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PETITIONER: RAMJI RAI & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR

DATE OF JUDGMENT:       13/10/1999

BENCH: N.S.Hegde, G.B.Patmaik

JUDGMENT:

     SANTOSH HEGDE, J.

     The  Ist  Additional  Sessions Judge,  Motihari,  East Champaran  District,  State of Bihar by his  Judgment  dated 28th  of July, 1992 delivered in Sessions Trial No.180/29 of 1991 convicted 21 persons, for the offences punishable under Sections  302, 302/149, 148, 324, 380, 307/149 and  punished them as follows :

     Accused  Banka Rai, Durbal Rai, Bacha Rai and Hira Rai were  convicted  for offence under Section 302 IPC and  were sentenced  to  death.   Accused  Chhota  Rai,  Krishna  Rai, Ramprit  Rai, Mofil Rai, Wakil Rai, Baijnath Rai,  Dharmjeet Rai,  Lal  Babu  Rai,  Ambika Rai and  Bindeshwar  Rai  were convicted  under  Section 302 read with Section 149 IPC  and were  sentenced  to undergo rigorous imprisonment for  life. All  the  above  14  accused were further  found  guilty  of offence  under  Section  148 IPC and among them  Banka  Rai, Durbal  Rai, Bacha Rai, Chhota Rai and Krishna Rai were also found  guilty of offence under Section 307 read with Section 149  IPC.   Accused Ramprit Rai, Krishna Rai and  Banka  Rai were convicted for offence under Section 324 IPC and accused Ramprit  Rai was further convicted under Section 380 IPC but in view of the capital sentence or life imprisonment awarded on  them  separate  sentences on the above counts  were  not awarded.   Among  the rest of the accused,  namely,  Jamadar Rai, Nathuni Rai, Darshan Rai, Laxman Mahto, Bishnudeo Mahto and  Ramjeet  Rai were convicted under Section 148  IPC  and were  sentenced to undergo three years rigorous imprisonment on that count.  Accused Jamadar Rai, Nathuni Rai and Darshan Rai  were  further convicted under Section 380 IPC and  they were  sentenced  to undergo rigorous imprisonment for  three years  each.   Lastly,  accused Hira Rai was  convicted  for offence  under  Section  147 IPC and  sentenced  to  undergo rigorous  imprisonment for two years.  The sentences  passed on  different counts were directed to run concurrently.  The trial  court acquitted 10 other accused persons giving  them the  benefit  of  doubt.   Against  the  said  judgment  and conviction,  the aggrieved persons preferred three  Criminal Appeals,  Crl.A.Nos.   281, 285 and 321 of 1992  before  the High  Court of Patna and consequent to the awarding of death sentence  against  four  of  the  accused,  named  above,  a Reference  Case  No.883-A of 1990 was also preferred  before the High Court at Patna.  The High Court as per its judgment

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dated  18th of August, 1995 dismissed the appeals  preferred by  the  convicted  accused persons and  also  rejected  the reference  made to it for confirmation of the death sentence and consequently modified the said sentence of death imposed on  the four of the appellants to that of life imprisonment. Against  the said judgment of the High Court, the  convicted accused  have  preferred the above noted  criminal  appeals. This  Court, while entertaining the above appeal, issued suo motu  rule for enhancement of sentence of life  imprisonment to  death  sentence in regard to accused persons Bacha  Rai, Banka  Rai and Durbal Rai who were three of the four persons sentenced to death by the trial court.  The prosecution case as narrated in the courts below stated briefly is as follows :-

     PW-16 Rajendra Rai son of one of the deceased, namely, Jaimangal  Rai  lodged a complaint Ext.5 in  Police  Station Chhauradano,  alleging that about 100 to 150 persons came to the  Village  Murli  on the evening of 4th of  August,  1990 armed with deadly weapons like Kharia, Pharsa, Garasa, guns, rifles, sword, lathi etc.  and caused the death of Jaimangal Rai,  Jatan Sah and Sheo Bachan and caused grievous hurt  to Amir  Rai  and also caused hurt to Ram Naresh Rai and  Mauna Devi.   Based  on the above complaint, the concerned  police registered  a  case under Section 147, 148, 149,  302,  307, 323,  324, 326, 307, 302, 380 IPC and Section 27 of the Arms Act against the 35 accused persons named by the informant in his  complaint.  After investigation a charge-sheet for  the above offences including an offence under Section 452 of the IPC  was  laid  and  the   accused  so  charge-sheeted  were committed  for  trial  in  the   Court  of  Sessions.    The prosecution in support of its case has examined 17 witnesses in  all,  they  are PW-1 to PW-17.  In the  statement  under Section  313  of  the Criminal Procedure Code, some  of  the accused  denied  the  allegation in total  while  some  have specifically  stated  that  they   were  falsely  implicated because they had made certain allegations of black marketing in  sugar against some of the prosecution witnesses.  We are informed that out of the 21 appellants in the above appeals, appellants Chhota Rai and Krishna Rai who have been shown at serial  Nos.11  and  15   respectively  in  Criminal  Appeal No.285/92  before  the High Court have absconded  from  jail while  serving the sentence imposed on them.  Therefore,  we deem  it  appropriate  that their name be deleted  from  the array  of  appellants  and their  appeal  stands  dismissed. Consequently,  the  conviction and sentence  passed  against them,  stand  confirmed.  On behalf of the  appellants,  Mr. Ashok   Panda,  learned  senior   counsel  and  Mr.   Ranjan Mukherjee,  learned  counsel have contended that the  courts below  have  not given a clear finding regarding the  common object of the assembly allegedly formed by these appellants. In  the  absence  of  the same, they  could  not  have  been convicted  with the aid of Section 149 IPC.  They have  also contended  that  the prosecution having failed to  establish any  motive  there could not have been a conviction  against these  appellants.   It was also their contention  that  the eye-witnesses  are  inter-related,   hence,  are  interested witnesses  so  their evidence ought not to have been  relied upon.   On  behalf  of the State, Mr.  K  B  Sinha,  learned senior  counsel  has supported the judgments of  the  courts below, countering the attack made by learned counsel for the appellants  on  the judgments of the courts below.  We  have carefully examined the evidence on record and considered the arguments of both the sides.  The prosecution case as placed before  the  trial  court shows that  way-back  on  6.8.1990

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Rajendra  Rai  son  of Jaimangal Rai who is cited  as  PW-16 appeared  before the Chhauradano Police Station and lodged a complaint which was recorded by Sub-Inspector D N Thakur who was examined as PW-17.  In the said statement, he had stated that  on 5.8.1990 at about 7 p.m.  when he was sitting along with  his  father Jai Mangal Rai, one Jatan Sah  of  village Pakaria  had come to talk to his father and while they  were so  talking,  he  saw suddenly a crowd  of  100-150  persons belonging  to  the Bihar Kisan Samiti heading towards  them; armed  with  Lathis, Bhala, Kharia, sword, Nalkatti gun  and rifles  and  out of them he identified as many as 33 of  the accused  persons  whom he named in his complaint.   He  also narrated  in  the  said  complaint  the  individual  weapons carried  by these accused persons.  It was mentioned in  the said  complaint  that  these accused persons  were  shouting Maro Sale Ko and surrounded his house from all four sides. Having  seen the mob coming towards them, he, his father and Jatan Sah went inside the house and closed its eastern door. The complainant goes on to say that from amongst the accused persons,  Hira Rai, Daroga Rai, Mofil Rai, Sk.  Motlif,  Ali Imam,  Durbal  Rai,  Banka  Rai, Bacha Rai,  Wakil  Rai  and Baijnath  Rai  with the help of some others broke  open  the northern door of his house while some of the accused removed the  Tatti of the eastern door of the house and entered  the house.   He  states that he climbed atop the roof through  a ladder  kept in the Angan while the accused persons got hold of  his  father Jai Mangal Rai and Jatan Sah.  According  to him, they dragged his father out to the northern side of the house  and the above named accused persons killed his father by  cutting with the weapons like Kharia and Farsa.  In  the said  process  of  killing, they also chopped  his  fathers right leg above the ankle and also chopped the upper portion of  his  neck.  Thereafter, some of the accused persons  got hold  of  Jatan  Sah  and  took  him  towards  the  roadside assaulting  him.  In regard to the assault on Jatan Sah, the complainant   identified  Dharamjeet,   Lal  Babu,   Ambika, Bindeshwar,  Harihar  Mahto and Sk.  Shakeel, among  others. Those  persons,  it is stated, killed Jatan Sah by  chopping his  body  with weapons like Kharia and Farsa.  He  mentions that  his  brother Mahendra Rai was also hiding with him  on the  roof  and  both were able to witness the  attack.   The complainant further says that after murdering his father and Jatan Sah, all the accused persons went towards the house of Sheo  Bachan Rai son of Kuldeep Rai and broke open the  door of  his  house, dragged him out and murdered him by  cutting his head and neck.  At that point of time, when Amir Rai son of  Kalyug  Das  came out of his house,  the  aforementioned accused  persons attacked him in the courtyard of his  house and  inflicted  injuries  on his body.  While Amir  Rai  was being  attacked, the assailants also attacked Muni Devi wife of  Sheo  Bachan Rai.  After the said assault, it is  stated that  all  the  accused  persons  fled  from  the  scene  of occurrence.   The  complainant  has   named,  among  others, Jawahar  Rai, Ram Babu Rai and Deep Lal Rai;  all  residents of  Murli village as having witnessed the incident.  He also stated that at the time of fleeing away, some of the accused persons,  who  have been named in the complaint  separately, also  took  away  two tin boxes containing one  gold  hasuli valued   at   Rs.8,000/-,  silver   chandrahar   valued   at Rs.1,600/-,  Tika  of  gold valued at Rs.2,000/-,  Payal  of Chandi  valued  at Rs.800/-, certain sarees and blouses  and cash  of Rs.3,000/- and a motorcycle of Jatan Sah which  was parked  near  the front door of his house.  The  prosecution through  the  evidence  of  PWs.6 and 7 -  the  doctors  who conducted  the  post mortem on the deceased Jai Mangal  Rai,

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Jatan  Sah  and  Sheo Bachan Rai has  established  that  the aforesaid  deceased  died  a  homicidal  death  due  to  the injuries  caused to them by sharp cutting weapons and  other hard  blunt substances similar to the weapons carried by the accused  persons,  as stated by the  prosecution  witnesses. The  doctors  have opined that the death was the  result  of haemorrhage  caused  by the injuries found on the person  of the said deceased.  Through the evidence of PWs.5 and 6, the prosecution  has  also established that PWs.4, 8, 12 and  17 had  also  suffered  injuries attributable  to  the  weapons carried  by the accused persons out of which PW-8 alone  had sustained  17  injuries on his person which were  caused  by sharp edged weapons and hard blunt substances and one of its injuries  was so severe as to cause complete damage and loss of  his right forearm.  The prosecution through the evidence of  the  investigating officer, PW-17, has established  that the  incident  in  question  had occurred at  the  place  as mentioned  in  the  complaint.   From the  evidence  of  the eye-witnesses out of which many are either injured witnesses or  the relatives of the deceased persons whose presence  at the time of the incident cannot be doubted, it is clear that the  incident  under reference has occurred as presented  by the  prosecution  case.  Their evidence is quite  consistent and  has withstood the test of cross-examination.  It cannot be doubted that these witnesses had identified the convicted accused  persons, hence, the courts below were justified  in placing reliance on their evidence to come to the conclusion that  the accused appellants were the members of an unlawful assembly,  the common object of which was to cause the death of  the aforesaid deceased and cause injuries to others.  In the  process  of  achieving the said object, they  had  also looted  the property belonging to the witnesses.  Since  the incident in question has taken place for a considerable long time  at different places near about the house of PW-1,  the witnesses were in a position to see and identify the accused and  their participation in the crime.  Hence, on a  careful reading  of  the  reasoning  of the  courts  below  and  our considering  the  evidence on record, we are of the  opinion that  the findings of guilt recorded by the courts below are consistent  with the evidence adduced in the case and do not call  for any interference.  Consequently, the appeals filed by  the accused-appellants are dismissed.  This brings us to the  next question as regard to the enhancement of  sentence with  regard to the three named accused in the order of this Court  dated  23.10.1996  wherein while granting  leave  to appeal,  this Court suo motu issued Rule to show cause  why the  sentence of life imprisonment awarded by the High Court on  Bacha  Rai, Banka Rai and Durbal Rai be not enhanced  to death  sentence.  These three appellants along with  another appellant named Hira Rai were awarded the maximum penalty of death  by the trial court while sentencing them for offences punishable  under  Section 302 IPC.  The trial  court  while considering  the awarding of sentence with reference to  the four accused persons sentenced to death held thus :-

     Such barbarous gruesome activity of attack and murder in  mass way by unruly militant groups in villages and other regions  of  this state is getting encouragement because  in such crime the criminals are not brought to book because the witnesses  being terrified of same consequences at the hands of  such  criminals  is they stand as eye witnesses  in  the court of law against them.  In the present set up of society where  people  are  constitutionally given full  liberty  of physical  and  mental  acts  an  expression  for  all  round progress  of  all  individuals in right  direction  but  the

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perverted  assumption  of this liberty is being applied  in, indulging  in  criminal activity in the nature one found  in the  present and such activity is getting momentum.  If such perverted approach of life against the society is allowed to flourish  in the mind of people that be endangering the very core  of  constitutional frame of the society we are  living in,  and create havoc in mind of all leading to chaos.  Such nature  of crime must be checked and in the present  society where  moral-ethical sense is on diminishing trends that can be checked by awarding exemplary punishment in rigorous form of  capital sentence to remind such criminals in the society that  human life is very precious and one who dares to  take life  of others, has to lose his own life also by the  court of  law.   The  principle laid down by the  Honble  Supreme Court that the capital sentence to an accused in murder case be  awarded  in the rarest of rare cases and in my mind  for the  criminal  behaviour  of accused persons  in  nature  of present  case  must be brought under said dictum of  law  of Honble  Apex  Court  and accordingly four  of  the  dreaded criminals  viz.   accused, Banka Rai, Durbal Rai, Bacha  Rai and Hira Rai son of Jodha Rai deserve to capital penalty and they  are  sentenced  to  death u/s 302 I.P.C.   and  it  is directed  that each one of them be hanged by neck till he is dead.   However,  this  capital sentence will  not  come  in operation  until  the same is confirmed by the Honble  High Court Patna.  x x x

     The  High  Court while rejecting the  reference  under Section  366  of the Code, did not discuss in detail why  it came  to  the conclusion, the death sentence awarded by  the trial  court  be not confirmed.  It merely stated  that  the interest of justice would be fully served if the sentence of death  is  reduced to imprisonment for life.  While we  have noted  that  the  trial  court has given  some  reasons  for awarding  the death penalty on four of the accused, we think it  would  have been more appropriate for the High Court  to have  given reasons for differing from the view taken by the trial   court  rather  than   mechanically   rejecting   the reference.   May  be, it is for this reason that this  Court felt  it imperative to issue notice of enhancement.  We have heard  the learned counsel for the State as well as the four appellants  concerned and carefully considered the  material on  record.  It is a well settled law that while upholding a conviction  for the offence of murder, the penalty of  death is  to be awarded only in rarest of the rare cases when  the court  comes  to the conclusion that the lesser sentence  of imprisonment  for  life would not meet the ends of  justice. This  Court in the case of Gentela Vijayavardhan Rao &  Anr. v.   State  of A.P.  (1996 6 SCC 241) after considering  the law  laid  down by the earlier judgments of this Court,  has held  that no litmus is provided nor any test formulated  to discern  precisely  what is the rarest of the rare cases  in which  the alternative option of awarding life sentence  is, thus, foreclosed.  In Machhi Singh v.  State of Punjab (1983 3  SCC  470)  this court held that in order to  award  death sentence  the  court  should  ask   itself  and  answer  the following  questions  :   (i) Was there  something  uncommon about  the crime which renders sentence of imprisonment  for life  inadequate and calls for a death sentence ?  (ii) Were the  circumstances  of  the  crime such  that  there  is  no alternative   but  to  impose   death  sentence  even  after according  maximum weightage to the mitigating circumstances which speak in favour of the offender ?  Bearing in mind the above  principles,  we  find that the trial  court  has  not

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applied  its mind to the above principles and has  proceeded more  on philosophic than on realistic grounds.  The reasons given   by  the  trial  court,   which  we  have   extracted hereinabove  for awarding death sentence, in our opinion, do not conform to the guidelines laid in the above judgments of this Court.  The acts attributed by the prosecution to these three  appellants, who are the recipients of the notice  for enhancement,  cannot  be said to be any different  from  the rest  of  the accused persons.  Murder, as it is, is  though liable for the sentence befitting the crime, we do not think the present case could be brought under the maxim rarest of the  rare cases so as to award the extreme penalty of death on these appellants.

     For  these  reasons,  we are of the opinion  that  the sentence  of life imprisonment imposed by the High Court  on these  three  appellants  was appropriate in the  facts  and circumstances  of this case, hence, we discharge the  notice of  enhancement of sentence issued against Bacha Rai,  Banka Rai  and Durbal Rai.  However, their conviction and sentence awarded by the High Court are confirmed, and all the appeals stand dismissed.