Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 145 (PAT)

State Of Bihar v. Balli Jha

2000-01-27

A.K.PRASAD, P.K.DEB

body2000
Judgment A.K.Prasad, J. 1. Death Reference No. 1 of 1999 (R) under Section 366 of the Criminal Procedure Code made by the then Vth Addl. Sessions Judge, Dhanbad, for confirmation of death sentence awarded to convict Balli Jha, Cr. Appeal No. 160 of 1999(R) filed by four convicts, namely, Buchi Jha, Gopal Jha, Heera Devi and Sunil Jha, and Cr. Appeal No. 165 of 1999 (R), preferred by convict, Balli Jha, which arise out of common judgment dated 29.5.1999 and order dated 10.6.1999 in S.T. No. 439 of 1994, passed by Sri Rajesh Kumar, the then Vth Addl. Sessions Judge, Dhanbad, have been heard together and are to be governed by this common judgment. All the appellants have been convicted under Sections 302 read with 149 of the Indian Penal Code on the charge of committing the murder of Renu Jha, wife of appellant Balli Jha, and her minor children, Ratan Kumar and Guida, in between 17th/18th January, 1994, at Bhaga (Gadiwan Patti within the police station Jharia, district Dhanbad. Appellant Balli Jha has been sentenced to death and the four appellants in Cr. Appeal No. 160 of 1999(R) have been sentenced to life imprisonment. Appellants Buchi Jha and Gopal Jha are the two brothers of appellant Balli Jha. Appellant Hira Devi is the wife of appellant Buchi Jha, while appellant Sunil Jha is their son. 2. Briefly put, the prosecution case is as under: Renu Devi, the deceased, was married to accused/appellant Buchi Jha on 24.2.1988. After her marriage, she lived at her parental home, situate at Baghwa within P.S. Simri Bakhtiarpur, district Suharsa. Balli Jha, her husband, used to visit his sasural and the two children were born, namely, Ratan Kumar and Gudia, out of the wed-look, while Renu Devi was staying with her parents. A year ago to the occurrence, accused/appellant Balli Jha stopped visiting his sasural. The duragaman (2nd marriage) of Renu Devi could not be performed inspite of request and approach made by her father because Balli Jha, her husband, and her inlaws made demand of television set, scooter and five bhars of gold as dowry. The fulfilment of dowry was made a condition precedent by them for the 2nd marriage. Ultimately, the father of Renu Devi (Barini Pd. Rai alias Natu Rai/PW 3) convened a panchayati at Bhaga, where the appellants were living. The fulfilment of dowry was made a condition precedent by them for the 2nd marriage. Ultimately, the father of Renu Devi (Barini Pd. Rai alias Natu Rai/PW 3) convened a panchayati at Bhaga, where the appellants were living. In the panchayati, the accused-pressed the dowry demand as condition precedent for the 2nd marriage of Renu Devi. The panchas, including Devkant Jha (PW 6) decided that the 2nd marriage is to be performed and her father would give what is possible in dowry, and her father returned after fixing of late for the 2nd marriage. But the husband or his relatives did not turn up on the fixed date for her Duragaman. Renu Devi told her mother that her husband had developed illicit relation with accused/appellant Hira Devi and the expressed her desire to her parents to reach her to her husbands place at Bhaga. Thereafter, on 2.12.1993, Renu Devi along with her children was sent to the place of her husband at Bhaga along with the articles through Raj Kumar Mishra, her cousin. Raj Kumar Mishra was abused, ill-treated and driven away by the accused/appellants for having brought Renu Devi and her children, but they kept Renu Devi and her children at their place. On 18.1.1994 at about 9.00 a.m. Nand Kumar Mishra (PW 8), the mousa of Renu Devi, went to her sasural at Bhaga and was perplexed to find the dead-bodies of Renu Devi and her two children, lying there on a cot and large number of people had assembled. 3. The police officer (M.P. Sharma), PW 11, on the basis of some telephonic communications, received at Jharia Police Station, on 18.4.1994 after recording station diary entry went to the house of the appellant at Bhaga, within Jharia Police Station, to verify and ascertain the truthfulness of the message received regarding the triple murder, were, on the spot, PW 8 gave the written report (Exhibit 3), expressing firm belief that the accused/appellants had done Renu Devi and her children to death. On this basis, the present case came to be instituted, formal first information report (Exhibit 6) was drawn up, the Police Officer (PW 11) held inquest over the dead-bodies (Exhibits 5 to 5/2 are copies of the inquest reports), which were found on a cot in the room of the house, inspect the place of occurrence, sent the dead-bodies for autopsy and on completion of investigation, charge-sheet was laid in Court against the accused/appellants. 4. The case was, ultimately, committed to the Court of Sessions by the then Chief Judicial Magistrate, Dhanbad, on 2.6.1994. 5. The main defence is of innocence, bare denial of the involvement of the accused/appellants in the murder of the deceased and of false implication. 6. At the trial, the prosecution examined 11 witnesses in support of its case. They are : PW 1 (Brahmdeo Jha), PW 2 (Sambhu Pd. Tanti), PW 3 (Tarini Pd. Rai), father of the deceased (Renu Devi), PW 4 (Lalmohan Rai), PW 5 (Sudarshan Rai), PW 6 (Deokant Khan), PW 7 (Bish-wanath Rai), brother of the deceased (Renu Devi), PW 8 (Nand Kumar Mishra), the informant, PW 9 (Dr. Sailendra Kumar) who held post-mortem examination on the dead-bodies of Renu Devi and her two children, PW 10 Santosh Kumar Jha), who claimed himself to be the eye-witness to the occurrence, and PW 11 (Mithilesh Pd. Sharma) the Investigating Officer. The defence, on the other hand, examined no witness. 7. All the accused/appellants were charged under Sections 302/34 of the Indian Penal Code for committing the murder of Renu Devi and her two children, namely, Ratan Kumar and Gudia, and alternatively under Section 304-B of the Indian Penal Code for causing dowry death of Renu Devi. 8. On consideration of the evidence and materials on record, and mainly relying on the ocular testimony of PW 10 (Santosh Kumar Jha), the medical evidence, existence on motive to eliminate Renu Devi and her children by the accused/appellants for non-fulfilment of the dowry demand, and the circumstances that Renu Devi has met with homicidal death within seven years of her marriage at her matrimonial home, held the accused/appellants guilty of the offence under Sections 302/149 of the Indian Penal Code as well as under Section 304-B of the Indian Penal Code, but convicted them only Sections 302/149 of the Indian Penal Code and passed sentences on them, as stated above. 9. 9. The common arguments advanced by the learned counsel for the appellants are : that on mere suspicion and surmises they have been convicted by the trial Court ; that PW 10 (Santosh Kumar Jha), the solitary eye-witness, is not a truthful witness and it is highly improbable that at dawn on 18.1.1994, while passing through the road, which, in fact, is at some distance from the house of the appellants, could have heard the shrieks and gone to middle of the room and peeped through the ajar door and witnessed the appellant Buchhi Jha, catching hold of deceased Rena Devi, while her husband Balli Jha was pressing her neck and presence of other three appellants in the room; that he claims to have fled at the sight and narrated this fact to his father (PW 1) shortly thereafter, who was then residing at village Banihai within P.S. Jharia, which is at a distance of 250-300 yards from the house of the appellants and PW 1 claimed to have rushed, chased and apprehended the appellants Sunil Jha, Buchhi Jha and Balli Jha with assistance of some persons and brought them to the house and PW 10, after the arrival of the police to their house, claims to have again visited the house of the appellants, but in the written report (Exhibit 3), PW 10 has not been cited a witness, which was made over by PW 8 on the spot to the police officer (PW 11) the same day at 10.30 a.m. and this circumstance rules out the possibility that PW 10 had witnesses any occurrence of actual assault on the deceased (Renu Devi); that PW 3 (Tarini Pd. Rai), father of the decease (Renu Devi has himself admitted in his evidence that after the marriage she had lived for eight years at his house, before she was sent to her sasural and that there was no talk of dowry at the time of the marriage and there is no evidence to show that she was subjected to any harassment or ill-treatment by the appellants after she had been reached to her sasural in early December, 1993 and before her death in the morning on 18.1.1994 and in the circumstances, no presumption under Section 113-B of the Evidence Act can be drawn that her dowry death was committed by the appellants; that the allegation of dowry demand against the appellants after the marriage, is absolutely false; that the mother of Renu Devi to whom she had disclose that her husband Balli Jha had illicit relation with appellant Hira Devi or Raj Kumar Mishra, her cousin, whom the appellants had abused, ill-treated and driven away when he had reached Renu Devi and her children to their house, have not been examined in the case; that the case rests on circumstantial evidence, in which there are important missing links; that there is possibility that Renu Devi might have killed her children and herself committed suicide; that the Police Officer (PW 11) has stated that some message over telephone was received at the police station that the family members of Balli Jha had killed the wife and children and he had reached the place of occurrence. After making station diary entry on 18.1.1994 at 10.30 a.m., and recorded telephonic communication should have been treated the first information report and not the written report (Exhibit 3) and that the statement of PWs 1, 3 and 7 was recorded by the police officer on 15.3.1994, i.e., after inordinate delay. It has been further contended on behalf of the appellants that there is no direct evidence on the murder of the children. Learned counsel for the appellant Balli Jha, in the alternative, urged that it is not rarest of rare category of cases, in which death sentence should have been awarded to him. Learned APP appearing on behalf of the State, on the other hand, has supported the impugned judgment. 10. Learned counsel for the appellant Balli Jha, in the alternative, urged that it is not rarest of rare category of cases, in which death sentence should have been awarded to him. Learned APP appearing on behalf of the State, on the other hand, has supported the impugned judgment. 10. Now, the point which falls for consideration is whether the impugned conviction and sentences passed by the trial Court on the appellants are liable to be set aside or interfered with. 11. PW 7 (Bishwanath Rai), brother of the deceased (Renu Devi) has testified to the effect that she was married to appellant Balli Jha in February 1988. PW 8 has stated that their marriage was solemnised in 1988. PW 3, whose evidence was recorded on 15.3.1995 has stated that the marriage was performed about either years ago from the date of the evidence, i.e., sometime in 1987. Appellants Balli Jha, Buchhi Jha, Hira Devi and Gopal Jha have admitted in their statements under Section 313, Cr PC that Renu Devi was married to appellant Balli Jha in February, 1988. PWs 3 and 7 have testified to the effect that while after marriage, Renu Devi was living with her parents at village Baghwa, appellant Balli Jha used to visit her on intervals and used to stay for some days at the sasural and two children were born to Renu Devi from him, namely, Ratan Kumar and Gudia and appellant Balli Jha stopped visiting his sasural about a year ago to the occurrence. No suggestion has been given by the defence to PWs 3 and 7 that Ratan Kumar and Gudia are not legitimate children of appellant Balli Jha. There is no doubt that Ratan Kumar and Gudia are the legitimate off-springs of appellant Balli Jha. 12. There is the sworn testimony of PW 3 that a month and half ago to the occurrence he had got his daughter Renu Devi and her children reached to the house of her husband and in-laws at Bhaga through Raj Kumar Mishra, his sashurs son. PW 7 has also testified to this effect. PW 8 has deposed that in December, 1993, Raj Kumar Mishra had reached Renu Devi and her children to the house of the appellants. PW 7 has also testified to this effect. PW 8 has deposed that in December, 1993, Raj Kumar Mishra had reached Renu Devi and her children to the house of the appellants. PW 1, who was on visiting terms with the appellant Buchhi Jha and PW 2, a neighbour of the appellants, too have stated that about a month and half earlier to the occurrence, Renu Devi with her children had come to the house of the appellants and were living there. PWs .1, 2, 4, 8 and 10 have stated that in the morning on 18.1.1994 they had visited the house of the appellants and they had found the dead-bodies of Renu Devi and her children lying dead on a cot in their house. PW 11 (M.P. Sharma), the Investigating Officer, has stated that on 18.1.1994 on some telephonic communication, he visited the house of the appellants and he found the dead-bodies of Renu Devi and her children on a cot in a room, which had door. He held the inquest over the dead-bodies between 11 a.m. and 11.30 a.m. (vide exhibits 5 series). Appellant Balli Jha has admitted in his statement under Section 313, Cr PC that Raj Kumar Mishra bad reached Renu Devi and his two children to his house. It is well-established by the evidence on record and which is not disputed by the defence that since a month and half ago of the occurrence, Renu Devi and her children were living at the house of her husband and in-laws. In the morning on 18.1.1994 they were found dead at their house. 13. It has now to be considered whether the death of Renu Devi and her children Ratan Kumar and Gudia was homicidal. PW 9 (Dr. Shailendra Kumar) has testified to the effect that on 18.1.1994 at 3.30 p.m. he held autopsy on the dead-body of Renu Devi (aged 25 years) and he found the following ante mortem injuries on her person : (i) Abrasion-2 in number, half inch apart one above the other 1" x 1 /6" on middle part of left side of front of neck and on dissection extravasation of blood was found into subcutaneous tissues under the seat of injury No. 1 and on the right side also, and the larynr and trachea were found congested and contained frothy mucous. Lungs were markedly congested and exuded dark fluid blood on section, while the right side of the heart was full with dark fluid blood and the left side was empty. He has further stated that the other abdominal organs were markedly congested and the cause of death was asphyxia as a result of pressure over neck. Exhibit 4 is the post-mortem report in his pen. He has further stated that on the same day at 4.00 p.m. he held post-mortem examination on Ratan Kumar Jha alias Mohan Jha (aged 3 years) whose tongue was protruded between teeth about 1/5th inch. Face was cyanosed and dried blood stains were found around the nostrils and he found the following ante mortem wounds on his person : (i) Braise1" x 1 /4" on upper part of left side of neck in front. (ii) Two cresentic abrasions one above the other on upper part right side of neck-sized 1/4" x 1/5" each. (iii) 4 abrasions of Pea size were found on the chin in an area of 1" x 3/4" in front and on the under surface. According to him, on dissection extravasation of blood was seen into + sub-cutaneous tissues on both sides of neck, especially under the seats of injury No. (i) and (ii). The larynx and trachea were congested and contained frothy mucus. Lungs were markedly congested and exuded dark fluid blood on section, right side of the heart was full of dark fluid blood and the left side was empty. The abdominal organs and brain were found deeply congested. He has opined that the cause of death was asphyxia as a result of pressure over neck. Exhibit 4/1 is the post-mortem report in his pen. He has further stated that on the same day at about 4.30 p.m. he held postmortem examination on the dead-body of Gudia (aged 5 years), whose face was cyanosed, lips were blue and died bloodstains were found around nostrils and he found the following ante mortem injuries on her person : (i) Abrasion 1/2" x 1/6" on bridge on nose just above tip. (ii) Pea sized abrasion on right ala of nose. (iii) Nose was flattened as septum of nose was found fractured. (iv) The inner mucosal surface of lower lip was found bruised 3/4" x 1/4" in the middle. (ii) Pea sized abrasion on right ala of nose. (iii) Nose was flattened as septum of nose was found fractured. (iv) The inner mucosal surface of lower lip was found bruised 3/4" x 1/4" in the middle. He has further stated that on dissection larynx and trachea were found congested containing bloody froths. The lungs were congested and exuded dark fluid blood on section. The right side of heart was full of dark fluid blood and the left side was empty, the abdominal organs were found congested. According to him the cause of death was asphyxia, as a result of smothering, i.e., pressure over mouth and nose. Exhibit 4/2 is the post-mortem examination report in his pen. He has further opined that the time elapsed since the death of the three deceased was within 12 hours + 6 hours of the post-mortem examination. The cross-examination of the doctor has been declined by the defence. The medical evidence establishes beyond doubt that the death of the three deceased was homicidal. 14. It has not been suggested by the defence to the doctor that strangulation of Renu Devi was suicidal. It is not possible for any one to continue a firm grasp of the throat after un-consciousness supervenes; hence throttling by fingers cannot possibly be suicidal. The dead-body of Renu Devi was found lying on the cot by the Investigating Officer and there is no material on record to suggest that any contrivance was found, which could show that she had committed suicidal strangulation. It does not stand to reason, in the circumstances of the case, why she would have caused the death of her minor children. The appellant Balli Jha, her husband, does not whisper in his statement under Section 313 of the Criminal Proce-dure Code that she had committed suicidal strangulations or had caused the death of her children by strangulation/ throttling/smothering. There is no substance in the contention of the learned counsel for the appellants that Renu Devi had committed suicide after causing death of her children. 15. The admitted fact is that Renu Devi was married to appellant Balli Jha in February, 1988. She was found murdered with her children in the house of the appellants on 18.1.1994. Thus her death occurred other than under normal circumstances within seven years of her marriage at her sasural. 15. The admitted fact is that Renu Devi was married to appellant Balli Jha in February, 1988. She was found murdered with her children in the house of the appellants on 18.1.1994. Thus her death occurred other than under normal circumstances within seven years of her marriage at her sasural. It is true that PW 3 has stated in his cross-examination that for eight years Renu Devi had lived at her house, before she was reached to her sasural. It is manifest that this statement was made by him under the stress of cross-examination or he failed to remember the length of her stay at her home after marriage. Must significance is not to be attached to the stray statement made by him, which is not of much relevance because there is otherwise clear, cogent and reliable evidence that Renu Devi died at her sasural within seven years of her marriage. It is true that there is no direct evidence that in the intervening period, when she had been reached to her sasural in early December 1993, and her death, she had been subjected to cruelty or harassment by the appellants. 16. At this juncture, it is necessary to examine the motive which would have impelled the appellant(s) to murder Renu Devi and her children. It has come in evidence, as mentioned above, that a year ago to the occurrence Balli Jha had stopped visiting Renu Devi, his wife, at her parental home. It has come in cross-examination of PW 7 that a year after the marriage, the demand for dowry was started to be made by appellants Balli Jha and Buchi Jha. He has testified to the effect that whenever appellant Balli Jha used to visit his house, he used to request him for Duragaman (the second marriage) of his sister Renu Devi, but he used to say that appellant Buchi Jha was the master of the house and the Duragaman is possible only when demand of Television, Scooter, and gold, etc. and dowry claimed by Buchi Jha is met. PW 3 has testified to the effect that on the request name by hirn, for the Duragaman, appellant Balli Jha had said that unless the Scooter, T.V. Set, and 5 Bhars of gold was not given in dowry, he would not take Renu Devi to his home. and dowry claimed by Buchi Jha is met. PW 3 has testified to the effect that on the request name by hirn, for the Duragaman, appellant Balli Jha had said that unless the Scooter, T.V. Set, and 5 Bhars of gold was not given in dowry, he would not take Renu Devi to his home. He has further stated that he subsequently approached appellant Balli Jha and Buchi Jha at Bhaga for the 2nd marriage of Renu Devi, whereupon they answered that they would accept the proposal only after the demand of dowry is met by him. He has further stated to the effect that thereafter he got a Panchayati convened at Bhaga for the Duragaman of Renu Devi. Deokant Jha (PW 6), a co-villager of the appellants, was one of the Panches and the accused-appellants stated before the Panches that they would not accept the proposal for Duragaman, unless demand of gold, T.V. set and Scooter was met by him and the Panches decided that Duragaman is to be performed and he would give such articles which were possible for him. The date for the Duragaman was fixed, but the accused/appellants did not turn up for the Duragaman on the fixed date. PW 6 (Deokant Jha) has deposed that in the Panchayati, the appellants Balli Jha and Buchi Jha had said that the dowry articles were due and when it is fulfilled, they would agree to the performance of Duragaman, otherwise not. He has further stated that the appellants did not get the Duragaman performed, although the date was fixed by the Panchayati. It has come in his cross-examination that earlier to the Panchayati he had advised the appellant (Buchi Jha) to get the Duragaman done and to accept whatever is given to him in dowry. PW 6 is a neighbour of the appellants. There is no material on record to suggest that he has any animus with them. It does not stand to reason why he would falsely depose against them. PW 8 has also stated that a year prior to the occurrence, appellant Buchi Jha had told him that unless the dowry demanded by him was not met, he would not agree for the Duragaman of Renu Devi. 17. It does not stand to reason why he would falsely depose against them. PW 8 has also stated that a year prior to the occurrence, appellant Buchi Jha had told him that unless the dowry demanded by him was not met, he would not agree for the Duragaman of Renu Devi. 17. It has come in the evidence of PW 3 that Renu Devi had complained to her mother that the appellant Balli Jha had developed illicit relation with Hira Devi, the other appellant, and had expressed her desire to hirn as well as to this witness to send her to her sasural with children, whereafter she was sent there with Raj Kumar Mishra in December, 1993. It is true that the mother of Renu Devi has not been examined in the case to support the fact that Renu Devi had disclosed to her about the alleged illicit relationship between Balli Jha and Hira Devi. But there is evidence of PW 7 that Renu Devi had told him as well as his mother about the illicit relationship between appellants Balli Jha and Hira Devi, whereafter on her desire, she was sent to her sasural with the children. The evidence on record suggest that the non-fulfilment of dowry demanded by appellants Balli Jha and Buchi Jha, and the fact that Renu Devi with her children was sent to her sasural against their wish, was the motive behind the n urder of Renu Devi and her children by the appellants. The fact that Renu Devi suspected that appellant Balli Jha had illicit relation with Hira Devi may have been the another cause behind the incident. 18. There is evidence of PW 7 that on getting information from his father, which fact is corroborated by the later, he came from his village Baghwa (which is at a distant-place) to Jharia Police Station, took charge of the three dead-bodies, and cremated them. PW 8 has corroborated this fact. PW 7 has proved his signature (Exhibit 2) on the endorsement regarding receipt of the dead-bodies. PW 8 has proved the endorsement thereon with his signature, Exhibit 2/1 and endorsement thereunder with signature of appellants Balli Jha and Buchi Jha dated 20.1.1994 (Exhibit 2/2), regarding handing over the dead-bodies by them to PW 7 for performance of last rites. 19. PW 7 has proved his signature (Exhibit 2) on the endorsement regarding receipt of the dead-bodies. PW 8 has proved the endorsement thereon with his signature, Exhibit 2/1 and endorsement thereunder with signature of appellants Balli Jha and Buchi Jha dated 20.1.1994 (Exhibit 2/2), regarding handing over the dead-bodies by them to PW 7 for performance of last rites. 19. It is true that on the document (Exhibit 2 series) there is no endorsement of the police officer. The Investigating Officer has stated that he does not remember about handing over of the dead-bodies, nor there is any mention of it in the case diary. The omission of the Investigating Officer to record this fact in the case diary will not affect the testimony of PWs 7 and 8, which is otherwise cogent, clear and reliable. It has not been suggested to PW 7 that the last rites of the deceased was performed by the appellant. Thus, in the instant case the last rites of the deceased was performed by PW 7 and not the appellant Balli Jha. This is a circumstance which goes against the appellant Balli Jha. 20. PW 2 has stated that about a month and half ago to the occurrence, Raj Kumar Mishra had been chased and assaulted by the appellants Balli Jha, Buchi Jha and Sunil Jha, when he had gone to reach Renu Devi and her children to the house of the appellants. PW 3 and other witnesses have stated that Raj Kumar Mishra had reported about it to them, when he had returned to Baghwa. Raj Kumar Mishra has not been examined in the case. Hence, this part of the evidence has to be excluded from consideration. 21. Now, let us come to the testimony of PW 10, Santosh Kumar Jha, son of PW 1, the solitary eye-witness to the occurrence. Raj Kumar Mishra has not been examined in the case. Hence, this part of the evidence has to be excluded from consideration. 21. Now, let us come to the testimony of PW 10, Santosh Kumar Jha, son of PW 1, the solitary eye-witness to the occurrence. His father is a priest in Pathar Bagla Seo Mandir, which is at a distance of about half-a k.m. from village Baniahi, which is within Jharia P.S. PW 10 has testified to the effect in his chief-examination that on 18.1.1994 in the early morning, as usual, he was going to collect flowers and when on way he reached the road, which is adjacent east to the house of appellant Buchi Jha, he heard shrieks coming from his house, whereupon he entered the premises and he peeped through the ajar door of the middle room and he saw that appellant Buchi Jha had held the body of Renu Devi, while appellant Balli Jha was pressing her neck and at that time, appellants Gopal Jha, Sunil Jha and Hira Devi were present in the room. He has further stated that appellant Sunil Jha happened to sight him and chased him abusing, whereafter this witness ran to his house. He was perplexed and after some time he disclosed the incident to his father (PW 1), whereupon he proceeded towards the house of Balli Jha. It has come in evidence that his house is at a distance of 250-300 yards from the house of the appellants. PW 10 has further stated that after sufficient lapse of time, he again went to the house of the appellants and by then, the police had arrived and he found the dead-bodies of Renu Devi and her children on a cot. It has come in his cross-examination that it was dawn and things were visible, when he had peeped through the ajar door of the house of the appellants and witnessed the occurrence. It has been elicited in his cross- examination that he ran after witnessing the occurrence, the moment the appellant Sunil Jha had armed himself with lathi and did not see him coming out of his house. This shows that he was frightened at the sight of the incident and in fear fled home, the moment appellant Sunil Jha had seen him peeping through the ajar door and had armed himself with lathi. This shows that he was frightened at the sight of the incident and in fear fled home, the moment appellant Sunil Jha had seen him peeping through the ajar door and had armed himself with lathi. It has been elicited in his cross-examination that Renu Devi was lying and he had clearly seen the hands of Balli Jha on the neck of Renu Devi, while appellant Balli Jha was facing downwards. It is true mat he does not remember the direction of the head or feet of Renu Devi or direction of the face of appellant Buchi Jha or whether he was in standing or sitting position. These are very minute details. One may not be able in the situation in which PW 10 has witnessed the incident to observe such minute details. He has reiterated in his cross-examination that appellant Buchi Jha had pressed Renu Devi from the side, bending near her waist while Renu Devi was twisting her legs and appellant Balli Jha was pressing her neck with hand. Inspite of searching cross-examination, he is quite consistent in his evidence that he had actually seen the appellant Buchi Jha holding lying Renu Devi, while appellant Balli Jha was pressing her neck. It will not be unusual that by day-break, people collect flowers for worshiping. The dead-bodies of Renu Devi and her children were found in the middle room of the house which had a door. PW 5 has corroborated the testimony of PW 10; inasmuch as he has stated that when in the early morning on 18.1.1994 he was passing through the Kuchha road by the house of appellant Buchi Jha, he had seen appellant Sunil Jha chasing PW 10. PW 10 has made candid statement in the cross-examination, vide paragraph 40 of the deposition, that he had not seen the children at the time of the incident. Further, he has stated that the other appellants, namely, Sunil Jha, Gopal Jha and Hira Devi, were in the room at the time of the incident, but they were not with appellant Balli Jha. He has attributed no overtact in assault on the deceased Renu Devi to these three appellants. Further, he has stated that the other appellants, namely, Sunil Jha, Gopal Jha and Hira Devi, were in the room at the time of the incident, but they were not with appellant Balli Jha. He has attributed no overtact in assault on the deceased Renu Devi to these three appellants. PW 1 has stated that in the early morning on 18.1.1994, PW 10 had gone to collect flowers for the temple, he returned perplexed and on enquiry made by hint, he disclosed that the accused/ appellants were assaulting Renu Devi, whereafter he rushed to the house, which corroborates the testimony of PW 10, that he had reported the matter immediately to him. The medical evidence corroborates the testimony of PW 10 that in the early morning on 18.1.1994 Renu Devi had been done to death. 22. PW 10 has further stated that he attended the cremation of Renu Devi and her children in the evening of 20.1.1994 and that on 18.1.1994 itself when he had visited the spot the next time, the police officer had recorded his statement. No contradiction has been brought on record vis-a-vis his evidence in Court and statement before the police. It is true that it has been elicited in the cross-examination of PW 1 that the house of Buchi Jha is at 100 to 200 yards to the west of the road through which he goes to the temple. On its basis, it has been urged that it is impossible for PW 10 to have heard the shrieks of Renu Devi, while passing through the road. 23. The sketch map of the place of occurrence has not been prepared by PW 1. It is not known whether there is any other road near the house of the appellants. PW 1 has given the distance of the house of the appellants from the road on estimate and under stress of cross-examination. The distance of the road from the house of the appellants through which PW 10 happened to pass and he heard the shrieks has not been taken from him or the other PWs. The evidence of PWs 1 and 2 shows that there is road to the east of the house of the appellants. There are three rooms in the house. The evidence of PWs 1 and 2 shows that there is road to the east of the house of the appellants. There are three rooms in the house. One door opens in the east and the doors of all the rooms open in the west and to the west of the house, there is a bari, which has enclosure of Putus plants on two sides. The road to the east of the house of the appellants runs from North to South. In his cross-examination, PW 11 (the Investigating Officer) has stated that there is a road to the east of the place of occurrence. It is surprising that in the case-diary, in the description of the place of occurrence, he has recorded that the road is adjacent east to the house of the appellants. But, for the reasons best known to him, while giving description of the place of occurrence in chief-examination, he was conspicuously silent about the existence of the road near the place of occurrence, and in the cross-examination he simply stated that there was a road to the east of the place of occurrence and omitted to mention that the village road was adjacent to the house of the appellants. Thus, there was a door in the house which faces the road. The evidence reveals that the main house of the appellants is quite near to the road. Hence, PW 10 had the occasion to hear the shrieks while passing on the road in front of the house of the appellants and to witness the occurrence. There is no material on record to suggested that PW 10 has any animus against the appellants. He is a straightforward witness and has testified to what he had, is fact, witnessed the incident, which took place inside the room of the appellants. His evidence gives the ring of truth and can be safely relied upon to the extent that he had seen the appellants Buchi Jha and Balli Jha making the assault, in the manner, as stated above, on deceased Renu Devi, which finds corroboration from the medical evidence. 24. It is true that PW 10 is not witness to the actual assault on the children of deceased Renu Devi. It is equally true that there is no direct evidence on the murder of Ratan Kumar and Gudia. 24. It is true that PW 10 is not witness to the actual assault on the children of deceased Renu Devi. It is equally true that there is no direct evidence on the murder of Ratan Kumar and Gudia. The modus of their murder was similar to that of Renu Devi, the mother. The medical evidence indicates that all the three were done to death at short interval and in the same transaction. So their assassins were the same persons. It has been established, as discussed above, that the appellants Balli Jha and Buchi Jha had strong motive to murder Renu Devi and her two children. PW 10, whose testimony has been found to be trust worthy, has attributed overt acts to the appellants Balli Jha and Buchi Jha in the murder of Renu Devi. The ocular testimony of PW 10 and the circumstances of the case lead to the irresistible conclusion that appellants Balli Jha and Buchi Jha murdered Renu Devi and her children (Ratan Kumar and Gudia) in furtherance of their common intention. Thus, they are liable for the offence under Sections 302/34 of the Indian Penal Code for the triple murder. 25. PW 10 has attributed no overt-act to appellants, Sunil Jha, Gopal Jha and Hira Devi in his evidence in the murder of Renu Devi. He has simply stated that he had found them present in the room and not standing with Balli Jha at the time of the assault on Renu Devi. There is no cogent evidence on record that they had motive to murder Renu Devi and her children. So, in the circumstances, the appellants, Gopal Jha, Hira Devi and Sunil Jha, are entitled to benefit of doubt. 26. Now, let us come to the contention made by the learned counsel for the appellants that the telephonic communication which was received at the police station, which was recorded as station diary entry and not the written report (Exhibit 3) should have been treated to be the first information report in the present case. 26. Now, let us come to the contention made by the learned counsel for the appellants that the telephonic communication which was received at the police station, which was recorded as station diary entry and not the written report (Exhibit 3) should have been treated to be the first information report in the present case. PW 11 has stated that the information over the telephone was received at Jharia Police Station that the family members of Balli Jha had killed the wife and children and the dead-bodies were there, whereupon he made station diary entry and proceeded to enquire into and verify the matter and reached the house of the appellants at 1030 a.m. PW 11 in the cross-examination does not recollect whether the telephonic communication was received at the police station by himself or the munashi. No material has come on record to establish the identity of the person who had given the information over telephone. The evidence, available on record, suggest that some cryptic message was received at the police station on telephone and the identity of the caller for the authenticity of the information remains unascertained. The officer-in-charge of the police station is not obliged to prepare the first information report on any nebulous information, received from some body who does not disclose any authentic knowledge. It is open to the officer to collect more information containing the details about the occurrence by getting the matter inquired into or verified for institution of a case ref. Binay Kumar Singh v. State of Bihar, 1997 (1) SCC 283 : 1997 East Cr C 871 (SC). PW 8 has stated that on the spot he had prepared the written report (Exhibit 3} and submitted it to the police officer (PW 11). The written report contains the necessary details making out cognizable offence(s). The evidence of PW 11 reveals that after obtaining the written report on the spot, he had held inquest over the dead-bodies and commenced investigation of the case. PW 11 has denied the defence suggested that the written report (Exhibit 3) was ante-dated or procured from PW 8 on 20.1.1994. The evidence of PW 11 reveals that after obtaining the written report on the spot, he had held inquest over the dead-bodies and commenced investigation of the case. PW 11 has denied the defence suggested that the written report (Exhibit 3) was ante-dated or procured from PW 8 on 20.1.1994. It is suffice to say that the formal first infonnation report (Exhibit 6) itself shows that on the basis of the written repot, the case has been registered at the police station on 18.1.1994 by 1.30 p.m. and it was received in the office of the Chief judicial Magistrate, Dhanbad, on 20.4.1994 itself. In the circumstances of the case, the written report (Exhibit 3) has been rightly treated first information report in the case. There is no merit in the contention of the learned counsel for the appellants that it is fabricated or ante-dated document. 27. A criticism has been made that in the written report (Exhibit 3) PW 10 is not a cited witness and hence, his evidence is fit to be brushed aside. It has come in the evidence of PW 10 that after lapse of sufficient time next, he visited the house of the appellants, but by then the police personnel had already arrived there. He has stated that on that date he had no talk with PW 8 on the spot. PW 8 has deposed that he had described and made over the written report (Exhibit 3) to the police officer (PW 11) on the spot itself. So by them, under the circumstances, it may not have been known to PW 8 that PW 10 was a eye-witness to the occurrence. It is well-settled that some omission of the name of the eye-witness in the first information report is not by itself a sufficient ground to reject his evidence. On scrutiny, the evidence of PW 10 on the part of the incident has been found to be truthful. Further, in the event the written report (Exhibit 3) would have been ante-dated, the name of PW 10 would have found mentioned therein as an eye-witness. 28. As regards the delay in recording the statements of PWs 1, 3 and 7 by the Investigating Officer, it may be stated that PWs 7 and 8 are the residents of far of district of Sahara. 28. As regards the delay in recording the statements of PWs 1, 3 and 7 by the Investigating Officer, it may be stated that PWs 7 and 8 are the residents of far of district of Sahara. PW 7 has stated that on 20.1.1994 he came to Jharia Police Station when he was not in the fit state of mind to give detailed statement, since on that day he had cremated the dead-body of his sister Renu Devi and her two children and on the next day the police did not record his statement and after a month and half, i.e., on 15.3.1994, has testified to by the Investigating Officer, his statement was recorded. PW 11 has stated that he had recorded the statement of PWs 1 and 3 on 15.3.1994. It has come in the evidence of PW 1 that he was upset for about fifteen days after the incident and on 18.1.1994, the police officer made no enquiry from him although he had been to the spot. The statement of his son, PW 10, had been recorded by the Investigating Officer on 18.1.1994, in which it has come that he had immediately reported the matter to his father (PW 1). It was the duty of the Investigating Officer to record the statement of PWs 1, 3 and 7 at the earliest opportunity. If the Investigating Officer did not conduct the investigation properly or was negligent in recording the statements of PWs 1, 3 and 7 promptly, it would not affect the credibility of the statements of PWs 1, 3 and 7 or discredit the prosecution case. That apart, the essential facts of the case find mentioned in the written report (Exhibit 3) and the statements of the material . witnesses, namely, PWs 2, 6, 8 and 10 were recorded by the Investigating Officer on 18.1.1994 itself. 29. It has been held above that the appellants Balli Jha and Buchi Jha are liable for the offence under Sections 302/34 of the Indian Penal Code for the triple murder. Hence, their convictions from Sections 302/149 is altered to one under Sections 302/34 of the Indian Penal Code. 30. The question that now arises for consideration is as to what sentences is to be awarded to them. Hence, their convictions from Sections 302/149 is altered to one under Sections 302/34 of the Indian Penal Code. 30. The question that now arises for consideration is as to what sentences is to be awarded to them. The trial Court has awarded death sentence to convict Balli Jha on the ground that he was the main culprit, who committed murder of his wife Renu Devi by strangulation and gruesome murder of his small innocent children. There is no direct evidence as to who of the two convicts, in fact, committed the murder of Gudia and Ratan Kumar. The evidence is not sufficient to bring the case to be one of the rarest of the rare cases where extreme penalty of death can be awarded. On giving anxious consideration to the facts and circumstances of the case, in my considered view, the death sentence imposed upon Balli Jha for his conviction under Sections 302/34 of the Indian Penal Code requires to be commuted to life imprisonment and it would meet the ends of justice. Hence, the sentence of death imposed on appellant Balli Jha by the trial Court is commuted to imprisonment for life. The sentence of life imprisonment awarded to appellant Buchi Jha by the trial Court is maintained., Appellants Gopal Jha, Sunil Jha and Hira Devi are acquitted of the offence under Sections 302/149 the Indian Penal Code, on giving benefit of doubt. Hence, their convictions under Sections 302/149 of the Indian Penal Code and the sentence passed on them by the trial Court, thereunder, are set aside. 31. In the result, the criminal appeal of appellant Balli Jha (in Cri. Appea No. 165 of 1999/R) is dismissed with the modification in the order of his conviction and sentence. Criminal Appeal No 160 of 1999(R), preferred to appellanl Buchi Jha is dismissed with the modification in the order of the conviction only and Cr. Appeal No. 160 of 1999(R), filed by appellants Gopal Jha, Heera Devi and Sunil Jha is allowed and their conviction and sentence passed by the trial Court are set aside, as stated above. So far as the death Reference No. 1 of 1999(R) is concerned, it is answered in the light of the order passed in Cr. Appeal No. 165 of 1999 (R), preferred by appellant Balli Jha. In Cr. So far as the death Reference No. 1 of 1999(R) is concerned, it is answered in the light of the order passed in Cr. Appeal No. 165 of 1999 (R), preferred by appellant Balli Jha. In Cr. Appeal No. 160 of 1999 (R), so far as appellants Gopal Jha and Sunil Jha are concerned, they are in jail. They are directed to be released from custody forthwith, if not required in any other case(s). So far as appellant Heera Devi is concerned, she is on bail. Let her be discharged from the liability of her bail-bond. P.K.Deb, J. 32 I agree.