Suresh
Chandra Bahri Vs. State of Bihar [1994] INSC
366 (13 July 1994)
Faizan
Uddin (J) Faizan Uddin (J) Anand, A.S. (J)
CITATION:
1994 AIR 2420 1995 SCC Supl. (1) 80 JT 1994 (4) 309 1994 SCALE (3)197
ACT:
HEAD NOTE:
The
Judgment of the Court was delivered by FAIZAN UDDIN, J.- In Sessions Trial No.
77 of 1985 the appellants Suresh Bahri and Raj Pal Sharma were convicted under
Section 302 of the Penal Code for causing murder of Urshia Bahri and her two
children, namely, Richa Bahri and Saurabh Bahri. All the three appellants,
Suresh Chandra Bahri, Gurbachan singh and Raj Pal Sharma were also convicted
under Sections 302/120-B of the penal Code for the offence of criminal
conspiracy to commit murder of Urshia Bahri and her two children named above.
The appellants Suresh Chandra Bahri and Raj Pal Sharma were further convicted
under Section 201 of the Penal Code for causing disappearance of evidence of
murder of Saurabh Bahri and the appellants Suresh Chandra Bahri, Gurbachan
Singh and Raj Pal Sharma were also convicted under Section 201 of the Penal
Code for causing disappearance of evidence of murder of Urshia Bahri by the
Additional Judicial Commissioner, anchi by judgment dated 27-7-1990 who awarded
the sentence of death for the offences under Sections 302 and 302/120-B of the
Penal Code and rigorous imprisonment to all the three appellants for a period
of seven years for the offence under Section 201 of the Penal Code. The learned
trial Judge made a reference to the High Court of Patna, Ranchi Bench under
Section 366 of the Code of Criminal Procedure for confirmation of the sentence
of death and at the same time the three appellants also preferred separate
Criminal Appeal Nos. 142, 143 and 152 of 1990 challenging their convictions
under Sections 302/120B and 201 of the IPC. The High Court of Patna (Ranchi
Bench) dismissed the three appeals preferred by the three appellants affirming
the sentences awarded to them and accepted the death reference by judgment
dated 16-12-1991 against which these three appeals by
leave of this Court have been preferred. Since all these appeals arise out of
the common judgment of the High Court, they are being disposed of together.
2.It
may be pointed out that along with the above named three appellants three other
accused, namely, Y.D. Arya, the maternal uncle of the appellant Suresh Bahri,
Smt Santosh Bahri, the mother of the appellant Suresh Bahri and one Mohd.
Suhail, truck driver, were also charged and tried as co-accused for the
offences punishable under Sections 302/120-B and 201 of the Penal Code, out
they were acquitted by the learned trial Judge giving them benefit of doubt. No
appeals against their acquittal are preferred.
3.Admittedly,
at the relevant time the appellant Suresh Chandra Bahri (hereinafter referred
to as Suresh Bahri) resided along with his deceased wife Urshia Bahri at South Ranchi, House No. 936 on the Station Road within the jurisdiction of Chutia
Police Station. He also had a farm and house attached thereto at Dulli, a place
situated at a distance of about 40 kilometres from Ranchi towards Khelari
within the jurisdiction of Police Station Khelari, District Ranchi. Suresh
Bahri was married to the deceased Urshia Bahri in 1971 and out of their wedlock
deceased Kumari Richa Bahri and Saurabh Bahri were born.Kmari Richa Bahri was a
student of Class VI in Father Agnel School, New 90 Delhi in the year 1983
while Saurabh Bahri was a student of Class IV in the same school. The acquitted
accused Smt Santosh Bahri is the mother of the appellant Suresh Bahri and the
acquitted accused Y.D. Arya is the maternal uncle of appellant Suresh Bahri and
real brother of Smt Santosh Bahri. There is no dispute that the parents of
deceased Urshia Bahri were living in America having settled down there and the first informant of the incident
Bineet Singh Sarang, PW 69, the brother of the deceased Urshia Bahri was
employed as an Engineer in Libya. The
deceased Urshia used to write letters from time to time to her parents in America and also used to talk to them on
telephone.
4.This
case has a chequered story and the prosecution case unfolds a pathetic,
chilling and sinister phenomenon whereby the three innocent lives who were the
heirs of the properties of appellant Suresh Bahri, were eliminated from this
worldly scene and consigned to their heavenly abode by putting an untimely end
to their innocent lives simply in a bid to avoid interference and intermeddling
in the property belonging to the appellant Suresh Bahri and thwart the
accomplishment and foil the wishes of Urshia of migrating to America with her
children with the sale proceeds of Ranchi house and settle down at America.
5.The
prosecution case is that the parents of deceased Urshia Bahri have settled down
in America and their deceased daughter Urshia used to write letters to her
parents from time to time but they did not receive any letters from Urshia in
America for quite some time and on the contrary they received two letters in
America from the appellant Suresh Bahri, one dated 29-10-1983 and another dated
3-11- 1983 which are marked Exts. 23/6 and 23/7, intimating them that
henceforth his wife Urshia will not be in a position to address to them any
letter as she was engaged in urgent work and, therefore, in her place he
himself would be writing letters to them. This gave rise to a serious suspicion
in the mind of the parents of deceased Urshia and they suspected some foul
play. Consequently, the parents of Urshia directed their son Bineet Singh
Sarang, PW 69, working in Libya to
proceed to India with a view to find out the welfare
and whereabouts of Urshia and her children.
6.Further
prosecution case is that acting on the advice of his parents Bineet Singh
Sarang (hereinafter referred to as Bineet) landed in India on 16-1-1984 and reached the house of his brother-in-law, the appellant
Suresh at Delhi. But to his utter surprise he found
the house locked. Bineet was informed by some of the tenants living on the
first floor of the house that the acquitted accused Smt Santosh Bahri the
mother of appellant Suresh would be coming to Delhi on 21-1- 1984. Finding no
one in Delhi house Bineet visited the business
premises of the appellant Suresh at Bajaj House, Nehru Place, New
Delhi, where he met
one Dhar, an employee of appellant Suresh who informed Bineet that the
appellant Suresh was at Ranchi. In the meanwhile Smt Santosh,
mother of appellant Suresh returned to Delhi and when Bineet met her and enquired about the whereabouts of his
sister and her children, she informed him that they had gone to Ranchi.
Bineet,
therefore, rushed to Ranchi on 25-1-1984 where he met the appellant Gurbachan Singh, Proprietor of
Singh Furniture Works, Main
Road, Ranchi as telephone number of Gurbachan
Singh was found recorded in the records kept in the business premises of
appellant Suresh at Delhi as his contact address of Ranchi. Bineet enquired from the appellant
Gurbachan Singh 91 the whereabouts of his sister and her children. Gurbachan
Singh took Bineet to the farmhouse of appellant Suresh at Dhulli but there they
found neither Urshia Bahri nor her children, namely, Richa and Saurabh nor the
appellant Suresh. However, at Dhulli farm Bineet, PW 69, was informed by Gopi
Mistry, PW 29, the caretaker of the farmhouse of appellant Suresh that he had
not seen Urshia for the last about 5-6 months and further he disclosed that the
appellant Suresh had visited Dhulli farm in mid-December along with his two
children and one unknown person and that during that period the appellant
Gurbachan Singh had also visited the said farm.
7.When
Bineet did not find the appellant Suresh, his sister Urshia and her children at
Dhulli farm also he again came back to Station Road, Ranchi House No. 936 of the appellant
Suresh but again he did not find anyone there. He, however, met one Murari, PW
1, the next door neighbour of House No. 936 of appellant Suresh situated at the
Station Road, Ranchi, who used to keep the keys of the house of
accused/appellant Suresh. On enquiry by the informant Bineet, Murari, PW 1,
told him that he had seen Urshia Bahri at the house of appellant Suresh Bahri
on 11-10-1983 but the children of Urshia Bahri
had not come to the Ranchi house.
The
witness Murari, PW 1, further told him that in the morning of 12-10-1983 the appellant Suresh Bahri told him that Urshia
Bahri had left Ranchi for Delhi by aeroplane that very morning and Suresh remained at Ranchi till end of October 1983. Witness
Murari Lal also told him that thereafter he did not see Urshia and her two
children at Ranchi. The informant Bineet also met one
B.N. Mishra, PW 2, another neighbour of appellant Suresh at Ranchi who told him
that his sister Urshia Bahri was known to him because he was negotiating with
her for purchase of the House No. 936, Station Road, Ranchi and the sale would
have completed but for the sudden disappearance of Urshia Bahri, the sale could
not take place. B.N. Mishra, PW 2, also told him that he had gone to the house
of Suresh Bahri at Ranchi in the evening of 11-10-1983 to meet Urshia Bahri but he did not find her there.
He, however, met Suresh Bahri there who was sitting in the verandah of the
house and there was no electric light in the house of Suresh Bahri though there
was light in the other neighbouring houses. The witness Mishra also told to
Bineet that when he was ascending the verandah of the house the appellant
Suresh Bahri caught hold of him and led him away from the house saying that
Urshia had gone to the house of the appellant Gurbachan Singh to a party and
she will proceed to Delhi direct from the house of Gurbachan Singh by next
morning flight.
8.Later
when the informant Bineet, PW 69 again had a talk with the witness Murari, PW 1
about the whereabouts of his sister Urshia and her children, it is said Murari
told him that there was rumour that his sister Urshia has been murdered.
Thereafter, Bineet PW 69 went to the Police Station Chutia where he made a
written report that his sister and her children were missing. On the basis of
this report P.S. Case No. 27/84 was registered at Chutia Police Station. Bineet
then left Ranchi on 26-1-1984 and reached Delhi same day by plane and went to
the house of Urshia Bahri at C-70, South Extension-II, New Delhi where he met
the acquitted accused Mrs Santosh Bahri and enquired from her the whereabouts
of his sister Urshia. It is said that Mrs Santosh Bahri told Bineet that she
had no information about Urshia. Bineet further gathered information that
Urshia was never seen at New
Delhi after 30-9-1983 though 92 the appellant Suresh had come to New Delhi in the month of December 1983. He
also learnt that in December 1983 the appellant Suresh Bahri had left Delhi along with his mother Mrs Santosh
Bahri and the two children Richa and Saurabh in Ambassador Car No. DLE 3179 and
the appellant Suresh Bahri came back to Delhi in January 1984. When appellant Suresh Bahri learnt about the arrival
of the informant Bineet at New Delhi he
disappeared.
9.Further
prosecution case is that sometime in the month of September 1983 the appellant
Suresh Bahri had sent his associate appellant Raj Pal Sharma to Ranchi who
stayed in the Station Road House No. 936 at Ranchi but when the appellant
Suresh Bahri along with his deceased wife Urshia arrived at Ranchi on 1-10-1983
the appellant Raj Pal Sharma left the house. Deceased Urshia Bahri had come to
Ranchi to sell the said House No. 936 and had contacted several persons in that
connection including Murari Lal, PW 1, Badri Narayan Mishra, PW 2 and Laxmi
Narayan, PW 21 who in fact had agreed to purchase the said house and the deal
was almost settled and the sale deed was likely to be executed very soon. It is
said that as the appellant Suresh Bahri was not agreeable for sale of the said
house, Suresh Bahri and the appellant Raj Pal Sharma murdered her in the night
of 11-10-1983 in a room of the said house. The head of Urshia Bahri was
truncated and severed from her body. At or about the same time the appellant
Gurbachan Singh also arrived along with his servant Ram Sagar Vishwakarma who
was also arrayed as an accused but later turned approver and was examined as PW
3. It is said that the headless body of Urshia Bahri was wrapped in a blanket
and saree piece and tied with rope was dumped in a sceptic tank situated within
the compound of the said house. Later on in the morning of 13-10-1983 it is
said that the appellant Raj Pal Sharma and Suresh Bahri took the head of Urshia
Bahri and threw the same under a bush in the forest on the Ranchi-Patratru
Road.
It is
also alleged that sometime in the month of January 1984 the appellant Suresh
Bahri and Gurbachan Singh managed to take out the body of Urshia from the
sceptic tank and took the body in Truck No. BHM 5879 driven by the acquitted
accused Mohd. Suhail and threw it in a dumping pit known as Madhukam dump.
10.Further
prosecution case with regard to the murder of the two children Richa Bahri and
Saurabh Bahri is that they were studying in Father Agnel School, South Extension-II, New Delhi. Saurabh was a student of Class IV and Richa was a student of Class VI
in the said school. It is said that on 5-12-1983 the appellant Suresh Bahri, the
father of the two children filed two separate applications before the Principal
of the school for withdrawal of both the children from the school. These
applications are Exts. 40 and 40/1.
Both
the children were, thus, withdrawn from the school on 5-12-1983. It is said that the appellant Suresh Bahri left his
New Delhi House No. C-70 for going to Ranchi by his Ambassador Car No. DLE 3179 along with his two children, his
mother, acquitted accused Mrs Santosh Bahri, one maidservant and the appellant
Raj Pal Sharma. On his way to Ranchi, Suresh
Bahri dropped his mother Mrs Santosh Bahri and a maidservant at Basti in Uttar
Pradesh and having stopovers at Varanasi (Uttar Pradesh) and Daltonganj (Bihar)
he reached his Dhulli farmhouse on 16-12-1983 where he along with the appellant
Raj Pal Sharma and the two children stayed on 16-12-1983 and 17-12-1983. During the aforesaid stay the
appellant Gurbachan Singh also visited Dhulli farmhouse. It is 93 said that a
few days earlier appellant Gurbachan Singh had sent some cots and chairs at the
Dhulli farmhouse and according to the prosecution in the intervening night of
17- 12-1983 and 18-12-1983 the appellants Suresh Bahri and Raj Pal Sharma
committed the murder of Richa Bahri and Saurabh Bahri in Dhulli farmhouse of
the appellant Suresh Bahri.
They
took the bodies of Richa Bahri and Saurabh Bahri in the Ambassador Car No. DLE
3179 to Varanasi where they threw their dead bodies
in Varuna River, a tributary of Ganges.
11.On
20-12-1983 at about 8.30 a.m. dead body of a boy aged about 12 years was found
floating at the bank of River Varuna near the bridge of Village Puratepur which
was noticed by one Hiralal, PW 36. The naked body was packed in a gunny bag.
Report about it Ext. 11 was made by Hiralal, PW 36 in the Police Station Sarnath
where P.S. Case No. 100/83 was registered. Atma Nand Singh, PW 46, Police
Officer, Sarnath on receiving the report reached at the bank of Varuna River, inspected the dead body and having found marks of injury
on the neck of the dead body prepared inquest report in the presence of
witnesses. The gunny bag in which the dead body was packed was seized as per
seizure memo Ext. 5/8. He also received information that one gadda, one quilt
and one bedsheet were lying at the dumping place of Panchkoshi-Varanasi Road. The Police Officer, Atma Nand
Singh, PW 46 seized the said articles by seizure memo Ext. 5/9 as also two
bedsheets which were also found on the same road near the Forest Department
Nursery vide seizure memo Ext. 5/ 10.
12.Dr
B.K. Bhatnagar, PW 27, District Hospital, Varanasi performed an autopsy on the dead
body of the boy on 21-12- 1983 at about 4.15 p.m. He found that it was a dead body of a male child aged about 12 years.
The doctor noticed two incised wounds in the neck. The trachea and blood vessels
and larynx were cut. There was also a contusion on the chest. There were
various other injuries found on his person which were ante-mortem in nature
caused by sharp object.
13.Police
Officer, Sarnath, Atma Nand Singh, PW 46 got the photographs of the dead body
taken by the photographer Ashok Kumar PW 48 and published the same in
newspapers to collect information about the identity of the dead child but as
nobody claimed the dead body he disposed of the same after preparing a
panchnama to that effect. Consequently, the Police Officer, Sarnath closed the
investigation of P.S. Case No. 100/83 by making a final report.
14.By
a notification dated 18-6-1984 the Government of India, Ministry
of Home Affairs entrusted the investigation of Chutia Police Case No. 27 to the
CBI with the consent of the Government of Bihar. The CBI on the basis of the
written report dated 1-2-1984 made by Bineet, PW 69 registered
the case No. RC-2/84 on 28-6-1984 under Section 120-B read with
Sections 302/364/201 of the Penal Code.
Shri
Madanlal, PW 85, Senior Inspector of CBI, New Delhi was the Investigating Officer of this case. By another notification
dated 14-9-1984 the Central Government, Ministry of
Home Affairs entrusted the investigation of Sarnath P.S. Case No. 100/83 also
to the CBI with the consent of the Government of Uttar Pradesh and the
investigation of this case was entrusted to the CBI Inspector Rajendra Singh,
PW 82.
15.The
Investigating Officers Madanlal PW 85 and Rajendra Singh PW 82 seized the
entire records of Chutia P.S. Case No. 27/84 as well as the records of Samath
P.S. Case No. 100/83. Both these Investigating Officers visited and 94
inspected the Ranchi House No. 936 of appellant Suresh Bahri situated at
Station Road, along with some experts where murder of Urshia Bahri is said to
have been committed. A steel trunk containing bloodstains and some scrapings of
the bloodstains of the wall of the room were seized which were examined by the
Serologist and found it to be stained with human blood. A sketch map of the
alleged place of occurrence was prepared. The photographs of the dead body
taken by the photographer, Ashok Kumar, PW 48 in Sarnath P.S. Case No. 100/83
were identified by the witnesses who had seen Saurabh Bahri during his lifetime
and stated that the photographs were of Saurabh Bahri, indicating that it was
the body of Saurabh who was murdered. The articles gadda, quilt and bedsheets
seized from Panchkoshi
Road, Varanasi were also identified as belonging
to the appellant Suresh Bahri.
16.The
appellant Gurbachan Singh was already arrested earlier by Rajeshwar Singh (PW
59), In-charge, Police Station Chutia (Ranchi) before 22-4-1984 when
charge-sheet by Chutia Police was filed, though further investigation continued
by CBI, in pursuance of notification issued by the Government of India. During
the course of investigation, Rajeshwar Singh, PW 59, interrogated Gurbachan
Singh who made disclosure statement that he had thrown the dead body of Urshia
Bahri in Madhukam dump known as "Khad gaddha". On digging of the said
dumping pit no dead body was recovered but a piece of blanket, saree and rope
were recovered from there which were seized as per seizure memo Ext. 5/12.
These
articles were put on the test identification parade on 6-3-1984 in which the
witnesses Murari Lal Sharma PW 1 and B.N. Mishra PW 2 had identified the said
articles of piece of blanket, saree and rope to be the materials used in
wrapping the dead body of Urshia Bahri on 11-10-1983.
17.The
appellant Suresh Bahri was absconding but he was arrested on 31-7-1984 at
Delhi. The appellant Raj Pal Sharma was arrested at Delhi by CBI Officer on
8-8-1984. He was produced before the Metropolitan Magistrate, New Delhi on
8-8-1984 and police remand for 10 days was obtained. On 12-8-1984 while in
police custody, Raj Pal Sharma made a disclosure statement, Ext. 32 to the CBI
Investigating Officer Madanlal, PW 85. In pursuance of the disclosure statement
the appellant Raj Pal Sharma took the Investigating Officer and witnesses to
the said forest on Ranchi-Patratru Road. The skull, some hairs and pieces of
cotton were recovered from the bushes of the forest at the instance of the
appellant Raj Pal Sharma which were seized as per seizure memo Ext. 33 dated
12-8-1984. The said skull was sent to Dr Harish Chander, Director, Medico-Legal
Institute and Head of the Forensic Science, Gandhi Medical College, Bhopal for
examination. Dr Harish along with some other experts examined the said skull
and found that it was of a female aged about 33 years with a margin of plus
minus five years on either side. Dr Harish for want of certain information
could not definitely opine that the said skull was that of Urshia Bahri.
18.The
Investigating Officers detected that one Ram Sagar Vishwakarma, an employee of
the appellant Gurbachan Singh was also associated in hatching the conspiracy to
commit the murder of Urshia and her two children. They, therefore, arrested Ram
Sagar Vishwakarma on 3-12-1984 and produced him before the Chief
Judicial Magistrate, Ranchi on 4-12-1984 who remanded him 95 to police custody till 17-12-1984. On 17-12-1984 Ram
Sagar Vishwakarma filed a petition Ext. 3 before the Chief Judicial Magistrate
for recording his confessional statement. The Judicial Magistrate, Shri
Bhuneshwar Ram PW 76 recorded the confessional statement Ext. 28/1 under
Section 164 Criminal Procedure Code of Ram Sagar Vishwakarma on 19-12-1984,
20-12-1984 and 21-12-1984. Thereafter on 8-1-1985 Ram Sagar Vishwakarma made a
petition to tile Chief Judicial Magistrate, Ranchi that he may be granted
pardon and he be made a prosecution witness. The Chief Judicial Magistrate
granted pardon to Ram Sagar Vishwakarma by order dated 9-1-1985 and accepted
him as an approver and recorded the statement of Ram Sagar Vishwakarma on
30-1-1986 as approver under Section 306 of the Code of Criminal Procedure.
Thereafter, Ram Sagar Vishwakarma was granted bail by the order of the High
Court dated 13-1-1987 and he was released from custody on 21-1-1987.
19.All
the accused persons were charged and tried as said in the earlier part of this
judgment. All the accused persons including the three appellants denied their
guilt and pleaded false implication. The appellant Suresh Bahri in his
statement under Section 313 CrPC stated that his wife Urshia Bahri and his two
children were not murdered at all and that they were still alive. The
appellants took the defence that the prosecution has failed to prove factum of
death of Urshia Bahri and her two children and that in any case the prosecution
has failed to bring home the guilt against any of the appellants for alleged
murders and they have been implicated only on the basis of suspicion.
20.On
evaluation of the evidence adduced by the prosecution and relying on various
circumstances found to be established against the three appellants which
according to the learned trial Judge are of conclusive nature and consistent
only with the hypothesis of the guilt of the appellants convicted and sentenced
them as said above. The said conclusions and findings found favour with the High
Court also in appeals and, therefore, the High Court dismissed all the three
appeals affirming the conviction and sentence awarded by the trial court.
21.At
the very outset we may mention that sometimes motive plays an important role
and becomes a compelling force to commit a crime and therefore motive behind
the crime is a relevant factor for which evidence may be adduced. A motive is
something which prompts a person to form an opinion or intention to do certain
illegal act or even a legal act but with illegal means with a view to achieve
that intention.
In a
case where there is clear proof of motive for the commission of the crime it
affords added support to the finding of the court that the accused was guilty
of the offence charged with. But it has to be remembered that the absence of
proof of motive does not render the evidence bearing on the guilt of the
accused nonetheless untrustworthy or unreliable because most often it is only
the perpetrator of the crime alone who knows as to what circumstances prompted
him to a certain course of action leading to the commission of the crime. In
the present case before us the prosecution has adduced evidence that the
appellant Suresh Bahri had strong motive to eliminate his wife and two children
from his way which evidence has been accepted by both the courts below. We
shall, therefore, have a look at the said evidence to see whether the two
courts are justified or not in taking the view that the appellant Suresh Bahri
had a strong motive to hatch a conspiracy with the 96 assistance of the other
two appellants, namely, Raj Pal Sharma and Gurbachan Singh to commit the murder
of his wife and the two children.
22.According
to the prosecution the motive behind the murder of Urshia Bahri and her two
children is said to be the strained relations and differences between the
deceased Urshia and her husband, the appellant Suresh Bahri and her
mother-in-law, Smt Santosh Bahri (since acquitted) which had developed on
account of the firm determination of the deceased Urshia Bahri to dispose of
House No. 936 situated on the Station Road, Ranchi and migrate along with her
two children to America where her parents were already settled because her life
and that of her two children had become miserable due to the mental and
physical tortures caused by Suresh Bahri, his mother Santosh and maternal uncle
Y.D. Arya (since acquitted). It is said that the acquitted accused Smt Santosh
Bahri had started causing harassment to her daughter-in-law the deceased Urshia
in diverse ways after her marriage with the appellant Suresh who maintained a
quiescence and never intervened in the maltreatment meted out to her. It is
said that the systematic course of ill- treatment meted out to Urshia was
communicated by her to some of her relatives and parents orally and through
letters. Admittedly at the time when Urshia was wedded to the appellant Suresh,
his maternal uncle Y.D. Arya (since acquitted) was also living with Suresh and
his mother in the same house and used to interfere not only in the family matters
but in the business affairs also by reason of which Suresh had suffered great
setback and loss to his property and business assets at Calcutta. Consequently
Urshia had developed a dislike towards Y.D. Arya and ultimately Arya was made
to leave Delhi house at the instance of the
deceased. It is also said that the acquitted accused Smt Santosh Bahri
mother-in-law of deceased Urshia had no love and affection either for Urshia or
for her two children, namely, Richa and Saurabh and for that reason she never
kept the children with her. According to the prosecution it is in this
background that the deceased Urshia was forced to take the decision in her own
interest and to fulfil her dreams of a better future of her two children, to
dispose of the Ranchi house and migrate to America along with her two children
with the sale proceeds of the property and settle down there. But the idea of
migration with the sale proceeds of the house entertained by late Urshia could
not be cherished by appellant Suresh Bahri and, therefore, the appellant Suresh
Bahri hatched a conspiracy with the two convicted associates Raj Pal Sharma and
Sardar Gurbachan Singh to eliminate his wife and two children from his way once
for all and to achieve this objective all the three appellants are said to have
systematically executed their scheme in a planned way in the commission of
murders of Urshia and her two children on two different dates at Ranchi and
Dhulli farmhouse of appellant Suresh Bahri. This part of the prosecution story
is said to be established by the documentary as well as the oral evidence which
we shall refer to briefly hereinafter.
23.Murarilal
Sharma PW 1 is the next door neighbour of the appellant Suresh Bahri, his
house-cum-grocery shop being just adjacent to the Station Road house of Suresh at Ranchi.
He
deposed in para 3 of his deposition that the appellant Suresh Bahri used to
tell him that there were frequent family squabbles between him and his wife
deceased Urshia and his mother Smt Santosh Bahri on account of his maternal
uncle Y.D. Arya and the insistence of 97 his wife for sale of their house at
Ranchi and go to America with her children with the sale proceeds. The witness
also deposed that Suresh Bahri told him that in fact he did not want to dispose
of the said house and was very much disturbed on account of the frequent
quarrels. The witness also stated that Suresh had also told him that his
children were spoilt due to the encouragement by Urshia and they had no respect
for his mother by reason of which he was fed up with this world and most often
thought to put an end of the entire family along with his own life.
24.Dinanath
Sharma, PW 6 is the witness who has been the classmate of the appellant Suresh
Bahri and the entire family of Suresh Bahri is known to him. He was on visiting
terms also. This witness has also deposed that the relations between the
appellant Suresh Bahri and his deceased wife Urshia were strained since after
about two years of their marriage. He deposed that as and when he met Urshia
she always complained against the behaviour of Suresh towards her. Almost
similar is the statement of Moolchand PW 24 who worked as mali at the Ranchi
house of appellant Suresh. Smt Surina Narula PW 66 is the sister, Bineet Singh
Sarang PW 69 is the brother and informant and Smt Rohtas Sarang PW 79 is the
mother of the deceased Urshia Bahri.
They
all deposed that the relations between the appellant Suresh Bahri and his
deceased wife Urshia were not cordial but strained as Urshia used to complain
against her husband, mother-in-law and the maternal uncle of her husband.
According
to the evidence of Badri Narayan Mishra PW 2 through whom Laxmi Narayan PW 21
had negotiated for purchase of the Ranchi house, it turns out that the deal was
almost finalised for purchase of the house by him but for the sudden
disappearance of Smt Urshia on 11-10-1983, the same could not take place.
25.Besides
the aforementioned oral evidence the prosecution has produced documentary
evidence also to support the allegation that the relations of the appellant
Suresh, his mother and maternal uncle were not cordial with the deceased Urshia
Babri and that the deceased Urshia was determined to sell out the Ranchi house
and migrate to America with her children and the sale proceeds against the wishes
of the appellant Suresh Bahri and his mother. The trial court has elaborately
dealt with the documentary evidence in this behalf. The High Court has also in
paragraphs 25 to 28 of its judgment not only discussed but has reproduced
various letters written by deceased Urshia to her parents in America to show
the sufferings and state of mind of Urshia on account of the behaviour meted
out to her by her husband Suresh Bahri and her mother-in-law and her
determination to sell out the house and shift to America and arrived at the
conclusion that the appellant Suresh had a strong motive to commit the murder
of his wife Urshia and her two children in conspiracy with the other two
appellants. It is, therefore, not necessary for us to discuss the entire
evidence again which has been evaluated by the two courts below. On a close
scrutiny of the evidence on this point we find ourselves in complete agreement
with the view expressed by the learned trial Judge and the High Court. The
argument of the learned counsel for the appellant that even if it is accepted
that there were strained relations and serious differences between the deceased
Urshia and the appellant Suresh Bahri, his mother Santosh and maternal uncle
Y.D. Arya, yet Suresh would not go to the extent of hatching a conspiracy and
actually killing his wife and the two children does not appeal to 98 us and we
are not at all convinced by this argument because different persons react
differently under given circumstances. It is difficult to lay down a hard and
fast rule as to how and in what manner a person would react and to achieve his
motive could go to what extent in the commission of crime under a particular
circumstance. It is not possible to measure up the extent of his feelings,
sentiments and desire and say as to what compelled him to commit a particular
crime. There may be persons who under frustration and on mere trifling domestic
matters take decision to commit a serious crime, while others may approach it
with cool and calm mind and think more dispassionately before taking any
hazardous and serious steps. It all depends as to how a person reacts in a
given circumstance and it is he alone who best knows his intention and motive
to commit a crime and the extent thereof. In the present case, it appears that the
appellant Suresh Bahri was under the misguided apprehension that the murder of
his wife Urshia alone would not be safe as the survival of the two children may
ultimately expose him of the murder of his wife Urshia and therefore, he was
left with no option but to wipe of the entire family and clear the deck for
smooth sail in life as a freelancer which to his misfortune proved to be too
expensive as he had not only to pay the price with his own life but also the
lives of his two associates who helped him actively in the commission of the
crime in question.
26.Learned
Senior Counsel Shri Sushil Kumar appearing for the appellant Raj Pal Sharma
submitted that in view of the fact that no question relating to motive having
been put to the appellants on the point of motive under Section 313 of the Code
of Criminal Procedure, no motive for the commission of the crime can be
attributed to the appellants nor the same can be reckoned as circumstance
against the appellants.
It is
no doubt true that the underlying object behind Section 313 CrPC is to enable
the accused to explain any circumstance appearing against him in the evidence
and this object is based on the maxim audi alteram partem which is one of the
principles of natural justice. It has always been regarded unfair to rely upon
any incriminating circumstance without affording the accused an opportunity of
explaining the said incriminating circumstance. The provisions in Section 313,
therefore, make it obligatory on the court to question the accused on the evidence
and circumstance appearing against him so as to apprise him the exact case
which he is required to meet. But it would not be enough for the accused to
show that he has not been questioned or examined on a particular circumstance
but he must also show that such non-examination has actually and materially
prejudiced him and has resulted in failure of justice. In other words in the
event of any inadvertent omission on the part of the court to question the
accused on any incriminating circumstance appearing against him the same cannot
ipso facto vitiates the trial unless it is shown that some prejudice was caused
to him. In Bejoy Chand Patra v. State of W.B. 1 this Court took the view that
it is not sufficient for the accused merely to show that he has not been fully
examined as required by Section 342 of the Criminal Procedure Code (now Section
313 in the new Code) but he must also show that such examination has materially
prejudiced him. The same view was again reiterated by this Court in Rama 1 1952
Cri LJ 644: AIR 1952 SC 105 : 1952 SCR 202 99 Shankar Singh v. State of W.B.2
In the present case before us it may be noted that no such point was raised and
no such objection seems to have been advanced either before the trial court or
the High Court and it is being raised for the first time before this Court
which appears to us to be an afterthought. Secondly, learned counsel appearing
for the appellants was unable to place before us as to what in fact was the
real prejudice caused to the appellants by omission to question the
accused/appellant Suresh Bahri on the point of his motive for the crime. No
material was also placed before us to show as to what and in what manner the
prejudice, if any, was caused to the appellants or any of them.
27.Apart
from what has been stated above, it may be pointed out that it cannot be said
that the appellants were totally unaware of the substance of the accusation
against them with regard to the motive part. In this regard a reference may be
made to Question Nos. 5, 6 and 7 which were put to the appellant Suresh Bahri
in the course of his statement recorded under Section 313 CrPC. The sum and
substance of these questions is that from the prosecution evidence it turns out
that the acquitted accused Y.D. Arya the maternal uncle of the appellant Suresh
Bahri was living in a portion of the upper storey of his house at Delhi. He
with the consent of Santosh Bahri the mother of Suresh Bahri, was interfering
in the family affairs as well as in business matters by reason of which the maternal
uncle had to leave the house and that having regard to the future of her
children Urshia Bahri not only wanted to manage the property but also to
dispose of the same which was not liked by Suresh Bahri and with a view to
remove Urshia Bahri from his way the appellant Suresh Bahri wanted to commit
her murder.
In
view of these questions and examination of Suresh Bahri, it cannot be said that
he was totally unaware of the substance of the accusation and charge against
him or that he was not examined on the question of motive at all. In the facts
and circumstances discussed above it cannot be said that any prejudice was
caused to the appellant. The contention of the learned counsel for the
appellants in this behalf therefore has no merit.
28.Learned
counsel for the appellants strenuously urged that there was utter
non-compliance of clauses (a) and (b) of sub-section (4) of Section 306 of the
Code of Criminal Procedure inasmuch as that after recording the statement of
the approver Ram Sagar Vishwakarma under Section 164 of the Code of Criminal
Procedure and after tendering him pardon, the approver was not examined as
witness by the learned Magistrate who took cognizance of the offence, as
required by clause (a) of sub-section (4) of Section 306 CrPC but he was
examined as a witness by the committal Magistrate only after the Court of
Sessions remitted the case back to the committal Magistrate for examining the
approver as a witness in accordance with Section 306(4)(a) CrPC. Secondly
clause (b) of Section 306(4) mandates that the approver shall be detained in
custody until the termination of the trial unless he is already on bail but
contrary to that the approver was enlarged on bail after he was granted pardon
and as such the trial was vitiated. Reliance was placed on the decisions in
Kalu Khoda 2 AIR 1962 SC 1239, para 14: (1962) 2 Cri LJ 296: 1962 Supp (1) SCR
49 100 V. State3; Ramasamy, Re4 and Uravakonda Vijayaraj Paul v.
State5
in support of his above submissions.
29.
Section 306 of the Code of Criminal Procedure (hereinafter referred to as 'the
Code') relates to the tender of pardon to an accomplice and the procedure of
committing the case for trial. It would be appropriate to reproduce Section 306
of the Code which reads as under:
"306.
Tender of pardon to accomplice.-
(1)
With a view to obtaining the evidence of any person supposed to have been
directly or indirectly concerned in or privy to an offence to which this
section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at
any stage of the investigation or inquiry into, or the trial of, the offence,
and the Magistrate of the first class inquiring into or trying the offence, at
any stage of the inquiry or trial, may tender a pardon to such person on
condition of his making a full and true disclosure of the whole of the
circumstances within his knowledge relative to the offence and to every other
person concerned, whether as principal or abettor, in the commission thereof.
(2)
This section applies to- (a) any offence triable exclusively by the Court of
Session or by the Court of a Special Judge appointed under the Criminal Law
Amendment Act, 1952 (46 of 1952);
(b) any
offence punishable with imprisonment which may extend to seven years or with a
more severe sentence.
(3)Every
Magistrate who tenders a pardon under sub-section (1) shall record- (a) his
reasons for so doing;
(b) whether
the tender was or was not accepted by the person to whom it was made, and
shall, on application made by the accused, furnish him with a copy of such
record free of cost.
(4)
Every person accepting a tender of pardon made under sub-section (a) shall be
examined as a witness in the Court of the Magistrate taking cognizance of the
offence and in the subsequent trial, if any;
(b) shall,
unless he is already on bail, be detained in custody until the termination of
the trial.
(5)Where
a person has accepted a tender of pardon made under subsection (1) and has been
examined under sub-section (4), the Magistrate taking cognizance of the offence
shall, without making any further inquiry in the case,- (a) commit it for
trial- (i) to the Court of Session if the offence is triable exclusively by
that Court or if the Magistrate taking cognizance is the Chief Judicial
Magistrate;
3 AIR
1962 Guj 283, FB :(1962) 2 Cri U 604: (1962) 3 Guj LR 654 4 1976 Cri LJ 770 :
1976 Mad LJ (Cri) 111: 1976 Mad LW (Cri) 36 (Mad) 6 1986 Cri LJ 2104: (1986) 1
Andh LT 364: (1986) 2 APLJ (HC) 19 (AP) 101 (ii)to a Court of Special Judge
appointed under the Criminal Law Amendment Act, 1952 (46 of 1952), if the
offence is triable exclusively by that Court;
(b) in
any other case, make over the case to the Chief Judicial Magistrate who shall
try the case himself.
30. A
bare reading of clause (a) of sub-section (4) of Section 306 of the Code will
go to show that every person accepting the tender of pardon made under
sub-section (1) has to be examined as a witness in the Court of the Magistrate
taking cognizance of the offence and in the subsequent trial, if any.
Sub-section (5) further provides that the Magistrate taking cognizance of the
offence shall, without making any further enquiry in the case commit it for
trial to any one of the courts mentioned in clauses (i) or (ii) of clause (a)
of subsection (5), as the case may be.
Section
209 of the Code deals with the commitment of cases to the Court of Session when
offence is tried exclusively by that court. The examination of accomplice or an
approver after accepting the tender of pardon as a witness in the Court of the
Magistrate taking cognizance of the offence is thus a mandatory provision and
cannot be dispensed with and if this mandatory provision is not complied with
it vitiates the trial. As envisaged in sub-section (1) of Section 306, the
tender of pardon is made on the condition that an approver shall make a full
and true disclosure of the whole of the circumstances within his knowledge
relating to the offence. Consequently, the failure to examine the approver as a
witness before the committing Magistrate would not only amount to breach of the
mandatory provisions contained in clause (a) of sub- section (4) of Section 306
but it would also be inconsistent with and in violation of the duty to make a
full and frank disclosure of the case at all stages.
The
breach of the provisions contained in clause (a) of sub- section (4) of Section
306 is of a mandatory nature and not merely directory and, therefore,
non-compliance of the same would render committal order illegal. The object and
purpose in enacting this mandatory provision is obviously intended to provide a
safeguard to the accused inasmuch as the approver has to make a statement
disclosing his evidence at the preliminary stage before the committal order is
made and the accused not only becomes aware of the evidence against him but he is
also afforded an opportunity to meet with the evidence of an approver before
the committing court itself at the very threshold so that he may take steps to
show that the approver's evidence at the trial was untrustworthy in case there
are any contradictions or improvements made by him during his evidence at the
trial.
It is
for this reason that the examination of the approver at two stages has been
provided for and if the said mandatory provision is not complied with, the
accused would be deprived of the said benefit. This may cause serious prejudice
to him resulting in failure of justice as he will lose the opportunity of
showing the approver's evidence as unreliable. Further clause (b) of
sub-section (4) of Section 306 of the Code will also go to show that it
mandates that a person who has accepted a tender of pardon shall, unless he is
already on bail be detained in custody until the termination of the trial. We
have, therefore, also to see whether in the instant case these two mandatory
provisions were complied with or not and if the same were not complied with,
what is the effect of such a non- compliance on the trial? 102
31. It
may be noted that the approver Ram Sagar Vishwakarma hereinafter referred to as
Ram Sagar was arrested on 3-12- 1984 and was under police remand till
17-12-1984. He made an application Ext. 3 on 17-12-1984 for recording his confessional statement under Section 164
of the Code and his confessional statement Ext. 28/1 was recorded on 19-12-1984 to 21-12-1984 by
the Magistrate Shri Bhuneshwar Nath PW 76.
Thereafter
on 7-1-1985 CBI Investigating Officer made an
application that Ram Sagar be granted pardon and his statement be recorded
under Section 306 of the Code. The approver Ram Sagar also made an application
Ext.1 for grant of pardon on 8-1-1985
stating that he wanted to become a prosecution witness and make disclosure of
true facts of the case. Learned Chief Judicial Magistrate tendered pardon to
Ram Sagar by his order dated 9-1-1985
stating that he was directly concerned with the commission of the crime
relating to the offence of murders in question. The learned Chief Judicial
Magistrate committed the case to the Court of Session for trial without
examining the approver Ram Sagar as a witness in his court. But the learned Additional
Judicial Commissioner, Ranchi to whom the case was committed for trial noticed
this defect that the approver was not examined as a witness in the Court of
Magistrate taking cognizance of the offence and committed him for trial before
him and, therefore, learned Additional Judicial Commissioner remanded the case
back to the Court of Chief Judicial Magistrate with a direction to record the
statement of the approver Ram Sagar as required by clause (a) of sub-section
(4) of Section 306 of the Code. After receiving the records with the aforesaid
directions learned Magistrate examined the approver Ram Sagar as a witness on 31-1-1986 and then again committed him for trial to the Court
of Additional Commissioner. Thus in any case the provisions of clause (a) of
sub-section (4) of Section 306 were ultimately complied with. That being so,
with no stretch of any amount of arguments can it be said that any prejudice
much less in disadvantage was caused to any of the accused/appellants.
The
order of the Additional Judicial Commissioner remanding the case back to the
Court of Magistrate directing him to examine the approver as a witness was
challenged by the accused persons in the High Court of Patna, Ranchi Bench but
the High Court maintained the order of the Additional Judicial Commissioner in
Criminal Revision No. 2347 of 1985.
This
order of the High Court was not challenged further by any of the appellants and
same attained finality and, therefore, it cannot be questioned now.
32. It
may be noticed that similar question arose for consideration of Madras High
Court in Ramasamy, Re4 and relied on by the learned counsel for appellants,
wherein the learned Magistrate had committed the case for trial to the Court of
Sessions without examining the approver as a witness in his court before
committing the case. But Pandian, J. (as he then was) took the view that the
action of the Magistrate in committing the case to the Court of Session without
examining the approver was a clear violation of the mandatory provisions of Section
306 of sub-sections (4) and (5) of the new Code and as such he committed
irregularity. The learned Judge, therefore, quashed the committal order and
directed the Magistrate to comply with the provisions of Section 306 of the
Code by examining the approver and then again pass fresh order of committal, if
called for. In almost similar circumstances similar view 103 was taken by the
High Court of Andhra Pradesh in the case of U. Vijayaraj5 and in this case also
the Magistrate was directed to examine the approver as required by sub-section
(4) of Section 306 of the Code by giving an opportunity to the accused to
cross-examine the approver and then pass the appropriate orders in accordance
with law.
33. In
Kalu Khoda3 similar question came for consideration before the Full Bench of
the Gujarat High Court wherein the committing Magistrate committed the accused
to the Court of Session without examining the person who had been tendered
pardon and who had accepted the same. The Full Bench set aside the committal
order and directed the committing Magistrate to hold a fresh enquiry in
accordance with law.
The
ultimate result of the aforesaid discussion is that if the said defect of not
examining the approver at the committal stage by the committing Magistrate is rectified
later, no prejudice can be said to be caused to an accused person and therefore
the trial cannot be said to be vitiated on that account. Since in the present
case, as noticed above the defect was rectified, the argument that the trial
was vitiated cannot be accepted.
34. As
regards the contention that the trial was vitiated by reason of the approver
Ram Sagar being released on bail contrary to the provisions contained in clause
(b) of sub- section (4) of Section 306 of the Code. It may be pointed out that
Ram Sagar after he was granted pardon by the learned Magistrate by his order
dated 9-1-1985, was not granted bail either by the
committing Magistrate or by the learned Additional Judicial Commissioner to
whose court the case was committed for trial. The approver Ram Sagar was,
however, granted bail by an order passed by the High Court of Patna, Ranchi
Bench in Criminal Miscellaneous Case No.
4735
of 1986 in pursuance of which he was released on bail on 21-1-1987 while he was already examined as a witness by the
committing Magistrate on 30-1-1986 and 31-1-1986 and his statement in sessions trial was also recorded from 6-9-1986 to 19-11-1986. It
is no doubt true that clause (b) of Section 306(4) directs that the approver
shall not be set at liberty till the termination of the trial against the
accused persons and the detention of the approver in custody must end with the
trial. The dominant object of requiring an approver to be detained in custody
until the termination of the trial is not intended to punish the approver for
having come forward to give evidence in support of the prosecution but to
protect him from the possible indignation, rage and resentment of his
associates in a crime whom he has chosen to expose as well as with a view to
prevent him from the temptation of saving his one time friends and companions
after he is granted pardon and released from custody. It is for these reasons
that clause (b) of Section 306(4) casts a duty on the court to keep the
approver under detention till the termination of the trial and thus the
provisions are based on statutory principles of public policy and public
interest, violation of which could not be tolerated. But one thing is clear
that the release of an approver on bail may be illegal which can be set aside
by a superior court, but such a release would not have any affect on the
validity of the pardon once validly granted to an approver. In these
circumstances even though the approver was not granted any bail by the
committal Magistrate or by the trial Judge yet his release by the High Court
would not in any way affect the validity of the pardon granted to the approver
Ram Sagar.
104
35.Learned counsel for the appellants next contended that the statement Ext.
28/1 of the co-accused Ram Sagar Vishwakarma who turned as an approver recorded
under Section 164 of the Code after about 16 days of his arrest cannot be said
to be voluntary confession particularly when the Magistrate did not inform him
that he would not be remanded to police custody after the statement. It was
further submitted that in any case the statement of the approver made under
Section 164 was made under constant fear and with a promise of immunity because
he was given to understand by the CBI officials that he would be set at liberty
in case he made the confessional statement.
36.After
the perusal of the statement of Ram Sagar PW 3 as well as the statement of
learned Magistrate Shri Bhuneshwar Ram PW 76 who recorded the statement of Ram
Sagar under Section 164 of the Code we find that there is absolutely no
substance in these submissions.
37.Ram
Sagar Vishwakarma was arrested on 3-12-1984. A perusal of the statement of Ram
Sagar made under Section 164 of the Code will go to show that he himself made
an application Ext. 3 before the Magistrate requesting him to record his
confessional statement and according to Ram Sagar it was at his instance and
request that his confessional statement Ext. 28/1 was recorded by the
Magistrate PW 76 from 19-12-1984 to 21-12-1984 in which he had confessed the guilt.
Ram Sagar PW 3 stated that the Magistrate had told him that it was his own
choice and volition to make or not to make the confessional statement and that
he made the statement on his free will. He denied the suggestion that while
making the statement under Section 164 any police officer was present there and
deposed that he was not given any assurance by the CBI officials that if he
would become approver he would be set at liberty or discharged from the case.
He, however, stated that he himself thought that if he made correct statement
before the Magistrate he may be set at liberty. He asserted that he made a true
disclosure of the circumstances relating to the offence before the Magistrate
in his statement under Section 164 irrespective of the fact whether he would be
released or not. Ram Sagar was subjected to a very lengthy and searching cross-
examination in this regard but nothing could be elicited from him to suggest
that he did not make true disclosure of the facts of the case or that he made the
confession under threat or pressure or on any assurances from the prosecuting
agency or from any official in authority. The statement that he made gives an
impression that it was made on his own volition which fact is further fortified
from the statement of the Judicial Magistrate who recorded his statement.
38.The
Judicial Magistrate, Ranchi, Shri Bhuneshwar Ram PW 76, on the
order passed by Chief Judicial Magistrate, Ranchi, recorded the confessional statement of Ram Sagar PW 3 as stated
earlier from 19-12-1984 to 21-12-1984 which was marked as Ext. 28/1. Shri Bhuneshwar Ram deposed
that before recording the statement of Ram Sagar under Section 164 he had given
the necessary warning to him as required by law and this fact is borne out from
the certificate Ext.
'A'
appended to that effect in the confessional statement Ext. 28/1 before he
proceeded to record the confession.
This
is indicative of the fact that he did caution Ram Sagar and sounded a note of
warning that he is not bound to make the confessional statement and if he
chooses to make any the same may be used against him and it was thereafter that
he made the confession 105 voluntarily on his own volition. He deposed that Ram
Sagar did not tell him that he made his confessional statement under any threat
or fear or on any promise. In view of this positive evidence on record it is
difficult to accept that the confessional statement made by the approver Ram
Sagar under Section 164 CrPC was not voluntary or under any fear or promise or
assurance. On the contrary we find that the confession is free from all
infirmities and conforms to the requirements of Section 164.
39.The
prosecution case, for the sake of scrutiny of the evidence and discussion may
be bifurcated into two parts, one relating to the murder of Urshia Bahri in the
evening of 11-10-1983 and the other relating to the murder of the two children,
namely, Richa and Saurabh in the intervening night of 17-12-1983 and 18-12-1983
although all the three murders stem out of one and the same conspiracy to do
away with the lives of all the three deceased persons and both the acts on two
different dates are so connected that they form the same transaction. It is
true that there is no eyewitness to either of the two incidents and the
prosecution case rests on the evidence of the approver Ram Sagar (PW 3) and the
circumstantial evidence advanced by the prosecution. We shall therefore deal
with the evidence of each of the two incidents one after the other.
40.Learned
counsel appearing for the appellant Raj Pal Sharma next contended that there is
no direct evidence or ocular testimony with regard to the alleged murder either
of Urshia Bahri or that of her two children Richa and Saurabh and the
conviction of the appellants has been founded on the approver's evidence and
other circumstantial evidence adduced by the prosecution. Learned counsel
submitted that the two courts below are not justified in relying on the
evidence of accomplice/approver Ram Sagar PW 3 whose evidence is not free from
serious doubt particularly in view of the fact that he was examined as a
witness by the committing Magistrate on 30-1-1985 after about one year and two months
of the occurrence. It was urged that in the absence of corroboration of
material particulars no conviction can be based on the testimony of an
accomplice and since the circumstances alleged against the appellants are not
proved to the hilt, the same cannot be regarded as complete chain of
circumstances established against the appellants so as to base their
convictions on the same.
Similar
arguments were advanced by the learned counsel appearing for the appellants
Suresh Bahri and Gurbachan Singh. Before we discuss the merits or demerits of
the aforesaid submissions we would like to state that the law relating to
conviction based on circumstantial evidence is well settled and it hardly
requires a detailed discussion on this aspect. Suffice to say that in a case of
murder in which the evidence that is available is only circumstantial in nature
then in that event the facts and circumstances from which the conclusion of
guilt is required to be drawn by the prosecution must be fully established
beyond all reasonable doubt and the facts and circumstances so established
should not only be consistent with the guilt of the accused but they also must
entirely be incompatible with the innocence of the accused and must exclude
every reasonable hypothesis consistent with his innocence.
41.In
order to meet the aforementioned arguments of the learned counsel for the
appellants, we shall now proceed to state the law relating to the grant of
pardon to an accomplice/approver, the value of his evidence and the extent of
reliance that can be placed on his evidence.
106
42.We
have already reproduced above Section 306 of the Code the provisions of which
apply to any offence triable exclusively by the Court of Special Judge to any
offence punishable with imprisonment extending to seven years or with a more
serious sentence. Section 306 of the Code lays down a clear exception to the
principle that no inducement shall be offered to a person to disclose what he
knows about the procedure (sic). Since many a times the crime is committed in a
manner for which no clue or any trace is available for its detection and,
therefore, pardon is granted for apprehension of the other offenders for the
recovery of the incriminating objects and the production of the evidence which
otherwise is unobtainable. The dominant object is that the offenders of the
heinous and grave offences do not go unpunished, the Legislature in its wisdom
considered it necessary to introduce this section and confine its operation to
cases mentioned in Section 306 of the Code. The object of Section 306 therefore
is to allow pardon in cases where heinous offence is alleged to have been committed
by several persons so that with the aid of the evidence of the person granted
pardon the offence may be brought home to the rest. The basis of the tender of
pardon is not the extent of the culpability of the person to whom pardon is
granted, but the principle is to prevent the escape of the offenders from
punishment in heinous offences for lack of evidence. There can therefore be no
objection against tender of pardon to an accomplice simply because in his
confession, he does not implicate himself to the same extent as the other
accused because all that Section 306 requires is that pardon may be tendered to
any person believed to be involved directly or indirectly in or privy to an
offence.
43.The
evidence of an approver does not differ from the evidence of any other witness
except that his evidence is looked upon with great suspicion. Consequently in
the event the suspicion which is attached to the evidence of an accomplice is
not removed his evidence could not be acted upon unless corroborated in material
particulars. But where the suspicion is removed and the evidence of an approver
is found to be trustworthy and acceptable then that evidence may be acted upon
even without corroboration and the conviction may be founded on such a witness.
Here in this connection it would be appropriate to make reference to the
provisions of Section 133 of the Evidence Act which deal with the testimony of
an accomplice. It contemplates that an accomplice shall be a competent witness
against an accused person; and a conviction is not illegal merely because it
proceeds upon the uncorroborated testimony of an accomplice. The first part
envisages that an accomplice, in other words, a guilty companion in crime,
shall be a competent witness while the second part states that conviction is
not illegal merely because it is based on the uncorroborated testimony of an
accomplice. But if we read Section 133 of the Evidence Act with illustration
(b) of Section 114 of the Evidence Act it may lead to certain amount of
confusion and misunderstanding as to the real and true intention of the
Legislature because quite contrary to what is contained in Section 133
illustration (b) to Section 114 of the Evidence Act lays down "that an
accomplice is unworthy of credit, unless he is corroborated in material
particulars". A combined reading of the two provisions that is Section 133
and illustration (b) of Section 114 of Evidence Act goes to show that it was
considered necessary to place the law of accomplice evidence on a better 107
footing by stating in unambiguous terms that according to Section 133 a
conviction is "not illegal or in other words not unlawful" merely
because it is founded on the uncorroborated testimony of an accomplice while
accepting that an accomplice is a competent witness. But at the same time the
Legislature intended to invite attention to illustration (b) of Section 114 of
the Evidence Act with a view to emphasise that the rule contained therein as
well as in Section 133 are parts of one and the same subject and neither can be
ignored in the exercise of judicial discretion except in cases of very
exceptional nature.
However,
the difficulty in understanding the combined effect of the aforementioned two
provisions arises largely due to their placement at two different places of the
same Act. It may be noticed that illustration (b) attached to Section 114 is
placed in Chapter VII of Evidence Act while Section 133 is inserted in Chapter
IX of the Act. The better course was to insert illustration (b) to Section 114
as an explanation or in any ease as a proviso to Section 133 of the Act instead
of their insertion at two different places and that too in different chapters
of the Evidence Act. In any case since an approver is a guilty companion in
crime and, therefore, illustration (b) to Section 114 provides a rule of
caution to which the courts should have regard. It is now well settled by a
long series of decisions that except in circumstances of special nature it is
the duty of the court to raise the presumption in Section 114 illustration (b)
and the Legislature requires that the courts should make the natural
presumption in that section as would be clear from the decisions which we shall
discuss hereinafter.
44. In
Bhiva Doulu Patil v. State of Maharashtra6
this Court took the view that the combined effect of Sections 133 and 114,
illustration (b) may be stated as follows.
According
to the former, which is a rule of law, an accomplice is competent to give
evidence and according to the latter which is a rule of practice it is almost
always unsafe to convict upon his testimony alone. Therefore, though the
conviction of an accused on the testimony of an accomplice cannot be said to be
illegal yet the courts will as a matter of practice, not accept the evidence of
such a witness without corroboration in material particulars.
There
should be corroboration of the approver in material particulars and qua each
accused. Similar observations were made by this Court in Ram Narain v. State of
Rajasthan7 in the following words: (SCC
headnote) "Section 133 expressly provides that an accomplice is a
competent witness and the conviction is not illegal merely because it proceeds
on uncorroborated testimony of an accomplice. In other words, this section
renders admissible such uncorroborated testimony. But this section has to be
read along with illustration (b) to Section 114.
The
latter section empowers the court to presume the existence of certain facts and
the illustrations elucidate what the court may presume and make clear by means
of examples as to what facts the court shall have regard in considering whether
or not the maxims illustrated apply to a given case before it.
Illustration
(b) in express terms says that an accomplice is unworthy of credit unless he is
corroborated in material particulars. The statute permits the conviction of an
accused person on the basis of uncorroborated testimony of an accomplice but
the rule of prudence embodied in 6 AIR 1963 SC 599 :(1963) 1 Cri LJ 489 : 1963
All LJ 253 7 (1973) 3 SCC 805 : 1973 SCC (Cri) 545 108 illustration (b) of
Section 114 strikes a note of warning cautioning the court that an accomplice
does not generally deserve to be believed unless corroborated in material
particulars. In other words, the rule is that the necessity of corroboration as
a matter of prudence except when it is safe to dispense with such corroboration
must be clearly present to the mind of the Judge."
45.
Further in Ravinder Singh v. State of Haryana8 this Court while considering the
approver's testimony within the meaning of Section 133 of the Evidence Act made
the following observations: (SCC headnote) "An approver is a most unworthy
friend, if at all, and he, having bargained for his immunity, must prove his
worthiness for credibility in court. This test is fulfilled, firstly, if the
story he relates involves him in the crime and appears intrinsically to be a
natural and probable catalogue of events that had taken place. The story if
given of minute details according with reality is likely to save it from being
rejected brevi manu.
Secondly,
once that hurdle is crossed, the story given by an approver so far as the
accused on trial is concerned, must implicate him in such a manner as to give
rise to a conclusion of guilt beyond reasonable doubt.
In a
rare case, taking into consideration all the factors, circumstances and
situations governing a particular case, conviction based on the uncorroborated
evidence of an approver confidently held to be true and reliable by the court
may be permissible. Ordinarily, however, an approver's statement has to be
corroborated in material particulars bridging closely the distance between the
crime and the criminal. Certain clinching features of involvement disclosed by
an approver appertaining directly to an accused, if reliable, as determined by
the touchstone of other independent credible evidence, would give the needed
assurance for acceptance of his testimony on which a conviction may be
based." Thus it is clear that a definite rule has been crystallized to the
effect that though a conviction can be based on uncorroborated evidence of an
accomplice but as a rule of prudence it is unsafe to place reliance on the
uncorroborated testimony of an approver as required by illustration (b) of
Section 114 of the Evidence Act.
46.
The two courts below after a thorough examination of the statement of the
approver Ram Sagar PW 3 took the view that his testimony was corroborated on
all material particulars by the independent witnesses and, therefore, he was
worthy of reliance. Ordinarily this Court under Article 136 of the Constitution
does not review and reappraise the evidence for itself and the conclusions of
the High Court on questions of fact or appreciation of evidence are considered
to be final. It is, therefore, not necessary for us to scrutinize the evidence
of approver threadbare again. We shall, however, scrutinize his evidence on
broad and material particulars to satisfy ourselves whether the two courts
below were justified in recording conclusion that the testimony of the approver
deserved credence.
47.
The examination of the approver Ram Sagar Vishwakarma commenced in the trial
court on 6-1-1986 as PW 3 and continued for several days in which he deposed
that he worked in the furniture shop of the appellant S. Gurbachan 8 (1975) 3
SCC 742: 1975 SCC (Cri) 202 : AIR 1975 SC 856 109 Singh from 1979 to 1984,
which covers the relevant period.
He
stated that the appellant Suresh Bahri was known to him as he used to visit the
shop of S. Gurbachan Singh quite often and wife and the children of Suresh also
visited the shop. He stated that on 4-10-1983 while he was going from the shop
after the work was over the appellant Gurbachan Singh stopped him and said that
he had some important work with him. Gurbachan Singh then took him into
confidence and enquired of him whether he knew anyone who could commit the
murder of the wife of his friend. When the witness Ram Sagar PW 3 enquired of
him as to which friend, the appellant Gurbachan Singh told that the wife of
Suresh Bahri is to be murdered on account of the family dispute. Ram Sagar
further stated that next day when he again went to the shop, Gurbachan Singh
again in the presence of appellant Suresh Bahri persuaded him for the same
thing attracting him with an allurement that he will not be required to pay
back the money taken by him as an advance and on the contrary he will ask
Suresh also to give him some more money for the assistance rendered by him. Ram
Sagar then asked them as to what he had to do. The appellant Suresh told him
that he has to prepare and bring a danda (baton) to his bungalow and hide it in
the shrubs of the bungalow. He was further advised by Suresh that while they
would be busy in taking tea he should strike the baton on the head of his wife
and make her unconscious and rest of the work will be done by himself and S.
Gurbachan Singh. Ram Sagar further deposed that he prepared a baton as advised
and he along with S. Gurbachan Singh went to the house of Suresh Bahri on
scooter at 7.30 p.m. and kept the baton under the shrubs
of a flower plant as directed by Gurbachan Singh and sat at the place where
scooter was parked by Gurbachan Singh. At that time Suresh Bahri and two others
were taking tea in the verandah of the house of Suresh Bahri. After five
minutes those two persons went away from there. Meanwhile the wife of Suresh
Bahri came in the verandah from inside and pointing towards him, enquired from
Suresh as to who was sitting in the dark near the scooter. Suresh told that he
was labour of S. Gurbachan Singh. After some time S. Gurbachan Singh took him
on the scooter and came back saying that since there is frequency of visitors,
it is not possible to execute the work.
48.
Ram Sagar PW 3 further stated that next day when he again attended the shop of
Gurbachan Singh for work as usual the appellant Suresh came there at about
10.00 a.m. and told to Ram Sagar that the baton he had prepared will not work
being very thin and asked him to prepare a heavy baton.
Then
he along with S. Gurbachan Singh proceeded to the house of Suresh Bahri at about
7.30 p.m. same day, but he stopped the scooter on the way and Ram Sagar
declined to go with him saying that it was the festival day and the police was
patrolling the area. S. Gurbachan Singh also did not go to the house of Suresh
that day as he too had to go to the hospital. Next day the appellant Suresh
Bahri came to the shop of S. Gurbachan Singh and asked the reason for not
reaching his house the previous day. According to the statement of Ram Sagar
Suresh again approached Gurbachan Singh at his shop next day saying that the
work has to be done urgently and if it could not be done that day 'Machhiwala'
would come for registration of sale deed and then Gurbachan Singh took him on a
scooter that very day i.e. 11-10-1983 at about 4.30 p.m. to a house in the
Railway Colony, Ranchi for taking measurements for fixing doors and windows and
while they 110 were returning at about dusk on 11-10- 1983 Gurbachan Singh took
him to the house of Suresh Bahri. Gurbachan Singh met Suresh in the verandah of
his house. After having some talk in the verandah both Gurbachan Singh and
Suresh Bahri went inside the house. But immediately Gurbachan Singh came out
and called the witness Ram Sagar. On being asked by S. Gurbachan Singh he went
inside but remained standing dumbfounded at the door of the small room
connecting a big room. Gurbachan Singh called him inside but he ignored as his
body began to tremble and Gurbachan Singh made him sit on the sofa and served
him a glass of water. Ram Sagar goes on to state that when he was standing near
the door of the room he saw the dead body of the wife of Suresh Bahri in the
small room. He saw her head totally severed and separated from the body placed
on a cotton in the corner of the room.
The
appellant Raj Pal Sharma was also present there putting on only underwear and
was seen collecting the blood with the cotton. He stated that at that time a
lamp was burning in the drawing room and a candlestick was burning in the small
room and that there was no other person except Suresh Bahri, Raj Pal Sharma, S.
Gurbachan Singh and Ram Sagar himself.
49.
Ram Sagar PW 3 further deposed that a saree was kept by the side of the dead
body which was stained with blood and a long knife was kept near the head which
was given by S. Gurbachan Singh a few days prior to the occurrence to Rameshwar
Thakur PW 4 an employee of the shop for sharpening. A short while later there came
a sound of opening the gate of the compound of Suresh Bahri indicating that
someone was coming. A person came and as soon as he stepped forward to go to
the verandah the appellant Suresh Bahri went out caught hold of that person by
his hand and took him down the verandah. That man enquired from Suresh about
his wife saying 'where is Mem Saheb' meaning thereby the wife of Suresh. Suresh
Bahri told him that his wife had gone to the house of S. Gurbachan Singh for
dinner and from there she will proceed to Delhi by the next morning flight.
Suresh
then took that man out of the compound of his house and returned back. Then
Suresh Bahri went out on a motorcycle along with Gurbachan Singh directing the
appellant Raj Pal Sharma to clean all stains properly and that they will be
returning shortly. Both of them returned within 10 minutes with a liquor
bottle. Since no glasses were available in the house Suresh Bahri went out to
bring the glasses. Murari Lal PW 1 came with four glasses whose house was
situated adjacent to the house of Suresh and then went back. All of them then
consumed liquor. Thereafter when Ram Sagar PW 3 wanted to go Suresh made him to
stay in order to help them in tying up the dead body. Suresh brought a plastic
sheet from inside the house. Raj Pal Sharma spread the plastic sheet in the
room in which the dead body was laid and the witness Ram Sagar and Raj Pal
Sharma lifted the dead body and placed it on the plastic sheet. Suresh Bahri
then tore half of the saree already kept there and wrapped the dead body with
it. S. Gurbachan Singh tore a piece of rope from the cot, Suresh Bahri brought
a blackish blanket and then the witness Ram Sagar himself and the appellant Raj
Pal Sharma wrapped the dead body in the blanket and tied it with the rope.
50.
The approver Ram Sagar PW 3 further stated that appellant Suresh Bahri asked
Gurbachan Singh to prepare a box with a view to put the dead body in the box
and leave the box in any train. But later on changed the idea because 111 of
the risk involved in carrying the dead body in the wooden box and decided to
dump the dead body in sceptic tank of the house itself and to throw the head in
some jungle. Suresh asked Gurbachan Singh to come to his bungalow at about 7.30 p.m. same day for purposes of dropping the dead body in
the sceptic tank. He, therefore, along with Gurbachan Singh went to the house
of Suresh Bahri where Suresh Bahri and appellant Raj Pal were already present
there. Suresh Bahri and Gurbachan Singh asked the witness Ram Sagar and
appellant Raj Pal to take out the dead body from the house to dump it in the
sceptic tank. Appellant Raj Pal attempted to lift the body but could not and
then Gurbachan Singh brought a bamboo ladder and with the help of ladder they
dumped the dead body in the sceptic tank situated on the southern side of the
bungalow compound of Suresh. The appellant Suresh then asked the appellant
Gurbachan to bring some salt for putting it in sceptic tank. The witness Ram
Sagar and Gurbachan Singh then brought 20 kg salt after purchasing it and the
witness Ram Sagar and Raj Pat dropped the salt in the tank. The approver Ram
Sagar PW 3 further deposed that Suresh came to the furniture shop of his master
the following day at about 10 a.m. and
reported that the head of Urshia has been thrown in a forest.
51.The
approver Ram Sagar went on to state that on 21-10- 1983 Suresh told Gurbachan
Singh that he was going to Delhi to attend some court case and would return up
to 26/27th October. But when Suresh did not return on 27-10-1983 Gurbachan Singh sent him to Delhi but he could not meet Suresh Bahri
there. He was told by the Manager that he had gone to Ranchi. He therefore went to Ranchi on 4th November. There Gurbachan
told him that Suresh had come to Ranchi and was staying in Blue Heaven Hotel, Ranchi. He met Suresh Bahri in the said hotel. After a few days
Gurbachan Singh told the witness that the Police Inspector, Chutia Police
Station was searching Suresh Bahri in connection with murder of Urshia and,
therefore, Gurbachan Singh sent him to Delhi to tell Suresh about it. The witness Ram Sagar came to Delhi and informed Suresh accordingly and
Suresh sent message to Gurbachan Singh to handle the matter carefully.
Ram
Sagar also stated that Suresh had asked him to send four chairs and one cot to
his farmhouse at Dhulli.
52.
Ram Sagar further stated that he again came back from Delhi to Ranchi on 20/21-11-1983 where Suresh Bahri told Gurbachan that
there is a red coloured attache kept in the almirah of his house in which there
is a 'chhuri'. Suresh asked Gurbachan to get the chhuri sharpened and keep the
three kataries and chhuri in that very attache again. Ram Sagar also deposed
that he had fixed the handles in the three kataries and Gurbachan Singh had
given him Rs 20 for purchasing the kataries. The witness Ram Sagar was shown
the kataries, Ext. 5 which he identified to be the same.
Ram
Sagar goes on to state that he went to Dhulli farm along with Gurbachan Singh
with the said attache and the bag in which chhuri and kataries and some papers
were kept. The witness Ram Sagar was shown 13"-14" long knife which
he identified as the one with which wife of Suresh Bahri was murdered. At
Dhulli farm Gurbachan Singh gave that attache to the gardener of Suresh Bahri
and asked him to keep the attache and give it to Suresh who was due to come
within 3-4 days. Ram Sagar further stated that he had sent four chairs and one
cot to Dhulli farm through the son of the gardener of Suresh.
112
53.Further
approver Ram Sagar PW 3 deposed that one morning in the month of December
appellant Raj Pal Sharma came to the shop of Gurbachan Singh and told him that
the appellant Suresh had come to Dhulli farm with his children and he has
called Gurbachan Singh. Thereafter Raj Pal Sharma and Gurbachan Singh went
towards Dhulli on a motorcycle. A few days later Gurbachan Singh said to Ram
Sagar PW 3 that the dead body has to be taken out from sceptic tank and in this
connection he may take the help of John Linda PW 31 and Manohar the employees
of his shop. Ram Sagar further stated that he went to the bungalow of Suresh
along with John Linda PW 31 and Manohar. After taking out some mud from the
tank the dead body became visible. Ram Sagar told to John Linda that the dead
body was dropped in the tank and he should not tell to S. Gurbachan Singh that
Ihad told this fact to him. At this John refused to take out the dead body. Ram
Sagar, therefore, along with John Linda and Manohar came back to his shop as
both of them had refused to clean the tank and take out the dead body. At this
appellant Gurbachan Singh went on a scooter saying that he will have to do the
work himself. Ram Sagar further stated that Gurbachan Singh told to a truck
driver at the shop that he had purchased a piece of land where he had to drop
some soil and if he finds any dead body there the driver should throw it away.
As stated earlier the confessional statement of approver Ram Sagar, PW 3 was recorded
by the learned Magistrate on 19-12-1984 to 21-12- 1984 and he was examined on
30-1-1985 as witness in the Court of Magistrate under Section 306(4)(a) of the
Code.
While
his statement as PW 3 as recorded by the learned trial Judge on 6-9-1986 which
continued for several days and concluded on 19-11-1986 as he was thoroughly
cross-examined by several learned counsel appearing for the appellants as well
as for the three acquitted accused. But we find that the testimony of the
approver remained consistent except for minor and insignificant contradictions
and omissions which are bound to occur in the statement of anyone.
54.The
only question that now remains to be considered is whether the evidence given
by the approver has received corroboration in material particulars from
independent sources. We shall now first advert to the witness connected with
the murder of Urshia and the circumstantial evidence relating thereto.
55.As
stated earlier Murari Lal, PW1 had a grocery shop just adjacent to the house of
appellant Suresh Bahri in Ranchi. He was
not only the next door neighbour but a family friend of Suresh Bahri for the
last about 15 to 20 years prior to the occurrence and in fact he also served as
caretaker of the Bungalow No. 936. Murari Lal PW1 stated that the appellant Raj
Pal Sharma met him for the first time on 26-9-1983 or 27-9-1983 when he came with a letter of Suresh stating therein that
he should hand over the keys of the house to Raj Pal Sharma. Murari Lal,
therefore, directed the gardener Mool Chand Mali PW 24 to allow Raj Pal to stay
in the house where Raj Pal stayed till 1-10-1983.
Murari
Lal also stated that on 1-10-1983 when Suresh came to Ranchi accompanied by his
wife Urshia, Raj Pal Sharma could not be seen in the house thereafter and that
he saw Raj Pal Sharma only after 5-6 days later on Chutia Road along with
Suresh. When Murari Lal enquired about Raj Pal Sharma, Suresh told him that he
had arranged a job to him in the shop of S. Gurbachan Singh. Murari Lal further
113 stated that on 11-10-1983 at about 5.00 p.m. Suresh and his wife Urshia
came to his shop when he was told by Urshia that both of them would be leaving
next day for Delhi and, therefore, he should not give the bill of the articles
purchased by them from his shop on credit. Murari Lal further deposed that
Badri Narayan Mishra PW 2 also came to his shop at about 7.00 p.m. and told him
that he had gone to the house of Suresh Bahri to meet Suresh and his wife but
he could not meet his wife and was told by Suresh that his wife had gone in a
party to the house of S. Gurbachan Singh and she would be going to Delhi next
morning by air direct from his house. Murari Lal PW1 went on to state that on
10-11- 1983 itself at about 8.00 p.m. he went to the house of Suresh Bahri with
the bills as required by them and handed over the bills to Suresh in the
drawing room where he found Gurbachan Singh and the approver Ram Sagar PW 3
also sitting on a sofa. He noticed that a kerosene lamp was lighted in the room
and he saw Raj Pal Sharma with a bloodstained chhura. Suresh asked him for four
empty glasses which he supplied from his shop and came back to his shop. Suresh
told him that payment of the bills would be made next day.
56.Next
morning when Murari Lal PW1 noticed Suresh standing outside his house, he told
him that he had returned back from airport after seeing off his wife. Murari
Lal also stated that he purchased some land from Suresh out of his Ranchi house and one Arjun Sharma and
another person also purchased some land. He further stated that on 6-1- 1984
Bhola Nath Choubey, Rajan Sharma and appellant Gurbachan Singh had also
purchased land out of the Ranchi
property of Suresh when Suresh was staying in Amber Hotel, Ranchi. From the evidence of S. Ranjit Singh PW 18 the Manager of
Amber Hotel, Ranchi, it is evident that though the appellant Suresh had his own
house at Ranchi yet he prepared to stay in Amber Hotel from 5-1-1984 to
9-1-1984, in the name of S. Chander and the handwriting expert S.C. Mittal PW
65 established that the entries in the Amber Hotel register were in the
handwriting of appellant Suresh.
57.Murari
Lal PW1 further deposed that the appellant Suresh had asked Bhola Nath, one of
the purchasers of the land to demolish the sceptic tank which existed in the
land purchased by him and on questioning by Bhola Nath the reason for so doing,
the appellant Suresh said that he should speak to Gurbachan Singh in this
connection. Murari Lal stated that in his presence Bhola Nath asked Gurbachan
Singh the reason for demolition of the sceptic tank but Gurbachan Singh did not
disclose the same. Murari Lal stated that on 7-1-1984 Gurbachan Singh came to his house and told him that he
would himself demolish the sceptic tank and when Murari PW 1, along with Bhola
Nath went to the sceptic tank they met Gurbachan Singh there who told that
there was a headless body in the sceptic tank tied with a blanket and rope.
Gurbachan
Singh told them to fill up the sceptic tank by dumping red soil in it. At this
Bhola Nath said that he would like to take neat and clean land to which
Gurbachan Singh agreed but at the same time gave a threat that if he divulged
these facts to anybody else he would kidnap the only son of Bhola Nath and blow
him with a bomb. Murari Lal stated that same evening Gurbachan Singh brought
truck load of soil in the compound of the house of Suresh Bahri and after half
an hour the truck went back. He stated that same day at about 9.00 p.m. Gurbachan Singh again came to him and asked him to
call Choubey. He called Bhola Nath Choubey when Gurbachan Singh told him that
mall has been removed from the 114 sceptic tank (meaning thereby that the dead
body has been removed from the sceptic tank). When the witness Murari Lal PW1
enquired from Gurbachan Singh as to where has he disposed of the same the later
replied that it has been thrown behind the hillock.
58.Badri
Narayan, PW 2 is yet another neighbour of Suresh at Ranchi who is fully known to his family
for the last several years. Badri Narayan worked as an intermediary in the deal
of the house between Urshia Bahri and Laxmi Narayan, PW 21, who wanted to
purchase Ranchi house from Urshia. He deposed that
the deal was almost finalised. He also stated that Suresh and his wife Urshia
had come to Ranchi on 1-10-1983 and Laxmi Narayan, PW 21 came to him on 10th October and
expressed the desire of his family members to see the house of Suresh on 11-10-1983. Badri Narayan, therefore, conveyed this information
to Suresh and informed Laxmi Narayan also that the house can be seen in the
afternoon of 11-10-1983 at about 7.30 p.m. when he went to the house of Suresh, he noticed no
light in the house though there was electric light in the adjoining houses.
Badri Narayan stated that when he reached near the door of the drawing room the
appellant Suresh rushed out and took him out of the verandah. But while going
out Badri Narayan saw Gurbachan Singh and one another man sitting on the sofa
of the drawing room whom he identified as Ram Sagar PW 3. Badri Narayan also
saw while going away that a kerosene lamp was lighted in the drawing room and a
person was moving about from one room to another wearing only an underwear.
While he was taken out of the verandah Badri Narayan enquired about Urshia and
Suresh told him that she had gone to a party to the house of Gurbachan Singh
where she would be staying in the night and proceed to Delhi by the morning flight. Badri
Narayan also stated that after a few days Laxmi Narayan, PW 21 told him that
although the deal was finalised but he noticed that other persons were digging
earth for laying foundation on the property and when they met Suresh he told
that he would not sell the property but a memorial of his father would be
constructed there. Laxmi Narayan, PW 21 got suspicious and, therefore, he made
enquiries from Airlines Booking Office, Ranchi and learnt that no person named Urshia had travelled by air on
12-101983 from Ranchi to Delhi. The prospective purchaser Laxmi Narayan PW 21 corroborated
the statement of Badri Narayan PW 2 so far as it relates to the negotiations
with regard to the purchase of the house is concerned.
59.Rameshwar
Thakur, PW 4, was also at the relevant time an employee of Gurbachan Singh in
his furniture shop who stated about his acquaintance with Suresh who was on
friendly terms with his master and was a frequent visitor to his shop. He
stated that sometime in the month of October 1983 Suresh visited the shop of
Gurbachan Singh when Gurbachan Singh handed over a dagger to the witness to
sharpen it.
Rameshwar
further stated that after a couple of days he returned the dagger to Gurbachan
Singh after getting it sharpened. As said John Linda, PW 31, was also an
employee of Gurbachan Singh in his furniture shop. Linda also stated that he
was acquainted with Suresh Bahri who made frequent visits to his master's shop.
He deposed that Gurbachan Singh called him along with Ram Sagar, PW 3, at the
house of Suresh in the month of January 1984 for taking out soil from the
sceptic tank but when he along with others after digging the sceptic tank
noticed a bundle of dead body tied with blanket and rope, he became upset. He
further deposed that when Gurbachan 115 Singh asked them to take out the dead
body, they refused to comply the direction and he as well as other workers went
back to the shop.
60.Moolchand
Mali PW 24 was the gardener at the relevant time in Ranchi House No. 936 of
Suresh Bahri and lived in a servant quarter behind the bungalow. He knew the
family of Suresh Bahri very well. Moolchand stated that there used to be
frequent dispute between Suresh Bahri, his mother and the deceased wife of
Suresh in connection with the sale of the bungalow, as Urshia insisted for sale
but Suresh and his mother were opposed to it. He stated that one day in the
month of Chaitra 1983 (much before the murder of Urshia) Suresh Bahri took him
behind the bungalow and told that a person has to be murdered and if he helped
him in doing so, he will make him wealthy. The witness replied to Suresh that
he would not be able to do it. Suresh then asked him to call someone else for
this purpose and the witness replied that he does not know any such person for
this purpose. At this Suresh asked him to make his arrangement elsewhere. The
witness Moolchand deposed that thereafter he managed his employment with Jogda
Math and started working there but he continued to live in the servant quarter
in the bungalow of Suresh. He also stated that Suresh came to Ranchi along with his wife sometime after
the summer vacations and one day he asked him to take him to one Ojha known as
Lal Saheb. He took Suresh to that Ojha who lived in Chutia. Suresh Bahri spoke
to that Ojha that his wife was mad and was a nuisance for him and hence he
wanted to bring an end to her life. At this Ojha demanded Rs 250 saying that
his work would be done and Suresh complied with the directions given to him by
that Ojha. Moolchand further stated that next day the appellant Suresh again
took him to that Ojha and complained that the work could not be done though he
had paid the desired amount of Rs 250. At this that Ojha said to Suresh that he
will not be able to do his work and he may get it done from someone else.
61.Witness
Moolchand Mali, PW 24, corroborated the statement
of Murari Lal PW1 stating that he was called by Murari Lal who told him that
Suresh had sent a man (Raj Pal Sharma) from Delhi who will stay in the bungalow. Murari Lal gave him the key and directed
him to open the bungalow.
Moolchand
further stated that he opened the bungalow for that man who was tall and thin
and he identified Raj Pal Sharma to be that person who had stayed in the
bungalow.
Moolchand
further stated that Murari Lal Sharma had given Rs 10 for the meals of Raj Pal
Sharma and therefore he took him to the hotel where he took his meals.
Moolchand also stated that Raj Pal continued to stay in the bungalow for about
4-5 days when Suresh Bahri also came to Ranchi along with his wife and stayed in the bungalow. Suresh asked Moolchand
to vacate the quarter of the bungalow and therefore he vacated and left the
place.
62.Shambhu
Tiwari, PW 7 who at the relevant time was running a tea stall opposite Chutia
Police Station, Ranchi stated that sometime towards the end of September 1983
Raj Pal Sharma had come to his tea shop for taking tea and continued to take
tea twice or thrice a day for about 10-12 days but he had no money to make
payment of tea for 5-6 days and when he demanded the money he told him that he
was a man of Suresh and had come to Ranchi to look after the house of Suresh
which was going to be sold. He further stated that Murari Lal PW1 confirmed
that Raj Pal Sharma was a man of Suresh and that Suresh will make payment of
his dues.
Witness
Tiwari PW 7 identified Suresh also.
116
63.In
addition to what has been discussed above clearly establishing the conspiracy
hatched by the appellant Suresh along with his two associates, namely, Raj Pal
Sharma and S. Gurbachan Singh for the murder of Urshia and in pursuance of
which Urshia was murdered, there is some other evidence also which connects the
appellants with the crime in question.
64.Rohtas
Sarang PW 79 is the mother of Urshia who deposed that she had received last
letter from Urshia in America in the month of September 1983 as a
result of which she was very much upset. When she received two unusual letters
dated 29-10-1983 and 3-11-1983 i.e. after the murder of Urshia which are Ext.
23/6 and Ext. 23/7 from Suresh Bahri that Urshia was very much busy and
henceforth he would be writing them and also asked them that in future
correspondence they should use the address of S. Gurbachan Singh who is a good
friend of Suresh at Ranchi her suspicion increased exceedingly. A perusal of
the letters will go to show that Suresh mentioned therein that Urshia had given
up the idea of divorce, Ranchi house has been sold away and as
Urshia would be busy for quite a long time, the two children will be shifted to
Ranchi for their study and, therefore,
they should not worry about them. A reading of the two letters reproduced by
the High Court in its judgment evidently goes to show that Suresh was conscious
of the fact that Urshia was in regular contact with her parents in America and
as the contact had come to an end with her murder, something had to be done to
explain her silence by misguiding her parents that there existed no dispute
between them. Urshia having given up the idea of divorce and they were living
in harmony and a happy life and as the Ranchi house has been sold away they should not worry about them at all.
65.This
brings us to the evidence relating to the disclosure statement said to have
been made by Raj Pal Sharma about the skull of Urshia and the recovery thereof.
After his arrest on 12-8-1984 appellant Raj Pal Sharma made the
disclosure statement Ext. 32 which was drawn up by CBI Inspector Madan Lal PW
85 assisted by Inspector Rajendra Singh PW 82 in the presence of two witnesses,
namely, Satya Dev Tiwari PW 73 and Dev Nandan PW 74. Satya Dev Tiwari and Dev
Nandan stated that in pursuance of disclosure statement a skull, hair and some
other articles were seized as per seizure memo Ext. 33 at the instance of
appellant Raj Pal Sharma from a forest on Ranchi-Patratru Road. Similar is the statement of CBI Inspector, Madan Lal, PW
85, and Rajendra Singh PW 82.
There
is nothing on record to disbelieve or doubt their testimony with regard to
disclosure statement and the recovery of a skull, hair and other articles at
the instance of the appellant Raj Pal Sharma.
66.The
skull and other articles seized as per seizure memo, Ext. 33 referred to above
were sent to the Director, Medico- Legal Institute, Gandhi Medical College, Bhopal for examination and report by its Director, Dr Harish
Chander.
Dr
Harish Chander, the Director of the Institute-cum-Legal Advisor to the
Government of M.P. sent big report Ext. 2/81 after examination with his opinion
that the skull belonged to a female human being whose age was 33 years plus
minus 5 years. Dr Harish in his report had also asked for some other
information and photograph and clothings of the deceased in order to fix up the
identity of the person to whom the skull belonged to but the prosecution could
not furnish the required information. Dr Harish submitted another report giving
his opinion that in the absence of the material required by him it cannot be
said with 117 certainty that identity was established though there is
resemblance with the skull of the deceased. Dr Harish could not be examined by
the prosecution as a witness due to his illness but an expert of his department
Dr S.C. Jain PW 80 had appeared and stated that Prof. Harish Chander was
suffering from paralysis and, therefore, could not appear as a witness. He
further proved the aforesaid two reports sent by Prof. Harish Chander. He
stated that he had examined the skull and other materials after discussion with
Prof. Harish Chander for which he prepared a note Ext. 30.
67.On
the basis of the two reports sent by Prof. Harish Chander and the statement
made by Dr S.C. Jain, PW 80, Shri Sushil Kumar learned counsel appearing for
the appellant Raj Pal Sharma contended that the identity of the skull alleged
to be of the deceased Urshia Baliri is doubtful and remained unestablished and,
therefore, the conviction for the charge of murder and/or conspiracy to murder
Urshia Bahri cannot be said to be established by the prosecution particularly
when there is no positive proof of the hair said to have been recovered along
with the skull belonging to a woman or the head of the deceased Urshia. In our
considered opinion there is no substance in these submissions as most often and
in certain cases even the dead body of the deceased person is not recovered or
seized but if there is positive evidence to connect the culprit, it cannot be
said that the offence of murder is not established. In the present case it is
no doubt true that Prof. Harish could not give his opinion with certainty with
regard to the identity of the skull, but in view of the evidence on record
which has been discussed by us in detail it could not be accepted that the
prosecution has failed to establish that the skull which was recovered at the
instance of the appellant Raj Pal Sharma did not belong to the deceased Urshia.
The very fact that Raj Pal Sharma made the disclosure statement that after
severing the neck from her body the skull was thrown in the jungle which was
seized only at the instance of the appellant Raj Pal Sharma who searched out
the skull in the forest and produced it before the investigating agency in the
presence of independent witness coupled with the report of Prof. Harish Chander
that it was the skull of a female whose age was about 33 years plus minus 5
years on either side which in fact was the age of deceased Urshia, there isno
difficulty in recording the conclusion that the skull belonged to none else but
Urshia.
68.There
is yet another piece of circumstantial evidence to connect the accused
appellants with the conspiracy and murder of Urshia in the shape of recovery of
certain articles which were used in wrapping the dead body while throwing the
same in the sceptic tank, and which were recovered from a khad gaddha at Ranchi
where the waste of Ranchi was dumped. Rajeshwar Singh PW 59 was the Station
House Officer, Police Station Chutia at the relevant time, stated that on the
report of Bineet Singh PW 69 P.S. Case No. 27/84 with regard to murder of
Urshia was registered in Lower Bazaar Police Station as at that time Chutia
Police Station was under Lower Bazaar Police Station and the case was handed
over to CBI by notifications of the Central and State Governments. Rajeshwar
Singh PW 59 investigated the case. During the course of investigation as stated
earlier PW 59 had arrested the appellant Gurbachan Singh. He deposed that
during the course of investigation the appellant Gurbachan Singh took him near
Khad gaddha hillock where the waste of Ranchi 118 city is dumped. He deposed that at the instance of Gurbachan Singh
he got the place unearthed by labourers to discover the dead body of Urshia
which could not be found but a piece of blanket, piece of saree and a rope were
found which were seized at the instance of Gurbachan Singh by seizure memo Ext.
5 dated 2-2-1984 which was prepared by ASI Rangnath Singh on his direction.
These articles were put to test identification. Shri Atulya Kumar Bara PW 83 an
Executive Magistrate on the orders of CJM, Ranchi, held TI parade of the articles in the verandah of the Chutia Police
Station. An old piece of light green blanket, three pieces of sky blue-black
checked saree and rope were identified by Murari Lal PW1 and Badri Nath Mishra
PW 2 as per identification memo Ext. 36 prepared by Atulya Kumar Bara PW 83.
69.He
deposed that no person was present at the place where identification of these
articles was held. Murari Lal PW1 was one of the witnesses who identified the
blanket piece, saree pieces and the rope in TI parade and had signed the TI
memo. He deposed in para 17 that Urshia Bahri was wearing that saree when she
came to his shop in the evening of 11-10-1983 and he had seen in the sceptic tank
the blanket and the rope with which the dead body was wrapped and tied.
Similar
is the statement of Badri Narayan Mishra PW 2 who stated in para 9 of his
deposition that he had identified the aforementioned articles in the TI parade
held in Chutia Police Station and had signed the memo. He stated that when he
met Urshia Bahri at her house in the morning of 11-101983 she was wearing the
saree of which the pieces were identified by him in the TI parade and he had
seen the blanket kept on the takht in the house of Suresh Bahri when he visited
the house. He also stated that rope was a part of the rope of the cot which was
kept in the verandah of the house of Suresh Bahri. This part of the prosecution
evidence also could not be demolished by the defence although the witnesses
were cross-examined thoroughly and by several counsel appearing for the accused
persons. There is nothing on record to discredit their testimony.
70.However,
learned counsel appearing for the appellants relying on the decision in the
case of Nari Santa v. Emperor9 and Abdul Sattar v. Union Territory,
Chandigarh1O vehemently urged that the alleged recovery of blanket, piece of
saree and rope said to have been made by the investigating agency at the
instance of the appellant Gurbachan Singh in the absence of any disclosure
statement and without any pointing out memo of the place of recovery and without
the public witness to the alleged recovery could not be treated as valid
recovery in the eye of law within the meaning of Section 27 of the Evidence
Act. It is true that no disclosure statement of Gurbachan Singh who is said to
have given information about the dumping of the dead body under the hillock of
Khad gaddha dumping ground was recorded but there is positive statement of
Rajeshwar Singh, PW 59, Station House Officer of Chutia Police Station who
deposed that during the course of investigation Gurbachan Singh led him to Khad
gaddha hillock along with an Inspector Rangnath Singh and on pointing out the
place by Gurbachan Singh he got that place unearthed by labourers where a piece
of blanket, pieces of saree and rassi were found which were 9 AIR 1945 Pat 161
: 46 Cri LJ 613 : 219 IC 391 10 1985 Supp SCC 599: 1985 SCC (Cri) 505 : AIR
1986 SC 1438 119 seized as per seizure memo Ext. 5. He further deposed that he
had taken two witnesses along with him to the place where these articles were
found. Rajeshwar Singh PW 59 was cross- examined with regard to the identity of
the witness Nand Kishore who is said to be present at the time of recovery and
seizure of the articles as well as with regard to the identity of the articles
seized vide paragraphs 18, 21 and 22 of his deposition but it may be pointed
out that no cross-examination was directed with regard to the disclosure
statement made by the appellant Gurbachan Singh or on the point that he led the
police party and others to the hillock where on his pointing out, the place was
unearthed where the aforesaid articles were found and seized. It is true that
no public witness was examined by the prosecution in this behalf but the
evidence of Rajeshwar Singh PW 59 does not suffer from any doubt or infirmity with
regard to the seizure of these articles at the instance of the appellant
Gurbachan Singh which on TI parade were found to be the articles used in
wrapping the dead body of Urshia.
According
to the evidence of PW1 and PW 2 as said earlier the saree pieces were part of
the saree of Urshia that she was seen wearing by these witnesses, the blanket
piece was a part of the blanket which was seen on the takht in the house of the
appellant Suresh Bahri and the piece of rope was the part of the rope said to
be taken out from the cot kept in the verandah of the house of Suresh.
71.The
two essential requirements for the application of Section 27 of the Evidence
Act are that (1) the person giving information must be an accused of any
offence and (2) he must also be in police custody. In the present case it
cannot be disputed that although these essential requirements existed on the
date when Gurbachan Singh led PW 59 and others to the hillock where according
to him he had thrown the dead body of Urshia but instead of the dead body the
articles by which her body was wrapped were found. The provisions of Section 27
of the Evidence Act are based on the view that if a fact is actually discovered
in consequence of information given, some guarantee is afforded thereby that
the information was true and consequently the said information can safely be
allowed to be given in evidence because if such an information is further
fortified and confirmed by the discovery of articles or the instrument of crime
and which leads to the belief that the information about the confession made as
to the articles of crime cannot be false. In the present case as discussed
above the confessional statement of the disclosure made by the appellant
Gurbachan Singh is confirmed by the recovery of the incriminating articles as
said above and, therefore, there is reason to believe that the disclosure
statement was true and the evidence led in that behalf is also worthy of
credence.
72.In
the light of the facts stated above we are afraid the two decisions mentioned
above and relied on by the learned counsel for the appellants have no
application to the facts of the present case and do not advance the case of the
appellants challenging the discovery and seizure of the incriminating articles
discussed above. In Nari Santa9 the accused of that case was charged for the
theft and it is said that in the course of investigation the accused produced
certain articles and thereafter made a confessional statement and it was in
these facts and circumstances it was held that there was no disclosure
statement within the meaning of Section 27 as the confessional statement was
made only when the articles were already discovered having been produced by the
accused. Similarly the decision rendered in Abdul Sattar10 also does not help
the 120 appellants in the present case. In the case of Abdul Sattar10 recovery
of wearing apparels of the deceased is said to have been made at the instance
of the accused of that case more than three weeks after the occurrence from a
public place accessible to the people of the locality and, therefore, no
reliance was placed on the disclosure statement and recovery of the wearing
apparels of the deceased. But in the present case it was soon after the arrest
of appellant Gurbachan Singh that he took the Police Officer while in custody
to the place where according to him he had thrown the dead body of Urshia
wrapped by the incriminating articles. Those articles were not found lying on
the surface of the ground but they were found after unearthing the Khad gaddha
dumping ground under the hillock.
Those
articles were neither visible nor accessible to the people but were hidden
under the ground. They were discovered only after the place was pointed out and
it was unearthed by the labourers. No fault therefore could be found with
regard to the discovery and seizure of the incriminating articles.
73.Now
we come to the evidence of the experts examined by the prosecution, and the
expert opinion rendered by them touching upon the crime in question. K.K. Arora
PW 51 at the relevant time was working as the Senior Scientist in Chemistry
branch of the Central Forensic Science Laboratory, Delhi having 24 years' experience. He had
examined the gunny bag which was used for carrying salt for dropping in the
sceptic tank after the dead body of Urshia was thrown in the said tank. K.K.
Arora in his report Ext. 20 found salt in the said bag. Dr G.B. Gupta PW 53
Senior Scientist had examined the wall scrapings of the blood from the room of
the Ranchi house of Suresh and scrapings from
the steel trunk seized from the room of the said house of Suresh and found
human bloodstains in the same. Dr R.P. Bhatnagar another Senior Scientist, Head
of Surgery Division-cum- Assistant Chemical Examiner to the Government of India
(CBI), New Delhi had examined the scrapping of the blood taken from the Ranchi
house of Suresh Bahri and he as per his report Ext. 20/40 found human blood of
'B' group in the same.
74.The
prosecution had also examined about 20 employees, Managers and Proprietors of
different hotels which have been catalogued by the High Court in para 69 of its
judgment in which the appellant Suresh Bahri and Raj Pal Sharma had stayed on
different dates by concealing their real names and giving out different names
and addresses under the fear of being apprehended as they had received
intimation that the rumours were circulating about the murder of Urshia Bahri
and had also learnt about the arrival of Bineet Sarang PW 69 brother of Urshia
in January 1984 at Delhi who was searching and making enquiries about his
sister and her children and had visited the Delhi house, business premises and
Ranchi house of the appellant Suresh Bahri and made reports to the Chutia
Police Station.
75.Thus
on an overall independent consideration of the circumstantial and expert
evidence as well as the evidence of the approver adduced by the prosecution and
discussed by us in the foregoing paras it is abundantly clear and
satisfactorily established that the evidence of the approver Ram Sagar
Vishwakarma, PW 3 has received requisite corroboration on all material
particulars and the totality of the surrounding circumstances, antecedents and
subsequent conduct amongst other factors established against the three 121
appellants prove beyond all reasonable doubt that at the instance of Suresh
Bahri who masterminded the plan, the other two appellants conjointly hatched a
conspiracy to commit the murder of Urshia Bahri and that in prosecution of the
common intention Suresh Bahri and Raj Pal Sharma did commit the murder of
Urshia Bahri. Not only this but all the three appellants with a view to screen
themselves from the commission of the offence made all-out efforts for the
disappearance of the dead body of Urshia.
76.The
High Court affirming the findings recorded by the trial court and on taking
stock of the entire prosecution evidence on record by itself came to the
conclusion that the following circumstances were fully established beyond all
reasonable doubt against the three appellants and on that basis found them
guilty for the aforesaid offences:
"(1)Deceased
Urshia whose parents and brother were living abroad was married to the
appellant Suresh in the year 1971.
(2)
Appellant Suresh was the only issue of his parents, having business and a
farmhouse in Village Dhulli, 40 kms from Ranchi.
(3)
Out of the wedlock of Suresh and Urshia two children were born, a girl by name
Richa and a boy, Saurabh.
(4) A
couple of years after the marriage the relations between Suresh and Urshia
became strained on account of constant interference by Y.D. Arya, maternal
uncle of Suresh in the domestic as well as business affairs.
(5)
Deceased Urshia was extremely unhappy with her husband Suresh and mother-in-law
Santosh, the acquitted accused, on account of their maltreatment and undesirable
attitude towards her and her children. The stay of Y.D. Arya in the house of
the couple was not acceptable to Urshia because of his undesirable interference
in their business and domestic affairs. Deceased Urshia realised that her
status in the family was just like undesirable person.
(7)
Urshia became highly despaired and disappointed on account of incapability of
her husband to manage the family business, having fallen in bad company and
become addict to excess drinking and had disposed of the Calcutta properties and she did not receive
a single penny out of it.
(8)
Constant efforts of Urshia to associate herself with family business to improve
its condition was frustrated by her mother-in-law who poisoned the mind of her
husband Suresh against her.
(9)
The removal of Y.D. Arya at the instance of Urshia from occupation of a portion
of the house had further annoyed her mother-in-law and husband Suresh.
(10)Her
mother-in-law had once tried to kill her by administering poison in the garb of
medicine as deposed by her sister PW 66 and her life was saved only by timely
medical aid.
(11)
For all the aforesaid reasons Urshia had decided to shift to America to her parents for the better
future of her children but she was helpless in doing so for want of citizenship
and ready money.
(12)In
order to overcome this problem Urshia persuaded her parents through letters to
immediately arrange for her citizenship and to get 122 over the monetary
problems she decided to dispose of Ranchi House No. 936.
(13)With
a view to shift to America permanently she was even ready to
take divorce from her husband Suresh as is evident from her letters addressed
to parents.
(14)The
appellant Suresh was not happy with the decision of Urshia to shift to America with children specially with the
sale proceeds of Ranchi house.
(15)Being
convinced that Urshia had finally decided to shift to America with children by disposing of Ranchi house, appellant Suresh decided to
do away with her life at any cost and to meet this end he hatched a conspiracy
with the appellants Raj Pal Sharma and Gurbachan Singh.
(16)It
was for this reason that he had first tried to take the assistance of his mali Moolchand PW 24 to commit her murder and when he
declined to do so he was turned out from the outhouse.
(17)Suresh
also tried to persuade the approver Ram Sagar PW 3 through his employer
Gurbachan Singh for murder of Urshia in pursuance of which appellant Gurbachan
Singh gave him allurement in the presence of Suresh that not only the advance
taken by him would be set off but some amount will also be given to him by
Suresh.
(18)Though
the approver Ram Sagar PW 3 did not accept the offer but extended full
cooperation in that regard to his employer Gurbachan and Suresh Bahri.
(19)While
Urshia was negotiating with Laxmi Narayan PW 21 through Badri Narayan Mishra PW
2 to dispose of Ranchi House No. 936, her husband Suresh was busy in hatching a
conspiracy with Raj Pal Sharma and Gurbachan Singh and approver Ram Sagar PW 3
to do away with her life and for that purpose he started making preparations.
(20)Having
found that the negotiation to dispose of Ranchi house had been finalised by Urshia, Suresh became desperate and sought
for the help of Raj Pal Sharma and Gurbachan Singh for committing the murder of
his wife at the earliest.
(21)The
appellant Raj Pal Sharma, a resident of Masjid Moth, Delhi was quite close to Suresh as both
were seen together on different occasions and Suresh was also paying for the
tea and articles consumed by Raj Pal Sharma (vide PW1 and PW 7).
(22)On
1-10-1983 Suresh along with Urshia came to Ranchi and stayed in House No. 936 but
before their arrival Raj Pal Sharma had already arrived in the last week of
September 1983 to take stock of overall situation.
(23)Before
leaving Delhi Urshia had informed her parents through a letter that she would
be shifting to America after disposing of the house in
October.
(24)Appellant
Suresh with the help of Gurbachan Singh got a dagger sharpened by Rameshwar
Thakur PW 4 an employee of Gurbachan and also got a danda prepared by Ram Sagar
PW 3 another employee of Gurbachan a few days before 11- 10-1983.
123
(25)As per settled programme Ram Sagar PW 3 was taken by Gurbachan Singh to the
house of Suresh three days before 11-10-1983 with a danda, but on account of
arrival of some outsiders that plan could not be executed.
(26)A
similar plan was again made on the next day but as police was patrolling in the
area on the eve of festival, PW 3 declined to do the work under apprehension of
being detected.
(27)After
the deal with regard to sale of Ranchi house was complete with Laxmi Narayan PW
21 for a consideration of rupees five and a half lakhs, Laxmi Narayan inspected
the house in the presence of Suresh and Urshia on 11-10- 1983 when Urshia told
him to bring the income tax clearance certificate so that document could be
executed and thereafter she would return to Delhi on 12-10-1983.
(28)The
appellant Suresh purchased two railway tickets in the waiting list in his name
and his wife Urshia for Delhi to give a colour that the couple would be leaving
on 12- 10-1983 but in fact none of them travelled on 12-10-1983 as per the
reservation chart and evidence of the then Chief Reservation Supervisor of
Ranchi Railway Station.
(29)On
10-11-1983 electric light of the house of
Suresh was deliberately put off though there was light in the vicinity so that
in the darkness murder of Urshia could be committed by Suresh and Raj Pal in a
room of the house.
(30)As
per plan appellant Gurbachan and PW 3 also arrived at the house soon after the
ghastly crime and as PW 3 became nervous on witnessing the ghastly crime, his
employer Gurbachan Singh patted him and offered water.
(31)Murari
Lal PW1 also happened to come to the house soon after the murder with the bill
of the articles purchased from his shop on credit as required by Urshia and
found no electric light in the house but a kerosene lamp was lighted, appellant
Gurbachan Singh and PW 3were sitting on a sofa, the appellant Suresh was in the
drawing room and Raj Pal wearing an underwear was seen moving from one room to
another with the dagger stained with blood. The appellant Suresh asked Murari
Lal PW1 to supply four empty glasses as they wanted to enjoy liquor. Murari Lal
brought the glasses and then went away.
(32)A
middleman Badri Narayan Mishra PW 2 also happened to arrive at about the same
time to meet Urshia but he was driven out from the verandah of the house by
Suresh saying that Urshia had gone to a party to the house of the appellant
Gurbachan Singh and from there she would be leaving for Delhi by next morning
flight, which was later found to be false by verification from the airlines
office, vide PW 9.
(33)After
PW1 and PW 2 were virtually driven out as aforesaid all the three appellants
with the help of Ram Sagar Vishwakarma PW 3 wrapped the body with a saree which
Urshia was wearing, a blanket and then tied with a rope and wrapped the severed
skull separately in Polythene bag.
124
(34)The next morning skull was taken to a jungle down the hill on Ranchi Patratru Road by Raj Pal and Suresh on a
motor-cycle and thrown there. This fact was communicated to Gurbachan Singh
also.
(35)The
trunk portion of the body of Urshia with the help of appellant Gurbachan, Raj
Pal Sharma and Ram Sagar, PW 3, was concealed in a sceptic tank within the
compound of the house of Suresh on the following evening with the help of a
bamboo ladder and the appellant Gurbachan and approver Ram Sagar PW 3 brought
20 kgs of salt on the direction of Raj Pal Sharma and poured the same in sceptic
tank for speedy decomposition of the body.
(36)Suresh
had earlier decided to place her trunk portion in the box and keep it in some
train for which a box was prepared by Gurbachan Singh with the help of approver
PW 3 but that plan was given up as there were chances of detection.
(37)Appellant
Suresh gave false information to his in-laws even after Urshia was murdered by
sending two letters dated 29-10-1983 and 3- 11-1983 Exts. 23/6 and 23/7 stating that henceforth only he
would be writing letters to them as Urshia was busy like a bee at Dhulli farm
and was not in a position to write letters.
(38)In
letter dated 3-11-1983 Ext. 23/7 purporting to have been written from Ranchi
house while in fact on that date Suresh was staying in a hotel named Blue Heaven
at Ranchi in the name of S. Saxena mentioning his arrival on 2-11-1983 and
departure on 5-11- 1983 giving his address as 409, Defence Colony though he had
no house in Defence Colony (vide Exts. 2/9 and 4/12).
(39)In
the letters Suresh not only tried to impress upon his in-laws that they were
leading a very happy life and at the same time also made attempts to explain
the sudden silence of Urshia by a improbable story. The said letters also
indicated the pre-planned idea of Suresh in committing the murder of his two
issues subsequently by informing them that Urshia was staying at Ranchi for about one and a half years and
the children were to shift there for studies. This unusual information given by
Suresh created a serious suspicion in the mind of his in-laws and, therefore,
they directed their son Bineet Singh PW 69 to go to India and find out the welfare and
whereabouts of Urshia and her children. The conduct of Suresh and Gurbachan
after the arrival of informant Bineet Singh PW 69 from Libya to make an enquiry
about his sister and children was not only misleading but their activities at
every stage were conflicting and suspicious which directly suggested that
Suresh was deliberately avoiding to divulge the truth.
The
informant Bineet Singh PW 69 made frantic enquiries about his sister at Delhi,
Ranchi and Dhulli farm and from different sources came to know all the facts
leading to the murder of his sister and, therefore, he lodge d the reports both
at Ranchi and Delhi.
(40)When
the investigation by Chutia Police was found to be unsatisfactory, CBI took
over the charge by virtue of government notifications and during the course of
investigation Raj Pal was arrested on 8-8-1984 who made disclosure statement
Ext. 32 as to 125 how Urshia was killed in one of the rooms of the Ranchi House
No. 936 and her head was severed and thrown in the jungle.
(41)Prior
to Raj Pal, Ram Sagar PW 3 was arrested and made confessional statement leading
to unearthing of the murders.
(42)On
the disclosure statement made by appellant Raj Pal the head of Urshia, hair and
jaw, etc. were seized at his instance from the forest as per seizure Ext. 33.
(43)The
expert Dr Harish Chander on examination found a skull of a female aged 33 years
plus minus 5 years on either side which fitted with the age of Urshia as it
appears in her passport Ext. 25.
(44)From
the evidence on record the friendship between Suresh and Gurbachan is fully
established. Suresh was a regular visitor of the shop of Gurbachan Singh and he
took the help of his employees in preparing dandas, dagger for killing Urshia.
(45)The
active participation of Gurbachan Singh in executing the plan of murder by
extending all sorts of help at each and every stage prove that he was an active
partner in the criminal conspiracy.
(46)The
removal of trunk portion of dead body of Urshia by Gurbachan to a hillock known
as Khad gaddha and filling up the sceptic tank with morum, for disappearance of
the evidence of murder is an added circumstance to establish that he had all
through taken active part.
(47)The
conspiratory acts of the appellants are established by the fact that after the
murder of Urshia they were in contact with each other for communicating
developments of offences committed and action of the public and police in that sequence.
Gurbachan had sent the approver PW 3 to Delhi to meet Suresh and inform him that suspicion had arisen in the vicinity
and Chutia police was searching Suresh who was moving from hotel to hotel in
different names.
(48)Raj
Pal Sharma was equally very close to Suresh from before otherwise he would not
have taken the leading part in the murder of Urshia. Raj Pal also went
underground forcing Chutia police to move the CJM, Ranchi, on 23-8-1984 for issuance of warrant against him leading to his arrest on
28-8-1984 by CBI in a border village of Delhi and Haryana."
77.
After going through the evidence and material on record we are also satisfied
that the aforementioned facts and circumstances found to be established by the
trial court as well as by the High Court are well founded and fully supportable
by evidence on record. Since we find ourselves in agreement with the said
conclusions the same do not call for any interference by this Court in exercise
of our jurisdiction under Article 136 of the Constitution.
78.
Learned counsel for the appellants, however, contended that in a case where a
witness identifies an accused who is not known to him in the court for the
first time, his statement is not of any evidentiary value without there being a
previous identification parade and as in the present case the appellant Raj Pal
Sharma was quite stranger to the witnesses who for the first time identified
him in the dock without there being any previous identification parade, their
evidence should not have been accepted with regard to the factum that he was
the person who came and stayed in the house of Suresh Babri and took part in
126 the alleged murder of Urshia and her two children. While advancing these
arguments support was sought to be taken from the decisions in Kanan v. State
of Kerala 11 and Mohanlal Gangaram Gehani v. State of Maharashtra 12. There can be no dispute with
regard to the principles as to the evidence relating to identification of a
stranger accused involved in any crime. It is well settled that substantive
evidence of the witness is his evidence in the court but when the accused
person is not previously known to the witness concerned then identification of
the accused by the witness soon after his arrest is of great importance because
it furnishes an assurance that the investigation is proceeding on right lines
in addition to furnishing corroboration of the evidence to be given by the
witness later in court at the trial. From this point of view it is a matter of
great importance both for the investigating agency and for the accused and a
fortiori for the proper administration of justice that such identification is
held without avoidable and unreasonable delay after the arrest of the accused
and that all the necessary precautions and safeguards were effectively taken so
that the investigation proceeds on correct lines for punishing the real
culprit.
It
would, in addition, be fair to the witness concerned also who was a stranger to
the accused because in that event the chances of his memory fading away are
reduced and he is required to identify the alleged culprit at the earliest
possible opportunity after the occurrence. It is in adopting this course alone
that justice and fair play can be assured both to the accused as well as to the
prosecution.
But
the position may be different when the accused or a culprit who stands trial
had been seen not once but for quite a number of times at different point of
time and places which fact may do away with the necessity of TI parade. In the
present case as stated earlier the appellant Raj Pal Sharma approached Murari
Lal PW1 with a letter of Suresh in pursuance of which Murri Lal had directed
the bungalow gardener Moolchand PW 24 to open the house and permit Raj Pal
Sharma to stay there. Raj Pal Sharma came and stayed in the Ranchi house in the last week of September
and continued to live there till 1-10-1983 when Suresh along with Urshia arrived and stayed there. Thus Murari Lal
PW1 and Moolchand Mali PW 24 had an opportunity to see Raj Pal for several days
and it was not for the first time that they saw him in the court when they
identified him to be the one who took active part in the crime. Similarly
Shambhu Nath Tiwari PW 7 who was running a tea stall at Chutia where Raj Pal
used to take tea and other eatable articles for a number of days and had no
money to pay the charges but continued to serve him with tea, etc., on the
assurance of Murari Lal PW 1 that the dues would be cleared by Suresh Bahri as
Raj Pal was a man of Suresh. Moolchand Mali PW 24 also had an opportunity to
see Raj Pal living in Chutia house, Ranchi for several days. Similar is the case with other witnesses who had
identified Raj Pal to be the person who had stayed in the house of Suresh
Bahri. Thus in view of this evidence it cannot be said that the witnesses who
identified Raj Pal in the court had seen him only once for a short while by
reason of which their evidence should not be accepted. In the case of Kanan 11
relied on by the learned counsel for the appellants the accused of that case
was seen by the identifying witness only once in the court and, therefore, in
the absence of TI 11 (1979) 3 SCC 319: 1979 SCC (Cri) 621 12 (1982) 1 SCC 700:
1982 SCC (Cri) 334 127 parade the evidence was not accepted which is not the
case before us. Similar was the position in Mohanlal Gangaram Gehani12 wherein
the witness who identified the accused for the first time in court did not know
him before and therefore in the absence of TI parade the evidence of that
witness was held valueless and unreliable. In the present case and in the facts
and circumstances discussed above, TI parade was not necessary at all as the
witnesses had seen the appellant Raj Pat Sharma continuously for several days
and they had the opportunity of knowing and recognising him since before they
made their statement in the court.
79.
This brings us to the second leg of the prosecution case relating to the murder
of two children, namely, Richa and Saurabh who are alleged to be murdered on
the intervening night of 17-12-1983 and 18-12-1983 at Dhulli farmhouse of Suresh Bahri in conspiracy with the
other two appellants, namely, Raj Pal Sharma and S. Gurbachan Singh.
This
episode of their plan commenced with two applications Ext. 40 and Ext. 40/1
made by the appellant Suresh on 5-12- 1983 to the Principal, Father Agnel's
School, South Extension, New Delhi, stating that his children Richa and Saurabh
will not be attending the classes from 5-12-1983 till the end of February 1984.
To establish this fact the prosecution had examined the Principal of the said
school Shri M. Cawlih PW 33. He deposed that he knew Richa and Saurabh well who
were the students of his school. Saurabh was in 4th standard and Richa was in
6th standard. He further deposed that the aforesaid two applications were made by
Suresh Chandra Bahri, father of the two children named above. The application
about Richa Bahri was received by her class teacher named Sonia and the other
application relating to Saurabh Bahri was received by Mrs Randhawa and he
recognized the endorsement and signatures made by the two class teachers on the
aforesaid two applications. The Principal of the school further deposed that
both the applications were seized by CBI officials. A copy book Ext. 1/2 of
Richa Bahri was also seized by the CBI in his presence and he had signed at
pages 1, 2, 23 and 36 of the said copy book. He also identified Richa in the
photograph Ext.1 and Saurabh in the photograph Ext. 1/3. He also identified the
father and mother of the two children Saurabh and Richa in the photograph Ext.
1/2. Mrs George PW 34 a teacher of Father Agnel School was also examined who was the class teacher of Richa when
she was in 4th and 5th standard and claimed to be fully acquainted with her
handwriting.
She
identified the handwriting of Richa in her copy book from pages 2 to 26 seized
by CBI from the Principal of the school as she had seen the writings when the
copy book was submitted to her for correction and she had signed the said copy
book at pages 5, 16, 20 and 23. PW 34 also identified Saurabh in the photograph
Ext.1 and 1/3. She also identified Richa in the photograph Ext. 1/1. The
evidence of these two witnesses was halfheartedly sought to be challenged by
the counsel for the appellants as unreliable, a mention of which is made only
to be rejected as both of them are independent witnesses having no animus
against any of the accused/appellants. Their evidence does not suffer from any
infirmities and we find their version as fully truthful.
80.
The prosecution in order to establish further chain of circumstances in the
murder of two children examined Dina Nath Sharma, PW 6 who knew Suresh Bahri
since 1965 and both were classmates. He deposed that he 128 frequently visited
the Delhi house of Suresh Bahri and also used
to stay with him. He knew all the family members of Suresh Bahri including his
wife and children. Dina Nath stated that when he visited Delhi house of Suresh in the first week
of December 1983 he saw the two children of Suresh in Delhi house when Suresh had told him that
he will take his children to Ranchi to get
them admitted in any school there so that the children and their mother may
live together. PW 6 further deposed that Suresh Bahri left for Ranchi house in the morning of 8-12-1983 in the Ambassador car along with his mother Santosh
Bahri and a maidservant and one more person (identifying Raj Pal in the court
to be that person). Suresh told him that his mother and maidservant would be
going up to Basti (U.P.). On asking about the other man Suresh told him that he
was a motor mechanic whom he had taken by way of precaution as he had to cover
a long journey. He also stated that he had taken 3-4 beddings besides other
articles in the car.
81.
Witness Gopi Krishna PW 11 Manager of the Tourist Dak Bungalow, Varanasi added further link to the incident.
He deposed that Suresh Bahri and Raj Pal Sharma along with the two children had
stayed at his bungalow on two days i.e. 13- 12-1983 and 14-12-1983. The Guest House Register Ext. 8 contained the entry about
their stay on the aforesaid dates.
Gopi
Krishna identified the appellants Suresh and Raj Pal Sharma in the court and
stated that Suresh had made the said entry in the guest register. It was shown
in the said entry that they were coming from Basti and were going to Ranchi
which fact lends support to the statement of Dina Nath PW 6 that his mother and
the maidservant would travel only up to Basti and it was for this reason that
only the appellants Suresh, Raj Pal and the two children had stayed in the
guest house on 13-12-1983 and 14-12-1983. The entries made by Suresh in his
handwriting in the Guest House Register were compared with his admitted
writings by the handwriting expert Shri S.C. Mittal PW 65 who found both the
writings to be in the hand of Suresh. After leaving Varanasi in the evening of
14-12-1983 the appellant Suresh, Raj Pal along with the two children proceeded
further by car to Ranchi and before reaching Ranchi stayed in New Punjab Rest
House at Daltonganj, as testified by its Proprietor S. Gurbax Singh PW 19 who
deposed that in 1983-1984 the hotel was known as Punjab Rest House but the name
was subsequently changed as New Punjab Rest House. The witness stated that
Suresh along with the two children and another person came and stayed in the
hotel on 15-12-1983 in Room No. 4 as per entry at
Serial No. 576 of the Guest Register. The entries in the Guest Register were
made by Richa Bahri which was also signed by Suresh. The number of passengers
as given in the entry was shown as four coming from Delhi and going to Ranchi. CBI Inspector Rajendra Singh, PW
82, seized the register of his hotel. The entries in the said register made in
the writing of Richa Bahri and her copy book were compared by the expert S.C.
Mittal PW 65 who opined that the writings and signature of Richa in the Guest
House Register fully tallied with her writing in the copy book of Father Agnel
School as proved by her class teacher, PW 34.
82.
The party of four i.e. Suresh, Raj Pal and the two children ultimately landed
at Dhulli farm in the afternoon on 16-12-1983 as testified by caretaker Gopi
Mistry, PW 29, of Suresh on his Dhulli farmhouse and his son Shiv Nandan Lohare
PW 60. Both of them stated that their master Suresh along with 129 Raj Pal and
the two children had arrived at Dhulli farmhouse in the afternoon of 16-12-1983 and stayed there till the morning of 18-12-1983. Both the witnesses also stated that about a
fortnight before the arrival of Suresh and party, the appellant Gurbachan Singh
had also come to Dhulli farm to make arrangement for some cots and chairs which
were sent by him from Ranchi in a bus. Gopi Mistry also deposed
that Raj Pal Sharma and two children stayed at Dhulli in the night following 16-12-1983 and next day on 17-12-1983 Raj Pal went to Ranchi and came back with appellant
Gurbachan Singh on a motorcycle but Gurbachan went away after about an hour. In
the night of 17-12-1983 all the four took food prepared by
the wife of Gopi Mistry and then all the four slept in one room at Dhulli farm.
Gopi Mistry proceeded further to state that on 11-12-1983 at about dawn Suresh have a call to him and on hearing the
call he, his wife and his son Shiv Nandan woke up. He came out and noticed the
two children in the rear seat of the car in the sleeping position fully covered
with a quilt and only some parts of their legs alone were visible. Suresh Bahri
and Raj Pal were sitting in the front seat of the car and Suresh told him that
they were going and if any one enquired about him they be told that he was not
there and then left Dhulli farm. Shiv Nandan PW 60 the son of caretaker Gopi
Mistry also made similar statement but further added that when Suresh and party
was ready to leave at dawn on 18-12-1983 he came and tried to look inside the
car through the glasses but the appellant Raj Pal shouted at him commanding him
to go away.
83.
The evidence of these two witnesses PW 29 and PW 60 was sought to be assailed
by the learned counsel for the appellants by pointing out some minor and
insignificant contradictions as also the statement of PW 60 that he tried to
look inside the car through the glasses when he was shouted down and directed
to be away by the appellant which statement has not been made by his father PW
29. We are not impressed at all by these arguments as the immaterial omissions
and contradictions have hardly any bearing on the reliability of these two
witnesses whose evidence is consistent on all material aspects and there is no
reason at all to discredit their testimony.
84. In
the series of circumstances connecting the appellant Suresh Bahri and Raj Pal
with the murder of the two children the prosecution has examined Vijay Kumar
Asthana PW 12 who was the Manager of Hotel India, Varanasi at the relevant
time. Asthana deposed that Suresh had stayed in his hotel on 18-121983 by
making entry Ext. 4/2 in his presence in the Guest Register Ext. 8/1 at SI. No.
1448 at Page No. 25 in his handwriting in the name of Mahesh Chandra Gupta. The
said handwriting was compared with the specimen writing and signature of Suresh
by the expert S.C. Mittal PW 65 who found the two writings having been made by
the same person in other words by Suresh. The purpose of this evidence is to
show that after leaving Dhulli farm at dawn on 18-12-1983 when on their return
journey Suresh stayed in Hotel India at Varanasi on 18-121983 there were only 2
persons i.e. Suresh himself and the appellant Raj Pal Sharma and the two
children were no longer in their company whose bodies were disposed of
somewhere on the way which would be clear from the evidence discussed
hereinafter.
85.Hiralal
PW 36 is a businessman of Samath, District Banaras who had gone to the bank of
Varuna River on 20-12- 1983 at about 8.00 a.m. to ease himself when he noticed
crowd there. He went and saw a gunny bag was 130 floating in the water of
Varuna River which was taken out and opened in the presence of persons present
there. In the said bag dead body of a Hindu boy aged about 12/13 years was
found having incised wounds in the neck. In the meanwhile one Dr Mahendra
Prasad PW 35 also arrived there who at his instance wrote a report which he
took and lodged in Sarnath Police Station in respect of the dead body. On the
basis of his report the first information report, Ext. 13 was recorded in the
Police Station and Atma Nand Singh PW 46 In- charge, P.S. Samath went to the
bank of Varuna River, prepared the panchnama of the dead body Ext. 14 and
seized the gunny bag as per seizure memo Ext. 12. Investigating Officer, PW 46
then called a photographer Ashok Kapoor PW 48 and took the photographs of the
dead body of the boy for purpose of identification later. Dr Bhargav PW 27
performed an autopsy over the dead body of the boy on 21-12-1983 and found two
incised wounds on the neck. There was also contusion on the chest and various
other injuries on his person which were ante-mortem in nature caused by sharp
object.
86.
Here it may be mentioned that next door neighbour Murari Lal PW 1, a family
friend Dina Nath Sharma PW 6, Gopi Krishna Asthana PW 11, Manager of Tourist
Dak Bungalow, Varanasi, Gopi Mistry PW 29, the caretaker of Suresh at Dhulli
farm, Mrs George PW 34, a teacher of Father Agnel School where the two children
studied, Satvender Kant PW 41, a close relative of Urshia Bahri and the
informant Bineet Singh PW 69 the brother of the deceased have all identified from
the photographs that were taken by the photographer Ashok Kapoor PW 48 to be
the photographs of none else but Saurabh and thus there is overwhelming
evidence to establish that the dead body found floating in Varuna River was
that of Saurabh.
87.
However, learned counsel for the appellants referring to the statement of Dr
Bhargav PW 27 contended that the prosecution story that the two children were
done to death in the intervening night of 17-12-1983 and 18-12-1983 at Dhulli
farm is not consistent with the medical evidence and on the contrary it is
falsified by the medical evidence inasmuch as the dead body was found at about
8.00 a.m. on 20-12-1983 but without any sign of decomposition and only rigor
mortis was present while putrefaction starts after about 24 hours of the death
but the same was not found at the time of postmortem which was performed after
60 hours of the alleged time of murder. On that basis, therefore, it was
submitted that the dead body recovered was either not the dead body of Saurabh or
the murder was not committed in the intervening night of 17-12-1983 and
18-12-1983. Learned counsel for the appellants further submitted that the
doctor had found that the stomach of the deceased was empty while according to
the evidence of Gopi Mistry PW 29 and his son Shiv Nandan Lohare PW 60 the two
children had slept after taking their meals in the night of 17-12-1983. These
arguments were advanced on the basis of some stray sentences here and there
from the evidence of Dr Bhargav in isolation.
A reading
of the full statement of Dr Bhargav PW 27 will go to show that there is
absolutely no substance in the aforementioned submissions.
88. So
far as the identity of the dead body is concerned, we have already discussed
above that there is overwhelming evidence to show that it was the dead body of
Saurabh as stated by a large number of witnesses after seeing the photographs.
So far as the question of putrefaction and decomposition of the 131 dead body
is concerned, it depends on various factors such as the season, place and the
manner in which the dead body was kept besides other relative considerations. A
perusal of evidence of Dr Bhargav PW 27 would reveal that he clearly stated
that putrefaction may take place even after 3 to 5 days if the dead body remained
submerged in water.
Admittedly
the dead body of Saurabh was found floating in Varuna River in the morning of
20-12-1983. Consequently according to the evidence of Dr Bhargav the progress
of putrefaction or decomposition could not have commenced at the time when the
dead body was recovered and postmortem was conducted. This circumstance,
therefore, does not render the prosecution story improbable or unreliable. The
absence of food at the time of postmortem of Saurabh is also not of much
significance to render the prosecution story doubtful.
The
presence or absence of food at the time of postmortem in relation to the time
of death is based on various factors and circumstances such as the type and
nature of the food consumed, the time of taking the meal, the age of the person
concerned and power and capacity of the person to digest the food. In the
present case there is no evidence about the exact time when the meals were
taken by the children on the night of 17-12-1983 nor about the type or nature of the
food consumed by them. Saurabh was a young boy aged about 12 years and he being
a young and energetic boy, his power of digestion must be assumed to be quick
and strong, therefore, if the stomach at the time of postmortem was found to be
empty it was but natural.
89.
The prosecution story with regard to the murder of the two children proceeds
further by adding some more links to the circumstantial evidence against the
appellants in the shape of recovery of some incriminating articles on
Panchkoshi Road, near Nursery of Forest Department and some other places. The
Investigating Officer, Sarnath, Atma Nand Singh PW 46 stated that in the
evening of 27-12-1983 he received information from some persons that some
articles stained with blood were lying at Panchkoshi Road near Paighambarpur
Village where the refuse is dumped. PW 46, therefore, rushed there and in the
presence of witnesses seized bed sheet and a gadda which looked like a quilt by
seizure memo Ext. 5/9. At the same time he also learnt that some articles were
also lying near a Nursery of the Forest Department at Asapur Road crossing.He, therefore, visited
that place also and seized two bloodstained bedsheets in the presence of
witnesses by seizure memo Ext. 5110. All these articles seized under seizure
memo Exts. 5/9 and 5/10 were sent to the Central Forensic Science Laboratory,
Delhi which were examined by Dr G.D. Gupta PW 53, a Senior Scientist who found
human blood on the quilt and its cover. These articles were further sent for
examination by Serologist Dr P.K. Bhatnagar PW 56 who as per his report Ext.
8/4 found that the aforesaid articles contained blood group 'B'.
90. It
may be noticed that when Atma Nand Singh, PW 46, Police Officer Sarnath could
not succeed in finding out the identity of the dead body of the child he got
his photographs published in police gazette as well as in various newspapers
but still nobody came forward to claim the body or to identify the child and,
therefore, he made a final report and closed the case but it appears at during
the investigation of the murder of Urshia and her children when the CBI
Inspector Madan Lal PW 85 arrested Suresh Bahri on 31-7-1984 at Delhi 132 who
appears to have made disclosure about his children also and it was thereafter
that the Government of India entrusted the Sarnath case also to CBI by another
notification dated 14-9-1984 on the basis of which R.C. Case No. 5/84 was
registered by CBI and the CBI Inspector Rajendra Singh PW 82 was entrusted with
its investigation by him, a large number of witnesses were examined by him who
identified the photographs as that of Saurabh.
91.Though
no trace of the dead body of Richa could be made but in view of the
overwhelming circumstantial evidence which we shall discuss hereinafter the
same leads to the conclusion that she also met the same fate as that of her
brother Saurabh at Dhulli farm in the intervening night of 17-12-1983 and
18-12-1983 at the hands of the appellants Suresh and Raj Pal Sharma. It has
already been discussed that the two children were withdrawn from the Delhi
school on the pretext that they would be taken to Ranchi where they would stay
with their mother and prosecute their further studies as is clear from the
letters of Suresh written to his in-laws, but the two appellants Suresh and Raj
Pal took them to Dhulli farm and after a short stay of one and a half day there
both the appellants proceeded back to Delhi. No plausible reason is discernible
as to what were the compelling reasons for the two appellants that after a long
journey from Delhi to Dhulli farm, they thought of to
return back to Delhi only after a very short stay at
Dhulli and without even visiting his house at Ranchi at a short distance of about 40 kms from Dhulli. But the
reason is not far to seek, the purpose being to execute their plan to do away
with the children in a lonely and secluded place so that their dastardly and
unholy act may not come to light and be not detected or suspected by anyone.
After their withdrawal from school on 5-12-1983 by the appellant Suresh he took
them to his South Extension residence, Delhi and thereafter Suresh left Delhi
along with the children on 8-12-1983 and reached Dhulli farm in the afternoon
of 16-12- 1983 via Basti, Varanasi and Daltonganj having their halts in the
hotels at two places as already discussed earlier.
The
entries of the said hotels indicated that there were four persons appellants
Suresh and Raj Pal and the two children. The fact that the two children were
accompanying these two appellants is fully established from the entries in
Daltonganj hotel which were made and signed by Richa and Saurabh. The said
entries are proved by the opinion and evidence of the expert. The return
journey of the appellants Suresh and Raj Pal which commenced on 18-12-1983
tells a different story that though the two children were shown to be fast
asleep in the rear seat of the car but thereafter the two children were not
found accompanying them either dead or alive on their onward journey as is
evident from the entries made in different hotels in different names by these
two appellants and entries indicated that only two persons had stayed in those
hotels on the return journey and obviously so because the two children were
already done to death and their bodies while proceeding to Delhi were thrown in
Varuna River, the body of Saurabh having been found floating while that of
Richa appears to have been swept away unnoticed to some unknown destination.
The articles gadda, quilt and sheets stained with human blood which were also
thrown on the way and the Serologist on examination found blood group 'B' on
the same the evidence in respect of which has already been discussed in detail
earlier.
92.There
is yet another circumstance which deserves notice. The two children were shown
to be fast asleep in the rear seat of the car with their whole 133 body covered
except for a part of their legs which is something against the normal conduct
of children of that age. The two appellants had resumed their return journey
after a short stay at Dhulli at dawn on 18-12-1983 when the two children of the age
they were, are not expected to sleep but would be excited to enjoy the trip in
the company of their father. This leads to a legitimate conclusion that in fact
they were not alive but were dead whose throats were cut as noticed by Dr
Bhatnagar who conducted postmortem on the dead body of Saurabh. It is also
surprising to note that Suresh Bahri and Raj Pal Sharma left Dhulli farm early
in the morning of 18-12-1983 without any arrangement for the
breakfast or tea even for the children while all these facilities were
available at Dhulli farm but all this was not necessary because the children
were no more alive.
93.It
may also be pointed out that after the murder of Urshia and thereafter the
killings of the two children Suresh Bahri was running about place to place and
staying in different hotels to avoid his apprehension. From 9-5-1984 to 17-5-1984
Suresh was staying in a hotel at Ghaziabad in the name of Mahesh Chand Gupta though Delhi is not even an hour's run from Ghaziabad. When his mother withdrew an amount
of Rs 25,000 from the State Bank, Delhi and Travellers cheque worth Rs 25,000
was taken in the name of his maternal uncle, Y.D. Arya which was encashed at
Ghaziabad on 10-5-1984 and this circuitous method was adopted to mislead the
prosecution and at the same time provide money to Suresh who was wandering from
place to place in different hotels and needed money to go to Nepal according to
his plan and create false evidence in support of his defence plea which he had pre-planned
in case he was apprehended by police. Here it may also be pointed out that the
appellant Suresh went to Kathmandu (Nepal) and firstly he stayed in Kozy Hotel from 8-4-1984 to 29-4-1984 vide
Ext. 4/34 and thereafter from 15-5-1984 to 22-5-1984 vide Exts. 4/35 and 4/36. It is interesting to note
that thereafter Suresh left the hotel Kozy of Kathmandu and lodged himself in a
private house obtained on rent only with a view to create false evidence for
sudden disappearance of his children at Kathmandu according to his plan with
which he had gone to Nepal because Suresh thought that his ultimate
apprehension would be unavoidable as the Chutia police had submitted a
charge-sheet with regard to the murder of Urshia against him in which he was
shown absconding accused. In furtherance of his plan to create evidence for his
defence the appellant Suresh made a false report Ext. 25/1 to Nepal Police on 10-8-1984 that his two children who came to Kathmandu (Nepal) with him were missing while in fact they were already done
to death on the nights of 17-12-1983 and 18-12-1983. This report on enquiry was found to be totally
unfounded and false as would be clear from the evidence of Basant Kumar Lama PW
67 a Police Officer of Nepal. There could be no reason to doubt the testimony
of Basant Kumar Lama PW 67 as he is totally a stranger to the appellant Suresh
having no axe to grind against him with a view to falsely implicate him. Though
Suresh tried to be wiser by making the information with Kathmandu Police about
the missing of his children only after shifting in a private house as giving
such a false information from the hotel where the number of the guest/passenger
is noted, would have exposed him because in fact the children had not gone with
him to Kathmandu. But he proved himself only to be a
wisest fool in doing so.
134
94.The totality of all the aforementioned circumstances complete the chain
which lead to the only irresistible conclusion that the three appellants before
us had hatched the conspiracy to commit the murder of the two children also in
the same way as their mother Urshia was killed and in prosecution of their said
plan they executed it at Dhulli farm.
95.Learned
counsel appearing for the appellants Gurbachan Singh and Raj Pal Sharma
contended that there is no direct and legal evidence against the appellants for
their involvement in the alleged conspiracy and that in any case there is no
factual evidence against the appellant Gurbachan Singh about his actual
participation in the crime and, therefore, the conviction under Sections
302/120-B of the Penal Code in his case is bad in law and unsustainable.
96.In
the above context we may refer to the provisions of Section 120-A of the Indian
Penal Code which defines criminal conspiracy. It provides that when two or more
persons agree to do, or cause to be done, (1) an illegal act or (2) an act
which is not illegal by illegal means, such agreement is designated a criminal
conspiracy; provided that no agreement except an agreement to commit an offence
shall amount to criminal conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in pursuance thereof. Thus, a
cursory look to the provisions contained in Section 120-A reveals that a
criminal conspiracy envisages an agreement between two or more persons to
commit an illegal act or an act which by itself may not be illegal but the same
is done or executed by illegal means. Thus the essential ingredient of the
offence of criminal conspiracy is the agreement to commit an offence. In a case
where the agreement is for accomplishment of an act which by itself constitutes
an offence, then in that event no overt act is necessary to be proved by the
prosecution because in such a fact situation criminal conspiracy is established
by proving such an agreement. In other words, where the conspiracy alleged is
with regard to commission of a serious crime of the nature as contemplated in
Section 120-B read with the proviso to sub-section (2) of Section 120-A of the
IPC, then in that event mere proof of an agreement between the accused for
commission of such a crime alone is enough to bring about a conviction under
Section 120-B and the proof of any overt act by the accused or by any one of
them would not be necessary. The provisions in such a situation do not require
that each and every person who is a party to the conspiracy must do some overt
act towards the fulfilment of the object of conspiracy, the essential
ingredient being an agreement between the conspirators to commit the crime and
if these requirements and ingredients are established the act would fall within
the trapping of the provisions contained in Section 120-B since from its very
nature a conspiracy must be conceived and hatched in complete secrecy, because
otherwise the whole purpose may be frustrated and it is common experience and
goes without saying that only in very rare cases one may come across direct
evidence of a criminal conspiracy to commit any crime and in most of the cases
it is only the circumstantial evidence which is available from which an
inference giving rise to the conclusion of an agreement between two or more
persons to commit an offence may be legitimately drawn. The observations made
by this Court in Noor Mohd. Mohd 135 Yusuf Momin v. State of Maharashtra13 may be quoted with advantage which
read as under: (AIR headnote) "Criminal conspiracy differs from other
offences in that mere agreement is made an offence even if no step is taken to
carry out that agreement. Though there is close association of conspiracy with
incitement and abetment the substantive offence of criminal conspiracy is
somewhat wider in amplitude than abetment by conspiracy as contemplated by
Section 107 IPC. A conspiracy from its very nature is generally hatched in
secret. It is, therefore, extremely rare that direct evidence in proof of
conspiracy can be forthcoming from wholly disinterested quarters or from utter
strangers. But, like other offences, criminal conspiracy can be proved by
circumstantial evidence. Indeed, in most cases proof of conspiracy is largely
inferential though the inference must be founded on solid facts.
Surrounding
circumstances and antecedent and subsequent conduct, among other factors,
constitute relevant material. In fact because of the difficulties in having direct
evidence of criminal conspiracy, once reasonable ground is shown for believing
that two or more persons have conspired to commit an offence then anything done
by anyone of them in reference to their common intention after the same is
entertained becomes, according to the law of evidence, relevant for proving
both conspiracy and the offences committed pursuant thereto." Similar view
was also reiterated by this Court in V.C Shukla v. State (Delhi Admn.)14.
97.Although
we have already discussed the facts and circumstances appearing against the
appellants Gurbachan Singh and Raj Pal Sharma indicating their direct
involvement in the conspiracy of murder of Urshia and her two children yet at
the risk of repetition we shall in brief re-state the same. It is evidently
clear from the series of circumstances established by the prosecution and
discussed by us in the foregoing paras that the main brain behind the
conspiracy who masterminded the plan for the killings of the three innocent
lives is the appellant Suresh Bahri, the unworthy husband of Urshia and a brute
cruel father of the two unfortunate children, who approached the other
appellants Gurbachan Singh and Raj Pal Sharma for help in the commission of the
said ghastly crime by winning over their favour on account of his friendship
and close association with them and as such it appears that they had no
hesitation in extending their helping hands by constituting themselves as
members of the criminal conspiracy hatched by Suresh Bahri. No doubt there is
no direct evidence about the conspiracy and as said earlier it is seldom
available. But the trial court has catalogued a large number of circumstances
against the appellants which have also been accepted by the High Court and in
our opinion rightly so. The two courts below have noticed the movements and
activities of appellants Gurbachan Singh and Raj Pal Sharma at the instance of
appellant Suresh right from the beginning and long before the murder of Urshia,
their acts in arranging the preparation of a danda, sharpening of a dagger,
preparation of batalies and wooden box, dumping of dead body of Urshia in 13
(1970) 1 SCC 696, 699: 1970 SCC (Cri) 274: AIR 1971 SC 885, 886 14 (1980) 2 SCC
665: 1980 SCC (Cri) 561, sub bom State (Delhi Admn.) v. VC Shukla, AIR 1980 SC
1382 136 sceptic tank and taking it out again and dumping it in a hillock at
Khad gaddha. The appellant Raj Pal arrives at Ranchi in the last week of
September 1983 and stayed in Ranchi House No. 936 of Suresh Bahri till arrival
of Suresh and his deceased wife Urshia on 1-10-1983 and thereafter his
movements at Ranchi itself till she was done to death on 11 -10-1983 in one of
the rooms of the house when appellant Raj Pal Sharma was also seen moving about
from one room to another wearing only underwear and having a bloodstained
dagger in his hand. Raj Pal accompanied Suresh while he left Delhi in the ambassador car along with
the two children for Dhulli farm where the party stayed on 16-12-1983 and 17- 12-1983 and
left Dhulli farm at dawn on 18-12-1983 with
the dead bodies of the two children, throwing the dead bodies in Varuna River on their way back to Delhi. All these facts clearly borne out mainly from the statement of PW 1,
PW 2, PW 4, PW 6, PW 11, PW 19, PW 29, PW 31 and PW 60 besides other evidence
that there was not only an agreement to commit the alleged murders but the
appellants in fact committed overt acts also for fulfilment of their object
which is eloquently evident from the evidence discussed above. All these facts
and circumstances without the least hesitation lead to the only irresistible
conclusion that they were active members of the agreement who had hatched a
conspiracy to eliminate all the three members of the family of Suresh and thus
actually executed their plan.
98.The
aforementioned facts and circumstances fully establish the offence under
Sections 302/120-B of the Penal Code against the appellants Gurbachan Singh and
Raj Pal Sharma also and there is hardly anything deserving interference with
the view taken by the two courts below after a detailed and elaborate
discussion of the evidence and material on record. We, therefore, confirm the
conclusions recorded by the two courts below as well as the convictions of the
appellants under Sections 302, 302/120-B and 201 of the Penal Code.
99.Shri
Sushil Kumar, learned senior counsel lastly contended that the prosecution kept
away for reasons best known to it the disclosure statement running in 22 pages
alleged to have been made by the appellant Suresh Bahri on 1-8-1984 before
Metropolitan Magistrate, Delhi for which not only the adverse inference has to
be drawn against the prosecution but it vitiated the whole trial. He submitted
that when the appellant Suresh Bahri was arrested on 31-7- 1984 and on 1-8-1984
produced before the Metropolitan Magistrate he had made a statement running in
22 pages as mentioned in the remand order itself dated 1-8-1982 and also in his
application for grant of bail. That statement has not been produced by the
prosecution for reasons best known to it. In our considered opinion there is no
force in the argument. If actually ;appellant Suresh Bahri had made any
disclosure statement it was within his special knowledge as to what he had
stated in those alleged 22 pages but he did not divulge anything in this
connection in his statement recorded under Section 313 CrPC as to the nature of
that statement, when he was questioned whether he had to say anything else. Yet
learned counsel wants us to draw an adverse inference against the prosecution.
Learned counsel did not elaborate as to what adverse inference ought to be
drawn and how and in what manner withholding of the alleged statement could
vitiate the trial. Not only this but the learned counsel appearing for the
accused appellant Suresh at the trial did not put any question 137 even to the
Investigating Officer, Chutia Police Station, Raghuvir Singh, PW 59, Rajendra
Singh, or to PW 82 and Madanlal, PW 85, the CBI Inspectors or any other
prosecution witnesses about the alleged statement. A mere mention in the remand
order or bail application does not by itself prove the recording of any
statement as alleged without any further evidence and material being placed on
record in support of it. In these facts and circumstances it is difficult for
us to hold that Suresh Bahri had made any disclosure statement or if it was so
made it would result in vitiating the whole trial.
100.
Lastly all the learned counsel appearing for the three appellants made vigorous
efforts to persuade us that the evidence and circumstances of the present case
do not justify the extreme penalty of death sentence to the three appellants or
any of them as there is no evidence as to the manner in which the three persons
were done to death.
101.
It may be noticed that since about the last two decades there has been
throughout the civilized world, a great deal of anguished concern about what
sentences be given to those convicted of crimes. It is also felt that crime and
punishment have a moral dimension of considerable complexity that must guide
sentencing in any enlightened society. The criticism of judicial sentencing has
raised its head in various forms that it is inequitable as evidenced by
desperate sentences; that it is ineffective; or that it is unfair being either
inadequate or in some cases harsh. It has been often expressed that there is a
considerable disparity in sentencing an accused found to be guilty for some
offence. This sentencing variation is bound to occur because of the varying
degrees of seriousness in the offence and/or varying characteristics of the
offender himself.
Moreover,
since no two offences or offenders can be identical the charge or label of
variation as disparity in sentencing necessarily involves a value-based
judgment, i.e., disparity to one person may be a simply justified variation to
another. It is only when such a variation takes the form of different sentences
for similar offenders committing similar offences that it can be said to be
disparate sentencing.
102.It
appears that it was to minimise these considerations indicating the areas of
imposition of penalties including the extreme penalty of death that the
Legislature introduced sub-sections (3) and (4) in Section 354 of the Code of
Criminal Procedure in the new Code of 1973. Sub-section (3) contemplates that
when conviction is for an offence punishable with death or in the alternative,
the imprisonment for life or imprisonment for a term of years, the judgment
shall state the reasons for the sentence awarded, and, in the case of sentence
of death, the special reasons for such sentence (emphasis supplied). Thus, sub-
section (3) of Section 354 lays down that in case of sentence of death the
judgment shall state special reasons for such sentence. This gives an
impression that in the new Code of Criminal Procedure the emphasis is that the
life imprisonment for the offence of murder is the rule and death sentence an
exception to be resorted to for special reasons to be recorded in the judgment.
For these reasons, therefore, as far as the extreme penalty of death is
concerned the sentencing discretion of the court is circumscribed within the
parameters of a formula laid down by this Court in Bachan Singh case15 as well
as in some other subsequent decisions that 15 Bachan Singh v. State of Punjab,
(1980) 2 SCC 684: 1980 SCC (Cri) 580 138 the extreme penalty should not be
inflicted except in rarest of the rare cases and on the four principles,
namely, (1) the extreme penalty of death may not be inflicted except in cases
of extreme culpability, (2) before opting for the death penalty the
circumstances of the offender be also taken into consideration along with the
circumstances of the crime, (3) life imprisonment is the rule and the death
sentence is an exception. In other words, death sentence has to be imposed only
while life imprisonment appears to be altogether inadequate punishment having
regard to the relevant circumstances of the crime and (4) aggravating and
mitigating circumstances have to be given full weightage and the balance has to
be struck between the aggravating and mitigating circumstances before the
option of the punishment has to be exercised. The Supreme Court affirmed the
aforesaid principles laid down in Bachan Singh case15 in a subsequent decision
also in Machhi Singh v. State of Punjab16 by maintaining the sentence of death imposed on Machhi Singh who had
killed Biban Bai and her three sons with firearm.
103.In
Dhananjoy Chatterjee v. State of W.B. 17 one of us (Dr Anand, J.) who was a
member of the Bench which delivered the judgment, speaking for the Court crystallised
the principles governing the criminal sentencing by the courts in view of the
changed legislative policy contained in Section 354(3) CrPC and in para 14 of
the report observed as follows: (SCC p. 239, para 14) "In recent years,
the rising crime rate particularly violent crime against women has made the
criminal sentencing by the courts a subject of concern. Today there are
admitted disparities. Some criminals get very harsh sentences while many
receive grossly different sentence for an essentially equivalent crime and a
shockingly large number even go unpunished, thereby encouraging the criminal
and in the ultimate making justice suffer by weakening the system's
credibility. Of course, it is not possible to lay down any cut and dry formula
relating to imposition of sentence but the object of sentencing should be to
see that the crime does not go unpunished and the victim of crime as also the
society has the satisfaction that justice has been done to it. In imposing
sentences in the absence of specific legislation, Judges must consider variety
of factors and after considering all those factors and taking an overall view
of the situation, impose sentence which they consider to be an appropriate one.
Aggravating
factors cannot be ignored and similarly mitigating circumstances have also to
be taken into consideration." In the said report it has been further
observed in para 15 as follows: (SCC p. 239) "In our opinion, the measure
of punishment in a given case must depend upon the atrocity of the crime; the
conduct of the criminal and the defenceless and unprotected state of the
victim. Imposition of appropriate punishment is the manner in which the courts
respond to the society's cry for justice against the criminals. Justice demands
that courts should impose punishment befitting the crime so that the courts
reflect public abhorrence of the crime. The courts must not only keep in view
the rights of the 16 (1983) 3 SCC 470: 1983 SCC (Cri) 681 AIR 1983 SC 957 17
(1994) 2 SCC 220: 1994 SCC (Cri) 358 nJT (1994) 1 SC 33 139 criminal but also
rights of the victim of crime and the society at large while considering
imposition of appropriate punishment." 104.Having regard to the principles
formulated by this Court discussed above, we have given our anxious consideration
to the question of sentence to the appellants and have also examined in depth
and with great concern the facts and circumstances of the present case and the
reasons assigned by the two courts below for awarding the extreme penalty of
death to the three appellants before us. At the cost of repetition we may
recall that the appellant Suresh had strong motive and entertained some
grievances against his wife Urshia because she had made up her mind to dispose
of Ranchi house and migrate to America along with her children with the sale
proceeds against the wishes of Suresh and, therefore, to put an end to her
life, Suresh planned a long-drawn plot and hatched a conspiracy with the
appellants Gurbachan Singh and Raj Pal Sharma for execution of this plan. Urshia
not even having an inkling of the evil designs and hidden unholy intentions of
her husband accompanied him from Delhi to Ranchi on 1-10-1983 with a view to finalise the deal of house and execute the
sale deed. But according to the pre-plan she was done to death in the
intervening night of 10- 10- 1983 and 11-10-1983 and she could not see the light of 11-10-1983 when sale deed was to be executed.
The
evidence discussed above shows that her murder was committed in an extremely,
brutal, gruesome, diabolical, revolting and dastardly manner so as to arouse
intense and extreme indignation of the society. The victim was subjected to
inhuman acts of torture and cruelty while causing her murder as her body was
truncated into two parts in a devilish style evincing total depravity simply to
gain control over the property. Having been not satisfied with the killing of
his wife Suresh Bahri was further determined to kill his innocent two children
at Dhulli farm making them believe that they were being taken on a pleasure
trip to the farm and then after they were done to death by inflicting severe
injuries on neck and other parts of the body threw their dead bodies in the
Varuna river having no consideration for the human life and that too for his
own flesh and blood. Suresh Bahri may be having some differences with his wife
with regard to the sale of house and her idea about settlement with the
children at America but he certainly had no grievance or even any remote cause
against his innocent minor children who could never conceive that their father
who was their guardian of the first degree was taking them to Dhulli farm for
committing their gruesome murder.
105.The
cold-blooded cruel murder of the innocent children by none else but by their
own real father shows the enormous proportion with which it was committed
eliminating almost all members of the family. We have given our serious
thoughts and consideration and posed the question to ourselves whether there
could be still a worse case than this where a husband could hatch a 7
conspiracy and kill his wife in a most callous and ghastly fashion as in the
present case only on a trifling matter which could have been sorted out in an
amicable manner for which no effort appears to have been made by Suresh. Not
only this but the appellant Suresh became thirsty of the blood of his own
children for absolutely no fault of theirs. In the facts and circumstances
discussed above, in our opinion, so far as Suresh Bahri is concerned, the rule
of the rarest of rare cases has to be applied as the present case falls within
the category of the rarest of rare cases and for the perpetration of the crime
of the 140 nature discussed above there could be no other proper and adequate
sentence except the sentence of death as there are no mitigating circumstances
whatsoever. Having regard to all the facts and circumstances of the present
case as far as Suresh Bahri is concerned there is no cause for any interference
in the view taken by the two courts below in awarding the death sentence to
him. We, therefore, affirm the conviction and sentence of death awarded to
Suresh by the High Court. In the event of the execution of death sentence, the
sentence awarded under Section 201 of the IPC shall remain only of academic
interest.
106.As
far as the question of sentence to the appellants Gurbachan Singh and Raj Pal
Sharma is concerned, we may state that there is convincing and conclusive
evidence for their involvement and active participation in the criminal
conspiracy with Suresh to do away with the three members of his family. But
from the evidence on record as discussed by us in the earlier part of this
judgment it is clear that Gurbachan Singh had reached the house of Suresh at
Ranchi in the fateful evening of 10- 10-1983 when Urshia was already done to
death by the appellant Suresh Bahri and Raj Pal Sharma, when Raj Pal Sharma was
seen wearing an underwear holding a dagger in his hand and cleaning the blood
in the room with cotton. From the evidence it is, therefore, clear that
Gurbachan was not a party to the actual murder of Urshia although he was an
active member of the party who hatched the conspiracy to kill her. Similarly it
is also clear from the evidence that we have discussed in the earlier part of
this judgment that though Gurbachan Singh rendered assistance in sending the
cot and chairs to Dhulli farm and sharpening the dagger and batalies for the
murder of two children but he in fact was not present on 17-12-1983 and
18-12n-1983 at Dhulli farm when the two children were done to death by the appellants
Suresh and Raj Pal Sharma.
In
these facts and circumstances, in our opinion, the appellant Gurbachan Singh
does not deserve the extreme penalty of death but the adequate sentence for the
part he played would be life sentence. We, therefore, commute his sentence of
death into that of life sentence and modify the judgment of the two courts
below accordingly to that extent.
107.This
brings us to the question of sentence to be awarded to the appellant Raj Pal
Sharma. There is no doubt that there is ample evidence for his active
participation in the murder of Urshia as well as in the murder of two children
but the prosecution evidence is silent about the actual part that he played in
the two murders and the manner in which he acted in the said killings. It is
difficult to take a definite view that the part he played in said killings was
cruel and callous or it was the appellant Suresh alone who took the leading
part and did the whole thing by himself while the appellant Raj Pal Sharma
assisted him in one or the other manner. In such a situation, in our opinion,
it would not be proper to inflict the extreme penalty of death to Raj Pal
Sharma also but in the facts and circumstances of the case the sentence of life
imprisonment will be just and proper sentence. We, therefore, commute his
sentence of death also into a sentence for life imprisonment and modify the
judgments of the two courts below accordingly.
108.In
the result Criminal Appeal No. 329 of 1992 entitled Suresh Chandra Bahri v.
State of Bihar fails and is hereby dismissed. The
conviction and sentences awarded to him by the two courts below are affirmed.
The Criminal Appeal No. 159 of 1992 entitled Gurbachan Singh v. State of Bihar and 141 Criminal Appeal No. 160 of
1992 entitled Raj Pal Sharma v. State of Bihar are hereby partly allowed to the extent indicated above. The conviction
of the appellants Gurbachan Singh under Sections 302/120-B and 201 as well as
conviction of appellant and Raj Pal Sharma under Sections 302, 302/120- B and
201 of the Penal Code are maintained but the sentence of death awarded to both
of them under Sections 302, 302/120-B is set aside and instead they are
sentenced to life imprisonment. Their sentence under Section 201 is maintained.
All the sentences shall run concurrently.
Back