JUDGMENT

R. BANUMATHI, J.

These appeals arise out of the judgment of the High court of Madhya Pradesh in Criminal Death Reference No.2 of 2008 in and by which the High Court has allowed the appeal filed by the respondents-accused thereby acquitting the respondents-accused under Section 302 IPC and setting aside the death penalty awarded to the respondents/accused and his son accused Akhilesh by the trial court.

2. During the pendency of these appeals, respondent No.2-Akhilesh had died and by the order dated 28.02.2017, the appeal against respondent No.2 was dismissed as abated.

3. Briefly stated case of the prosecution is that on 20.02.2006 at about 12.00-12.30 p.m., Kesar Bai (PW-1), her daughter-in-law deceased Phoolwati and grandson Rinku aged three years were going towards the field to cut the mustard crop. Deceased Ganeshi Bai who was the daughter of Kesar Bai (PW-1) and deceased Ganga Singh who was the son of the jeth of Ganeshi Bai were little ahead to them. As soon as Kesar Bai reached near Madhawala Danda on the public way, she heard the sound of four to five gun-shots fired and saw the accused firing at Ganga Singh and Ganeshi Bai. Thereafter, accused Chhaakki Lal and his son Akhilesh carrying the guns came towards them from the front side. Chhaakki Lal told Kesar Bai (PW-1) that they have already killed her daughter, Ganeshi Bai and Ganga Singh and now the turn is hers. Chhaakki Lal-accused No.1 then fired at Phoolwati in her abdomen, the second fire was fired by Akhileshaccused No.2 at Rinku. Then accused-Chhaakki Lal jumped on the child Rinku due to which the intestines of Rinku tossed out because of the impact and as a result, he died on the spot. Kesar Bai (PW-1) challenged the accused persons and said ‘what are you waiting for, kill me now’. Chhaakki Lal is said to have replied that he would not kill her as she will die automatically after looking at these incidents. Complaint -Dehati Nalishi (Ex. P-1) was recorded on 20.02.2006 and after initial investigation, FIR was registered under Section 302 IPC read with Section 34 IPC and Sections 25, 27, 29 and 30 of the Arms Act against both the accused persons (Ex. P-25-26).

4. Dr. S.K. Singh Niranjan (PW-6) conducted post-mortem on the dead bodies of all the four deceased namely Phoolwati, Rinku Singh, Ganeshi Bai and Ganga Singh and noted the injuries and issued post-mortem certificates. Accused Chhaakki Lal and Akhilesh were arrested on 26.02.2006. Based on the disclosure statement of Chhaakki Lal-accused No.1, a katta had been seized vide seizure memo Ex. P-20. Based on the disclosure statement of Akhilesh-accused No.2, a 12 bore gun along with two live cartridges of 12 bore was seized from Akhilesh. Also a gun licence of accused-Chhaakki Lal had been seized from Akhilesh vide seizure memo Ex. P21. According to the FSL reports (Exts. P-31, P-32 and P-33), the fired kartoos Ex.EC-1 to Ex.EC-4 had been fired by pistol Ex. A-4, the two 3 live kartoos Ex. LR-1 and LR-2 could be fired by 12 bore gun/bandook (Ex. A-3), Exs. EB-1 and EB-2 was fired by rifle weapon. Ex.-EB-3 can be part of Ex.-EB-2.

5. To bring home the guilt of the accused, prosecution has examined PW-1 to PW-13 and exhibited number of documents. The accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances and the accused denied all of them. Accused in their defence stated that deceased Ganga Singh was a person of criminal character who was also in collusion with dacoits and engaged in theft and snatching. The accused persons have stated that due to previous enmity, they have been falsely implicated. Upon consideration of evidence of Kesar Bai (PW-1) and other evidence adduced by the prosecution, the trial court held accused Nos.1 and 2 guilty under Section 302 IPC read with Section 34 IPC. The trial court held that the case would come under the category of ‘rarest of rare cases’ and awarded death penalty to both the accused persons apart from imposing a fine o