned counsel for the accused, that death sentence should be commuted to life imprisonment as brutality of the manner in which the murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal was committed is not the sole criterion for judging whether the case falls within the category of rarest of rare cases, has submitted that the accused has committed ghastly and gruesome murder of five hapless and helpless persons without any rhyme or reason and, therefore, death sentence imposed on A-1 on the basis of the principle laid down in the decisions which are discussed by the trial Court may be upheld by this Court. According to him, the mitigating and/or aggravating features surrounding murder of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal have been taken into consideration by the trial Court and having regard to the manner in which the five persons were murdered, death sentence imposed on him should be confirmed by this Court. 5.3 In the alternative, Mr. Choudhary has further submitted that if this Court comes to the conclusion that this is not a rarest of rare case and accused shall not be entitled to any commutation or premature release under the Code, Prisoners [17] Act, Jail Manual or any other statute and the rules made for the purposes of grant of commutation and remissions, and shall spend his entire life in the prison, in view of demoniacal manner in which murder of five innocent persons was committed by A-1. 5.4 Lastly, it is submitted by Mr. Choudhary, learned PP that no case is made out by the accused for commutation of death sentence to life imprisonment and, therefore, the appeal should be dismissed and the Confirmation Case should be allowed. 6. Mr. Shambhoo Singh, learned counsel for accused A-2 & A-3 submitted that both the accused are convicted for the offence under Sec.411 IPC and have been sentenced to suffer simple imprisonment for three years and fine of Rs.500, in default of payment of fine further undergo rigorous imprisonment for six months for the said offence. He does not challenge the order of conviction on merits, however, he submitted that so far as sentence of three years is concerned, the same is harsh and disproportionate to the guilt of both the accused. According to him, the articles which were recovered from them were not much valuable and infact they were not knowing that those articles were stolen by A-1. Therefore, so far as imposition of [18] sentence is concerned, leniency may be shown upon to both of them by imposing the sentence undergone by them, which is more than 3 months. He, therefore, urged to allow the appeal of accused A-2 and A-3 qua sentence by reducing the sentence to the period undergone by them. He therefore, urged to pass appropriate order in this regard. 7. In reply to the submission made by Mr. Shambhoo Singh, Mr. JPS Choudhary, learned PP contended that both the accused A-2 & A-3 have committed offence under Sec.411 IPC by receiving stolen property knowing them to be stolen which was looted by A-1 after committing diabolic murder of five persons, therefore, no leniency may be shown upon A-2 and A-3 so far as imposition of sentence is concerned. He, therefore, urged to dismiss S.B. Criminal Appeal No. 772 of 2007 filed by A-2 and A-3. 8. This Court has considered the submissions advanced by Mr. Suresh Kumbhat, learned counsel for A-1 as well as learned counsel Mr. Shambhoo Singh for accused A-2 and A-3 and Mr. JPS Choudhary, learned PP for the State at length and in great detail. This Court has undertaken a complete and comprehensive appreciation of all vital features of the case and the entire evidence on record which is read and reread by [19] the learned advocates for the parties with reference to broad and reasonable probabilities of the case. In light of caution sounded by the Supreme Court while dealing with confirmation cases, this court has examined the entire evidence on record for itself independently of trial Court and examined arguments advanced on behalf of the accused and infirmities pressed, scrupulously with a view to find out as to whether it was A-1 and none else who has committed the murder of five persons. We have also carefully considered the judgments cited at the bar by the learned advocates for the parties. 9. So far as homicidal death of deceased Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal is concerned, no dispute is raised by the learned counsel for the accused before this Court. However, since this is a case of multiple murders and A-1 is sentenced to death, we have independently examined the evidence on record with regard to the homicidal death of Bhimnath, Chhoti Devi, Kalu, Shiva and Bhanwarlal. 10.To prove that the deceased persons have died a homicidal death, the prosecution has examined and relied upon the oral testimony of PW22 Dr. G.N. Arora, who has performed the postmortem on four bodies and also upon the oral testimony of PW24 Dr. H.C. Jain who has performed autopsy on the dead [20] body of Chhoti Devi. After examination, they issued Postmortem reports, which is on record of the case as Exs.P/71 to P/74. On conjoint reading of oral testimony of both the doctors and the Postmortem Reports Exs.P/71 to P/74, there is no manner of doubt that the deceased persons after receiving injuries on account of profuse bleeding ultimately died. Therefore, homicidal death of five persons has been duly proved by the prosecution beyond doubt. 11.This brings the Court