Criminal Appeal Nos.249-250 of 2011 and Criminal Appeal Nos.1747-1748 of 2011. Case: 1. Deepak Rai, 2. Jagat Rai and Anr. Vs State of Bihar. Supreme Court (India)
| Case Number | Criminal Appeal Nos.249-250 of 2011 and Criminal Appeal Nos.1747-1748 of 2011 |
| Judges | Sudhansu Jyoti Mukhopadhaya and M. Y. Eqbal, JJ. |
| Issue | Indian Penal Code, 1860 - Sections 120B, 148, 149, 302, 307, 326, 429, 436, 452; Code of Criminal Procedure, 1973 - Section 354(3); Code of Criminal Procedure, 1898 - Section 367(5); Constitution of India - Article 136; Evidence Act, 1872 - Section 27 |
| Judgement Date | September 19, 2013 |
| Court | Supreme Court (India) |
Judgment:
H.L. Dattu, J.
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These appeals are directed against the judgment and order passed by the High Court of Judicature at Patna in Death Reference No. 6 of 2009 and Criminal Appeal(DB) Nos. 989 of 2009 and 158 of 2010, dated 19.08.2010. By the impugned judgment and order, the High Court has confirmed the judgment of conviction, dated 17.09.2010 and order of sentence, dated 30.10.2009 passed by the Additional Sessions Judge cum FTC No. 2, Vaishali at Hazipur in Sessions Trial No. 195 and 571 of 2006, whereby the learned Sessions Judge has convicted the three accused-appellants for offence under Sections 120B, 148, 302 read with 149, 307 read with 149, 326, 429, 436 and 452 of Indian Penal Code, 1860 (for short 'the IPC') and sentenced them to death.
Facts:
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The Prosecution case in a nutshell is: On the fateful night of 01.01.2006, the deceased informant (PW-7) was sleeping in the Varanda of his house and his wife alongwith the children, two daughters aged 12 and 10 years, respectively and three sons aged 8, 6 and 3 years, respectively were sleeping in the room inside the house. At around 01.00 A.M., he was awakened by the sound of footsteps of several people. In the dim light of a night bulb and further from their voices, he identified the persons who had come near his house armed with lethal weapons as appellant-accused persons and nine other villagers besides 10-11 unknown persons.
Before the informant could escape, appellant- accused-Jagat Rai(A1) and Deepak Rai(A2) caught hold of him and pushed him on the ground whereafter 3-4 unknown persons got over his body and gagged him. Then A1 instructed few others to surround the house from all sides and sprinkle kerosene over it, while the other accused persons locked the door of the room where the informant's wife was sleeping alongwith the children and set the house on fire trapping them inside. Thereafter, they sprinkled kerosene over the informant's body and held him to the ground while A1 set the informant's mouth on fire by lighting a matchstick.
Upon rising of a blazing flash of fire, the accused persons fled away leaving the informant behind. While the informant also attempted to escape, A2 fired at him but the informant managed an escape and raised alarm. On hearing such noise, the informant's four brothers and other family members who resided in the adjoining houses woke up, reached the spot and witnessed the accused persons running away while the informant was on fire. Until then the fire in informant's house had reached its enormity, swallowing the informant's family and injuring the buffalo and calf on the property. The informant (PW-7) was rushed to the Primary Health Centre, Raghopur.
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The fardbayan was recorded at 7:30 AM, on the basis of which an FIR was registered against the three appellant- accused and few others for the offence under Sections 147, 148, 149, 452, 342, 324, 326, 427, 436, 307 and 302 of the IPC at 9:00 AM on 01.01.2006. The motive of the occurrence was alleged to be the informant's refusal even after consistent threats by A1 to withdraw the FIR lodged by him for the theft of informant's buffalo against A1 and his family, in pursuance of which two members of his family were arrested. Upon investigation, the chargesheet was drawn against the aforesaid accused persons on 21.03.2006. The learned Judicial Magistrate, First Class, Hazipur, Vaishali bifurcated the case of the absconded accused persons-A1, A2 and 8 others and committed the case of Bacchababu Rai (A3) and 5 others for trial as Sessions Trial No. 195 of 2006, by order dated 06.05.2006. Upon arrest of the accused persons-A1, A2 and one other, their case was separated from other absconder-accused persons and committed to trial as Sessions Trial No. 571 of 2006, by order dated 15.12.2006.
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While in Sessions Trial No. 195 of 2006, 17 witnesses were examined and 14 exhibits were produced, in Sessions Trial No.571 of 2006, 14 witnesses were examined and 11 exhibits were produced by the prosecution. Since both the cases arose out of the same FIR, they were consolidated by order dated 12.01.2008, whereafter their trial proceeded together. While A2 examined 8 witnesses, other two accused persons- Binay Rai and Ranjay Rai examined five and three witnesses, respectively in their defence.
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Since the evidence of prosecution witnesses recorded in the two trials corroborates the prosecution case in material particulars, brevitatis causa and to avoid repetition we would only notice them once. The informant (PW-7) has identified the appellant-accused persons, supported the prosecution case in his evidence and testified in respect of the time and manner of occurrence of the fateful incident and the motive of the accused persons. PWs 1, 2, 3 and 4 are the brothers of PW-7 who resided adjacent to PW- 7's house. They have identified the accused persons and further corroborated the prosecution case in respect of time of occurrence and motive of the appellant-accused persons. PW-1 has stated that as soon as he heard PW-7's shrieks and noise from the blazing fire, he rushed outside his house and witnessed the accused persons fleeing away.
He found PW-7 on fire and immediately covered him with a blanket to douse it; where after, he along with others attempted to set the fire off at PW-7's house but the fire having transformed into a conflagration it was too late to save the six deceased persons. PW-5 (wife of PW-2), PW-6 (mother of PW-7), PW-14 (wife of PW-1), PW-15 (sister of PW- 7) and PW-16 (wife of PW-4) have also supported the prosecution case in respect of PW-1's account of the incident, i.e., the fleeing away of the three appellant- accused persons along with others and the motive of the accused persons behind the incident.
PW-8, the Doctor who conducted post mortem examination of the six deceased persons, has corroborated the prosecution case that the death occurred by 100% burn injuries. PW-10, the Doctor who treated PW-7, has testified in respect of the injuries suffered by PW-7. His evidence along with the post-mortem report corroborate the time and manner of the fateful incident. Further, PW-11 (the Investigating Officer) supported the prosecution case with regard to the time and place of the occurrence and the presence of charred dead bodies of the six deceased persons. The Trial Court discarded the testimonies of the defence witnesses at the outset and proceeded with the trial.
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Upon meticulous consideration of the evidence on record and the submissions made by the parties, the learned Sessions Judge has observed that even though the witnesses examined by the prosecution are related to the victims, their testimonies when considered with due care and caution are corroborated by the evidence of informant (PW-7), the post mortem reports, evidence of the Doctors(PW-9 and 10) and the evidence of PW-11, the Investigating Officer and therefore, cannot be rejected on the prima facie ground of them being interested witnesses.
The Trial Court has believed the aforesaid evidence corroborating the prosecution case in respect of A1, A2 and A3; however, doubted the presence of other accused persons since their names have neither been mentioned in the fardbayan nor has the evidence produced against them proved their offence beyond reasonable doubt. In light of the aforesaid observations, the Trial Court has reached the conclusion that the three appellant-accused persons are guilty of the aforesaid offence and has convicted them accordingly while acquitting the others, by judgment dated 17.09.2009. Further, after affording an opportunity of hearing to the appellant-accused persons on the question of sentence, the Trial Court has sentenced them to death, by order dated 30.10.2009, relevant paragraphs of which are reproduced as under:
Heard both sides on the question of sentence on behalf of the held guilty accused Bachcha Babu Rai, Jagat Rai, Bipat Rai alias Deepak Rai, it has been submitted that before this, they have not been punished in any case of them Bipat Rai @ Deepak is a retired military personnel. Keeping in mind, their age has also first conviction, minimum of sentence may be inflicted.
On behalf of the prosecution it has been said that the guilty held persons Bachcha Babu Rai, Jagat Rai, Bipat Rai@ Deepak Rai have committed a heinous offence and their offence falls under the category of RARE OF RAREST. Their heinous crime has ruined the informant of this case, his wife and five children. So far Bipat Rai is concerned, he is a retired military personnel his conduct should be all the more decent. They are not of tender age nor old. They do not deserve any mercy and they deserve death sentence.
In the light of the reasoning of both sides as also on an appreciation, it is manifest, that the occurrence is of night when the informant, his wife and five minor children and cattle all have been burnt to death. The informant also subsequently died in this way, the entire family is ruined. In the light of the guidelines as given by Hon'ble Supreme Court, this case falls under the heading of RARE OF RAREST cases. Because of this the guilty held accused persons Bachcha Babu Rai, Jagat Rai and Bipat Rai allias Deepak Rai are sentenced to death or offence u/s 302/ 149 IPC....
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Aggrieved by the aforesaid judgment and order, the three appellant-accused persons filed appeals before the High Court which were heard alongwith the Death Reference No. 6 of 2009 and disposed of by a common judgment and order, dated 19.08.2010. The High Court has elaborately dealt with the evidence on record and extensively discussed the judgment and order of the Trial Court in order to ascertain the correctness or otherwise of the conviction and sentence awarded to the appellant-accused persons.
The High Court has observed that since, the informant is the only witness who was present at the scene of crime, his testimony alone could substantiate upon the specific role of accused persons in the...
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