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TMI Blog2006 (9) TMI 580X X X X Extracts X X X X X X X X Extracts X X X X ..... dhary was returning to her residence from her laundry and when they reached near Bhinda of Pokhar, all on a sudden the accused-appellant Raj Kumar Mahto armed with pistol/revolver and dagger appeared before the victim, bounced upon him and began to give indiscriminate dagger blows. The informant tried to save her son but she was pushed away by the accused-appellant. Thereafter again he gave several dagger blows on various parts of the body of the deceased as a result of which he died at the spot. Thereafter, the appellant fled away leaving behind blood stained dagger and revolver/pistol on the spot. On hue and cry raised by the informant several persons of the locality including her family members reached at the spot to whom she disclosed about the occurrence as well as name of the accused-appellant as murderer of her son. 4. On the same evening the police came at the spot and at about 7.30 P.M. Sugriv Singh, Sub-Inspector of Police, recorded the Fardbeyan of the Informant and registered Laheriasari P.S. Case No. 253/01 under Section 302 of the Indian Penal Code against the accused-appellant. He also seized both weapons the dagger and pistol/(sic) from the spot said to be left b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s wrong notion in the mind of some persons that close relative of the victim is always considered to be a partisan or interested witness. This question has come for consideration before the Apex Court in a decision (Most. Dalbir Kaur and Ors. v. State of Punjab) and the answer has been given in paragraph 13 of the judgment. The relevant findings of the Apex Court is as follows; Moreover a close relative who is a very natural witnesses cannot be regarded as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing that the accused person is somehow or the other convicted either because he had some animus with the accused or, for some other reason. There are catena of decisions of the Apex Court consistent with the above view. However, I am tempted to bring to the notice one more decision of the Apex Court (Dilip Singh and Ors. v. The State of Punjab) which would dispel the criticism of the learned Counsel for the appellant. The relevant paragraphs are 25 and 26 which run as follows: Para 25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eye witnesses requires co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... har the accused-appellant appeared and pointed pistol on the chest of the deceased and assaulted him with dagger. She has further stated that she tried to save her son but she was pushed away and thereafter the accused-appellant gave seven dagger blows to the victim as a result of which he died on the spot. Thereafter, the accused-appellant fled away after throwing the pistol and dagger. She has also alleged the motive for the crime. Even long and lengthy cross - examination has not shaken this witness. 11. It is not a fact that the testimony of P.W.15 is uncorroborated. It appears that just after the occurrence of murder a large number of persons including family members came on the spot on cry of the informant to whom she disclosed about the occurrence and name of the accused-appellant as assailant. P.Ws. 3,4 and 5 are full brothers of the deceased. P.W.6 is uncle and P.W.7, is the father of the deceased. P.Ws.2,10 and 11 are persons of the vicinity of the place of occurrence. They all have stated in their evidence that on hearing cry of the informant, they rushed to the spot and found the victim lying dead on the ground bearing injuries. They have also stated that the informa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mant as well as factum of statement given by the informant just after the occurrence. It is also admissible on the point of recovery of blood stained dagger and revolver from the place of occurrence. All these facts lend strong support to the prosecution story as disclosed by the informant, P.W.15. 15. The evidence of the Dr. P.K. Das, P.W.17, who conducted the postmortem upon the dead body of the victim further lends support to the prosecution story. The post-mortem was held on the next day by this witness who found as many as four incised injuries on the vital parts of the body of the deceased. Ext.3 is the post mortem report. 16. The other witness whose evidence is material to prove the prosecution story is Investigating Officer of the case, who is P.W.18, Sugriv Singh. Just after the alleged occurrence he reached on the spot and recorded Fardbeyan of the informant, and took up investigation himself. Apart from preparation of the inquest report (Ext. 5.) he also seized dagger and pistol/revolver from the place of occurrence through seizure list (Ext.6). The material Exts. I and II are pistol and dagger seized from the place of occurrence. In paragraph 6 of the evidence he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the point of sentence. The learned Counsel has assailed the sentence of death awarded by the learned lower court on two grounds. It is submitted that the learned lower court without effectively complying the mandatory provision of Section 235(2) of the Code of Criminal Procedure has awarded extreme penalty of death which is apparent from the fact that the sentence has been passed on the same day on which the judgment of conviction was delivered. Second submission is that the case in hand, by no stretch of imagination, falls within the parameter of the rarest of the rare cases as defined by the Apex Court in its several decisions including 1980 SC page 898 (Bachu Singh v. State of Punjab). 21. I find much substance in the submission of the learned Counsel for the appellant. It is quite apparent from the record that the learned lower court has awarded extreme penalty of death to the accused-appellant in disregard to the principles and directions laid down by the Apex Court both in the matter of hearing on the point of sentence and applying the principle of rarest of rare cases. 22. The Apex Court in a decision (Allauddin and Ors. v. State of Bihar) has laid down the man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... think as a general rule the Trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. In the present case, as pointed out earlier, we are afraid that the learned Trial Judge did not attach sufficient importance to the mandatory requirement of Sub-section (2) of Section 235 of the Code. 23. Apparently the lower court has committed serious error by awarding death sentence to the accused-appellant without providing effective opportunity of hearing and therefore, extreme penalty awarded to the accused-appellant is not tenable in the eye of law. Apart from it, the case in hand also does not fall within the category of ''rarest of rare cases as laid down in a decisions of Apex Court reported in AIR 1980 page 898 (Supra) and (Surja Ram v. State of Rajasthan). 24. In the result, the sentence of death awarded by the lower court to the accused/appellant is hereby set aside and is commuted into the sentence of life. Accordingly, the Criminal Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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