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PETITIONER: RAJENDRA RAI

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       02/02/1999

BENCH: G.T.  Nanavati, & N. Santosh Hegde.

JUDGMENT:

Nanavati, J.

     This is an appeal filed by the convicted accused after obtaining leave of this court.  Leave was granted limited to the  question  of  sentence only.  The  appellant  has  been awarded  death sentence and, therefore, what we have now  to consider  is whether the death sentence is justified in view of the facts and circumstances of this case.

     What is found proved against the appell1ant is that on 12.10.91  at  about 5.30 a.m., in view of the  land  dispute with  deceased  Krishnandan  Rai,  he   gave  one  blow   to Krishnandan with ’Hasua’ - a sharp edged weapon.  It 1s also held  proved  that when Bir Bahadur Rai, son of  Krishnandan came  there running, hearing shouts of his mother,  Nagendra Rai.   who  was with the appellant, caught him and made  him bend  down  and the appellant gave him three or  four  blows with ’Hasua’ and severed his neck.

     The   Sessions  Court  considering   the   facts   and circumstances  of  the  case  and the  role  played  by  the appellant  imposed  death  sentence  upon  him.   The  other accused  -  Nagendra  Rai  has   been  sentenced  to  suffer imprisonment  for  life.  Both the accused challenged  their conviction  by filing separate appeals.  The Sessions  Court also  made  reference to the High Court for confirmation  of death  sentence.  The High Court agreeing with the  findings recorded  by  the trial court confirmed the  conviction  and also  the order of sentence.  Accordingly, the appeals filed by  the  accused  were  dismissed   and  the  reference  was accepted.

     What  was  submitted  by the learned counsel  for  the appellant  was that this case cannot be regarded as a rarest of  rare  case and therefore death penalty should  not  have been imposed upon the appellant.  It was also submitted that there  was  a  land  dispute between the  deceased  and  the accused  and that had led to the present incident.  He  also submitted  that  though  an  attempt   was  made  to   prove conspiracy,  pre-meditation  and pre-planning, there was  no reliable  evidence to prove that it was in pursuance of  any conspiracy  that  the  appellant had  committed  murders  of Krishnandan and Bir Bahadur.

     We  have  carefully gone through the evidence  of  the witnesses in order to find out the circumstances under which

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the  assault on Krishnandan and Sir Bahadur had taken place. From  the  evidence  of  Lagan Deo Kumar  -  P.W.7,  son  of deceased  Krishnandan, it appears that In between the  house of  the deceased and the accused, there is some vacant  land and  a  dispute regarding the same was going on between  the accused  and  the  deceased.   An order  favourable  to  the accused was passed by the court but the litigation was still pending.   From  his  evidence  and   the  evidence  of  the Investigating  Officer, it appears that the disputed land is situated between the houses of the accused and the deceased. The  evidence  of P.W.9 - Ramji Rao, who is  an  independent witness discloses that while he was sitting near the door of his  house on the date of the incident at about 5.30 a.m.,he saw the appellant and Nagendra Rai going towards their house from  their  cattle  shed  in  great  fury.   The  appellant Rajendra  Rai was carrying Hasua at that time.  He  admitted that  he  had  made  no attempt to stop  Rajendra  Rai  (the appellant)  nor the persons whose houses are in between  had tried  to do so or follow him.  In reply to the question, he further  stated  that the mood of Rajendra Rai was not  good and  because  of this reason he had followed him.  One  more significant   answer   given   by   this  witness   in   his cross-examination is that the villagers had assembled at the place  of  the incident .just before the assault  had  taken place.  Thus his evidence clearly indicates that the accused wh1"te working in the cattle shed saw the deceased tying his buffalo  on the disputed land and therefore he went to  that place and gave one blow on his back which led to his death.

     Bir  Bahadur came to be killed as he had gone to  that place hearing shouts of his mother.  This does not appear to be  a case where the murders of Krishnandan and Bir  Bahadur were  committed because of any pre-meditation and in a  cold blooded manner.

     Both the Sessions Court and the High Court have failed to  consider tha abova referred facts and circumstances  and have  erroneously  proceeded on the basis that  the  accused committed  the  murders in pursuance of a  conspiracy,  with pre-meditation  and  in  cold blooded manner.   Having  gone through the evidence, we find that there is no justification for  taking  such  a view.  On the  contrary,  the  evidence discloses  that the act of Krishnandan in tying his  buffalo and  using  that land had infuriated the appellant and  thus the incident had happened all of a sudden.

     Considering  the facts and circumstances of this case, we  are  of the view that this case cannot be regarded as  a rarest  of  rare  case where the penalty of death  would  be justified.   We, therefore, allow this appeal and modify the order of sentence by reducing it to life imprisonment.