Reserved

AFR

Criminal Appeal No. 4978 of 2002

Govind Das @ Gudda ………………………………….Appellant

Versus

State of U.P…...……………………………………………..Respondent

Connected with

Criminal Appeal No.5234 of 2002

Jai Kishan....... .....................................................Appellant

Versus

State of U.P. ......................................................Respondent

Connected with

Reference No.8 of 2002.

Hon'ble Vinod Prasad, J.

Hon'ble Surendra Singh, J.

(Delivered by Hon'ble Vinod Prasad, J.)

The two appellants, Govind Das @ Gudda A-1 and his son Jai

Kishan A-2 have preferred these two connected appeals being

aggrieved by the judgement and order dated 16.11.2002 passed by

Additional Session's Judge, court no.2, Hamirpur in S.T. No.44 of

1997, State Vs. Govind @ Gudda and others, convicting both the

appellants under Section 302/34 IPC for committing murder of two

sibling brothers Loknath @ Lukkhi and Naval Kishore both sons of

informant Mannu, P.W.1 and Shail Kumari, P.W.2. For the murder of

Loknath @ Lukkhi, both the appellants have been sentenced to

imprisonment for life with Rs. 20,000/- fine on each of them with

further direction that in case the fine is realised, half of the amount

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2

out of it shall be paid as compensation to the daughter of Loknath @

Lukkhi deceased. For the murder of Naval Kishore appellant Govind

Das @ Gudda A-1 has been sentenced to death whereas appellant Jai

Kishan has been acquitted of the said charge. It is noted here that

there was a third accused Sushila, daughter of the appellant Govind

Das @ Gudda A-1, who was also tried along with the appellants but

was acquitted by the impugned judgement and order of both the

charges. Since Govind Das @ Gudda A-1, has been sentenced to

death, learned trial Judge has sent Reference No.8 to this Court, vide

his order dated 16.11.2002, for confirmation of his capital

punishment.

Before entering into the merits of the appeal, a brief resume of

prosecution allegations, as was sketched in the written FIR, Ext. Ka-

1, on the basis of which Chik FIR, Ext. Ka-5 was prepared and as was

deposed in the trial by the two fact witnesses, informant Mannu

P.W.1 and eyewitness Shail Kumari P.W.2, were that the informant is

a resident of village Alra, P.S. Muskara, district Hamirpur along with

his wife P.W.2 and younger son Naval Kishore (deceased no.2). Rest

of his family abode in village Natarra, P.S. Charkhari, district Mahoba

the village of informant's in-laws. For agricultural activities,

informant, his wife and deceased Naval Kishore often used to visit

village Alra and do the agriculture activities. Eight days prior to the

present incident of double murder both the accused appellants had

erected a terracotta boundary wall on the back side of informant's

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house in village Alra with the idea to grab his open land.

Loknath @ Lukkhi first deceased and son of informant was

married to one Pushpa Devi, who was in her family way and was to

give birth to the child in near future and because she required

nursing and precaution, Loknath @ Lukkhi, deceased no.1, had come

to village Alra take her mother for caring his wife on 11.8.96. In the

morning at 6 or 7 a.m. P.W.2 Shail Kumari informed Loknath @

Lukkhi, deceased no.1, regarding erection of the terracotta mud

boundary by the appellants and because of that same day in the

afternoon there was triadic verbal altercation in between the

appellants and deceased no.1. Same day in the evening deceased

no.1 was accompanying his mother to his resident village Natarra and

when they reached Nahariya canal in Gahrauli hamlet in front of the

field of Ram Gopal Lodhi and Ram Das, they were approached by the

appellants, out of whom A-1 was armed with an axe and A-2 was

armed with an spear. Spotting them and sensing danger deceased

no.1 Loknath @ Lukkhi sprinted and crossed over Nahariya canal but

was chased and surrounded in the field of Devki Nandan where both

the appellants assaulted Loknath @ Lukkhi, to death by their

respective weapons. P.W.2 witnessed the annihilation of his son and

she returned back to his house where she narrated the murder to the

informant Mannu P.W.1, who thereafter accompanied with P.W.2 and

Naval Kishore, deceased no.2, proceeded for the spot of the murder.

As soon as they reached near the pond outside the village, they

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came in contact with the appellants, who chased them for being

annihilated and ultimately, Naval Kishore, an adolescent boy aged

about 11 or 12 years, was also murdered by them and thereafter,

accused murderers retreated from the incident scene. Informant left

his wife P.W.2 near the corpse of his younger son Naval Kishore,

deceased no.2, got his FIR, Ext. Ka-1 scribed in front of Badri's Shop

in village Muskara and then measured a distance of 9 kilometres west

to the police station Muskara and lodged his FIR at 11.30 p.m. the

same day about the double murder, which was registered as Crime

No.231 of 1996 under Section 302 IPC against the appellants.

Constable Ghanshyam Sharma P.W.5 registered the crime,

prepared Chik FIR Ext. Ka-5 and relevant GD entry no.26, Ext. Ka-6.

Investigation into the crime was commenced by S.O. V.K. Singh, the

same day, who was present at the police station when the FIR was

registered. First of all, I.O. P.W.6 copied Chik FIR and GD entry and

thereafter in a government jeep along with informant, constable and

inquest papers proceeded for the spot after recording statement of

P.W.5 at PS itself. At the spot I.O. inspected both the corpses but

because of ensued night could not conduct the inquest on both the

cadavers and therefore, I.O. stayed in the village in the premises of a

primary school.

At dawn first of all, I.O. P.W.6 conducted inquest on the

cadaver of Naval Kishore and thereafter sealed the dead body and

handed it over to Constables Narayan Singh and Ram Singh for

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carrying it to the mortuary for autopsy. P.W.6 has proved the inquest

report as Ext. Ka.7 and other relevant papers of challan lash and

photo lash as Ext. Ka-9. He has also prepared and proved the letter

addressed to Medical Officer as Ext. Ka-10. From near the dead body

of Naval Kishore, I.O. had collected the plain and blood stained earth

and had prepared seizure memo, Ext. Ka-11. During the trial, P.W.6

has also proved the attires of deceased Naval Kishore as material

Ext. 10 and 11 and the plain and blood stained earth as material Ext.

12 and 13.

Subsequent to the inquest on the corpse of Naval Kishore, I.O.

conducted inquest on the dead body of Loknath @ Lukkhi after

appointing inquest witnesses and prepared his inquest memo, Ext. Ka

12. He has also prepared other relevant documents of photo lash,

challan lash, Exts. Ka-13 and Ka-14, and letter to M.O. Ext. Ka-15. He

has proved the attires of the first deceased Loknath @ Lukkhi as

material Exts. 14, 15 and 16.

Sealing the cadaver of Loknath @ Lukkhi, it was handed over to

constables Narayan Singh and Ram Singh for being carried to the

mortuary for autopsy. Blood stained and plain earth were also

collected by the I.O. from near the dead body of Loknath @ Lukkhi

by preparing seizure memo Ext. Ka-16. These plain and blood stained

earths have been proved as material Exts. 17 and 18. After

completing inquests I.O. recorded investigatory statements of

informant and witnesses and thereafter, at the pointing out of P.W. 1

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and P.W. 2, conducted spot inspection and prepared site plan map

Ext. Ka-17, about the place of both the murders. Thereafter, I.O.

recorded statement of Shail Kumari (P.W. 2). Subsequent thereto,

I.O. searched for the murderer culprits but could not apprehend

them. On 14.8.96, P.W. 6 copied postmortem examination reports of

both the deceased in the case diary. Thereafter on many subsequent

dates, I.O. only searched for the accused but could not arrest /

apprehend them. On 22.8.96, I.O. filed application for issuing

process of attachment under section 82-83 Cr.P.C. Subsequently, on

23.8.1996, he raided the house of the accused but they were still

absconding. Subsequently I.O., got the drum beat etc. but the

accused continued to abscond. However at last, the accused

surrendered in Court on 2.9.96 and were dispatched to penitentiary.

After obtaining permission from the Court, I.O. interrogated the

accused, who made discloser statement and expressed desire to get

the weapons of assault recovered and, therefore, I.O. brought them

to their house from where, both the accused got the weapon of

assault recovered. In that respect, recovery memo Ext. Ka-2 was

prepared. The weapons of assault were also exhibited as material

Exts. 1 to 4, which has been proved by P.W. 3, the recovery witness.

Thereafter, I.O. prepared the site plan of the places of the recovery

vide Ext. Ka-18. Subsequently, I.O. interrogated the autopsy doctor

and recorded his statement and concluding investigation, charge

sheeted all the three accused, the two appellants and acquitted

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accused Kumari Sushila of section 302 I.P.C. vide Ext. Ka-19. During

investigation, I.O. had also dispatched the blood stained and plain

earth, attires of the deceased and the weapons of assault for

Serologist Examination, Agra whose report dated 18.10.96, vide Ext.

Ka-21, is on the record.

To complete chronology of factual matrix it is noted that autopsy on

the cadaver of both the deceased, Loknath @ Lukkhi and Naval

Kishore were performed by Dr. Mrigendra Rajput, PW4, on 12.8 96 at

4& 5.15 p.m. respectively vide their post mortem examination reports

Ext.Ka-3 and Ka-4 and doctor has noted following facts in both the

autopsy reports-

Postmortem report of deceased Loknath @ Lukkhi

“Loknath @ Lukkhi had average built body, his eyes were closed,

mouth disfigured and cut Blood stained discharge was coming out

from both the ears. Rigor mortis was absent in upper half but was

present in lower half. Mild abdomen distention was noticed. No sign

of putrifiction was present and cadaver had mud staining. Following

ante mortem injuries were detected on his body:-

(1) Puncture wound 2-1/2 x 1/2cm on outer aspect of left eyebrow,

just below the orbitel bone. Lat orbital margin #ed 2cm thin bone.

(2) Puncture wound ½ x 1/4cm, ¼ above injury No. (1)

(3) Contusion 2 x 2cm below & lateral to Rt eye ball.

(4) Vertically placed puncture wound 1/2cm to root of nose ½ x ½

cm x 3-1/2cm deep.

(5) 1-1/2 x 1/2cm x 2cm deep punctured wound on left cheek 1cm

above lat. end of left mustache.

(6) Cut wound 6-1/2 x 2 cm, 5cm deep (Jaw cut2#) on left side of

lower jaw & neck, from midline upto 6-1/2cm Mandible #ed in 3

pieces.

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(7) Three small punctured wounds around umblicus1cm, 1cm 1/2cm

long 1-1/2 to 2cm deep. No 1 is piercing peritoneal cavity.

(8) On back there are seven small punctured wounds three on left

side & four on right side1 to 11/2 cm size except one C is 2cm x 1-

1/2 cm.

(9) Abrasion 1-1/2 x 1-1/2cm, 7-1/2cm above left elbow on outer

aspect of left forearm.”

According to the doctor cause of his death was brain stem

hemorrhage

and death had occurred 24 hours before.”

Postmortem report of deceased Naval Kishore

“Naval Kishore had a lean and thin adolescent male bodywith mud

stained and his head had disarticulated from trunk, attached only by

a top of Lt. side of neck ½ cm size thread thin with maggots

present. His eyes were closed and mouth semi open. Blood stained

discharge was coming out from both the ears nail firm. Rigor mortis

was present in the lower limbs and mild abdomen distension was

noticed. Doctor had noted following ante mortem physical injuries

on his body:-

(1) Cut wound, disarticulating the neck and head from rest of trunk

at C5 /C6 level, 17 cm – 11 cm A.P. Clavicles, C6 C7 vertebrae, all

structures of neck are seen.

2. Cut wound on right side upper chest 11-1/2 x 4cm, parallel & 2 cm

below injury No. (1).

According to doctors estimation deceased was murdered 24 hours

before and cause of his death was shock sustained due to injuries.”

Charge sheeting of the accused resulted in their summoning by

learned CJM, Hamirpur, who finding their case triable by Session's

Court committed it to the Court of Session's where it was received on

26.2.97 and was registered as S.T. No. 44 of 97, State Vs. Govind

Das @ Gudda and two others. The said Session's Trial was alleged to

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IIIrd Additional Session's Judge for Trial who, charged the appellants

under section 302/34 I.P.C. on 21.1.97. However, the said charge was

altered on 1.9.98 by the learned Trial Judge making it inconsonance

with the prosecution allegations and evidences and material available

in the case diary. The charges were red out and explained to the

accused who denied the same, pleaded not guilty and claimed to be

tried and consequently, to establish their guilt, Session's Trial

procedure commenced.

In an effort to succeed and bring home accused guilt

successfully prosecution tendered and relied upon oral testimonies

of it’s six witnesses out of whom informant Mannu (P.W. 1), eye

witness Shail Kumari (P.W. 2) and recovery witness Ram Swarup

(P.W. 3) were fact witnesses. Rest of formal witnesses included

autopsy doctor Dr. Mrigrendra Rajput (P.W. 4), constable Ghanshyam

Sharma (P.W. 5), who had registered the crime by preparing chik FIR

and GD entry and I.O. V.K. Singh S.O.,PW6, who had investigated the

crime as Station Officer P.S. Muskara.

In their statements under section 313 Cr.P.C., all the accused

denied incriminating circumstances put to them which were

appearing against them in prosecution evidences and took a common

defence of false implication. Appellant Govind Das @ Gudda A-1,

further stated that but for Jai Kishan A-2 and acquitted accused

Sushila, he had no other issue and only to ruin his entire family that

they have been falsely implicated. Informant was married twice and

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had different issues from both the marriages and, therefore, to grab

the property, this murder was committed in between them in which

he and his son and daughter have been falsely implicated. Accused

however led no defence evidence.

Learned Trial Court after looking into the prosecution evidences,

both oral and documentary, and after summating and vetting the

facts and circumstances of the case, arrived at the conclusion that

the prosecution had successfully anointed only appellants guilt for

committing murder of Loknath @ Lukkhi and, therefore, convicted

both the appellants for that crime under section 302/34 I.P.C. and

sentenced them to life imprisonment with Rs. 20,000/- fine on each

of them and further directing that in the event fine is released, half of

the amount shall be paid as compensation to the daughter of the

deceased Loknath @ Lukkhi. For the murder of Naval Kishore,

learned Trial Court found that two of the accused Jai Kishan, A-2, and

Km Sushila were falsely implicated and, therefore, acquitted them of

that crime. It however found that guilt of appellant Govind Das @

Gudda A-1 for that murder is proved to the hilt and, therefore,

convicted him under section 302/34 I.P.C. and sentenced him with

death as, in the opinion of the learned Trial Judge, it was a gruesome

and grotesque murder of an adolescent child without any rhyme or

reason. Hence the two connected appeals by the two convicted

accused and a Reference by the learned Trial Court for confirmation

of death penalty.

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On the facts mentioned herein above we have heard Sri P.N.

Mishra, learned senior counsel, assisted by Sri Ram Kishore Gupta,

learned advocate, for the appellants and Sri K.N. Bajpai, learned

AGA, for the respondent State.

Castigating impugned judgement of conviction and sentence

appellants counsel urged that the charge framed against the

appellants on 27.1.97 was defective. Much, which was required to be

mentioned in that charge was abjured and, therefore, both the

accused were misled in their defence and consequently their

conviction is unsustainable. It was pointed out that neither the time

nor place nor reference of second murder were mentioned in the said

charge and more over for two murders a composite charge was

framed, which is unsanctified in law and, therefore, appellant's

conviction be set aside. Elaborating the argument, it was contended

that the first murder is alleged to have taken place at 4 P.M. in the

field of Devki Nandan in Gahrauli hamlet, whereas second murder

took place at 5 P.M. near the pond in outskirts of village Alra, after a

gap of one hour. Places of both the murders were also different and,

therefore, in a single charge, appellants could not have been

prosecuted. It was next argued that there is no independent witness

of the incident, though it occurred in the evening in the month of

August where, many co-villagers and passers by must have been

present and, therefore, non- examination of any independent witness

castes a serious doubt on the genuineness of the prosecution story,

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which does not inspire any confidence and cannot be authenticated

with any credibility. Elaborating the argument, it was argued that P.W.

1 and P.W. 2, are parents of both the deceased and P.W. 3 is also

their real sibling brother and, therefore, only real family members

who were interested, partisan, inimical have been examined by the

prosecution and hence no reliance should be placed on their

depositions especially when learned trial court itself had disbelieved

them in respect of Km. Shushila and also disbelieved prosecution

allegations regarding participation of A-2 in the murder of Naval

Kishore. All these facts cumulatively makes entire prosecution story

suspect submitted learned senior counsel. It was further submitted

that informant is not an eye witness of the first murder which,

according to the prosecution story, was witnessed only by P.W. 2

Shail Kumari. No other person had come forward to support that

incident and therefore on a single testimony of an inimical, related

and partisan witness, without independent corroboration, appellants

should not be judged guilty of that crime. It was further submitted

that the conduct of both the fact witnesses, P.W. 1 and P.W. 2 is so

bizarre that it does not inspire any confidence and makes them

unnatural and got up witnesses. Not only their conduct is unnatural

but it is incomprehensible that a mother will only be a mute and

silent spectator to an incident where her own son was being

annihilated without even raising any hue and cry and May Day calls.

It was contended that, in fact, none of the two witnesses were

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present and witnessed both the murders and subsequently, after

discovery of the dead body, a false case was cooked up framing in

both the appellants and it was for this reason that no independent

corroboration could be sought by the prosecution to lend credence to

it’s story. It was further submitted that the medical evidences does

not support the prosecution story about the time of the incident and

weapon of assault, in as much as, stomachs and intestines of both

the deceased were empty , which does not suggest that incident had

occurred at the time alleged by the prosecution, which is in grave

doubt. According to appellants suggestion murders had occurred

either in the wee hours or late in the night when the food had passed

off from the stomachs and intestines. Thus appellants have

challenged time of incident alleged by the prosecution. It was further

submitted that none of the two fact witnesses are reliable as they

have falsely implicated Km. Sushila in this double murder and

assigned her specific role of catching hold of the deceased, which

embellished story did not go down well with the learned trial court as

well, who acquitted her of both the murders. Such an allegation was

never stated either by the informant or by P.W. 2 in their FIR or

before the I.O. during investigation and, therefore, none of the two

fact witnesses can be bracketed as wholly reliable witnesses and,

therefore, conviction of the appellants is unsustainable. It was next

submitted that if the witnesses can implicate Km. Sushila, a young

damsel in such a heinous crime, it cannot be brushed aside as totally

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absurd submission that Jai Kishan A-2, too was also falsely

implicated. Learned senior counsel further buttressed this submission

by stating that Km. Sushila was introduced only to make the

prosecution version consistent with the autopsy report of the two

deceased perusal which indicate that at least one of the deceased

had sustained punctured wounds of very small dimensions, which

could not have been caused by spear. Learned counsel relied upon

injury nos.1 and 2 of first deceased Loknath @ Lukkhi in support of

his submission and argued that these two injuries are not explained

at all. Barchcha was assigned to Km. Sushila only to explain these

injuries harangued learned senior counsel. It is further submitted that

the FIR was made ante dated and was registered ante timed as in

the written FIR it is mentioned that informant had come to the police

station (soochna dene aaya hu) and therefore, inked words indicates

that FIR was manufactured at the police station itself. By pointing out

at the inquest report, it was submitted that there is some

interpolation in it and the time has been adjusted and subsequently

added. Elaborating the submission further it was argued that

according to the informant, he had sprinted towards the police

station but the FIR was lodged after a gap of six and half hours and

therefore, it is delayed for which no explanation has been offered by

the prosecution side and consequently Ext. Ka 1 read with Ext. Ka 5

loses all it’s corroborative value. Six hours was utilised only to cook

up a story to nail in the appellants as it was blind murders submitted

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learned counsel. It is further contended that acquittal of Km. Sushila

is a big blow in the prosecution story, which is further discredited by

acquittal of A-2, from the charge of murder of Naval Kishore. Manner

of assault as deposed by the prosecution witnesses are totally

unnatural and does not appeal to the common sense. During

investigation no such story, as was deposed during trial by PW1&2,

was divulged to the Investigation Officer and therefore both the fact

witnesses have embellished entire prosecution version contended

appellants counsel. It was vehemently argued that it is impossible to

cogitate that a mother will have lunch and will keep her adolescent

younger son hungry and therefore, the entire prosecution story,

vetted from a natural point of view, seems to be feigned and

fabricated and therefore, cannot be stamped with credibility and

resultantly, prosecution had failed to establish it’s case against the

appellants whose appeals deserves to be allowed and they deserve

acquittal and be set at liberty, were the concluding submissions of

the learned senior counsel.

On the question of capital punishment, Sri Mishra submitted

that there was no justification for the learned trial Judge to give

death penalty to appellant Govind Das @ Gudda, A-1, for the murder

of Naval Kishore as the crime was neither diabolical nor was

committed in such circumstances with such depravity as to revolt the

judicial conscience and it cannot be said that only capital punishment

was the just an appropriate sentence and but for it no other sentence

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could have been awarded, as it would have resulted in miscarriage of

justice. Pointing out towards mitigating circumstances it was

contended that regarding that murder learned trial court has

disbelieved major part of prosecution allegations and has acquitted

two accused. Further manner of assault alleged by the prosecution in

respect of that murder was never intimated to the I.O. during entire

investigation period and therefore narration by PW1&2, during trial

should be taken with a pinch of salt. Incident had occurred between

close relatives on a very petty dispute, all of a sudden losing ones

saner thoughts in heat of moment and the murder, though

gruesome, was not grotesque and diabolical. It was therefore

submitted that there were sufficient reasons for not awarding death

penalty to Govind Das @ Gudda A-1. and appropriate sentence

should have been the imprisonment for life just as the first murder.

Case of Govind Das @ Gudda does not fall in the category of rarest

of rare cases and therefore, death penalty is excessive sentence

which should be scored out and it be commuted into life

imprisonment, in case Govind Das @ Gudda, A-1, is not acquitted of

both the charges. It was further submitted that earlier this Court had

acquitted the appellants but that order was set aside by Hon’ble Apex

Court and therefore the reasoning adopted by the previous Bench

should also be an adding factor in diluting and commuting the death

sentence awarded to appellant Govind Das @ Gudda A-1. With herein

above sketched contentions, Sri Mishra concluded by praying that the

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appeal of both the appellants be allowed and they be acquitted and

be set at liberty.

Per contra, Sri K.N. Bajpayee, learned AGA, refuted all the

submissions in a seriatim and point out the flaws in appellants

contentions. He firstly took up the criticism regarding charge and

pointed out that subsequent to the framing of charge dated

27.1.2007, learned trial court itself noticed the mistakes and

therefore itself corrected the cropped up errors by altering the

charges making good the mistakes on 1.9.1998. In this altered

charge all the necessary requirements which were sufficient to inform

the accused about the case to be defended by them were mentioned

and therefore accused have not been prejudiced at all either in

understanding the prosecution allegations or in defending them from

those charges. No prejudiced was caused to them in their defence

argued learned AGA. Bringing home the submissions it was pointed

out that in the altered charge date, time, place of both the murders

were specifically mentioned. It was therefore, submitted that

snipping of conviction on the ground of being misled by the charge is

contrary to actual facts and is not borne out from the record and

therefore is bereft of merits. It was next submitted that both the fact

witnesses were consistent in their depositions that the first deceased

Loknath @ Lukkhi had come to village Alra to take his mother along

with him because his wife was in the family way and was to give

birth to a child in near future. This version by the prosecution is well

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established on the evidences on record and none of the prosecution

witnesses have faltered on the said score nor they have budged from

it. It was the accused who brought it in the cross examination of

PW2 that after ten or twelve days of the incident Smt. Pushpa, wife

of deceased Loknath @ Lukkhi gave birth to a female child. Thus

there are convincing evidences on record that deceased no.1 must

have come to take her mother to nurse his wife as she was expecting

a child very soon. It is further contended that erection of mud

boundary wall at the back of informant's house is also an established

fact and therefore, the motive for committing the crime was very

much in existence. Prosecution case cannot be doubted only

because of relationship between witnesses, nor prosecution

witnesses can be disbelieved on that score. Testimonies of fact

witnesses cannot be brushed aside and relationship is no ground to

throw away entire prosecution version, argued learned AGA. It was

submitted that there was no reason for the informant and his wife to

falsely implicate the appellants in a double murder case of their own

children and spare the real assailants. The murder was committed in

day light by close relatives and therefore, there was no occasion for

both the parents to frame a false story against the appellants,

submitted learned AGA. It was further contended that the defence

had not at all seriously challenged the place of the incident which is

fully established from the presence of the blood, inquest reports and

oral testimonies of both the parents. Medical evidence is consistent

19

with the prosecution story and in spite of lengthy cross examinations,

defence has not been able to shatter the prosecution version even

slightly. Next, it was argued that recovery of weapons from the

house of the appellant with blood stains, at their pointing out, is also

a strong circumstance which lend credence to the prosecution

version, which cannot be doubted at all. FIR is the true narration of

the incident and there was absolutely no interpolation in it nor the

defence could discredit fact witnesses by challenging their statements

on the said aspects. Sketched version in the FIR is the true narration

of actual incident which cannot be doubted harangued learned AGA.

It was further contended that on the question of empty stomach,

none of the two fact witnesses were at all cross examined by the

defence to discredit the prosecution story. It was further submitted

that on the conduct also, neither the father nor the mother were

tested specifically by the accused while they were in the witness box

and therefore to castigate their conduct as being unnatural is wholly

unjustified. Learned AGA next submitted that if the accused wanted

to take advantage of witnesses surreal conduct, it should have cross

examined them on that aspect but without affording opportunity to

explain no criticism can be levelled against them. Concluding the

argument it was submitted by respondent State that death penalty

to appellant Govind Das @ Gudda, A-1, is an appropriate sentence as

without any motive he had severed neck from the trunk of an

adolescent boy in gruesome manner which revolt the conscience and

20

therefore, no clemency be conferred on A-1. Lastly, it was contended

that both the appeals of the appellants lacks merit and deserves to

be dismissed and the sentences awarded to both the appellants be

confirmed.

We have considered the submissions raised by both the sides

and have critically examined oral and documentary evidences

carefully. We have also peeped through the material contained in the

case diary only for a limited purpose to separate the grain from the

chaff and elicit the truth.

Our vetting exercise and summation of facts brought forth

certain conclusions which are prima facie evident from the proven

facts on the record.

A priori, it is not in dispute that both the sides informant,

deceased and the appellants were close relatives of each other. The

perusal of pedigree deposed both by PW1&2 establishes it

conspicuously clear of all doubts and therefore it will be beneficial to

take stock of it.

Both the sides originally are resident of village Alra. They had a

common ancestor Tulsi who had two sons Kallu and Mannu

(informant).Govind Das @ Gudda, A-1 is the son of Kallu whereas A-2

and acquitted accused Km. Sushila are the two issues of A-1.

Informant Mannu P.W. 1, had married twice with two real sibling

sisters Ghisitya @ Ghisia and Shail Kumari, PW2, both resident of

village Natarra.From his first wife Ghisitya @ Ghisia, informant had a

21

son Shyam Bihari. After demise of Ghisitya@ Ghisia informant

married her younger sister Shail Kumari, PW2 and from her he had

three issues Ram Swaroop,PW3, Loknath (deceased no.1) and Naval

Kishore (deceased No.2). Loknath @ Lukkhi was married with one

Pushpa and were blessed with two daughters, but the elder one had

demised at an early age and the younger daughter is Preeti @

Langdi. This pedigree which has been deposed by P.W.1 and P.W.2 at

various stages on their depositions has not been challenged by the

accused at all and thus, appellant A-1 is the real nephew of the

informant P.W.1 and his wife P.W.2, and cousin brother of both the

deceased A-2 is cousin grand-son of P.W.1 and P.W.2 and nephew of

both the deceased. Since both the sides were resident of the same

village Alra and hence it is not a case of mistaken identity. Another

important aspect which stands proved on the record is the date and

time of the incident, as from the evidences on record, it is evident

that accused had made no serious efforts to challenge them from

both P.W.1 and P.W.2, albeit appellants counsel vehemently

challenged incident time on the basis of stomach and intestine

contents of both the deceased. In this respect accused had done a

feeble cross examination of only PW2 , which does not dislodge or

erodes the creditability of both the fact witnesses. When informant

and PW2 were deposing during trial they were not tested on the said

aspect of the matter so as to dislodge their versions. P.W.2 was

specific that she had taken the lunch and both the deceased had not

22

eaten anything. Defence has not been able to bring record any

material worth in name, which can dislodge such a statement made

by the mother of both the deceased, who had no earthly reason to

falsely implicate the appellants sparing real assailants. Thus, from the

evidences and established attending circumstances it is unerringly

proved that the date, time and place of the incident, as alleged by

the prosecution is proved to the hilt. Another important aspect is

that the use of axe and spear (Bhala) by the appellants have also

not been challenged by the defence and therefore, their use during

commission of crime is also not in doubt. All these facts cumulatively

lay much credence to the prosecution version and we too do not find

any reason to disbelieve it.

Now we propose to consider various contentions raised by

appellant counsel. In this connection we find that so far as the first

castigation regarding defect in charge and un-sustainabilty of

impugned judgement is concerned the same is devoid of substance.

It is trite law, which is now too well settled to be disturbed is that

unless defect in charge is of such a nature that the accused was in

fact misled and thereby prejudice has been caused to him in

defending his case , the defect or omission in charge singularly by

itself is insufficient to set aside otherwise well merited conviction. On

this aspect we do not vex our mind further but aptly rely upon some

of apex court decisions on this aspect which are as follows:-

In Abdul Sayeed vs State of Madhya Pradesh (2010)SCC

23

259 it has been held by the apex court as under:-

Effect of failure to frame proper charges

“41. It has been canvassed on behalf of the appellants that

there was no charge framed under Section 34 IPC by the trial court

and the appellant's and other co-accused have been charged under

Sections 147/148 IPC. All of them have been acquitted for the said

charges. Thus, it was not permissible for the High Court to convict

the appellants with the aid of Section 34 IPC. Non- framing of charge

is fatal to the prosecution. Thus, the appellants are entitled for

acquittal on this ground alone.

42. In State of A.P. v. Thakkidiram Reddy this Court considered the

issue of failure to frame the proper charges observing as under: (SCC

p. 558, para 10)

“10, Sub-section (1) of Section 464 of the Code of

Criminal Procedure, 1973 ('the Code', for short) expressly

provides that no finding, sentence or order by a court of

competent jurisdiction shall be deemed invalid merely on the

ground that no charge was framed or on the ground of any

error, omission or irregularity in the charge including any

misjoinder of charges, unless in the opinion of the court of

appeal, confirmation or revision, a failure of justice has in

fact been occasioned thereby. Sub-section (2) of the said

section lays down the procedure that the court of appeal,

confirmation or revision has to follow in case it is of the

opinion that a failure of justice has in fact been occasioned.

The other section relevant for our purposes is Section 465 of

the Code; and it lays down that no finding, sentence or order

passed by a court of competent jurisdiction shall be reversed

or altered by a court of appeal, confirmation or revision on

account of any error, omission or irregularity in the

proceedings, unless in the opinion of that court, a failure of

justice has in fact been occasioned. It further provides, inter

alia, that in determining whether any error, omission or

irregularity in any proceeding under this Code has

occasioned a failure of justice, the court shall have regard to

the fact whether the objection could and should have been

raised at an earlier stage in the proceedings.”

(emphasis in original)

The Court further held that in judging a question of prejudice, as of

guilt, the court must look to the substance of the matter and not to

technicalities, and its main concern should be to see whether the

accused had a fair trial, whether he knew what he has being tried

24

for, whether the main facts sought to be established against him

were explained to him fairly and clearly and whether he was given a

full and fair chance to defend himself. In the said case this court

ultimately came to the conclusion that despite the defect in the

framing of charges, as no prejudice had been caused to the accused,

no interference was required.

43.A Constitution Bench of this Court in Willie (William) Slaney v.

State of M.P. considered the issue of failure to frame charges

properly and the conviction of an accused for the offences for which

he has not been charged and reached the conclusion as under: (AIR

p. 137, paras 86-87)

“86. .... In such a situation, the absence of a charge under

one or other of the various heads of criminal liability for the

offence cannot be said to be fatal by itself, and before a

conviction for the substantive offence, without a charge, can

be set aside, prejudice will have to be made out. ........

87. .... If it is so grave that prejudice will necessarily be

implied or imported, it may be described as an illegality. If

the seriousness of the omission is of a lesser degree, it will

be an irregularity and prejudice by way of failure of justice

will have be established.”

44. This Court in Gurpreet Singh v. State of Punjab referred to and

relied upon its earlier judgments in Willie (William) Slaney and

Thakkidiram Reddy, and held that unless there is a failure of justice

and thereby the cause of the accused has been prejudiced, no

interference is required if the conviction can be upheld on the

evidence led against the accused. The Court should not interfere

unless it is established that the accused was in any way prejudiced

due to the errors and omissions in framing the charges against him.

A similar view has been reiterated by this Court in Ramji Singh v.

State of Bihar and Sanichar Sahni v. State of Bihar.

45. There is no bar in law on conviction of the accused with the aid

of Section 34 IPC in place of Section 149 IPC if there is evidence on

record to show that such accused shared a common intention to

commit the crime and no apparent injustice or prejudice is shown to

have been caused by application of Section 34 IPC in place of Section

149 IPC. The absence of a charge under one or the the other or the

various heads of criminal liability for the offence cannot be said to be

by itself prejudicial to the accused, and therefore a conviction for the

substantive offence without a charge can be set aside, prejudice will

have to be made out. Such a legal position is bound to be held good

in view of the provisions of Sections 215, 216, 218, 221 and 464 of

25

the Code of Criminal Procedure, 1973 (Vide Dalip Singh v. State of

Punjab, Malhu Yadav v. State of Bihar, Dhaneswar Mahakud v. State

of Orissa and Annareddy Sambasiva Reddy v. State of A.P.).

46. Thus, the law on the issue can be summarised to the effect that

unless the accused is able to establish that the defect (s) in framing

the charge (s) has caused real prejudice to him; that he was not

informed as to what was the real case against him; or that he could

not defend himself properly, no interference is required on mere

technicalities.”

In Main Pal versus State of Haryana:AIR 2010 SC 3292

it has been held by the apex court as under:-

“9. The following principles relating to sections 212, 215 and 464

of the Code, relevant to this case, become evident from the said

enunciations :

(i) The object of framing a charge is to enable an accused to have a

clear idea of what he is being tried for and of the essential facts that

he has to meet. The charge must also contain the particulars of date,

time, place and person against whom the offence was committed, as

are reasonably sufficient to give the accused notice of the matter

with which he is charged.

(ii) The accused is entitled to know with certainty and accuracy, the

exact nature of the charge against him, and unless he has such

knowledge, his defence will be prejudiced. Where an accused is

charged with having committed offence against one person but on

the evidence led, he is convicted for committing offence against

another person, without a charge being framed in respect of it, the

accused will be prejudiced, resulting in a failure of justice. But there

will be no prejudice or failure of justice where there was an error in

the charge and the accused was aware of the error. Such knowledge

can be inferred from the defence, that is, if the defence of the

accused showed that he was defending himself against the real and

actual charge and not the erroneous charge.

(iii) In judging a question of prejudice, as of guilt, the courts must

act with a broad vision and look to the substance and not to the

technicalities, and their main concern should be to see whether the

accused had a fair trial, whether he knew what he was being tried

for, whether the main facts sought to be established against him

were explained to him fairly and clearly, and whether he was given a

full and fair chance to defend himself.”

26

Applying the above law on the facts of the present appeal , we

noticed that no prejudice was caused to the accused . Right from the

beginning of the trial, they had knowledge about the case they had

to meet. Even in the opening address prosecution had informed them

about it’s case and evidences by which it proposes to prove the

charge. Hence first criticism of learned senior counsel does not carry

weight and is hereby negative.

The second supplementary contention that a joint trial could

not have been framed raised by learned counsel for the appellants is

concerned, we do not find any merit in that contention as well. It is

provided in the Cr.P.C. that three offences of the same type can be

tried together further. This has been so provided under section 219

Cr.P.C. Moreover, we find that both the murders were committed in

the same sequence and forms the part of the one and the same

transaction and there was no snipping of link in between them. They

both were committed in the same sequence one after another and,

therefore, they form a conglomerated whole, merely because time

and space of both the incidents are different, will not catapult both

murders out of the purview of one and the same incident and,

therefore, we have no hesitation in rejecting the contention raised by

learned counsel for the appellants regarding framing of joint charge

against the appellants. Further, since we find that no prejudice has

been caused to the appellants at all, on that score, we reject the said

submission.

27

Third submission by appellant counsel was regarding witnessing

of first murder only by PW2 and she being related, interested,

inimical and partisan, should not have been relied upon without

independent corroboration, is concerned the said submission also

does not hold any water. It is not the quantity of witnesses which

matters in a criminal trial. What is of importance is the quality of

evidences adduced and it’s convincing nature. It is well settled law

that witnesses cannot be disbelieved only because of their

relationship, if their depositions are otherwise confidence inspiring. In

the present case evidence of PW2 is sufficiently authenticated by

medical evidence and site plan.PW2, being mother of both the

deceased would not spare the real culprits and nail in appellants in a

false case. Defence has not been able to bring on record that

informant and witnesses had any other enemy who could have

indulged into such a crime. But for appellants there was no other

person who could have committed these murders. Attached with this

criticism was another castigation that no independent witness has

been examined by the prosecution whose story does not seems to be

truthful. In respect of both these arguments we draw contrary

support from following apex court decisions :-

In Musheer Khan @ Badshah Khan and Anr. v. State of

M. P.: AIR 2010SC 762 it has been held by the apex court as

under:-

“25. The Court must remember that PW-3 is a highly interested

28

witness, being a very close relative of the deceased. That by itself, of

course, is not a ground to discard his evidence. But it is a golden rule

that in such a situation, the evidence of PW-3 has to be weighed

very carefully and cautiously before accepting the same.”

In Dharamveer versus State of U.P. : AIR 2010 SC 1378

it has been observed by the apex court as under:-

“15. All these submissions are in the realm of appreciation of

evidence and the High Court has meticulously examined it. The

evidence of an eye witness cannot be rejected only on the ground

that enmity exists between the parties”.

On the facts of the present appeal we notice that there was

absolutely no reason for the informant or his wife to falsely implicate

appellants in a double murder crime of their own sons. In between

them there was no such enormous enmity that they will go to this

extent. Moreover, as already has been pointed out that accused have

failed to bring on record that any other person could have indulged

into the crime and hence what we find that it is a case of absence of

any reason for false implication.

Further it is noted that the police station was at a distance of 9

Km from the place of the incident. Double murder had taken place in

the family of the informant and two of his sons, one middle one and

the other youngest had lost their lives. In such a view, it will be

puerile to cogitate that both the parents will be in a fit state of mind

to rush to the police station and lodge the F.I.R. with a rocketing

speed. Our heuristic experience informs us that in such types of

situations natural and common course of action is seldom observed

and time flies by. FIR has been lodged after six and a half hours,

29

which time, looking to the distance and the crime committed by the

accused is not much. It is because of this, that much of the

argument could not be advanced that FIR is ante timed. Both the fact

witnesses were not tested by the defence on this aspect of delay in

lodging the FIR. We, therefore find that there was no delay in lodging

the FIR which seems to be prompt containing unembellished version

about the incident. Learned senior counsel also could not castigate

FIR Ext. Ka-1 except pointing out that it does not contain the name

of Km. Sushila and the role played by her during the incident. It was

because of this omission in the FIR and non disclosure during the

investigation that the learned trial court disbelieved prosecution

version in her respect and acquitted her but that does not mean that

the entire prosecution version should be discarded for that reason.

Acquittal of Km. Sushila is not going to benefit of two appellants and

we are not ready to disbelieve entire prosecution story for that

reason. Consistency in prosecution evidences is another convincing

factor and we failed to fathom out any damaging evidence sufficient

to negate prosecution story. Right from the very beginning the

prosecution version of deceased no.1 being surrounded near the

canal in Gahrauli hamlet near the field of Ram Gopal Lodhi is

consistent. It has been deposed by PW2 who never wavered. She is

confident about her allegations when she stated that after the two

appellants surrounded deceased no.1, he sprinted to save his life by

jumping over other side of canal but was unable to avert his death in

30

the field of Devki Nandan where he was assaulted to death. No

serious cross-examination of the fact witnesses was done by the

accused to create doubt about such a story deposed by her. Thus, in

respect of murder of deceased no.1 Loknath @ Lukkhi, prosecution

has been able to bring home accused appellant guilt successfully

without any doubt. As a natural corollary argument of appellants

counsel regarding time of the incident being different, thus, is

unmerited and is hereby repelled. We further note that incident could

not have occurred as suggested by appellants. According to the

suggestion urged by appellant's counsel, incident had taken place in

the early hours of the morning. It will be too much of supposition

and purely hypothetical to think that for more than 12 hours two

dead bodies lied in the village without anybody noticing it. The places

of the incident were such where presence of the villagers during

early hours of the morning would have been very natural. The first

murder occurred near a canal were normally, the villagers go to

attend nature's call in the early hours of the morning or in the

evening. The second incident occurred near a pond outside the

village where the presence of the villagers during day time is most

natural. We are therefore unable to subscribe to defence argument

and submission of appellant's counsel therefore, does not carry any

weight and consequently we have no hesitation in taking a adverse

view favouring prosecution allegations.

Turning towards another contention regarding ante timing of

31

FIR because of language used in the written report, we are unable to

appreciate the said argument. P.W.1 was cross-examined on the said

aspect of the matter and he, in no uncertain terms, stated that he

had dictated the FIR to scribed Devi Deen in front of Badri’s shop in

his village. Informant was unambiguously clear in deposing that the

words “paidal suchna dene aaya hoon” was dictated by him in front

of the shop of the Badri and he emphatically denied the defence case

that the FIR was cooked up subsequently and was anti timed and

ante dated. Defence has not been able to substantiate such a

suggestion either from direct or from circumstantial evidences and

therefore, there is no room for doubt that FIR was registered at the

time and date alleged by the prosecution and castigation by the

appellants about authenticity of the said report is unconvincing.

Another submission, which was argued vehemently is regarding

conduct of the parents and no venture by them to save their sons

lives when they were being annihilated also does not carry much

weight. So far as first murder is concerned, P.W. 2 Shail Kumari was

the sole witness she had no idea that the appellants, who were her

close relative will act in such a ghastly manner and will do away with

her son on a pity dispute. She is a rustic lady. On the date of her

testimony in 2000, she was 65 years of age. Incident had occurred in

1996 just four years ago and therefore, at the time when she had

witnessed the incident, she must have been 61 or 60 years of age.

For her to intervene in such an incident from a good distance of

32

other side of canal was an impossibility. Moreover, from the injuries

sustained by the first deceased Loknath @ Lukkhi it does not seems

that the incident had lasted for sufficient time. It must have been

over but in a few minutes. No serious and worthwhile cross-

examination of P.W.2 regarding actual happening of the incident was

done by the accused persons. They did not challenge her witnessing

the incident because of her surreal conduct. If the appellants wanted

to take advantage of her being a mute spectator of the incident, they

should have tested her veracity by questioning her, which they failed

to do. Without giving opportunity to a mother, castigating her

evidence in respect of murders of her two sons will be wholly

unjustified and therefore, for the reason of non- intervention during

the incident by either of the parents, we are not ready to disbelieve

their evidences and dub them as untruthful witnesses and confer

benefit of doubt the appellants.

Moreover, participation of the appellants in the crime is also

established from the recoveries made from them from their house on

their disclosure statements, which is admissible under Section 27 of

the Evidence Act. Both the weapons contained human blood.

Serologist report Ext. Ka-21 also indicates that the axe contained

human blood and thus, participation of the appellants in the crime is

established reasonably and convincingly. The defence has suggested

the parents that because of partition dispute that they had got both

the deceased murdered but the said suggestion is without any prefix

33

and suffix and seems to have been given without any basis.

Another criticism raised by appellant’s counsel that there was

no terracotta boundary wall erection because the same was not

shown to the I.O. and regarding the same, there is no convincing

evidenc,e is concerned is also bereft of substance for the reason that

all the witnesses are clear, cogent and unambiguous regarding it’s

erection. It was the motive for the appellants to commit double

murder in day light. Had that fact being not true, there was no

reason for the close relatives to feign a story of such an erection

against their close relatives in a case of double murder. Further we

note that the conduct of the I.O. in unearthing the crime has not

been very fair. I.O. deliberately and intentionally gave a long rope to

the accused and for days together did not make any serious effort to

apprehend them. Perusal of the case diary, gives an impression as if,

the I.O. was not investigating a double murder case. He was only

trying to fill up the pages of the case diary to which conduct we

seriously deprecate. In such type of cases, it is excepted that law

enforcing agencies will act courageously and with alacrity. Much has

been left to be desired by the I.O. We are, therefore, of the opinion

that lapses on the part of the I.O. should not cloud our thoughts

against otherwise convincing testimonies of the parents and

therefore we repel appellant’s argument.

Turning towards another submission raised by Sri Mishra that

acquittal of Km. Sushila erodes prosecution story irreparably and

34

benefit of the same be accorded to the appellants, we are of the

view that the said argument has no substance at all. Firstly, the

dictum of falsus in uno, falsus in omnibus does not apply to our

jurisprudential system and secondly, so far as the two appellants are

concerned, right from the very beginning of scribing the FIR

prosecution case is consistent, clear and unambiguous. At no point of

time, prosecution witnesses had expatiated their roles and their

participation and, therefore, in absence of any damaging evidence

eroding the credibility of the testimonies of the two parents, we do

not find any reason to exonerate the appellants from the crime

committed by them. Concludingly, we are of the opinion that so far

as conviction of both the appellants for the murder of Loknath @

Lukkhi and that of Naval Kishore is concerned, it is well merited but

we also find that learned Trial Judge has rightly acquitted Jai Kishan

for the second murder and has also rightly acquitted Km. Sushila of

both the charges.

At this stage we advert to an application filed by appellant

Naval Kishore, A-2, claiming that he was a juvenile on the incident

date and, therefore, be conferred benefit of Juvenile Justice Act. In

support of that claim, a school living certificate from Primary school,

Alra, Gaura Chetra, Muskara has been filed. However, we do not find

any merit in that application for the reason that neither during

investigation nor during the trial in the trial Court nor during decision

of the appeal on the earlier occasion by this Court nor before the

35

Apex Court in SLP, being Criminal Appeal No. 1049-50 of 2007, State

of U.P. versus Govind Das @ Gudda and another, arising out of SLP

(Crl) No.46-47 of 2006, any such plea was raised by the said

appellant. It is too late in the day to accept such a plea. School going

by the said appellant was very well known to his father appellant A-1

who never pointed it out at any previous stage to claim that

appellant A-2 was a juvenile. It seems that the application has been

filed only to gain benefit without any material basis. No date of birth

certificate or other circumstance has been filed by the said appellant

to confer him the benefit of Juvenile Justice Act. It is recollected here

that the Juvenile Justice Act has been enacted as a beneficial

legislation only in cases of Juveniles but that does not mean that it

should be taken to be safe heaven for real offenders on the basis of

unauthenticated and un-proved document and therefore, we reject

the said application.

This now takes us to the question of sentence. For the first

murder of Loknath @ Lukkhi, both the appellants have been

convicted with imprisonment for life with fine of Rs. 20,000/- and if

the same is deposited, half of the amount has been awarded as

compensation to the daughter of the said deceased namely Preeti @

Langdi. We do not find any reason to interfere with this sentence as

imprisonment for life, for a charge of murder, is the minimum

sentence. However, we expatiate appellants sentence by directing

that in default of payment of fine both the appellants shall serve one

36

year further RI.

For the second murder of Naval Kishore, we are of the opinion

that imposing of death penalty to appellant Govind Das @ Gudda, A-

1, for that crime, is not commensurate with his guilt as we do not

find that the said murder falls in the category of rarest of rare cases.

The mitigating and extenuating circumstances favouring A-1, in

respect of that murder, are that two other accused Jai Kishan and

Km. Sushila were acquitted by the learned Trial Court. Manner of

assault on the said deceased was disbelieved by the learned trial

court. It had further concluded that Km. Sushila had been falsely

implicated in entire episode. She was not named in the FIR. Role of

Jai Kishan in the murder of Naval Kishore was also not convincingly

established and he too was acquitted of that offence. The crime was

committed in a heat of moment but the same was not gruesome,

grotesque or diabolical. It was because of the earlier dispute which

had taken place in the afternoon that out of loss of self-control,

appellant A-1 committed the crime. Moreover injuries of Naval

Kishore does not indicate that he was murdered in a diabolical

manner and, therefore, we do not find any reason to hold that it was

a rarest of the rare case. Crime was committed in 1996 and now

sixteen years have gone by. From the date of conviction also ten

years have passed. Agony and mental tormentaion of being sent to

gallows, and thereafter about the well being of both the children

must have changed and affected A-1 mentally and physically. It

37

cannot be said that there is no chance of his reformation. In our this

view, we are fortified by one of the Apex Court Judgement rendered

in Neel Kumar Vs. State of Haryana 2012 (1) SC Cr. R. 913 ,

wherein Hon'ble Apex Court, while dealing with the question as to

what is the rarest of rare case and whether the death penalty will be

appropriate sentence, has been pleased to observe as under:-

“21. The extreme penalty of death need not be inflicted except

in gravest cases of extreme culpability. Before opting for the

death penalty the circumstances of the offender also require to

be taken into consideration along with the circumstances of the

crime for the reason that life imprisonment is the rule and death

sentence is an exception. The penalty of death sentence may be

warranted only in a case where the court comes to the

conclusion that imposition of life imprisonment is totally

inadequate having regard to the relevant circumstances of the

crime. The balance sheet of aggravating and mitigating

circumstances has to be drawn up and in doing so the mitigating

circumstances have to be accorded full weightage and a just

balance has to be struck between the aggravating and mitigating

circumstances before option is exercised.

22. After considering the issue at length, this court in State of

Maharashtra v. Goraksha Ambaji Adsul, AIR 2011 SC 2689,

held as under: "Awarding of death sentence amounts to taking

away the life of an individual, which is the most valuable right

available, whether viewed from the constitutional point of view or

from the human rights point of view. The condition of providing

special reasons for awarding death penalty is not to be construed

linguistically but it is to satisfy the basic features of a reasoning

supporting and making award of death penalty unquestionable.

The circumstances and the manner of committing the crime

should be such that it pricks the judicial conscience of the court

to the extent that the only and inevitable conclusion should be

awarding of death penalty."

The same view has been taken by the Apex Court in many

other earlier decisions wherein. In Mulla and Anr. v. State of U. P.

:AIR 2010 SC 942 it has been held by the apex court as under:-

38

“53. As we have noted above, old age has emerged as a

mitigating factor since Bachhan Singh, (AIR 1980 SC 898) (supra).

This court in Swamy Shraddananda v. State of Karnataka (2008) 13

SCC 767 : (2008 AIR SCW 5110) substituted death sentence to life

imprisonment since the convicts were 64 years old and had been in

custody for 16 years. Even in the present case, one of the convicts is

around 65 years old. The charges had been framed in 1999 and they

have been in custody since 1996. They have been convicted by the

Sessions Court in 2005. Clearly, the appellants have been in prison

for the last 14 years.

54. Another factor which unfortunately has been left out in much

judicial decision-making in sentencing is the socio-economic factors

leading to crime. We at no stage suggest that economic depravity

justify moral depravity, but we certainly recognize that in the real

world, such factors may lead a person to crime. The 48th report of

the Law Commission also reflected this concern. Therefore, we

believe, socio-economic factors might not dilute guilt, but they may

amount to mitigating circumstances. Socio- economic factors lead us

to another related mitigating factor, i.e. the ability of the guilty to

reform. It may not be misplaced to note that a criminal who commits

crimes due to his economic backwardness is most likely to reform.

This court on many previous occasions has held that this ability to

reform amount to a mitigating factor in cases of death penalty.

55.In the present case, the convicts belong to an extremely poor

background. With lack of knowledge on the background of the

appellants, we may not be certain as to their past, but one thing

which is clear to us is that they have committed these heinous

crimes for want of money. Though we are shocked by their deeds,

we find no reason why they cannot be reformed over a period of

time.

56. This Court in Dalbir Singh and others v. State of Punjab (1979) 3

SCC 745 : (AIR 1979 SC 1384) had considered the question of the

length of incarceration when death penalty is reduced to life

imprisonment. It was held that:

"14. The sentences of death in the present appeal are liable to be

reduced to life imprisonment. We may add a footnote to the ruling in

Rajendra Prasad case. Taking the cue from the English legislation on

abolition,we may suggest that life imprisonment which strictly means

imprisonment for the whole of the men's life but in practice amounts

to incarceration for a period between 10 and 14 years may, at the

option of the convicting court, be subject to the condition that the

sentence of imprisonment shall last as long as life lasts, where there

are exceptional indications of murderous recidivism and the

39

community cannot run the risk of the convict being at larger. This

takes care of judicial apprehensions that unless physically liquidated

the culprit may. at some remote time repeat murder."

Applying the guidelines laid down by the apex court, on the

facts and circumstances of the present appeals, we are of the view

that the death penalty awarded to the appellant Govind Das @

Gudda, A-1, is not warranted as his crime does not fall in rarest of

the rare case category and, therefore, we commute his conviction

from death penalty to life imprisonment for committing murder of

Naval Kishore.

In view of above, Criminal Appeal No. 5234 of 2002, Jai Kishan

Vs. State, is dismissed with direction that in case of default in

payment of fine Jai Kishan appellant shall serve one year RI as

default sentence.

Criminal Appeal No. 4978 of 2002, Govind Das @ Gudda, is

partly allowed. Conviction of appellant Govind Das @ Gudda for

murders of Loknath @ Lukkhi and Naval Kishore is affirmed. His

awarded sentence of life imprisonment with fine of Rs. 20000/= for

murdering Loknath @ Lukkhi is also affirmed and he is further

directed to serve one year further RI as default sentence in case he

fails to deposit imposed fine. However his sentence of death penalty

for the murder of Naval Kishore is set aside and is commuted to life

imprisonment. Both the appellants are in jail. They are directed to

serve out their sentences.

Reference sent by the learned Trial Judge for confirming death

40

penalty awarded to appellant Govind Das @ Gudda being Reference

No. 8 of 2002 is hereby rejected.

Both the appeals are decided as above.

Dt.6.7.2012

Rk/Arvind/Tamang