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2024 DIGILAW 2012 (ALL)

Asif Thakur v. State of Uttar Pradesh

2024-09-05

ARVIND SINGH SANGWAN, MOHD.AZHAR HUSAIN IDRISI

body2024
JUDGMENT : Arvind Singh Sangwan, J. 1. Reference No. 7 of 2022 has been made by the Court of Additional District and Sessions Judge, Court No.3, Aligarh for confirmation of death sentence awarded to appellants, Ahsan, Asif Thakur, Bhoora, Kafeel and Wakeel. The appellants have also filed Jail Appeals i.e. Capital Case Nos. 10 of 2022 and 11 of 2022 challenging the judgment of conviction dated 22.4.2022, holding the appellants guilty of offence under Sections 302 read with Section 149 and 120B, 147 and 148 of IPC, holding appellants Bhoora, Kafeel and Wakeel under Section 25 of the Arms Act and also holding accused-Gayasuddin guilty of offence under Section 302 read with Section 120B of IPC in Sessions Trial Nos.44 of 2016 (State Vs. Ahsan and four others) arising out of Case Crime No.362 of 2015), in Sessions Trial No.51 of 2016 (State Vs. Bhoora) arising out of Case Crime No.377 of 2015, in Sessions Trial No.41 of 2016 (State Vs. Kafeel) arising out of Case Crime No.379 of 2015, in Sessions Trial No. 36 of 2016 (State Vs. Wakeel) arising out of Case Crime No.378 of 2015 and Sessions Trial Nos. Bhoora) arising out of Case Crime No.377 of 2015, in Sessions Trial No.41 of 2016 (State Vs. Kafeel) arising out of Case Crime No.379 of 2015, in Sessions Trial No. 36 of 2016 (State Vs. Wakeel) arising out of Case Crime No.378 of 2015 and Sessions Trial Nos. 586 of 2016 (State vs. Gayasuddin) arsing out of Case Crime No. 362 of 2015 and the order of sentence dated 25.4.2022 vide which, the appellants were awarded death sentence, to be hanged till death under Section 302 read with Section 149 and Section 120(B) of IPC with a fine of Rs.1,000/- each and in case of default of payment of fine, to undergo further additional imprisonment for one year each; under Section 147 of IPC, the appellants were awarded one year simple imprisonment along with a fine of Rs.1,000/-each and in case of default of payment of fine, to undergo further additional simple imprisonment for six month each; under Section 148 of IPC, the appellants were awarded three years rigorous imprisonment along with a fine of Rs.1,000/- each and in case of default of payment of fine, to undergo further additional simple imprisonment for six months; under Section 25 of Arms Act, the appellants, namely, Kafeel, Wakeel and Bhoora were awarded three years rigorous imprisonment along with a fine of Rs.1,000/-each and in case of default of payment of fine, to undergo further additional simple imprisonment for six months and accused-Gayasuddin who has filed Criminal Appeal No. 3582 of 2022 was awarded life imprisonment under Section 302 read with Section 120B of IPC with fine of Rs.1000/- and in case of default in payment of fine, further to undergo imprisonment for six months. All the sentences were to run concurrently. 2. The Reference and Appeal were admitted. The Trial Court’s record is received and paper books are ready. 3. Heard Sri Araf Khan, learned counsel for appellants in Capital Case No.10 of 2022 and Sri B.A. Khan, learned counsel for appellant in Capital Case No.11 of 2022, Sri Nasiruzzaman, learned counsel for appellant in Criminal Appeal No.3582 of 2022 and the learned AGA for the State and perused the material placed on record. 4. With the assistance of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated. 5. As per the prosecution, on 25.07.2015, informant- Raja gave a complaint, Ex.Ka.1 to the police which read as under: 6. 4. With the assistance of learned counsel for the parties, the entire evidence is re-scrutinized and re-appreciated. 5. As per the prosecution, on 25.07.2015, informant- Raja gave a complaint, Ex.Ka.1 to the police which read as under: 6. On receiving the complaint, the police registered the chik FIR, Ex.Ka.2 and started the investigation. The Panchayatnama was prepared in which the opinion of Panches read as under: 7. During further investigation, the post-mortem of the deceased was got conducted, the accused were arrested, the weapons of offence were recovered and the incriminating recoveries were sent to FSL, Agra by the Investigating Officer who also recorded the statement of the witnesses under Section 161 of Cr.P.C. Thereafter, he submitted the charge-sheet before the trial court. Later on, the case was committed to the Court of Sessions where the charges were framed against the accused persons under Sections 147, 148, 302/149 read with Section 120-B I.P.C. for committing the murder of Naushe and Chanda by using the firearms. 8. The appellants did not plead guilty and claimed trial. 9. In prosecution evidence, the informant-PW-1- Raja deposed on a line of information given to the police. The operative part of the statement read as under: In cross-examination, this witness stated that till the time the FIR was registered, he did not know the name of the father of the accused. He has reached the police station for lodging the case at about 1 PM and at that time Naushad, Appu and Rafiq had accompanied him. Prior to making the report with the police, the dead body of his father- Naushe and Chanda was lying in the hospital. He further stated that the dead body of his father and Chanda was not sealed in a parcel in his presence and on 24.07.2015 at about 11-11:30 PM, the police has taken the dead body and he has reached the spot at 11:20 PM. The statement was recorded by the police at the spot and he had given the name of the accused person to the Investigating Officer. He further stated that his statement was recorded on 24.07.2015 at 11:35 PM prior to registration of the FIR and the site plan was prepared as per his instructions. He further stated that on complaint, Ex.Ka.1, he has not made any cuttings and signed it as Raja. He further stated that his statement was recorded on 24.07.2015 at 11:35 PM prior to registration of the FIR and the site plan was prepared as per his instructions. He further stated that on complaint, Ex.Ka.1, he has not made any cuttings and signed it as Raja. In further cross-examination, this witness denied a suggestion that there was no light at the place of occurrence. He further stated that the blood stained stones, pistol and magazine were lying at the place where the dead bodies were lying in front of house of Pyare and Shamshad which are facing each other. This witness admitted that Naushe @ Junaid has criminal history of criminal cases as admitted in the cross-examination. In further cross-examination, this witness gave a description of the incident, however, denied that his father was having enmity with many persons of the locality. He further stated that accused Gayasuddin had a land dispute with his father and denied a suggestion that the accused have not committed murder of his father- Naushe and Chanda. He also denied a suggestion that he was not present at the spot. In further cross-examination, he stated that the exact time of the incident was not recorded in the complaint which was written by his cousin- Guddu and even in the statement under Section 161 Cr.P.C., the time of the incident was not recorded by the Investigating Officer. He further stated that his father sustained bullet injury fired by accused- Bhura but this is not recorded in the statement under Section 161 Cr.P.C. He further stated that there was light outside the house of Shamshad as there was marriage ceremony and lighting was done outside the house. He further denied that accused owe Rs. 2,000/- to his mother and therefore, his name has been falsely implicated. In further cross-examination, this witness stated that during the investigation, he has not provided any evidence to the Investigating Officer regarding the enmity on account of land dispute between Naushe and Gayasuddin. He stated that it is correct that after the police reached at the spot and removed the dead body, the complaint was lodged in the concerned police station. He further stated that the Panchayatnama was prepared by the in-charge of the police station who got his signature on many documents and one knife was recovered from Ahsan. 10. He stated that it is correct that after the police reached at the spot and removed the dead body, the complaint was lodged in the concerned police station. He further stated that the Panchayatnama was prepared by the in-charge of the police station who got his signature on many documents and one knife was recovered from Ahsan. 10. PW-2- Rafeeq also stated on the line of the statement made by PW-1 as well as the version in the FIR. He stated that when the accused persons Bhura, Asif Thakur, Ehsan, Vakeel and Kafeel had encircled his brother- Chanda and his friend- Junaid, they were carrying 315 bore pistols and country made pistols and fired upon Chanda and his friend- Naushe @ Junaid. It was at about 11:30 PM at night and there was light outside the house of Shamshad where some marriage ceremony was going on. He stated that accused were exhorting Junaid and Chanda who have developed enmity with Gayasuddin, it will cost them heavily. Asif gave a blow with a stone on the face of Naushe and Bhura gave a stone blow on the face of his brother- Chanda. Ahsan took out the knife and cut the neck of his brother- Chanda. All the accused persons saying that if any person gave witness against them, he will face the same consequences. Thereafter, the accused ran away and the police reached. In cross-examination, this witness replied to certain queries as under: He further denied a suggestion that at the time of preparation of Panchayatnama, names of the accused were not disclosed. This witness after lengthy cross-examination denied a suggestion that he was not present at the spot. He also denied a suggestion that his brother was a known criminal and he was murdered in a gang war. 11. PW-3- Anurudh Kumar stated that on receiving a complaint from informant- Raja, he has registered the chik FIR, Ex.Ka.2 and G.D. Ex.Ka.3. In cross-examination, he stated that the place of occurrence is two kilometer away from the police station and is situated in the densely populated area. 11. PW-3- Anurudh Kumar stated that on receiving a complaint from informant- Raja, he has registered the chik FIR, Ex.Ka.2 and G.D. Ex.Ka.3. In cross-examination, he stated that the place of occurrence is two kilometer away from the police station and is situated in the densely populated area. He further stated that on 25.07.2015, after the post-mortem was conducted, two envelops were given to him, carrying bloodstained earth stone, 32 bore magazine which were entered in the G.D. He further stated that in cross-examination that the chik report was prepared through a computer and G.D. was written prior to recording the chik FIR. 12. PW-4- Vinod Kumar, In-charge of Cyber Cell, Agra, stated as under: In cross-examination, this witness stated about the details of investigation and the efforts made for the arrest of the accused. He proved the charge-sheet vide Ex.Ka.9. In further examination, he has stated as under: In further cross-examination, he stated that Section 364 of I.P.C. was not made out and he gave minute details of the investigation conducted by him. This witness further stated that the doctor who conducted Postmortem, in his statement has stated that Chanda suffered two bullet injuries whereas the deceased had one bullet injury. He stated that he did not remember if the metallic bullet also retrieved from the body of deceased and was sent to ballistic expert or not. He admitted that deceased Naushe and Chanda had a criminal history in police station- Delhi Gate and they were involved in heinous offences like murder, dacoity etc. He denied a suggestion that he has not conducted the investigation at the spot and prepared the report while sitting in the police station. 13. PW-5- Dr. P. Kumar, who conducted the post-mortem deposed as under: In cross-examination, this witness gave the details about the nature of injury sustained by the victim. He stated that in the post-mortem, Ex.Ka.9 and Ex.Ka.10, the description of injuries sustained by the victims were mentioned. He stated that the bullet referred to Ex.Ka.9 is not produced in the court and even the weapons recovered were not shown to him in the court. He further stated that in Ex.Ka.10, there are three bruises and there is no incised wound. He denied a suggestion that the Ex.Ka.9 and Ex.Ka.10 relates to two male Hindu person. 14. He stated that the bullet referred to Ex.Ka.9 is not produced in the court and even the weapons recovered were not shown to him in the court. He further stated that in Ex.Ka.10, there are three bruises and there is no incised wound. He denied a suggestion that the Ex.Ka.9 and Ex.Ka.10 relates to two male Hindu person. 14. PW-6, Suraj Pal Sharma (S.H.O.), Investigating Officer who conducted the investigation deposed as under : 15. PW-7, Mahtab Hasan, another Investigating Officer deposed about the arrest of the accused persons and the procedure adopted under Section 82 of Cr.P.C.. 16. PW-8, Prem Pal Singh, Sub Inspector, another Investigating Officer gave details about the preparation of Panchayatnama and sending the dead body to mortuary for postmortem. In cross examination, this witness admitted that in the Panchayatnama the date has been changed from 24 to 25 and on the first page, space of the case number was left blank. He admitted that the Panchayatnama was not prepared at the spot where the dead body was recovered and on first page, the name of the person, giving the information is also not mentioned. He stated that the dead body was kept in the custody of two constables and was not sealed. He stated that it was dark due to night, therefore, the Panchayatnama was not written at the spot and the proceedings of Panchayatnama were initiated after the sunrise on the next date. He has also given the description of the recovery affected at the spot. He further stated that it is correct that the Panchayatnama was completed at 12:10 at noon and till the time, the proceedings of Panchayatnama were started, the FIR was not registered and during the proceedings, constable-Mahesh Kumar came along with a copy of FIR. He admitted that while recovering the dead body, country made pistol and cartridges were not sealed at the spot and witness-Rafeeq has not stated that he had seen the occurrence. He admitted that in the Panchayatnama, it is recorded that the deceased was murdered by miscreants by firing upon the deceased persons. 17. PW-9, Sahbeer Singh, another Investigating Officer deposed about recording of the GD Entries and statements of the witnesses. He proved the permission from the District Magistrate for trial of the accused person under Section 25 of the Arms Act as Exhibit Ka-14 to Ka-16. 17. PW-9, Sahbeer Singh, another Investigating Officer deposed about recording of the GD Entries and statements of the witnesses. He proved the permission from the District Magistrate for trial of the accused person under Section 25 of the Arms Act as Exhibit Ka-14 to Ka-16. In cross examination, he denied the suggestion that the accused persons were arrested from their home. H4e also denied that no recovery was affected from accused persons. 18. PW-10, Dhirendra Singh proved the recovery memo of weapon of offence which was Exhibited as Ka-17. He identified the signature of the In-charge as Exhibit Ka-18. This witness also denied the suggestions that the entire proceeding was prepared at the police station on the direction of S.O.. This witness on further examination proved the memo prepared by S.O. Surya Prakash as Exhibit Ka-19 to Ka-27 which was relating to the investigation of the case. 19. Thereafter the statement of the accused under Section 313 Cr.P.C. was recorded and all the incriminating evidence was put to them. In reply to a question what the accused want to state in their defence, it was stated that no recovery of weapon was affected from them and the prosecution story is false. 20. In defence evidence, DW-1 Shahid Quayoom appeared and stated that on the date of incident at about 12:30 at night, he was present near his house which is situated on the corner of ‘Amar Masjid Wali Street’ after leaving two houses is the house of Shamshad. While hearing noise in the street, he came out, it was pitch dark and nothing was visible. There was no marriage programme on that date, he heard noise of fight near the house of Shamshad but nothing was visible and after one and a half hours, police came and took dead bodies of two persons who were later on found to be of two history sheeters namely Naushe @ Junaid and Chanda @ Chanda and they were murdered by some unknown persons. No one has witnessed the incident. In cross examination, he denied the suggestion that there was a function at the house of Shamshad. He also denied that he was not present on the spot. 21. No one has witnessed the incident. In cross examination, he denied the suggestion that there was a function at the house of Shamshad. He also denied that he was not present on the spot. 21. DW-2 Pyara Khan also stated that on the date of incident it was pitch dark and on hearing the noise of fire, he woke up and had seen from the window that 5-6 persons were running in the street, who ran away towards another ‘Chapparwali street’. After one and a half hours police came and took the bodies of two persons. On that day. there was no marriage function as it was scheduled for the next date. 22. In cross examination, this witness stated that the assailants were having muffled faces and he did not go out of his house and had seen from the window. However, he admitted that there was marriage of son of Shamshad but he denied the suggestion that there was lighting on his house on that night. 23. Thereafter, the Trial Court held the appellants guilty of offence under Section 302 read with Section 149 of I.P.C, Section 120(B) of I.P.C and section 25 of Arms Act and awarded death sentence and life imprisonment as noted above. 24. The paper book is ready. The Trial Court record is received and entire evidence is re-appreciated with the assistance of learned counsel for appellant and the learned AGA for the State. 25. Counsel for the appellant Ahsan has argued that as per the prosecution witnesses, on 27.7.2015 at 00:25 AM, inquest of deceased Naushe @ Junaid was started and completed at 12:30 PM, as per Ex.Ka-11 and similarly as per Ex.Ka-12 inquest of Chand @ Chanda was also prepared at the same time. It is further submitted that postmortem of both the dead bodies were conducted from 4:00 PM to 4:30 PM of Chand @ Chanda and from 4:30 PM to 5:00 PM of Naushe @ Junaid. It is thus submitted that there is no explanation of the delay in reporting the matter to the police and registration of the FIR. 26. It is further submitted that postmortem of both the dead bodies were conducted from 4:00 PM to 4:30 PM of Chand @ Chanda and from 4:30 PM to 5:00 PM of Naushe @ Junaid. It is thus submitted that there is no explanation of the delay in reporting the matter to the police and registration of the FIR. 26. Counsel argued that according to the prosecution version, the incident took place on 24.7.2015 at about 11:30 PM and place of occurrence is about 2 Kilometer away from the police station whereas, the report was lodged with the police station on the next day i.e. 25.7.2015 at 10 AM by Raja (PW-1), the first informant. It is submitted that the case was initially registered as Case Crime No. 253 of 2015 but later on it was changed to 362 of 2015 and the prosecution has failed to explain this discrepancy. It is next argued that from the statement of PW-1, the first informant, who is son of deceased Naushe @ Junaid, it has come that there was indiscriminate firing on the deceased persons but as per the postmortem report of the deceased Naushe @ Junaid, he received one fire arm injury and Chand @ Chanda received two fire arm injuries and, therefore, PW-1 is not an eye witness. It is also argued that as per PW-1, the first informant, the appellant Ahsan has inflicted knife injury on the neck of the deceased Chand @ Chanda but as per the postmortem report, PW-5, the doctor who conducted the postmortem stated that, there is no incised wound on his neck. 27. It is next argued that PW-1 stated that he reached at the spot after the miscreants has fled away and found that the dead bodies of his father Naushe @ Junaid and Chand @ Chanda were lying near a Nali (drain), but as per site plan prepared by the Investigating Officer, dead bodies were found inside Nali (Drain) near the door of one Pyare, who appeared as PW-2. It also show that PW-1 is not an eye witness. 28. Counsel next argued that PW-1, the first informant, stated that on 25.7.2015 at about 12:20 – 12:30 AM, he went to police station for lodging the FIR which was registered within 10 minutes of reaching there. It also show that PW-1 is not an eye witness. 28. Counsel next argued that PW-1, the first informant, stated that on 25.7.2015 at about 12:20 – 12:30 AM, he went to police station for lodging the FIR which was registered within 10 minutes of reaching there. It is submitted that perusal of the FIR show that it was registered at 00:10 AM which shows that the FIR is anti timed. The counsel has also referred to certain discrepancies with regard to the time given by PW-1 regarding reaching the police station for lodging of FIR and submits that genesis of the occurrence as well as timing of the lodging of the FIR is highly discrepant which prove that PW-1 is not an eye witness. Counsel has further challenged the credibility of PW-1 on the ground that the name of the accused persons were not disclosed in the statement of PW-1 and therefore, name of the accused persons are mentioned as after thought improvements. 29. It is argued that both PW-1 and PW-2 are closely related with the deceased persons and are highly interested witnesses. There are many contradiction in their statements and therefore, their testimonies cannot be relied on. 30. Counsel submits that while preparing the Panchayatnama, which was prior to the registration of the FIR, in the opinion of the Panches, some miscreants have committed murder of Naushe @ Junaid and Chand @ Chanda. It is submitted that PW-1, first informant, has admitted that his father and uncle, both the deceased, were harden criminal of the area and they were facing trials in number of cases, an admitted fact which was put to him during the cross examination. 31. The counsel argued that, in fact, both the deceased were having enmity with the persons of the locality and they were murdered by some unknown persons and the appellants have been made scape goat by the informant. 32. Counsel next argued that the incident took place at a place where it was pitch dark at about 11:30 PM and nobody has seen the occurrence. Both PW-1 and PW-2 are planted as eye witness next day when the FIR was registered. 33. It is submitted that the statement of PW-2 is also contradictory with the statement of PW-1. 34. Counsel next argued that the incident took place at a place where it was pitch dark at about 11:30 PM and nobody has seen the occurrence. Both PW-1 and PW-2 are planted as eye witness next day when the FIR was registered. 33. It is submitted that the statement of PW-2 is also contradictory with the statement of PW-1. 34. Counsel has argued that during cross examination PW-2 was not able to give correct description of the place of occurrence and the manner of assault which also proves that even PW-2 was not eye witness. The counsel submits that there are cuttings and improvements in the column of date and time, in both the inquest reports which suggests that the FIR was not registered on the alleged date and time as suggested by the prosecution. 35. Counsel submits that the prosecution has failed to prove that there was any motive behind occurrence and therefore, participation of the appellant Ahsan in the absence of any motive is not proved. 36. Counsel lastly argued that it is not a rarest of rate case where the death penalty has been awarded. 37. Counsel for the other appellants have further argued that as per the FSL report, Ex.Ka-29, the weapon of offence recovered from the accused was never sent for examination. For ready reference report is as under :- HINDI IMAGE 38. It is argued that even as per PW-1, a bullet and magazine was recovered at the spot but the same was never sent to the Forensic Science Laboratory by the Investigating Officer. 39. Counsel submits that even the two blood stained stone which related to deceased Chand @ Chanda and Naushe @ Junaid, as per Ex.1 and 2, the FSL report states that since the blood was disintegrated therefore, its source could not be ascertained. It is argued that in the light of the FSL report, no offence is proved. 40. Counsel for the appellants submitted that accused Gayasuddin has been convicted in the aid of Section 120-B IPC read with Section 302 IPC for life imprisonment though as per the prosecution version, he was not present at the spot. He further argued that no evidence of conspiracy has come on record except that PW-1 has stated that Gayasuddin has got murder of his father and uncle done by giving ‘Supari’. 41. He further argued that no evidence of conspiracy has come on record except that PW-1 has stated that Gayasuddin has got murder of his father and uncle done by giving ‘Supari’. 41. Counsel further submits that in cross examination of PW-1 it is only stated that there was a land dispute between Gayasuddin and the deceased persons, however, this witness has also admitted that he has not provided any evidence to the Investigating Officer regarding any land dispute and, therefore, motive against the appellant Gayasuddin is not proved. 42. Counsel for the appellant Asif Thakur has also raised similar argument. It is submitted that both the deceased were history sheeters having many criminal history as admitted by PW-1 and PW-2 and it has come in the statement of two defence witness DW-1 and DW-2 that some unknown persons have killed the deceased. 43. Counsel appearing for Gayasuddin has also argued that there is no evidence of conspiracy on record. It is submitted that PW-1 has admitted that he has no provided any document regarding any litigation of his father and Gayasuddin and therefore, in the absence of any such evidence, the case of prosecution that with a motive and conspiracy Gayasuddin by paying ‘supari’ got murder of the assailants is false and there is no evidence except bald statement of informant. 44. In reply, counsel for the informant as well as counsel for the State have argued that both the eye witnesses PW-1 and PW-2 have duly supported the witness. It is submitted that in a calculated conspiracy, two persons Naushe @ Junaid and Chanda @ Chand were murdered by the accused persons. It is also submitted that recovery of blood stones, pistol and magazine with cartridges were also recovered on the spot. It is also submitted that after the arrest of the accused persons they had made disclosure that they have thrown their respective weapons and therefore same could not be recovered. It is submitted that there was sufficient light at the spot as it was a marriage function in the house of Shamshad and the prosecution witness have seen the occurrence in the light and have identified the accused persons as the assailants. It is submitted that there was sufficient light at the spot as it was a marriage function in the house of Shamshad and the prosecution witness have seen the occurrence in the light and have identified the accused persons as the assailants. It is also argued that all the accused persons were assigned to fire arm weapon and as per the post mortem report both the deceased persons have suffered injuries in a manner as explained by prosecution witnesses. 45. It is thus argued that appeal be dismissed. 46. In reply, the counsel for the appellant has argued that prosecution has failed to prove any connection of the accused persons with their respective arms as per post mortem report. It is also submitted that it came in the statement of the doctor that two bullets were retrieved from the dead body, however, same were never sent for examination in the Forensic Science Laboratory. It is also submitted that the deceased have long criminal history in the area and the motive for hatching the conspiracy are not proved. 47. It is also argued that the reasons for delay in sending the first information report to the concerned Magistrate has not been explained as PW-3 has stated that he don’t know which official has taken report (Ex.Ka-3) to the Chief Judicial Magistrate. It is also argued that PW-1 and PW-2 are not the eye witnesses as they being the son and nephew of the deceased did not try to save them and even did not ...attend the deceased persons as there is no blood stained on their clothes. It is submitted that in both the inquest reports, it is stated that some unknown criminals have murdered the deceased persons and at that time PW-1 and PW-2 never named the appellant as the assailant. 48. It is argued t hat three First Information Reports in Crime No. 377, 378 and 379 of 2015 were registered. Prior to preparation of recovery weapons and therefore, the weapons were not sent for ballistic examination alongwith bullets recovered from the dead bodies. 49. Counsel has relied upon the judgment in the case of Mehraj Singh (L/Nk) Vs. 48. It is argued t hat three First Information Reports in Crime No. 377, 378 and 379 of 2015 were registered. Prior to preparation of recovery weapons and therefore, the weapons were not sent for ballistic examination alongwith bullets recovered from the dead bodies. 49. Counsel has relied upon the judgment in the case of Mehraj Singh (L/Nk) Vs. State of UP; (1994) 5 SCC 188 , where the Supreme Court has held that the delay in sending FSL report to the Magistrate or failure to sent copy of the FIR to the Medical Officer alongwith the post mortem report, in the absence of any reference in the inquest report give rise to inference that the FIR is anti times. Similar view is taken in the case of Thanedar Singh Vs. State of MP; (2002) 1 SCC 487 . 50. Counsel has also relied upon the judgment in the case of Mohd. Muslim Vs. State of UP; (2023) LiveLaw SC 489, wherein the Supreme Court has held that if the credibility of the eye witness of the incident is not proved, a benefit of doubt be given to the accused persons. 51. Reliance is also placed upon the judgment in the case of Manoj Kumar Soni Vs. State of MP; 2023 0 Supreme (SC) 703, wherein the Supreme Court has held as under :- “38. It is intriguing that among all five accused persons, only Kallu has been convicted for criminal conspiracy under Section 120-B, IPC. At this stage, we cannot help but wonder: can a single individual conspire with oneself? We cannot but disagree. It logically follows that one person alone can never be held guilty of criminal conspiracy because one cannot conspire with oneself. As per Black’s Law Dictionary (8th Edn), ‘conspiracy’ is an “agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement's objective, and action or conduct that furthers the agreement”. The wordings of Section 120-A, IPC make it abundantly clear—the offence of criminal conspiracy is committed only when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. The position in English law too is well- settled. The wordings of Section 120-A, IPC make it abundantly clear—the offence of criminal conspiracy is committed only when two or more persons agree to do or cause to be done an illegal act or legal act by illegal means. The position in English law too is well- settled. In The King vs. Plummer, the King’s Bench, speaking through Lord Justice Bruce, held: It logically follows from the nature of the offence of conspiracy that, where two or more persons are charged in the same indictment with (1902) 2 KB 339 conspiracy with one another, and the indictment contains no charge of their conspiring with other persons not named in the indictment, then, if all but one of the persons named in the indictment are acquitted, no valid judgment can be passed upon the one remaining person. (page 343) 39. In I.G. Singleton v. King-Emperor, the Calcutta High Court further clarified the law related to criminal conspiracy: The rule of English law that is now well settled is that where two persons are indicted for conspiring together and they are tried together, both must be acquitted, or both convicted. (page 265) 40. The decision of this Court in Topandas (supra) affirmed the aforesaid position and held: 14. … on the charge as it was framed against the Accused 1, 2, 3 and 4 in this case, the Accused 1 could not be convicted of the offence under Section 120-B of the Indian Penal Code when his alleged co-conspirators Accused 2, 3 and 4 were acquitted of that offence. 41. Having regard to the position of law as aforesaid, the conviction of Kallu under Section 120-B, IPC stands completely vitiated because of the simple reason that one cannot alone conspire. There is no evidence to even remotely suggest that there existed any agreement between Kallu and the co-accused while none of the others, except Kallu, has been convicted for criminal conspiracy.” 52. The counsel submits that in view of arguments raised, the conviction of the appellant Gayasuddin stands vitiated as there is no evidence that he had any agreement with the co-accused to commit offence. 53. After hearing the learned counsel appearing on behalf of accused- appellants as well as learned AGA for State and perusal of lower court record, paper book and re-appreciation of evidence, we find merits so far the case of accused-Gayasuddin is concerned. 53. After hearing the learned counsel appearing on behalf of accused- appellants as well as learned AGA for State and perusal of lower court record, paper book and re-appreciation of evidence, we find merits so far the case of accused-Gayasuddin is concerned. Appellant-Gayasuddin is tried in the aid of Section 120B IPC as in the FIR the informant/ PW-1 has stated that after committing the offence, the assailants were shouting that since the deceased were having enmity with accused-Gayasuddin, they have killed them. However, while in the cross examination, PW-1 (Raja) has admitted as under: HINDI IMAGE 54. Similarly, second eye witness i.e. PW-2 Rafeeq has even gone to the extent that he had not heard any accused naming Gayasuddin that he was having enmity with deceased Naushe and Chanda. However, while in the cross examination, PW-2 (Rafeeq) has admitted as under: HINDI IMAGE Therefore, except the bald statement made in the FIR that the assailants / accused, Ahsan, Asif Thakur, Bhoora, Kafeel and Wakeel were having any meeting of minds with accused-Gayasuddin or that Gayasuddin has paid any amount for killing the two accused persons, namely, Naushe and Chanda, nothing has come in the evidence. 55. The cross examination of PW-1 (Raja) & PW-2(Rafeeq) is clear that in their statement recorded under Section 161 Cr.P.C., both these witnesses have not named Gayasuddin as a principal conspirator and even in cross examination they have not levelled the allegations of conspiracy against Gayasuddin, therefore, in view of judgment of Supreme Court in Manoj Kumar Soni’s Case (supra), the conviction of Gayasuddin under Section 120B IPC stands completely vitiated as there is no evidence even remotely to suggest that there existed any agreement between Gayasuddin and other co-accused. 56. Accordingly, the appeal filed by accused Gayasuddin is accepted and he is acquitted of charge. 57. The appellant Gayasuddin is in custody since 22.4.2022 and, therefore, he will be released forthwith, if he is not required in any other case. 58. 56. Accordingly, the appeal filed by accused Gayasuddin is accepted and he is acquitted of charge. 57. The appellant Gayasuddin is in custody since 22.4.2022 and, therefore, he will be released forthwith, if he is not required in any other case. 58. So far as the accused Ahsan, Asif Thakur, Bhoora, Kafeel and Wakeel are concerned, there is no merits in their appeals for the following reasons : A. One of the primary defence taken by the accused-appellants is that at the place of occurrence it was pitch dark as the occurrence took place around 11-11:30 p.m. However, both PW-1 and PW-2 are consistent that the occurrence took place in front of house of one Shamsad where there was a marriage function and lighting were done outside his house. B. Even the defence witnesses, PW-2(Rafeeq) has admitted that there was marriage of the son of Shamsad but stated that it was scheduled on the next day, therefore, putting up the lights outside the house of Shamshad on account of marriage of his son is duly proved not only by PW1 & PW-2 but by DW-1 as well. C. Both, PW-1 & PW-2 have named all the accused persons as assailants and have given complete description, the manner in which they have committed offence of murder of Naushe and Chanda. D. The next argument raised by the counsel for appellant that the deceased were having criminal history and they were murdered by unknown assailants as it noticed in the inquest report is of no avail as the panches of inquest report are not the eye witness. PW1 & PW-2 have consistently given the name of accused persons as the assailants and in lengthy cross examination, their testimony could not be shattered. E. The argument raised by learned counsel for appellants that PW-1 & PW-2 are not the eye witnesses is also without any merit as they are being the son and nephew of the deceased are the natural witnesses who have stated that they were present at the spot when the incident took place and have witnessed the occurrence in the light. The minor contradictions in the time and manner of preparation of inquest report and sending the dead body to the hospital for postmortem do not prove that the FIR was ante time. The minor contradictions in the time and manner of preparation of inquest report and sending the dead body to the hospital for postmortem do not prove that the FIR was ante time. The prosecution has proved recovery of three firearms i.e. 314 bore country made pistol from Bhoora, 32 bore pistol and empty magazine from Wakeel and 34 bore pistol without magazine from Kafeel which are exhibited by the Investigating Officer and, therefore, assailants were armed with deadly weapons which were used for committing the offence. Even at the time of conducting the postmortem, one bullet each was retrieved from the dead body of the victim. F. The argument raised by counsel for appellants that these bullets were not sent for examination to the Ballistic Expert, though may be a lapse on the part of the Investigating Officer but do not make the prosecution case doubtful as the eye witnesses have deposed that the assailants were armed with firearm weapon and the Investigating Officer / PW-4 has duly proved the recovery effected from the accused persons i.e. the firearms which were duly exhibited. G. The bloodstained earth and stones recovered from the spot, though as per FSL report were found having human blood but it was opined that same is disintegrated as per the cause of death as opined by the Doctor who conducted the postmortem both the deceased died because of firearms injuries and the crush injury sustained on the face and head also corroborate the version of PW-1 and PW-2 that after giving firearms injuries, the accused with the help of stones have crushed the heads of the deceased. In their statement under Section 313 Cr.P.C., the accused persons could not give any valid explanation to contradict the incriminating evidence which was put to them except that they have been falsely implicated. H. As noticed above, both the defence witnesses have admitted that on the date of incident, there was marriage function in the house of one Shamsad. Therefore, the place of occurrence has described by the PW-1 and PW-2 to be outside the house of Shamsad is also proved by the prosecution. 58. In view of above, we find no merits in the appeal filed by accused- appellants Ahsan, Asif Thakur, Bhoora, Kafeel and Wakeel and their conviction as per the judgment of Trial Court is upheld. Therefore, the place of occurrence has described by the PW-1 and PW-2 to be outside the house of Shamsad is also proved by the prosecution. 58. In view of above, we find no merits in the appeal filed by accused- appellants Ahsan, Asif Thakur, Bhoora, Kafeel and Wakeel and their conviction as per the judgment of Trial Court is upheld. However, so far the death penalty awarded by the Trial Court to the aforesaid appellants is concerned, this Court finds merit that it is not ‘rarest of rare’ cases where death penalty should be awarded to the appellant. 59. The Supreme Court in the case State of Maharashtra Vs. Nisar Ramzan Sayyed, 2017(2) R.C.R.(Criminal) 564, has held that in case where a pregnant woman who along with a minor child was murdered, there are various circumstances pointing out certain lacuna, the death penalty should not be awarded and the judgment of Trial Court was modified to life imprisonment till natural life of the accused. 60. The Supreme Court in State of Uttar Pradesh Vs. Ram Kumar and others, 2017(5) R.C.R.(Criminal) 785, has held that taking consideration of facts and circumstances of the case, the capital punishment is to be converted into life imprisonment. 61. The Supreme Court in Chhannu Lal Verma Vs. 60. The Supreme Court in State of Uttar Pradesh Vs. Ram Kumar and others, 2017(5) R.C.R.(Criminal) 785, has held that taking consideration of facts and circumstances of the case, the capital punishment is to be converted into life imprisonment. 61. The Supreme Court in Chhannu Lal Verma Vs. State of Chhattisgarh, 2019(5) R.C.R.(Criminal) 192, has discussed the aggravating circumstances as well as mitigating circumstances which read as under : - “Aggravating circumstances: A court may, however, in the following cases impose the penalty of death in its discretion: (a) if the murder has been committed after previous planning and involves extreme brutality; or (b) if the murder involves exceptional depravity; or (c) if the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed— (i) while such member or public servant was on duty; or (ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or (d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the Code of Criminal Procedure, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.” Mitigating circumstances: In the exercise of its discretion in the above cases, the court shall take into account the following circumstances: (1) That the offence was committed under the influence of extreme mental or emotional disturbance. (2) The age of the accused. If the accused is young or old, he shall not be sentenced to death. (3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (3) and (4) above. (5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence. (6) That the accused acted under the duress or domination of another person. (7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.” In this case, after upholding the conviction of the accused who were held guilty of committing murder of four persons with a knife, the Supreme Court commuted the death penalty to life imprisonment. 62. In Dnyaneshwar Suresh Borkar Vs. State of Maharashtra, 2019(2) R.C.R.(Criminal) 302, it is held by Supreme Court that if the Court is inclined to award death penalty, then there must of exceptional circumstances warranting imposition of excess penalty. The Court should consider probability of reformation and rehabilitation of convict in the society as this is one of the mandates of special reason as per requirement of Section 354(3) Cr.P.C. It is also held in the judgment that when the DNA report is not done, an adverse inference should not be drawn. It is also held that the antecedents of the convict or that the pendnecy of one or more criminal cases against the convict, cannot be a factor of consideration for awarding death sentence and, therefore, has held that looking to the conduct of the convict, the capital sentence can be commuted . 63. The Supreme Court in Manoharan Vs. State by Inspector of Police, Variety Hall Police Station, Coimbatore, 2019AIR (Supreme Court ) 3746, has held that a balance sheet of aggravating and mitigating circumstances should be drawn while awarding death penalty and in doing so mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances while exercising judicial discretion. The Supreme Court while commuting death sentence to life imprisonment till his natural death without remission by upholding the conviction. 64. In Veerendra Vs. The Supreme Court while commuting death sentence to life imprisonment till his natural death without remission by upholding the conviction. 64. In Veerendra Vs. State of Madhya Pradesh, 2022(3) R.C.R. (Criminal) 254, the Supreme Court while upholding conviction under Section 364A, 376(2) (i), 302, 201 IPC regarding murder and rape of a minor girl, commuted the death sentence to life imprisonment with stipulation that the convict is not entitled to premature release or remission before undergoing imprisonment of thirty years. 65. In The State of Haryana Vs. Anand Kindo & Another etc., 2022(4) R.C.R. (Criminal) 735, the Supreme Court has again held that if there is any circumstance favouring the accused such as lack of intention to commit the crime, possibility of reformation, young age of the accused, accused not being a menance to the society and his clearly criminal antecedents, the death sentence can be commuted to life for a actual period of thirty years. 66. In Re: Framing Guidelines Regarding Potential Mitigating Circumstances to be Considered While Imposing Death Sentences, 2023(1) R.C.R.(Criminal) 571, the Supreme Court while deciding the issue regarding the same day sentence of capital sentence, held that the conviction will not be vitiated, however held that the hearing under Section 325(2) Cr.P.C., requires the accused and the prosecution, at their option, be given the meaningful opportunity which in usual course is not conditional upon time or dates granted for the same and should be qualitatively and quantitatively. 67. In Sundar @ Sundarrajan Vs. State by Inspector of Police, 2023 Cri.L.R.(SC) 473, the Supreme Court held that it is the duty of the Court to enquire into mitigating circumstances as well as to foreclose the possibility of reformation and rehabilitation before imposing the death penalty. It is also held that even though the crime committed by the accused is unquestionably grave and unpardonable, it will not be appropriate to affirm the death sentence as ‘rarest of rare’ doctrine requires that the death sentence not be imposed only by taking into account the grave nature of crime but only if there is no possibility of reformation. 68. In Ravindar Singh Vs. The State Govt. of NCT of Delhi, 2023 AIR (Supreme Court) 2220, Digambar Vs. The State of Maharashtra, 2023 Cri. L.R. (SC) 564, Bhaggi @ Bhagirah @ Naran Vs. 68. In Ravindar Singh Vs. The State Govt. of NCT of Delhi, 2023 AIR (Supreme Court) 2220, Digambar Vs. The State of Maharashtra, 2023 Cri. L.R. (SC) 564, Bhaggi @ Bhagirah @ Naran Vs. The State of Madhya Pradesh, 2024(1) Crimes 121, the Supreme Court has commuted the death sentence despite holding that the offence committed was brutal or barbaric, however, considering the mitigating circumstances, the capital sentence was commuted to life for a fixed term of sentence. 69. As noticed above, it has been held by the Supreme Court in Nisar Ramzan Sayyed Case (Supra), Ram Kumar and others, Chhannu Lal Verma, Dnyaneshwar Suresh Borkar, Manoharan Case (Supra), Veerendra Case (Supra), Anand Kindo & Another Case (Supra), Ravindar Singh Case (Supra), Digambar’s Case (Supra) and Bhaggi @ Bhagirah @ Naran’s Case (Supra) that if the Court is inclined to award death penalty, there must be exceptional circumstance warranting imposition of excessive death penalty which cannot be reversed. 70. In the light of the judgment of Supreme Court (supra), there is no aggravating circumstances as the Trial Court has not recorded any satisfaction that in case the life imprisonment awarded to the accused persons, there will be a security threat to the society as the accused persons have no criminal history. 71. The Trial Court has also not considered the age of the accused while awarding death penalty. All the accused persons are married persons having their family to support and this aspect have also not considered by the Trial Court rather there are mitigating circumstances in favour of the appellants as considering their age, there is probability that the accused can be reformed and rehabilitated as they have no criminal history. 72. Accordingly, while upholding the judgment of conviction of accused- appellants, namely, Ahsan, Asif Thakur, Bhoora, Kafeel and Wakeel, we partly allowed the appeal and convert the death penalty to life imprisonment for a fixed period of 20 years. They are in custody and will continue to serve remaining punishment. The finding recorded by the Trial Court regarding the imposition of fine is also upheld. 73. Record and proceedings be sent back to the Trial Court forthwith.