Judgment

JAGANNATHA SHETTY, J.:- This appeal by special leave has been preferred against the judgment dated July 31, 1986 of the Rajasthan High Court, Jodhpur Bench in Criminal Appeal No. 208 of 1985 maintaining the conviction and accepting the reference on sentence of death awarded to the appellants under S. 302 read with S. 34 of the Indian Penal Code by the Additional Sessions Judge in SC No. 115 of 1979.

2. In the night between 16-17th of July, 1979, the entire family consisting of father, mother, son and five daughters were done to death when they were fast sleep in their residence in village Birkali. The prosecution story, to put briefly, was that the deceased victim Bhagtu Ram Kumbhhar was the real brother of the accused Shyolal. They were the original residents of village Cigorani district Sirsa in the State of Haryana. Nearly 15 or 20 years ago, both the brothers came to live in village Birkali and they purchased 50 Bighas of agricultural land for cultivation. Both the brothers jointly lived in Birkali for two or three years and thereafter Shyolal returned back to his native village Cigorani. Before leaving village Birkali, he had mortgaged his share in the property in favour of some one for a sum of Rs. 1200/-. The deceased Bhagtu Ram redeemed that mortgage. Shyolal thereafter, demanded his share in that property. Bhagtu Ram agreed, provided Shyolal paid him the amount of Rs. 1200/- which he had paid to the mortgagee. That was not acceptable to Shyolal. Two or three months before the incident, the parties appeared to have approached the influential persons of the village to get the matters settled. Nanusingh (PW 10) the ex-Pardhan of the Panchayat Samiti, Nohar and the other persons of the village Birkali tried to settle the dispute between the two brothers. Evidently,they did not succeed. Shyolal was not willing to pay the amount of Rs. 1200/- to Bhagtu Ram. The accused Shyolal told Nanusingh and others that he would himself settle the dispute without anybodys intervention. It is said that thereafter Shyolal started harbouring an ill-will against his brother Bhagtu Ram.

3. On Sunday preceding the incident, Shyolal and other accused said that they would go next day to village Birkali and would take back the possession of the fields from Bhagtu Ram. On July 16, 1979, the appellants and two other persons including Banwari armed with different weapons went to the village Birkali. They entered the house of Bhagtu Ram in the dead of night and started killing the inmates one by one.One of the daughters of Bhagtu Ram raised some cries and tried to escape, but was instantaneously done to death. Hearing her cries, Khyali Ram, (PW-3) and Ram Kishan (PW-4) whose houses are situate not far away, came there and saw a part of the occurrence. They could not do anything since they were terribly frightened. So they quietly left the place. Jaisingh, PW-9, who was sleeping on the roof of the neighbouring house, got up on hearing the noise. He also got frightened and did not intervene. The accused after committing the eight murders left the village Birkali.

4. At about sun rising, Birkali (PW-5) while passing by the house of Bhagtu Ram, saw the dead bodies of Bhagtu Ram and members of his family. He rushed to the Sarpanch, Sahi Ram (PW-6) and told him what he had seen. Sahi Ram also came and saw the place. The police was informed by sending a message with the signature of Sahi Ram (Ex. P.22) sent through Saheb Ram (PW-7), the peon of the Gram Panchayat.

5. The prosecution in all examined 18 witnesses in the course of the trial and the accused, Banwari was granted pardon under S. 307 of the Code of Criminal Procedure. He thus became an approver. The learned Sessions Judge found all the accused guilty of the offences they were charged with. Since one of them was held to be a child, as defined in the Rajasthan Children Act, 1970, his case was referred to the Children Court, Bikaner. The remaining two accused, who are the appellants before us, w