1. Criminal Appeal (DB) No. 378 of 2014 has been filed by convicted accused Laddan @ Alimuddin and convicted accused Salamat Ali whereas Criminal Appeal (DB) No. 642 of 2014 has been filed by the convicted accused Chhotu Mian. By these appeals, they are challenging the Judgment and Order dated 12.02.2014 and 15.02.2014 respectively passed by the learned Adhoc Additional Sessions Judge-II, Barh, Patna, in Sessions Trial No.1073 of 2012 whereby they all came to be convicted of the offences punishable under Sections 302 r/w 34 and 394 r/w 34 of the Indian Penal Code. They all are sentenced to suffer rigorous imprisonment for life apart from a direction to pay fine of Rs.1000/-each for the offence punishable under Section 302 r/w 34 of the Indian Penal Code and in default of payment of fine, further simple imprisonment for one month. They all are further sentenced to suffer rigorous imprisonment for seven years for the offence punishable under Section 394 r/w 34 of the Indian Penal Code with a direction to pay fine of Rs.1000/- each and in default of payment of fine, to undergo simple imprisonment for one month. Substantive sentences are directed to run concurrently by the learned trial court. As both these appeal are arising out common Judgment and order convicting and sentencing the appellants, both are being disposed of by this common Judgment. For the sake of convenience, the appellants shall be referred to in their original capacity as “an accused”.

a. Tahsiba Khatoon (since deceased), aged about 80 years used to reside at village Kanhaipur falling under the jurisdiction of Mokama Police Station, District Patna. P.W. 1 Rukshana Khatoon used to work as maidservant at the house of Tahsiba Khatoon and she used to sleep in the said house itself. P.W. 3 Md. Jaseem who happens a homeless person used to earn his livelihood by selling peanuts legumes in the town and he used to sleep in the night at the terrace of the house of Tahsiba Khatoon (since deceased). Albia Khatoon (since deceased), aged about 45 years used to reside at village Chackjagmal falling under the jurisdiction Bhador Police Station. P.W. 4 Md. Kaisher is her brother who used to reside at village Kanhaipur.

b. Albia Khatoon (since deceased) was having ancestral agricultural land at village Kanhaiur. Out of that land admeasuring about 12 bighas land, one Naresh Rai had taken forcibly possession of two bighas land. Said Naresh Rai as well as Mukesh Rai were threatening the owners of that land. Three days prior to the date of incident, Albia Khatoon (since deceased) came to her native place village Kanhaipur for negotiating with prospective purchasers of her ancestral land. The incident in question took place in the night of 31.05.2012. After taking her dinner Albia Khatoon (since deceased) went to the house of Tahsiba Khatoon (since deceased) for sleeping. In the courtyard of house of Tahsiba Khatoon (since deceased), Albia Khatoon (since deceased) and P.W. 1 Rukshana Khatoon so also Tasiba Khatoon slept on separate cots which were kept at distance of about 2 to 3 cubit away from each. As usual P.W. 3 Md. Jaseem slept on the terrace of the house of Tahsiba Khatoon (since deceased). In the midnight of the night intervening 31.05.2012 and 01.06.2012, the accused persons entered in the hose of Tahsiba Khatoon (since deceased) through the terrace. Initially they assaulted P.W. 3 Md. Jaseem who was sleeping in the terrace. They tied his hands by his shirt and went down stair at the closed courtyard of the house where Albia Khatoon (since deceased), Tahsiba Khatoon (since deceased) and P.W. 1 Rukshana Khatoon were sleeping. 5 to 6 years old female child of Albia Khatoon was also sleeping with her.

c. Accused Salamat tied the mouth and upper as well as lower limbs of P.W. 1 Rukshana Khatoon. Thereafter accused Salamat and accused Laddan @ Alimuddin caught hold Albia Khatoon (since deceased) and accused Chhotu Mian slit open the neck of Albia Khatoon by means of a knife. During the course of this murderous assault, Tahsiba Khatoon (since deceased) also woke up and tried to run away while shouting.

The accused person killed her by cutting her neck by a sharp edged weapons. They removed ornaments from the dead bodies of Albia Khatoon and Tahsiba Khatoon, washed their hands and went away from the terrace of that house.

d. After the accused persons flee from the house of the deceased Tahsiba Khatoon, P.W. 1 Rukshana Khatoon managed to free herself and starting shouting. P.W. 3 Md. Jaseem is also started shouting. People from the locality gathered there. P.W. 1 Rukshana Khatoon then opened the door. Thereafter the police were informed about the incident. That is how Sub-Inspector, Krishan Murari of Mokama Police Station came to the spot i.e. house of Tahsiba Khatoon (since deceased) located at Kanhaipur and recorded the FIR lodged by P.W. 4 Md. Kaisher at about 6.20 A.M. of 01.06.2012. Routine investigation followed.

e. After taking inquest notes on dead bodies of Albia Khatoon and Tahsiba Khatoon, those were sent for postmortem examination to the Sub-District Hospital, Barh, where P.W. 8 Dr. Ram Raj Sharma conducted postmortem examination on 01.06.2012. Statement of witnesses came to be recorded. From the spot of the incident, blood stain cloths and other articles came to be seized by preparing seizure memo by Investigating Officer, P.W. 10 Krishan Muarari.

f. On completion of investigation, the accused persons as well as Yashmin Khatoon (co-accused who came to be acquitted) came to be charge sheeted. The learned trial court framed and explained the charges for the offences punishable under Sections 302 r/w 34 and 394 r/w 34 as well as Section 120B of the Indian Penal Code to them. They pleaded not guilty and claimed trial. In order to bring home the guilt to the accused persons, the prosecution has examined in all ten witnesses. Defence of the accused persons was that of total denial. However they did not enter in the defence.

g. After hearing the parties the learned trial court was pleased to convict the accused persons and to sentence them as indicated in the opening para of this Judgment.

2. We heard Ms. Archana Palkar Khopde, the learned Advocate appointed to represent accused in Criminal Appeal (DB) No. 378 of 2014. She vehemently argued that evidence of P.W. 1 Rukshana Khatoon is the not consistent with the FIR of the instant case and the same is suffering from infirmities. This witness have not clarified how she untied herself. It is further argued that, though two persons are claiming to be eye witnesses to the incident, they had not made any hue and cry during course of the incident. Therefore, their evidence is unreliable. It is further argued that case of the prosecution itself is to the effect that deceased Albia Khatoon was having land dispute with others such as Naresh Rai and Mukesh Rai. Therefore possibility of commission of crime by those persons cannot be ruled out. She further argued that neither the weapon of the offence nor blood stain cloths were seized from the accused persons and therefore, case of the prosecution is not free from the doubt. By placing reliance on Judgment of the Hon’ble Supreme Court in Arun Versus State by Inspector of Police, Tamil Nadu, (2008) 15 Supreme Court Cases 501 [LQ/SC/2008/2463] and Suresh and Another Versus State U.P., (2001) 3 Supreme Court Cases 673, [LQ/SC/2001/643] the learned Advocate Ms. Archana Palkar Khopde argues that the prosecution has not adduced any evidence to show that the incident took has under the prearranged plan by sharing common intention by all accused persons and therefore, appellants/ accused Laddan @ Alimuddin and Salamat Ali needs to be acquitted. We have also heard the learned counsel for the appellant in Criminal Appeal (DB) No. 642 of 2014, who adopted the same argument as advanced by the appointed advocate. The learned Additional Public Prosecutor assisted by the learned counsel for the First Informant opposed the appeals and contended that the prosecution is successful in proving the guilt of the accused.

3. We have considered the submissions so advanced and also perused the record and proceedings including oral and documentary evidence adduced by the prosecution.

4. Now let us examine whether deceased Tahsiba Khatoon and deceased Albia Khatoon are proved to have suffered homicidal death in the incident in question. Death of Tahsiba Khatoon and Albia Khatoon is not disputed by the defence. On this aspect there is unimpeachable evidence of P.W. 1 Rukshana Khatoon, P.W. 3 Md. Jaseem, P.W. 4 Md. Kaisher as well as that of P.W. 10 Krishn Murari, the Investigating Officer. It is seen from the evidence of Investigating Officer, he prepared the inquest notes by inspecting dead bodies of Tahsiba Khatoon and Albia Khatoon. He has duly proved inquest reports regarding dead bodies of these two victims. Perusal of the inquest report shows that necks of dead bodies of Tahsiba Khatoon and Albia Khatoon were slit open and the dead bodies were drenched in blood. P.W. 8 Dr. Ram Raj Sharma had conducted the postmortem examination on dead bodies on 01.06.2012 at the S.D. Hospital, Barh. His evidence shows that dead body of Albia Khatoon was having sharp cutting wound on anterior portion of neck deep to trachea, fully cut. As per his version, Albia Khatoon died because of cardio respiratory failure due to haemorrhage and shock leading to the cut injuries to her neck.

So far as dead body of Tahsiba Khatoon is concerned, P.W. 8 Dr. Ram Raj Sharma deposed that the said dead body was found having incised wound measuring about 6” X 3” X 2” on the front side of the neck below thyroid. Tahsiba Khatoon died because of cardio respiratory failure due to asphexia leading to the haemorrhage and shock. He opined that injuries found on dead body of both these women could be cause by heavy knife. In cross-examination, he admitted that there was a single injury on each of the dead body. Through the evidence of this witness, the prosecution has proved report of postmortem examinations. With this ocular and medical evidence, the prosecution has proved that Albia Khatoon as well as Tahsiba Khatoon died homicidal death in the incident in question.

5. Now let us examine whether the accused persons, in furtherance of their common intention had caused murder of Albia Khatoon as well as Tahsiba Khatoon in the night intervening 31.05.2012 and 01.06.2012.

6. P.W. 1 Rukshana Khatoon is the star witness for the prosecution. She is uneducated maidservant who used to take care of deceased Tahsiba Khatoon by residing with her. Her cross-examination revels that she was acquainted with accused Chhotu Mian and was visiting her house. She was not having any quarrel with accused Chhotu Mian. It is further seen from her cross-examination that her house is near the house of deceased Tahsiba Khatoon and accused Chhotu Mian used to reside adjacent to the house of P.W. 4 Md. Kaisher who happens to be brother of deceased Albia Khatoon. This witness was also knowing about two brothers of accused Chhotu Mian. It is elicited from her cross-examination that deceased Albia Khatoon came to village Kanhaipur just two days prior to the incident. It has come in the cross-examination of P.W. 1 Rukshana Khatoon that husband of Tahsiba Khatoon used to reside at Kanpur and she herself used to sleep at the house of Tahsiba Khtoon and was never used to go to her own house. On the backdrop of this admitted position emerging on record from the crossexamination of P.W. 1 Rukshana Khatoon, let us examine what she has stated about the incident while in the dock.

7. According to the version of P.W. 1 Rukshana Khatoon in the night of the incident she herself, Tahsiba Khatoon and Albia Khatoon were sleeping in the closed courtyard of the house of Tahsiba Khatoon. At that time, P.W. 3 Md. Jaseem was sleeping on the terrace of the house of Tahsiba Khatoon. P.W. 1 Rukshana Khatoon testified that in the midnight between 12 to 1 A.M., she woke up suddenly as somebody pulled her hair. At that time, Kerosene lantern was burning in the said courtyard. She stated that she saw accused Chhotu brandishing the knife and he threatened her that if she ventures to shout then he will kill her. Accused Salamat and Laddan were also seen by her accompanying accused Chhotu Mian. P.W. 1 Rukshana Khatoon testified that accused Salamat tied her mouth, hands as well as legs. She further stated that accused Salamat and accused Laddan caught hold Albia Khatoon and accused Chhotu slashed her neck. Then Tahsiba Khatoon woke up and tried to run but she was also killed by accused Chhotu and his two associates by sharp edged weapons. As deposed by P.W. 1 Rukshana Khatoon, accused Chhotu Mian slashed neck of Tahsiba Khatoon by means of a knife. Then accused Chhotu removed all ornaments from the dead bodies of Albia Khatoon and Tahsiba Khatoon and also the mobile phone from the dead body of Tahsiba Khatoon. The ornaments were gold bangles, gold earrings and gold rings apart from silver articles. As deposed by P.W. 1 Rukshana Khatoon then accused persons washed their hands by soaps kept at the Kitchen (Chouki). They then went up stair and run away from the terrace. She stated that she then untied herself and shouted. P.W. 3 Md. Jaseem also shouted from the roof and villagers came at the door. She has stated that then she herself opened the door of the house to let in the villagers. She claimed that since last 15 years she used to work in the house of the deceased Tahsiba Khatoon. She identified the accused persons. From her cross-examination, it is brought on record that her house is also adjacent to the house of deceased Tahsiba Khatoon where her married son along with his family and her husband stays. It is also brought on record from her cross-examination that she is relative of the accused Chhotu and she earns her livelihood by working as maidservant in four to five houses. Husband of Tahsiba Khatoon resides at Kanpur and she therefore used to sleep at the house of Tahsiba Khatoon. It is brought on record from her cross-examination that 3 cots on which they were sleeping where place at the distance of 2 to 3 cubits in the courtyard where lantern was continuously burning. The incident lasted for half an hour during which her eyes were open and she was frightened due to the incident. With this material found even in the cross-examination of P.W. 1 Rukshana Khatoon, we see no reason to disbelieve this witness who is related to accused Chhotu Miyan with whom she has no enmity. She has no reason to depose against her own relative Chhotu Mian. She had no quarrel with Chhotu Mian. Rather she was on friendly terms with accused Chhotu Mian and his family as seen from her cross-examination. Deceased Tahsiba Khatoon was an old lady whose husband as well as son P.W. 9 Afjal Ahmad @ Guddu used to reside at Kanpur. She being alone in the big house where the incident took place, it is but natural for deceased Tahsiba Khatoon to allow somebody to accompany her during night hours and that is how P.W.1 Rukshana Khatoon who was maidservant of the house, used to sleep in the house. Therefore, P.W. 1 Rukshana Khatoon is the most natural witness to the incident and she has described vividly as to what took place in her presence at the time of incident during which her eyes were open though she was tied by cloths. This witness was just sleeping by the side of deceased Tahsiba and she was in a position to witness the happenings during the course of the incident which lasted for a sufficiently long time as seen from her cross-examination. Thus evidence of P.W. 1 goes to show that the accused persons entered in the house of the deceased Tahsiba Khatoon through terrace, murdered Tahsiba as well as Albia by slitting their necks, removed ornaments and mobile phone from the dead bodies and escaped from the spot of the incident after commission of the crime. Source of light for enabling this witness to see the happenings was the lantern which continued to burn till arriving of the police in the morning hours of the next day. P.W. 1 Rukshana was acquainted with the accused persons as seen from her evidence and accused Chhotu Mian was her own relative. Nothing is pointed out to disbelieve evidence of this witness so far as involvement of co-accused Laddan @ Alimuddin and Salamat Ali is concerned. Evidence of P.W. 1 Rukshana Khatoon shows that they took active role in the armed robbery during the course of twin murders took place.

8. P.W. 3 Md. Jaseem, who used to sell groundnuts legumes in the town for earning his livelihood was sleeping at the terrace of the house of Tahsiba Khatoon at the time of the incident. As per his version in the night hours, three accused persons came on the terrace and pointed a knife at his neck. He was threatened. His hands were tied by his own shirt. One amongst the three robbers as stated by P.W. 3 Md. Jaseem was Chhotu Mian. Then they went down stair and tied P.W. 1 Rukshana Khatoon. P.W. 3 Md. Jaseem further stated that the accused persons slashed neck of Aliba and when Tahsiba tried to run away, she was caught and her neck came to be slit by the accused persons. The accused persons, as claimed by this witness, had removed jewelry from dead bodies, washed their hands and took the jewellry and ran away from the spot. This witness identified accused Chhotu while in the dock.

9. Cross-examination of P.W. 3 Md. Jaseem shows that he is homeless and whosoever asks him, he used to sleep in the house of that person. He was sleeping by keeping a big lantern by the side. He stated in the cross-examination that initially he was threatened and then his hands were tied by his own shirts. The accused then went down stair and he was crying up stair. This witness further stated that in his cross-examination that after half an hour, the accused persons again came up stair to the terrace and went away. He admitted that he never went down stair.

10. P.W. 3 Md. Jaseem as seen from his crossexamination, was sleeping on the terrace and was through out on the terrace during the course of the incident. It has not come from his evidence or evidence of P.W. 1 Rukshana Khatoon that a person on the terrace of the house of Tahsiba Khatoon can see the happenings at the courtyard of that house. This witness has not explained as to how he could notice the event which were taking place down at the courtyard while he was on the terrace. This witness has not attempted to go down stair to witness the happenings at the courtyard. Rather he was at the terrace through out and was crying. Though this witness cannot be termed as an eye witness to the culling of Aliba and Tahsiba by the accused persons, he saw accused Chhotu Mian entering in the house of Tahsiba through the terrace along with two persons which ultimately resulted in crime of murder of Aliba and Tahsiba. To that extent evidence of P.W. 3 Md. Jaseem is corroborating the version of P.W. 1 Rukshana Khatoon.

11. P.W. 2 Muzahar Imam is a neighbour residing at a distance of 2 to 3 houses from the house of deceased Tahsiba where the incident took place. He stated that upon hearing shouts he reached to the house of Tahsiba Khatoon. The door was closed. It was opened by P.W. 1 Rukshana Khatoon from inside. Then, as stated by P.W. 2 Mazahar Imam he along with others went inside the house and saw the dead bodies of Aliba and Tahsiba with slashed necks. This witness further stated that then he went to the terrace and found P.W. 3 Md. Jaseem with tied hands. He along with others untied P.W. 3 Md. Jaseem. This witness stated that in his presence, police seized three soaps stained with blood as well as a footwear by preparing the seizure memo and he signed in that seizure memo. He has also stated that P.W. 1 Rukshana Khatoon told him immediately that the incident of murders is committed by accused Chhotu, Salamat and Laddan. From crossexamination of this witness, it is seen that P.W. 1 Rukshana Khatoon was with him on the spot of the incident for two to four hours. From his cross-examination, it is elicited that apart from seizing three soaps, police seized blood lying on the spot of the incident.

12. Thus from evidence of P.W. 2 Mazahar Imam, the prosecution has proved former statement of P.W. 1 Rukshana Khatoon stating that the accused persons have committed murder of Aliba and Tahsiba. This statement was made by P.W. 1 Rukshana to P.W. 2 Mazahar Imam soon after the incident when there was no occasion for polluting the mind of P.W. 1. This former statement of P.W. 1 is admissible under Section 157 of the Evidence Act and the same is corroborating the version of P.W. 1 Rukshana Khatoon. Similarly evidence of P.W. 2 Mazahar Imam is clear to the effect that even after the incident, when the villagers reached at the spot, P.W. 3 Md. Jaseem continued to be on the terrace of the house of deceased Tahsiba. Therefore it cannot be said that P.W. 3 Md. Jaseem had actually witness the incident of commission of murder of Aliba and Tahsiba by the accused persons.

13. P.W. 5 Ran Vijay Kumar, the learned Judicial Magistrate has proved statement of P.W. 1 Rukshana Khatoon (Ext.3) recorded under Section 164 of the Cr.P.C. whereas P.W. 6 Ram Jha, the learned Magistrate has proved the statement of P.W. 3 Md. Jaseem (Ext.4) recorded under Section 164 of the Cr.P.C. This evidence shows that version of P.W. 1 Rukshana Khatoon is consistent and gaining corroboration from her former statements.

14. P.W. 7 Promod Yadav is a co-villager who acted as Punch witness to the seizure memo prepared by P.W. 10 Krishn Murari, the Investigating Officer. His cross-examination shows that three blood stain soaps came to be seized from the kitchen of deceased Tahsiba Khatoon. Thus his evidence is also corroborating the version of P.W. 1 Rukshana Khatoon wherein she has stated that after committing murders, the accused persons washed their hands by soaps in the kitchen.

15. Evidence of P.W. 9 Afjal Ahmad @ Guddu – son of deceased Tahsiba Khatoon shows that his mother used to wear gold ornaments such as ear ware, ring etc and those were missing after the incident, as noticed by him when he immediately went to the spot of the incident from Kanpur. 16. Thus evidence adduced by the prosecution shows that the accused persons in furtherance of their common intention committed murder of two helpless female victims and robbed their ornaments and cellphone.

17. Though it is argued that there is no evidence to show that accused Laddan and accused Salamat Ali were not sharing common intention with accused Chhotu Mian, such arguments fails to impress us. These two accused persons have accompanied Chhotu Mian to the house of deceased Tahsiba Khatoon. They secured their entry inside the said house through the terrace of that house by climbing the wall. They accompanied Chhotu Mian when he was slashing necks of two female victims. As per evidence of P.W. 1 Rukshana Khatoon they both had caught hold of Aliba during the course of the incident of slashing her neck by accused Chhotu Mian. All these circumstances shows that series of criminal acts were done by all accused persons acting in concert with a prearranged plan and therefore all of them are liable for the final act of murders of Aliba and Tahsiba by slashing their necks. Therefore, the ruling so cited cannot inure to the benefit of the accused persons.

18. In the result, these appeals are devoid of merit and accordingly the same are dismissed.

19. We put on record our appreciation for strenuous efforts taken by Ms. Archana Palkar Khopde, the learned Advocate appointed to represent the appellants at the cost of the State, in assisting us for arriving at the correct conclusion in the matter. We quantify the fees payable to him at Rs.5000/- and direct the High Court Legal Services Authority to pay the said amount to Ms. Archana Palkar Khopde, the learned appointed Advocate.