Shri
Ram & Shiv Ram & ANR Vs. State of U.P. & Ors [1997] INSC 784 (21
October 1997)
M.M.
PUNCHHI, S.P. KURDUKAR
ACT:
HEADNOTE:
THE
21ST DAY OF OCTOBER, 1997 Present:
Hon'ble
Mr. Justice M.M. Punchhi Hon'ble Mr. Justice S.P.Kurdukar A.K.Ganguli, Sr.
Adv.(A.C.), Sushil Kumar, Dr. N.M. Ghatate, Sr. Advs., V.Krishnamurthy, Mrs.
Rekha Pandey, P.R.Kovilan, S.M. Rai, B.M.Sharma, T.N.Singh, Mrs. Sushila Shukla
(A.C.), Mukesh K. Giri, Shakil Ahmed Syed, C.D. Singh and A.S. Pundir, Advs.
with them for the appearing parties.
The
following Judgment of the Court was delivered:
WITH
CRIMINAL
APPEAL NO.593 OF 1997 S.P. KURDUKAR, J.
A
primitive theory of punishment, "limb for limb; eye for eye; ear for ear;
etc., etc.," prevalent in the uncivilized society was put into action in
letter and spirit in the present time. The magnitude of the oresent crime needs
no elaboration. In the present crime five deaths were involved in which a boy
of ten years had been assaulted and thrown into the fire and roasted alive;
heads of three human bodies were severed and the 5th who sustained firearm
injuries died in the hospital after about 17 days due to septicaemia. Such is
the gravity of the crime. 24 persons were arranged at the trial as accused and
at the conclusion of the trail, the trial court awarded death sentence to four
accused, life imprisonment to twelve accused and acquitted seven accused. The
trial court made a reference filed the Section 355 Cr.P.C.: the convicted
accused filed the appeals including those who had been awarded capital
punishment; the State of U.P. also filed two appeals; one against the order of
acquittal of seven accused and another for enhancement of sentence in respect
of other accused. The batch of criminal appeals was heard together by the High
Court of Allahabad.
The
High Court confirmed the death sentences awarded to four accused and in
addition thereto while allowing the State appeal for enhancement, awarded the
death sentence to three accused. The State appeal filed against the order or
acquittal had been allowed and they were convicted for various offences
including substantive offence under Section 302 with the aid of Section 149 IPC
and sentenced each one of them to suffer life imprisonment. The particulars of
the accused, the weapons used during the assault and details of the deceased
will be referred to shortly. These criminal appeals have been filed in this
Court by the accused/appellants challenging the judgment and order of
conviction and sentence passed by the High Court on 28.1.1997. All these appeals
were heard together. Since they arise out of a common judgment, they are,
therefore, being disposed of by this judgment.
(2)
Before we advert to the prosecution case we may set out the particulars of the
accused/appellants since most of them come from the same family and some are
close relatives. The accused/appellants will be referred to in these appeals by
their original description as in the trial court:
x
............................................................
Jodhey
Raghubar(A-9) ............................................ ..............
Chandrika
Shayam Sheo Ram Lalla Pattu Passi (died) Manohar (A-2) (A-3) (A-7) (A-1) ......................
.............................
Harish
Rajender Ravindra Suresh Prakash (A-4) (A-6) (A-5) (A-13) (A-8) Dhakan (A-18)
is nephew of A-1, Nandlal (A-20) is uncle of A-1, Srikrishna (A-19) is son of
Nandlal (A-20). Sriram (A- 14) and Rajaram (A-15) are brothers and sons of
Bhawan Passi. Rampal (A-16) and Itwari (A-17) are brothers and sons of
Bharosey. Rakesh (A-11) and Rajesh (A-12) are brothers and sons of Prem Giri
(A-10) who is now dead. Sankatta (A- 22) and Mathura (A-21) are brothers. Dorey (A-23) is related to A-22;
Rampal Verma is A-24.
(3)
The deceased persons were also closely related to the complainant Mahendra
Kumar (P.W.1) as shown below:
Bhuwaneshwari
(deceased) .............
Sukhdarshan
(deceased) ..................
Mahendra
Kumar Sandeep (P.W.1) (deceased) (4) In addition to the above list or deceased
persons from one family, Surendra (since deceased) was cousin of P.W.1.,
Kamlesh (since deceased) was a relative of P.W.1. Sheo Pal and Ram Gulam are
the relatives of Sukhdarshan (since deceased).
(5)
The motive of the present crime was sought to be traced by the prosecution from
the murder of Chandrika Passi, who was a brother of A-1 and resident of village
Bajarakha. This murder took place two and a half months prior to the present
occurrence that took place on 23.6.1990. The murder of Chandrika was alleged to
be brutal one as his head was severed. The family members of Chandrika were
suspecting that Sheo Pal and Ram Gulam, the relatives of Sukhdarshan had
committed the said murder and, therefore, the criminal case against both of
them for an offence of murder is stated to be pending. The accused laboured
under a belief that Sheo Pal, Ram Gulam and his relatives were responsible for
the murder of Chandrika and it was this belief which gave cause to nurture
enmity against the family members of Bhuwaneshwari, Sheo Pal and Ram Gulam. The
second reason for enmity sought to be alleged by the prosecution was that Prem
Giri (A-10) (since deceased) who was residing in an adjacent house to
Bhuwaneshwari, had an axe to grind against the family of latter as a civil
dispute in regard to the property belonging to "Thakurji Trust" was
pending between them. Bhuwaneshwari obtained the decree against Prem Giri in
the trial Court but we are told that the appeal filed by Prem Giri is pending
in the higher court.
(6)
The occurrence in question took place on 23.6.90 at about 5.00 p.m., Mahendra Kumar (P.W.1) lodged the FIR at about 9.05 p.m. at Mitauli Police Station situated at a distance of
15 km. from the place of incident. In his complaint Mahendra Kumar (P.W.1) had
disclosed all the 24 named accused along with 8 to 10 unidentified persons who
had come to the house of Bhuwaneshwari. He then stated that at that time he and
Surendra (deceased) were sitting near the couldron and his father Sukhdarshan
(deceased) was sitting near the Kolhoo. All the accused person, armed with deadly
weapons, reached near the Kolhoo. A-1, A-2, A-4 and A-13 were armed with
Bankas, A-10 was carrying a DBBL licensed gun, A-3 and A-16 were armed with
SBBL guns, A-20 was carrying country made SBBL gun and the remaining accused
were armed with country made pistols and guns. The accused persons when reached
near the Kolhoo, started abusing Sukhdarshan and Bhuwaneshwari (both since
deceased) and were also giving bad words on other members of their family. Then
all the accused demanded show how both could remain alive.
Saying
so all the accused persons chased Sukhdarshan who out of fear entered into the
house of Shambhudayal and raised an alarm. Kamlesh (since deceased) s/o
Shambhudayal and Shakuntala after allowing Sukhdarshan inside the house tried
to shut the door bu the accused inserted the barrel of the gun through the door
and fired which hit Kamlesh who fell down.
(7)
The miscreants then opened the door and after entering into the house fired at
Sukhdarshan, who fell down in the courtyard. A-2, A-4 and A-13 thereafter
caught hold of the hands and feet of Sukhdarshan whereupon A-1 assaulted him
with Banka and severed his head and kept it in a piece of cloth. The assailants
then surrounded the house of Mahendra Kumar (P.W.1) the complainant, opened the
door, demolished the walls and entered into his house. Family members of
Mahendra Kumar (P.W.1), namely, Goura the grand mother of Surendra, and his
wife Manorama, were inside the house, they requested them not to assault any of
the family members.
Surendra
(since deceased) had a licensed gun. He immediately closed and bolted the door
of his room from inside. Since the door could not be opened, A-1 told his
associates to sprinkle the diesel on the house and set it on fire. The
miscreants then took out the diesel from the drum and sprinkled it on the
Chappar (roof) and also poured it into the room through a hole where Surendra
was hiding and then lit the fire to chappar and asked Surendra to come out
otherwise all his family members would be done to death.
Sandeep
(since deceased) a boy aged about 10 years, was the younger brother of the
complainant, came out and started abusing the accused persons. A-6 then fired
from his gun on Sandeep causing injuries to him and thereafter A-6 and A-8
lifted Sandeep and threw him into the fire. Sandeep was burnt alive and died in
the said fire. This was the second casualty in the course of the attack
levelled by the accused on the family members of the complainant. Surendra
(since deceased) then came out of the room and tried to run away as by that
time the fire had engulfed his house. When Surendra was running away he was
fired at and because of the fire arm injuries he fell down in the kitchen.
Thereafter A-2, A-4 and A-13 caught hold of the hands and legs of Surendra, facilitating
A-1 to assault him with Banka. A-1 then severed the head of
Surendra and kept it in the same piece of cloth where the head of Sukhdarshan
was kept. It was then stated that in the meantime Bhuwaneshwari, the grand
father of Mahendra Kumar (P.W.1) who was returning from Bajarkha market, on
seing the accused in action, tried to rush towards his house but he was also
not spared and caused him fire arm injuries. A-2, A-4 and A-13 then caught hold
of the hands and feet of Bhuwaneshwari and thereafter A-1 assaulted him with Banka and severed his head and kept it in the same price
of cloth where two heads were already kept. The accused persons thereafter went
in search of Sheo Pal but he was not found in the house. The accused persons
then stated that Sheo Pal was the person who had committed the murder of
Chandrika Passi and, therefore, he must be traced. Seeing the ghastly murders
of four persons and gun shot injuries on Kamlesh, the family members of
Mahendra Kumar (P.W.1) requested the accused persons to spare other family
members whereupon A-1 told his associates that let the remaining members of the
family be spared to mourn the deaths of their dear ones. A-7 then took away the
licensed gun of Sukhdarshan.
(8) It
was then stated in the complaint that due to fire the house of Surendra and
Articles therein were completely burnt and reduced to ashes. Such a ghastly
attack continued for a period of one and a half hour. Although it was a weekly
market day of village Bajarkha and so many persons had gathered in the market
but nobody dared to come to the rescue. The brutality committed by the accused
persons, according to the complainant did not rest at that but the accused
persons then took out a victory procession and raised the slogans `Shyam
Manohar Zindabad', `Nandlal and Prem Giri Zindabad'; Lakhpal Bhaiya
Zindabad" and thereafter went towards the house of Chandrika Passi (since
deceased).
(9)
Mahendra Kumar (P.W.1) then immediately prepared a complaint containing
aforesaid facts and took injured Kamlesh in a tractor to the police station
which was at a distance of 15 kms. They handed over the complaint to SI
Surendra Kumar Pandey who registered the FIR Ex.Ka-1 at about 9.05 p.m. on the same evening. After registering the crime Si
proceeded to the place of occurrence but by that time it was too late in the
night and, therefore, he could not hold the inquest on the dead bodies but,
however recorded the statements of various persons during late night hours. On
the next day in the early morning he held the inquest on the dead bodies of
Sukhdarshan (Ex.Ka-15), Bhuwaneshwari (Ex.Ka-29), Sandeep (Ex.Ka-26) and
Surendra (Ex.Ka-29). The dead bodies were then sent for post-mortem
examination. Other formal panchnamas etc., were carried out on 24.6.90.
Kamlesh, who had sustained the gun shot injuries was admitted in the hospital
on 24.6.1990 at about 8.00
a.m., who lateron
succumbed to the injuries on 10.7.90. The inquest report is at Ex.Ka-23. Eight
empty cartridges, empty drum of diesel and the ladder were seized from the
place of occurrence. During investigation the accused persons came to be
arrested and while in custody A-4 made a voluntary disclosure statement under
Section 27 of the Evidence Act which came to be recorded and it led to the
recovery of two severed heads of Sukhdarshan and Bhuwaneshwari. A-1 after his
arrest also made a statement which led to the recovery of a gun from the well.
After completing the necessary investigation a charge-sheet came to be filed
against 24 accused persons for offences punishable under Sections 302, 147,
148, 307, 436, 452, 404 read with Section 149 IPC.
Shyam
Manohar was separately charge-sheeted and tried under Section 25 of the Arms
Act.
(10)
The accused persons denied the charges levelled against them. They pleaded that
they have been falsely implicated in the present crime due to enmity with the
witnesses as well as the police. A-1 further pleaded that he was living
separate from Chandrika who had a quarrel with him. He was not doing any pairvi
in the murder case of Chandrika.
According
to him Lakhpati and Sripal were leading the gange of dacoits and the present
crime might have been the handy work of this gange. A-11 pleaded that he had no
grudge against the family members of the complainant on account of civil
dispute. Bhuwandeshwari had obtained a decree against his father Prem Giri but
the appeal against the said judgment and decree is still pending in the High
Court. He has no concern with this dispute. He and his brother A-12 were living
at Gola where their children were studying and they were not present at the
time when the incident took place. A-1 in his defence examined Sher Ali
(D.W.1). The other three defence witnesses were examined on behalf of A- 11 and
A-12. The appellants pleaded that they were innocent and they be acquitted. The
charge-sheet was submitted against 24 accused persons but however Prem Giri
(A-10) died during the pendency of trial and, therefore, trial abated against
him.
(11)
In order to bring home the guilt, the prosecution mainly relied upon the evidence
of two star witnesses who claimed to have seen the entire occurrence. The eye
witnesses were Mahendra Kumar s/o Sukhdarshan (P.W.1) and Lallu Ram (P.W.2) who
was residing in the adjacent house of Shambhu Dayal, brother of Kamlesh (since
deceased). Dr. S.K.
Shukla
(P.W.3) conducted the post mortem examination on the headless dead body of
Surendra and also on his severed head (Ex.K-3). Dr. A.K. Gupta (P.W.8) held the
autopsy on the skulls of deceased Bhuwaneshwari and Sukhdarshan (Ex.K-6 and K-7
respectively). Dr. S.K. Tiwari (P.W.9) conducted the autopsy on the dead bodies
of Sandeep, Bhuwaneshwari and Sukhdarshan. Post Mortem reports are Exs.8, 9 and
10 respectively. Dr. A.K. Srivastava conducted the autopsy on the dead body of
kamlesh. Dr. A.K. Patni (P.W.10) examined Kamlesh when he was brought in an
injured condition on 24.6.90 at 8.45 p.m. SI Surendra Kumar Pandey (P.W.14),
the Investigating Officer with the assistance of two other SIs completed the
entire investigation, in addition to the above ocular evidence the prosecution
also relied upon the evidence relating to the recovery of various incriminating
articles including the recoveries of three heads of Bhuwaneshwari, Sukhdarshan
and Surendra. As already indicated above the defence also examined four
witnesses.
(12)
The First Additional Sessions Judge, Kheri on careful scrutiny of oral and
documentary evidence on record convicted A-1, A-2, A-3, A-4, A-5, A-6, A-7,
A-8, A-11, A- 12, A-13, A-20, A-21, A-22, A-23 and A-24 for the offences
punishable under Sections 302, 302/149, 404, 148, 436, 449 and 201 IPC. A-1 was
also convicted under Section 25 of the Arms Act. After hearing the parties and
their respective counsel the trial court considered the complicity and
culpability of A-1, A-2, A-4 and A-13 and the common object shared by them
under Section 149 IPC. Shyam Manohar (A-1) was held responsible for committing
the murders of Surendra, Sukhdarshan, Bhuwaneshwari and for murders of Kamlesh
and Sandeep with the aid of Section 149 IPC. Suresh (A-13), Shivram (A-2) and
Harish (A-4) were held liable for committing murders of Surendra, Sukhdarshan,
Bhuwaneshwari and Sandeep under Section 302/149 IPC, and accordingly each one
of them was awarded the extreme penalty of death sentence. For other offences they
were awarded various terms of sentences. As regards A-03, A-5, A-6, A-7, A-8,
A-11, A- 20, A-21, A-22, A-23, A-24 the trial Court inflicted sentence of life
imprisonment on each of these accused under Section 302/149 IPC and also
various terms of sentences on other counts. Substantive sentences were ordered
to run concurrently. The Additional Sessions Judge accordingly made a reference
under Section 366 Cr.P.C. to the High Court for confirmation of the death
sentences. The trial court however acquitted A-9, A-14, A-15, A-16, A-17, A-18
and A-19 of all the charges. The convicts including the condemned perisoners
[referred appeals to the High Court. The State Government also preferred
appeals to the High Court for enhancement of sentences as also against the
order of acquittal in respect of seven accused persons. All these appeals were
heard together by the High Court of Allahabad Bench at Lucknow and vide its
impugned judgment dated 28.1.1997 dismissed the appeals filed by the convicts
and the condemned prisoners and partly allowed the appeal filed by the State
and enhanced the sentence of life imprisonment to death sentence in respect of
Prakash (A-8), Rajendra (A-6) and Ravinder (A- 5); the order of acquittal in
respect of A-14, A-15, A-16, A-17, A-18 and A-19 was reversed and they were
convicted under Sections 148, 436, 449, 201, 302/149 IPC and each of them has
been sentenced to life imprisonment and various other terms of sentences on
other counts. The order of acquittal of Raghubar (A-9) has been upheld. The net
result, therefore, is out or 24 charge sheeted accused Prem Giri died, Raghubar
(A-9) stood acquitted, 7 accused have been awarded extreme penalty of death and
remaining 15 accused have been awarded life imprisonment for committing five
murders. The sentences awarded to other accused persons were upheld by the High
Court vide its judgment and order dated 28.1.1997. It is against this judgment
and order passed by the High Court, the appellants have preferred these
criminal appeals to this Court. Since 7 accused persons have been awarded death
sentence and they have filed the appeals through jail, we thought it fit in the
interest of justice to appoint a Senior counsel to assist the court.
Accordingly Mr. A.K. Ganguli, Sr. Counsel was appointed as an amicus curiae to
represent by Shri Sushil Kumar, Learned Sr.
Counsel.
Shri Shakil Ahmed Syed, Learned Counsel also filed Criminal Appeal No.593/97 on
behalf of some of the accused/appellants other than the condemned prisoners.
The State was represented by Dr. N.M. Ghatate, Learned Senior Counsel. All
these appeals were heard together, since they arise out of a common judgment.
(13)
At the outself it needs to be stated that counsel for the parties were given
full opportunity to represent their respective cases since seven accused
persons have been awarded capital sentence and other 15 accused/appellants have
been awarded sentence of life imprisonment. We have carefully scrutinized the
oral evidence and other materials placed on record with the assistance of the
learned counsel for the parties and have also gone through the judgments of the
courts below.
(14)
The very narration of facts given in the preceding paragraphs would indicate
the magnitude of the crime in question. The two eye witnesses to the occurrence
are the close relatives of the deceased. The prosecution sought to prove the
motive against the accused in committing the present crime. It is on this
background we are required to scrutinize and appreciate the evidence of the eye
witnesses with utmost care and caution.
(15)
The prosecution case substantially rested on the evidence of two eye witnesses,
namely, Mahendra Kumar (P.W.1) and Lallu Ram (P.W.2). mahendra Kumar (P.W.1) is
the son of Sukhdarshan (since deceased) and grand son of Bhuwaneshwari (since
deceased). Sandeep (since deceased) was his brother and Surendra, another
deceased was his cousin, Kamlesh (since deceased) was a close relative.
Coming
to the evidence of actual occurrence which took place on June 23, 1990 at about
5.00 p.m. it needs to be stated that a complaint was lodged on the very same
evening at about 9.05 p.m. in the police station at Mitauli at a distance of 15
kms. from Bajarkha village. Mahendra Kumar (P.W.1) in his evidence testified
that at about 5.00 p.m.
all
the 24 accused along with 8 to 10 unidentified persons came in the direction of
Kamlesh's house. At that time Mahendra Kumar (P.W.1) and Surendra were sitting
near the couldron and Sukhdarshan was sitting towards the north of the kolhoo.
A-1, A-2, A-4 and A-13 were armed with bankas, Prem Giri (A-10) (now dead) was
armed with a DBBL gun, A-3 to A-16 were armed with SBBL guns, A-20 was armed
with a country made SBBL gun and the remaining accused persons were armed with
country made pistols and guns He then stated that the accused persons demanded
that Ram Gulam and Sheo Pal be called and they wanted to see how they would
remain alive.
The
accused persons then chased Sukhdarshan who ran and entered into the house of
Shambhu Dayal and raised an alarm.
Shambhu
Dayal and Shakuntala Devi (complainant's mother) took Sukhdarshan inside the
house and tried to shut the door but one of the accused inserted the barrel of
the gun through door and fired which hit Kamlesh Kumar. The accused then opened
the door and fired at Sukhdarshan who fell down in the courtyard. A-2, A-4 and
A-13 then caught hold of the legs and hands of Sukhdarshan and thereafter A-1
assaulted him with Banka and severed his head which he kept in a piece of
cloth. The accused persons then surrounded the house of P.W.1 and started
demolishing the walls. They asked Surendra to come out as he bolted the door of
his room from inside.
A-1
asked his associates to sprinke the diesel on the chappar and also pour it into
the room and set it on fire.
Accordingly
some of the accused took the diesel from the drum and one of them climbed up
the chappar with the help of a ladder, sprinkled the diesel on the chappar and
also poured the same into the room and thereafter the house was set on fire.
Sandeep, the brother of the complainant, aged about 10 years, came out and
abused the accused whereupon A- 6 fired at him as a result of which he fell
down. A-5 and A- 8 then lifted Sandeep and threw him into the fire. Sandeep was
roasted alive. The witness further testified that the house, wherein Surindra
was hiding, when caught fire, he came out of the said house and tried to run
away but he was gun down. He fell down in the kitchen. A-4, A-2 and A-13 then
overpowered him by catching hold of his arms, feet and thereafter A-1 assaulted
him with Banka and severed his head and kept it in the same piece of cloth with
the other head. The witness then stated that Bhuwaneshwari (since deceased),
his grand father, who was returning from the weekly market, when saw the
accused persons in action came near and requested them not to kill the family
members whereupon he was fired and thereafter A-4, A-2 and A-13 overpowered
him. A-1 then assaulted Bhuwaneshwari with Banka and severed his head and kept
it in the same piece of cloth where two heads were already kept. He then stated
that the accused persons made a search for Sheo Pal who was alleged to have
taken part in committing the murder of Chandrika, the brother of A-1, by
severing his head but Sheo Pal could not be traced. P.W.1 further stated that the
accused persons were using the firearms freely and created a terror. The
incident continued for one and a half hour. The accused personals then carried
the three heads with them in a procession celebrating their victory and were
shouting slogans "Shyam Manohar Zindabad, Nandlal and Prem Giri Zindabad
and Lakhapat Zindabad". Then they went to the house of Chandrika. The
witness was cross-examined at great length but the defence could hardly bring
on record any material which would discredit his credibility. The evidence of
P.W.1 finds corroboration from the first Information Report which was lodged at
9.05 p.m. (within four hours of the occurrence) at Mitauli police station. The
complaint was written after the incident was over. Mahendra Kumar (P.W.1), Lallu
Ram (P.W.2) and Kamlesh then went in a tractor to lodge the First Information
Report. The FIR came to be registered against 24 accused persons. It needs to
be noted that Mahendra Kumar (P.W.1) in his complaint had named the accused
persons with the weapons which they were carrying and the manner in which they
assaulted five persons who lost their lives in the present crime. The FIR fully
corroborates the evidence of P.W.1. The evidence of Mahendra Kumar (P.W.1) does
not suffer from any infirmity. We have also scrutinized the evidence of Lallu
Ram (P.W.2) and it corroborates in all material particulars the evidence of
Mahendra Kumar (P.W.1). The trial court as well as the High Court had
scrutinized their evidence very carefully and accepted the same as truthful. We
concur with the courts below as regards appreciation of the evidence of these
two witnesses.
(16)
Mr. A.K. Ganguli, Learned Senior Counsel appearing for the condemned prisoners,
Mr. Sushil Kumar, Learned Senior Counsel and Mr. Shakil Ahmed Syed, Learned
Counsel appearing for the life convicts urged that the conviction of the
accused is based on the evidence of interested witnesses and the same be not
accepted as truthful inasmuch as the presence of these witnesses at the time of
occurrence was extremely doubtful. It was contended that 23.6.90 was a market
day of Bajarkha village and these witnesses also admitted that the market is at
a distance of a furlong where many villagers had come for purchases. The
witnesses further admitted that many persons had gathered at the place of
occurrence, if this be so it was very much necessary for the prosecution to
examine some independent witnesses to lend assurance to the credibility of the
evidence of these two eye witnesses. These submissions do not impress us at
all.
Now a
days it is a common tendency that so outsider would like to get involved into
criminal case much less in the crime of present magnitude and, therefore, it
was quite natural that no independent witness would come forward to assist the
prosecution. It is well settled that the evidence of witnesses cannot be
discredited only on the ground that they are close relatives of the deceased
persons. All that is required in such a situation is that the court must
scrutinize the evidence of such witnesses with utmost care and caution. The
magnanimity of the present crime and nature of prosecution evidence has put us
on guard to appreciate the evidence of these two eye witnesses with utmost care
and caution. We have done this exercise and we are unable to be persuaded to
discard the evidence of these two witnesses on the grounds urged before us. The
evidence of both these witnesses in our considered view is absolutely
straightforward, unblemished and without any infirmity. The First Information
Report which was lodged within four hours, naming all the accused also lends
assurance to our conviction that the evidence of these two witnesses is
trustworthy and cannot be discarded. The contentions of the learned counsel for
the accused, therefore, stand rejected.
(17)
It was then contended by Mr. Sushil Kumar that the claim of the complainant
that he lodged the FIR at 9.05 p.m.
is
false. According to him if the FIR was registered as alleged there was no
reason whatsoever why the copy thereof was not sent to the Illaqa Magistrate at
the earliest opportunity. As regards the contents of the FIR he urged that it
was impossible for any human being to write down the complaint with such
details when four dead bodies were lying of which three were without heads in
the house. The contents of the complaint manifestly suggest that it was an
after thought exercise with the help of police or somebody to spread a wide net
and involve as many accused as possible to take revenge. He, therefore, urged
that the complaint lodged by Mahendra Kumar (P.W.1) be treated a false document
and be not accepted for the purpose of seeking corroboration to the evidence of
P.W.1. He also urged that the complainant at the relevant time was serving at a
different place and his claim that he had come on leave for two days was
totally a concocted plea. According to him the complainant was brought to the
village at a later point of time and the police had manipulated entire
prosecution story. We see no substance in any of these contentions for the simple
reason that the police machinery reached the place of incident within a short
time i.e. at about 11 p.m. and in fact the evidence of SI Pandey (P.W.14) would
show that the wheels of investigating machinery started moving during the same
night. The statements of some of the persons were recorded during the same
night. The inquest on the dead bodies were carried out early in the morning of June 24, 1990. There is nothing in the evidence
of SI Pandey (P.W.14) to indicate that he had ante dated all these documents to
suit to the complainant's version. There was no earthly reason for SI Pandey
(P.W.14) to implicate and spread the net so wide as contended for the accused
to arraign 24 accused persons in the present crime. To our mind it is only a
figment of imagination to contend that the investigation carried out by the
investigating machinery was ante dated at the instance of the complainant. It
is true that the complainant at the relevant time was posted at a far of place
but he testified that he had come to the village Bajarkha on two days' leave as
he had not come till then to his village after he joined the service. This
explanation given by the witness is quite plausible and the courts below were
right in accepting his presence at the time of occurrence. It is also true that
there was a delay in forwarding the copy of the FIR to the Illaqa Magistrate
but that circumstance would not demolish the other positive and credible
evidence on record. This would only show how in such a serious crime the
investigating agency was not careful and prompt as it ought to be.
(18)
It was then contended for the appellants that if really the incident was
reported at 9.05 p.m. then surely the inquest reports
which were prepared on the following day must mention the title of the crime.
But it was left blank and, therefore, this omission was a serious infirmity and
demolishes the very substratum of the prosecution based on the first
Information Report which is a concocted document.
At the
first flush the argument appeared to us attractive but on scrutiny and
consideration of the materials on record we are unable to accept this
submission. If really the complaint was not lodged at 9.05 p.m. then the police could not have reached at the place
of occurrence at 11.00
p.m.
Such
minor omission is nothing but a bonafide error or casual approach on the part
of the investigating agency which does not affect the substratum of the
prosecution story. It was then urged that Kamlesh was taken the police station
in an injured condition but he was not sent to the hospital for treatment. In
fact Kamlesh was not traced for the whole night and only on the following day
he appeared and was admitted in the hospital where he died after 17 days due to
septicaemia. It was, therefore, urged that neither Kamlesh nor the complainant
ever went to the police station to lodge a complaint at 9.05 p.m. and this
complaint was manufactured at a later stage with the connivance of police, We
see no substance in this contention also because the fact remains that Kamlesh was
injured during the incident in question. If he was not sent to the hospital for
medical examination and treatment by the investigating agency no fault could be
found with the complainant's evidence and the FIR (Ex. Ka-1). In these
circumstances we see no merit in all these contentions raised on behalf of the
appellants.
(19)
No serious arguments were advanced before us as regards the cause of death of
any of these five deceased persons. It was also not seriously challenged that
the finding of the courts below that Bhuwaneshwari, Sukhdarshan, Surendra and
Sandeep met with homicidal death during the incident in question. Suffice it to
mention that Bhuwaneshwari, Sukhdarshan and Surendra had sustained many incised
injuries due to assault by Banka on their vital parts in addition to the
prosecution was first fired at by A-6 and then he was thrown into the
smouldering fire. The injuries caused on his dead body either by fire arm or by
banka could not be detected in the post-mortem report for the obvious reason
that his body was completely charred. The autopsy report of Sandeep also did
not indicate that any pellet was found embeded in the body or any pellet could
be recovered from the place where he was burnt to death. This fact has got a
relevance when we consider the death sentence awarded to Rajendra (A-6). After
going through the medical evidence on record we have no manner of doubt that
these four persons met with the homicidal deaths. They were brutally murdered.
As far
Kamlesh (since deceased) was concerned it was proved beyond any pale of doubt
that he was the first person to sustain gun shot injuries and died in the
hospital due to septicaemia which was the result of injuries on his person
during occurrence in question.
(20)
Shri Sushil Kumar, Learned Senior Counsel appearing for the life convicts / appellants
urged that they were roped-in in the present crime with the aid of Section 149
IPC.
According
to him the common object of the unlawful assembly as alleged by the prosecution
was to take revenge against Ram Gulam and Sheo Pal who alleged to have
committed the murder of Chandrika by severing his head. If this was the common
object of the unlawful assembly it could not be said that these life
convicts/appellants assuming to be the members of such an unlawful assembly
shared the same common object which the assailants of five victims had and in
pursuance thereof committed the murders in question. He urged that these
convicts/appellants had nothing to do with the murder of Chandrika and,
therefore, theory of revenge against any of the members of the complainant's
family had no basis. In the absence of specific proof of common object of the
unlawful assembly to commit the murders in question he urged that life the
convicts/appellants cannot be convicted with the aid of Section 149 IPC. In
support of this contention he drew our attention to three decisions of this
Court: (i) Shambhu Nath Singh and Others vs. State of Bihar AIR (1960) SC 725 (ii) Bhudeo Mandal
and Others vs. State of Bihar (1981) 2 SCC 755; and (iii)
Raghubir Singh and Others vs. State of Punjab (1996) 9 SCC 233. We have very carefully gone through these decisions
and in our considered view in the facts and circumstances of this case, the
ratio laid down in any of these decisions will have no application. Taking the
prosecution case as it is if the object of the unlawful assembly was to take
revenge upon Ram Gulam and Sheo Pal and after coming to know that they were not
available at the house of Bhuwaneshwari and Surendra (both since deceased), there
was no reason for these accused persons to continue to fire on these victims
indiscriminately; to catch hold of the four victims one by one; severe the
heads of three persons and keep them together in a piece of cloth; and threw
Sandeep into then smouldering fire. What sin the young boy of 10 years, Sandeep
had committed so that he also could not have been spared from the assault? He
was totally innocent and was hardly of an age to understand the rivalery
between the parties to take side of one or the other. He was thrown into the
fire and roasted alive. Injuries sustained by the deceased persons unmistakably
indicated that it could not be the job of handful of persons. It was
pre-planned and well thought of design to commit genocide. It is in this context
if we read the evidence of P.W.1 and P.W.2 we have no manner of doubt that the
accused persons formed an unlawful assembly and the object of that assembly was
not only to take revenge against Ram Gulam and Sheo Paul but also to take
revenge upon the family members of Bhuwaneshwari as Ram Gulam and Sheo Pal were
related to Sukhdarshan (since deceased) and the accused persons were under the
belief that the victims were giving shelter to them, All the appellants in our
considered view formed an unlawful assembly with an object to take revenge
against Ram Gulam and Sheo Pal and also to commit mass murders in that process
to prove the supermacy and create a terror in the minds of the family members
of Bhuwaneshwari. The occurrence in question was full of revenge which was
deep-rooted in the minds and action of the accused persons and they were
determined to take revenge in the same manner in which Chandrika was murdered.
Apart from this we see no difficulty holding that the unlawful assembly could
develop a common object on the spur of moment to commit the massacre of the
family members of Bhuwaneshwari. We, therefore, see no reason whatsoever to
differ from the findings of the courts below that the common object of the
unlawful assembly was to commit the mass murders of the family members of
Bhuwaneshwari. There is also another angle to judge the common object of the
unlawful assembly in the present crime and that is the mode of brutalty.
Chandrika was alleged to have been murdered by Ram Gulam and Sheo Pal (trial of
both is pending). The manner in which Chandrika was done to death and his head
was severed the accused wanted to take revenge in the same manner and for this
reason the modus operandi adopted by them was to cause firearm injuries to
these three persons on a non-vital part of the bodies so that they would be
immobilized and then cause Banka injuries and at the end to severe their heads.
Only one gun shot would have been sufficient to cause the death of four victims
as the assailants were standing at a close range but that could not have
satisfied the ego and vengence because they wanted to severe the heads of these
three victims when they were lying immobilized due to injuries. It is for this
reason we have started out judgment by saying that the accused persons had in
the letter and spirit followed the primitive theory of punishment.
(21)
Learned counsel appearing for the appellants then contended that there is no
material on record to hold that the accused persons had any enmity with the
family of the deceased. The prosecution came forward with two fold notice (i)
civil litigation between Prem Giri and Bhuwaneshwari as regards the
"Thakurji's Trust" and its property; and (ii) the accused persons
belonged to the party of Shyam Manohar.
The
first part of motive, the civil litigation between Prem Giri and Bhuwaneshwari
ended in favour of Bhuwaneshwari in the first court and the appeal of Prem Giri
is pending before the Orissa High Court. In a village such dispute of ten
assume importance out of proportion. It is, therefore, not surprising that Prem
Giri joined the party of A-1 to settle his ego and score also. As far as the
second limb of the motive is concerned it is the case of the prosecution that
the accused persons belonged to the party of Shyam Manohar (A-1) who wanted to
take revenge against the victims in a most brutal and befitting manner for
murder of his brother Chandrika. The two suspects, namely, Ram Gulam and Sheo
Pal happened to be the close relations of Sukhdarshan.
The
appellants/accused were under the belief that Sukhdarshan and his other family
members were giving protection to these two suspects and it was for that reason
the accused persons formed an unlawful assembly and marched towards the house
of victims to teach a lesson in the same manner in which Chandrika was done to
death and commit mass murders. The issue of motive in our considered view is
well proved in the facts and circumstances of the case in favour of the
prosecution.
(22)
It was then contended for the accused/appellants that the evidence of P.W.1 was
totally artificial and unbelievable. To support his contention our attention
was drawn to his evidence wherein he had stated that when accused persons were
assaulting Kamlesh, Sandeep, Surendra and Sukhdarshan he was standing in front
of them requesting them to spare his family members. If the accused had gone
with the common object of committing the mass murders and if Mahendra Kumar
(P.W.1) was available so easily yet it was surprising that not even a scratch
was found on his person.
It was
almost easy for the accused persons to finish Mahendra Kumar (P.W.1) as well as
(P.W.2) but in fact they did not do so. Relying upon this circumstance it was
contended that though these witnesses claimed to be the eye witnesses but their
presence was extremely doubtful and police with the connivance of Mahendra
Kumar (P.W.1) contrived a false story by spreading a wide net. We are not
impressed by this argument at all as the materials on record prove otherwise.
It was then contended that almost all the accused persons except A-10 (now
dead), A-11 and A-12 are from the same family of Jodhey amd Raghubar and the
list of accused was further inflated by adding relatives who even did not stay
in the village. In this context it was strenuously urged before us that the
investigating agency had widened the net at the instance of P.W.1 to involve as
many accused as possible. This argument against does not detain us for any
longer because the evidence of two eye witnesses was found to be acceptable and
trustworthy and we do not see any scope to give even any benefit of doubt to
any one of these accused persons for the offences for which they have been
convicted.
(23)
At this stage we deem it necessary to refer to the defence evidence. A-1
examined Sher Ali (D.W.1) to support his plea of alibi. Sher Ali (D.W.1) stated
that A-1 used to stay in the orchard situated in between Mekhnapar and limra
which is away from the place of occurrence. This evidence in our considered
view does not on prepondrance of probability establish the plea of alibi. In
this view of the matter this evidence was rightly not accepted by the courts
below. A-11 and A-12 also pleaded alibi and in support thereof examined Maniram
Verma (D.W.2) and Surendra Pal (D.W.3) who were then working as clerks in
Krishak College Gola. They testified that during 1987-88 children of both the
accused were studying in the said college. A-11 and A-12 in their statements
recorded under Section 313 Cr. P.C. gave an explanation that at the time of
occurrence they were residing at Village Gola where their children were
schooling. Sri Ram (D.W.4) who was the teacher at village Piperva stated that
Bajarkha village is situated at a distance of one km. but admitted that he was
not teaching the children of A-11 and A-12. We have gone through their evidence
and we are satisfied that their evidence does not prove the plea of alibi set
up by both the accused. It cannot be assumed that merely because the children
were studying at village Gola, the parents were also residing at that village.
Except this evidence to prove the plea of alibi no other evidence was led on
behalf of these accused persons. We are afraid that this evidence even on test
of probability can prove the plea of alibi set up by A-1, A-11 and A-12. Both the
courts below committed no error in rejecting the plea of alibi set up by A-1,
A-11 and A-12.
(24)
Coming to the question of sentence we have heard the learned counsel for the
parties at great length and considered the facts and circumstances of the case
very carefully; the manner in which the incident took place; the role played by
each of the accused and most importantly the extreme brutality with which the
members of the unlawful assembly acted. The question, therefore, is does the
conscience of an ordinary human being not shocked to see the extreme brutality
and disregard to the human dignity? As indicated earlier A-1, A-2, A-4, A-5,
A-6, A-8 and A-13 have been awarded death penalty by the High Court. Of these
we will take the case of Rajendra (A-6) first. The trial court awarded him the
life imprisonment whereas in an appeal filed by the State the High Court
enhanced the sentence of life imprisonment to death. The reason given by the
High Court is that some of the accused persons who have been awarded death
sentence formed one group which must include A-6 who had played an identical
role and, therefor, there was no justification to award this accused lesser
sentence. With respect we are unable to agree with the reasoning of the High
Court as regards the death sentence awarded to A-6. The role attributed to
Rajendra as stated by both the eye witnesses was that he fired from his gun
which hit Sandeep whereupon he fell down. Thereafter Prakash (A-8) and Ravinder
(A-5) threw him into the smouldering fire. No other role was attributed to A-6
as far as Sandeep is concerned.
Dr.
S.K. Tewari (P.W.9) who performed the autopsy on the dead body of Sandeep could
not find any pellet in his body.
The
prosecution also could not collect the evidence to show that any pellet was
recovered from the ashes. The dead body of Sandeep was totally charred and,
therefore, doctor could not find any injury on his dead body. It is in these
circumstances A-6 could not be bracketed with accused persons who have been
awarded death sentence. A-6, in our considered view is entitled to a
differential treatment for want of conclusive evidence that he had caused fire
arm injuries to Sandeep. We must make it clear that this finding by itself
would not absolve A-6 from his culpability in the present crime with the aid of
Section 149 IPC as regards other murders. His presence was proved beyond every
reasonable doubt at the time of occurrence. He was a member of an unlawful
assembly having a common object to commit the murders in question and in prosecution
thereof used his fire arm along with other accused who were armed with fire
arms.
In
view of these proved facts we are of the considered view that the death
sentence awarded to Rajendra (A-6) was not proper and instead he must fall in
the group comprising of accused/appellants who used the fire arms and have been
awarded life imprisonment. We accordingly convert the death sentence awarded to
Rajendra (A-6) to a life imprisonment without upsetting his convictions on this
count as also convictions and sentences on other counts.
(25)
The next important question that needs our consideration is whether the death
sentence awarded to the six accused persons, namely, A-1, A-2, A-4, A-5, A-8
and A- 13 is in accordance with law and the guidelines laid by this court. The
earliest decision rendered by the Constitutional (1980) 2 SCC 684 this Court
observed that in a case of death sentence the facts and circumstances must
indicate that it is a rarest of the rare case where extreme penalty is called
for. The court must pay due regard both to the crime and the criminals. What is
the relevant weight to be given to the aggravating and mitigating factors
depends upon the facts and circumstances of the particular case. The Court then
observed: "More often than not, these two aspects are so intertwined that
it is difficult to give a separate treatment to each of them. This is so
because `style is the man'. In many cases, the extremely cruel or beastly
manner of the commission of murder is itself a demonstrated index of the
depraved character of the perpetrator. That is why, it is not desirable to
consider the circumstances of the crime and the circumstances of the criminal
in two separate water-tight compartments. In a sense, to kill is to be cruel
and, therefore, all murders are cruel. But such cruelty may vary in its degree
of culpability. And it is only when the culpability assumes the proportion of
extreme depravity that "special reasons" can legitimately be said to
exist". "Life imprisonment is the rule and death sentence an
exception. A real and abiding concern for the dignity of human life postulates
resistance to taking a life through law's instrumentality. That ought not to be
done save in he rarest of rare cases when the alternative option is
unquestionably foreclosed". This Court has culled out certain mitigating
circumstances to be considered at the time of exercising the discretion while
awarding the extreme penalty.
(26)
The next two decisions on the topic of death sentence are (i) Machhi Singh and
Others vs. State of Punjab (1983) 3 SCC 470 (ii) Allauddin
Mian and Others vs. State of Bihar (1989) 3
SCC 5. We have very carefully gone through these decisions. In the light of
these decisions we may now advert to the question of sentence.
(27)
Mr. A.K. Ganguli, Learned Senior Counsel contended that life imprisonment is
the rule and death sentence is an exception. There is no reason to deviate from
this rule. He relied upon the above decisions of this Court on this topic.
He
urged that the High Court had committed a serious error while accepting
reference and confirming the death sentence awarded to A-1, A-2, A-4 and A-13
and further enhancing the sentence of A-5, A-6 and A-8 from life imprisonment
to death sentence to each one of them. He urged that there are several mitigating
circumstances which militate against the death sentence awarded to these
accused and, therefore, it would be appropriate to award life imprisonment to
these accused persons. The Learned counsel then pointed out the mitigating
circumstances: (i) Chandrika, the brother of A-1 was murdered by Sheo Pal and
Ram Gulam who belonged to the party of Sukhdarshan (since deceased); (ii) it
was a brutal murder wherein Chandrika's head was severed: (iii) no common
object could be attributed to the unlawful assembly to commit the murders in
question; (iv) the deceased persons and other family members failed to disclose
the whereabouts of Sheo Pal and Ram Gulam which caused grave and sudden
provocation and by reason of such provocation the incident in question might
have happened; (v) six accused persons belonging to one family have ben
sentenced to death; (vi) the sentence of death awarded to six accused persons
would be a serious calamity on the surviving members of the said family; (vii)
all these condemned prisoners belonged to the age group of 20 and 35 years
except A-1, A-2 who were aged about 45 and 40 years respectively at the time of
occurrence; (viii) they do not belong to the type of hardened criminals and,
therefore, they deserve an opportunity to reform themselves in their future
life. While supporting the death sentence of six above named accused persons,
learned counsel for the State urged that none of these circumstances could be
considered as mitigating circumstances to commute the death sentence to life
imprisonment in facts and circumstances of this case. He enumerated the
circumstances warranting an extreme penalty and they are (i) after finding that
Ram Gulam and Sheo Pal were not hiding in the house of P.W.1, the unlawful
assembly formed by the accused persons ought to have left the scene of
occurrence; (i) in Chandrika's murder, none of the deceased was involved; (iii)
there was no provocation from the side of deceased; (iv) the manner in which
four persons were done to death was most brutal, heneous, ghastly and in total
disregard to the human dignity; (v) was murders were pre-planned; (vi) the
modus operandi was well thought of in advance; (vii) of five four murders were
committed in a most barbaric manner. Three heads were severed and an innocent
boy of ten years was roasted alive in the smouldring fire;
(viii)
victory procession with three heads raising slogans "Shyam Manohar
Zindabad" etc. etc., and thereafter they went towards the house of
Chandrika; (ix) impact of terror upon the minds of surviving members of the
family of the deceased persons; (x) motive coupled with vengence and revenge
against innocent persons to satisfy the ego.
(28)
We have already analysed the evidence of the prosecution as well as the
defence. Look at the modus operandi adopted by the accused persons who formed
an unlawful assembly and its common object was not only to commit the murders
of Sheo Pal and Ram Gulam but also the commit the mass murders of family
members of Sukhdarshan (since deceased) as they were under the belief that Sheo
Pal and Ram Gulam were hiding and taking shelter in the house or Sukhdarshan.
The accused persons first fired at Kamlesh, injured him and thereafter opened
the door and searched for Ram Gulam and Sheo Pal. Kamlesh was immobilised by
causing a gun shot injury. Sukhdarshan (since deceased) came out of his room.
He was fired at on a non-vital part by immbolizing him and thereafter the
accused persons assaulted him with Banka; A-2, A-4 and A-13 held him
facilitating A-1 to severe his head. The accused did not stop there but
thereafter the accused persons assaulted him with Banka; A-2, A-4 and A-13 held
him facilitating A-1 to severe his head. The accused did not stop there but
thereafter they fired at Surendra and assaulted him by Bankas. A-2, A-4 and
A-13 caught hold of him and A-1 severed his head. Sandeep a young boy of 10
years when came out of the room which was then set on fire was bodily lifted by
and A-5 and A-8 who threw him into the smouldering fire. He was roasted alive.
Bhuwaneshwari who was returning from the market was fired at and was given the
same cruel treatment by severing his head. This only shows that they were
thirsty to severe the heads from the alive but injured bodies in order to take
revenge of the murder of Chandrika. All the three heads were put together in a
piece of cloth and a victory procession was taken out by accused giving slogans
"Shyam Manohar Zindabad; Nandlal and Premgiri Zindabad etc., etc.",
and then they went to the house of Chandrika. A Simple question which requires
to be considered is as to whether the conscience of a society was not shocked
to see such ghastly and burtal murders? The accused persons had shown scant
regard for the human dignity. Upon taking overall view of the circumstances in
the light of the ratio laid down by this Court in the aforesaid judgments and
taking into account the manner of commission of crime, motive for commission of
crime and criminals, magnitude of the crime and little regard for the human
dignity and in particular a young boy of 10 years.
(29)
Now let us draw a final balance sheet of the aggravating and mitigating
circumstances after giving due consideration to the rival contentions putforth
before us as regards six condemned prisoners. In our considered view
justification clearly leans in favour of death sentence to each of the six
condemned prisoners. Totality of circumstances outweighted the mitigating
circumstances as pointed out by Mr. Ganguli. Sentence of life imprisonment to
these six accused persons would be totally inadequate in the facts and
circumstances of this case. The proved facts of this case unmistakably indicate
that the present case squarely falls within the ambit of "rarest of
rare" case.
Five
murders were committed in an extremely brutal, grosteque, diabolical, revolting
or dastardly manner which would arouse intense and extreme indignation of the
community. Award of lesser punishment to these six accused persons would
disintegrate the rule of law upon which the edific of our civilized society
stands.
(30)
Having regard to the facts and circumstances of this case we are of the
considered view that the High Court had committed no error whatsoever in
awarding the death sentence to A-1, A-2, A-4, A-5, A-8 and A-13. None of the
mitigating circumstances placed before us could persuade us to apply the normal
rule of life imprisonment in respect of these accused persons. It is in these
circumstances we are of the considered view that Criminal Appeal Nos. 715-716
of 1997 filed by Sheo Ram (A-2) and Harish (a-4) as well as Criminal appeal
Nos. 717-720 of 1997 filed by Shyam Manohar (A-1), Suresh (A-13), Prakash (A-8)
and Ravindra (A-5) are without any merit and they are consequently dismissed.
The death sentence awarded to each of these accused/appellants is upheld. We,
however confirm the convictions of Rajendra (A- 6) under Section 302/149 IPC
and also as regards other offences but we convert his death sentence to life
imprisonment, subject to this modification of sentence his appeal to stand
dismissed. Criminal Appeal Nos. 721-24 of 1997 filed by Ram Pal Verma (A-24),
Sankata (A-22), Mathura Prasad (A-21), Dorey (A-23) and Lalla (A-3) are
dismissed.
Criminal
Appeal No.725 of 1997 filed by Rakesh Giri (A-11) and Rajesh Giri (A-12) to
stand dismissed. Criminal Appeal No. 593 of 1997 filed by Sriram (A-14),
Rajaram (A-15), Rampal (A-16), Itwari (A-17), Dhakan (A-18) and Srikrishna
(A-19) to stand dismissed. If any of the accused/appellants is on bail shall
surrender to his bail bond forthwith to serve out the remaining part of his
sentence.
Back