Subash
Chander Vs. Krishan Lal & Ors [2001] Insc 184 (29 March 2001)
K.T.
Thomas & R.P. Sethi. Sethi,J.
(With Crimina
Appeal Nos.815-16,819-20,817-18,821-22,980,1017/99 Crl.A.No.298/2001)
L.I.T.J
Legends
reveal and the people believe that in the ancient Indian society Bhagwan
Krishna took birth to reprieve the suffering humanity from the terror let loose
by the demon named Kansa. The birth of Lord Krishna, Janmasthami, is celebrated
every year to commemorate the birth of truth for elimination of repression and
atrocities.
Ironically,
thousands of years thereafter, on the day of Janmasthami in the year 1992, the
accused, unfortunately named Krishan, along with others, became a devil and
like vultures pounced upon the family of Bhagwan Ram, the deceased. After
committing a ghastly crime, the accused persons left the scene of occurrence,
satisfied with their design of killing the whole of the family. To their
misfortune, two of the injured survived who appeared against the accused as PWs
2 and 3. The deceased included Bhagwan Ram, his son Sunder Ram, and Chando Devi,
his mother. Spree of killing was resorted to, for
eliminating the prosecution witnesses against some of the accused persons who
earlier, on 25th June,
1987, had committed
the crime of murder of Om Prakash, another son of Bhagwan Ram.
Apparently
with the police connivance, the charge-sheet was filed against accused Krishan Lal
and four others, namely, Bikar Singh, Mangu Singh, Major Singh and Om Prakash,
the later four being not even named in the FIR or in the statements of PWs 2,
and 3, recorded under Section 161 of the Criminal Procedure Code. It was only
on the judicial intervention that ultimately charge-sheet was filed against 12
persons including the convicted appellants. The trial court concluded that
offences under Sections 302, 307, 148, 450 read with Sections 149, 120B and
Section 307 read with Sections 149 and 120B IPC had been proved against the
accused persons, namely, Krishan Lal(A1), Mangu Singh(A2), Bikar Singh(A3),
Major Singh(A4), Vishu(A6), Banwari(A7), Prithvi(A8), Bri Jal(A9), Dhokal(A10),
Bhagirath(A11) and Het Ram(A12). One of the accused persons, namely, Om Prakash(A5)
was, however, acquitted. Upon conviction, the trial court awarded death
sentence to all the accused persons who were convicted under Section 302 read
with Sections 149 and 120B of the Indian Penal Code and fine of Rs.25,000/-
each. All the convicted persons were also sentenced to life imprisonment and
fine of Rs.2000/- each for the commission of the offence under Section 307 read
with Sections 149 and 120B IPC, seven years rigorous imprisonment with a fine
of Rs.2000/- each for the offences punishable under Section 450 of the IPC.
They were further sentenced to three years rigorous imprisonment and a fine of
Rs.2000/- each for the offence punishable under Section 148 and 6 month
rigorous imprisonment and a fine of Rs.1000/- each for the offence under
Section 27 of the Indian Arms Act. It was further directed that after recovery
of fine, the full amount be paid as compensation to injured Subash Chander
(PW2). Reference was made to the High Court for confirmation of the capital
sentence awarded to the accused persons. Feeling aggrieved all the convicted
persons filed appeals in the High Court. The State did not file any appeal
against the acquittal of Om Prakash, accused.
All
the four appeals filed by the convicted persons and the reference arising out
of the judgment of the trial court were disposed of by a common judgment now
impugned in these appeals. The High Court upheld the conviction of convicts,
namely, Krishan Lal(A1), Vishnu(A6), Bhanwari(A7) and Prithvi(A8) but commuted
the death sentence to the imprisonment for life. Their appeals against the
sentences in relation to other offences were rejected.
Not
satisfied with the judgment of the High Court, Subash Chander, (PW2) has filed
two sets of appeals bearing Nos.812-814 of 1999 and 815-816 of 1999 praying for
setting aside the order of acquittal and awarding of death sentence to the
convicted persons as was done by the trial court.
The
four convicted accused have filed two sets of appeals bearing Criminal Appeal
Nos.817-818 of 1999 and 819-820 of 1999 praying for their acquittal by setting
aside the conviction and sentence awarded to them by the trial court and the
High Court. Criminal Appeal Nos.821-822 of 1999, 1017 of 1999, 980 of 1999 and
290 of 2001 have been filed by the State of Rajasthan seeking quashing of the order of acquittal and for award of death sentence
to the convicted persons. It may be noticed, at this stage, that Subhash Chander
in his appeals has not challenged the acquittal of the accused persons, namely,
Bikar Singh(A2), Mangu Singh(A3), Major Singh(A4) and Om Prakash(A5). The State
of Rajasthan has, however, prayed for setting
aside the order of acquittal relating to Bikar Singh, Mangu Singh and Major
Singh, as well.
We
have heard the learned counsel for the parties appearing in the case at length
and propose to dispose of all these appeals by this common judgment.
The
facts of the case, as unfolded during the trial, are that the families of Bhagwan
Ram, deceased and Krishan Lal, accused ("A1") had an old enmity. Om Prakash,
son of Bhagwan Ram was murdered on 25th June, 1987 by A1 along with Vishnu (A6), Bhanwari
(A7), Prithvi (A8) and one Gopi Ram.
Bhagwan
Ram, his sons Sunder Ram and Subhash Chander (PW2) had been cited as
eye-witnesses in that case. During the pendency of the trial A1, A6, A7 and A8
had been released on bail. A6 is the brother and A7 and A8 are uncles of A1.
On the
intervening night of 21/22nd August, 1992, Subhash Chander (PW2), his father Bhagwan
Ram, his brother Sunder Ram, his grand-mother Chando Devi, his sister Raj Kumari
and his maternal uncle Chandu Ram were sleeping in the courtyard of the house
when at about 1o Clock in the night the aforesaid four accused along with Brij Lal
(A9), Dhokal (A10), Bhagirath (A11) and Het Ram (A12) intruded into the house
and started indiscriminate firing on the sleeping family members of Bhagwan
Ram. On hearing the gun shots, Subhash Chander(PW2) woke up and he saw in his
house A1, A6, A7, A8, A9, A10, A11 and A12. Krishan Lal A1 exhorted others to
spare no family member of Bhagwan Ram, deceased. He fired gun shots from his
pistol which hit the bone of the right side hip and abdomen of Subhash Chander.
When
he (PW2) ran from the place of occurrence to save his life, another shot was
fired at him. His father, brother, grand-mother and sister also suffered gun
shot injuries.
During
the spree of gun shots, the accused persons were calling each other by their
names. When the accused were standing in the courtyard of the house of the
deceased persons, PW2 had came out of his room with torch and flashed it on
them which confirmed the identification of the accused. When everybody
belonging to the family of Bhagwan Ram fell after receiving gun-shot injuries,
A1 declared that the work is over, whereafter the accused persons left the
place. PW2 came out of the room and saw that due to sustaining of various
injuries, the condition of his grand-mother was serious, whereas his father and
brother had died. After the accused fled away, PW2 along with his sister Raj Kumari
(PW3) went to the house of Mani Ram who is his father-in-law and narrated him
the whole story. Mani Ram and his son took PW2 and his sister(PW3), in their
jeep and got them admitted in the hospital. On the basis of the statement of
PW2 FIR No.279/92 was registered at Police Station Pili Banga and investigation
commenced.
During
the investigation PWs2 and 3 were got medically examined. Empty cartridges of
copper, empty shells of 12 bore dot-gatte, rubber, live cartridges, pellets, lathi,
gandasi, blood smeared earth and plain earth were recovered and sealed by the
investigating agency. Inquest report and Panchayatnama of the dead bodies of Bhagwan
Ram, Chando Devi and Sunder Ram were prepared. Post mortem was got conducted on
the dead bodies. Blood stained clothes of Subhash Chander (PW2) and Raj Kumari
(PW3) were also seized.
On
7.2.1992 A1 voluntarily appeared in the police station and was arrested. He
produced a pistol and two cartridges of 315 bore which were taken into police
custody as evidence. A1, A2 and A3 were arrested on 11.9.1992. A5 was arrested
on 22.9.1992. On completion of investigation a challan was produced against Krishan
Lal (A1), Bikar Singh (A2), Mangu Singh (A3), Major Singh (A4) and Om Prakash
(A5). The investigating agency found the other 7 accused persons not involved
in the case which included A6, A7 and A8. Even though the accused, apparently
with the connivance of the police, attempted to mislead the court by filing a
case against A2 to A5, yet their attempt was foiled by the court, who after
hearing the arguments on protest petition filed by Subhash Chander (PW2) took
cognizance against all the remaining 7 suspect persons and summoned them as
accused in the case. After committal, the accused persons were charged for the
various offences under the Indian Penal Code and the Indian Arms Act. The
accused persons denied the charges and claimed trial. To prove its case, the
prosecution examined 12 witnesses and relied upon various documents exhibited
as Exhibit P-1 to Exhibit P-80.
In his
statement recorded under Section 313 of the Cr.P.C., Het Ram (A12) submitted
that he was innocent and that he along with Om Prakash, Sheshkaran and Kashi
Ram had gone to Sardarpura at 8.00 a.m. on
the day of occurrence and returned home at 12.30 in the night after leaving Kashi
Ram in his village. Bhagirath (A11), Dhokal (A10) and Brij Lal (A9) pleaded
alibi. Banwari Lal (A7) stated that on the fateful night he was in the Dhani of
Lado Ram at Chak 6 LKS as Lado Ram had died. Vishnu (A6) submitted that on the
day of Janmasthami he had gone to Ganganagar and for the night he stayed there
in the house of Krishan son of Bhola Ram.
Other
accused persons pleaded innocence and took a plea of total denial. In their defence,
the accused persons produced 10 defence witnesses and relied upon documents
marked Exhibit D-1 to D-7.
The
trial court convicted all the accused persons and sentenced them to death
whereas the High Court convicted only four appellants vide the judgment
impugned in these appeals, as noticed earlier. After going through the
statements of witnesses and the record produced in the case we have come to the
conclusion that there did not exist any evidence against A2 to A5 of whom A5
was rightly acquitted by the trial court and A2 to A4 by the High Court. We
have noticed with pain that the aforesaid four accused persons were impleaded
not only to mislead the court but also to provide protection to the real
culprits being sure that ultimately no court could convict and sentence any of
the aforesaid four accused persons. Mr.Ranjit Kumar, learned Senior Counsel
appearing on behalf of Subhash Chander, appellant has been fair to concede that
there is no evidence against the aforesaid accused persons warranting their
conviction and sentence. We, therefore, confirm the acquittal of the aforesaid
accused persons and dismiss the appeals filed by the State against the
acquittal of A2 to A4. Out of the Accused Nos.9 to 12, Dhokal (A10) is stated
to have died during the pendency of these appeals. The trial court had
convicted and sentenced A9 to A12 on the basis of the statements of PW2 Subhash
Chander. Finding that his version of occurrence, in so far as those accused
persons are concerned, was not supported by Raj Kumari (PW3), High Court
acquitted them. It is true that the names of A9 to A12 are mentioned in the FIR
lodged by PW2 and reiterated by him in his deposition in the trial court but Raj
Kumari (PW3) categorically stated that after receiving the gun shot injuries
she, along with Subhash Chander (PW2) had hidden themselves in the room and
when Subhash Chander came out of the room with torch, gun shots were again
fired at him which forced him to return back. At that time "Krishan,
Vishnu, Banwari, and Prithvi were calling each other by their names and said
that work is over, let us go.
The
fact of going was said by Krishan". At the trial, the court observed that
"while identifying correctly to the accused persons namely Krishan, Banwari,
Vishnu and Prithvi the witness stated that these are the 4 accused persons who
fired gun shots". PW3 has been categoric in stating that only four
accused, namely, A1, A6, A7 and A8 were the persons who had come on the spot
and fired gun shots. She has neither named any other person nor identified the
rest of the accused persons in the court. She has not even stated that the
aforesaid four accused persons were accompanied by any other person also. By
referring to the statements of PWs2 and 3 the Division Bench of the High Court
observed: "A critical examination of the testimony of two eye- witnesses
PW2 Subhash Chandra and PW3 Raj Kumari shows that as regards the four accused
persons, namely, Krishan, Vishnu, Banwari and Prithvi, there is no variance in
the testimony of these two eye-witnesses. The testimony of PW3 Raj kumari has
not been shaken in the cross-examination and, therefore, on the basis of the
testimony of Raj Kumari corroborated by PW2 Subhash Chandra these 4 accused
persons can be held to be present at the scene of occurrence and it can be
safely held that they have used gun shots as alleged by this witness and as
corroborated by PWe Subhash Chandra. In relation to the other four accused
persons, namely, Dhokal, Brij Lal, Het Ram and Bhagirath a doubt is created as
to whether they were in fact present or not because had they been present Raj Kumari
would have definitely named them. May be that they were present and Raj Kumari
had missed their presence but if an injured witness misses to name the four
accused persons then such absence goes in favour of the accused persons and,
therefore, notwithstanding the testimony of PW2 Subhash Chandra the presence of
these four accused persons is held to be doubtful. May be that they were not
present on the scene of occurrence at the time of the incident. In this
background of doubt, it can be said that the presence of the four accused Krishan,
Vishnu Banwari and Prithvi is held proved. Presence of four accused Dhokal, Brij
Lal, Het Ram and Bhagirath is held doubtful." We also agree with the
conclusions arrived at by the High Court regarding the role played by A9 to A12
and find no reason to interfere with the judgment of acquittal passed in their favour
by giving them the benefit of doubt. The appeals filed by Subhash Chander and
the State in so far as A9 to A12 are concerned, are dimissed.
Both
the trial court as well as the High Court have, upon appreciation of evidence, concurrently
found accused Krishan Lal (A1), Vishnu (A6), Bhanwari (A7), Prithvi (A8) guilty
of the offences with which they were charged.
Involvement
of the aforesaid accused persons is fully established by the testimony of Subhash
Chander (PW2) and Raj Kumari (PW3). Subhash Chander (PW2) has stated that on
the day of occurrence he, along with other members of the family, was sleeping
in the courtyard of his house. On hearing the sounds of gun-shot firing, he
woke up along with others and saw A1, A6, A7 and A8 along with others firing
with their weapons. A1 fired pistol shots which hit the witness. A1 exhorted
others that nobody from the family of Bhagwan Ram should escape. When the
witness tried to escape by running towards his room, he was again fired at. Raj
Kumari (PW3) also sustained bullet injuries. He saw the accused persons in the
torch light and also recognised them as they were calling each other by their
names. In consequence of the gun shot injuries Bhagwan Ram, Sunder Ram and Chando
Devi died. The crime is stated to have been committed on account of the enmity,
with the object to eliminate the prosecution witnesses cited against the
accused in the murder case pertaining to the death of the brother of the
witness, namely, Om Prakash. To the same effect is the statement of Raj Kumari.
The High Court has accepted the testimony of both the witnesses so far as A1,
A6, A7 and A8 are concerned. Learned Senior Counsel appearing for the aforesaid
accused persons could not point out any material infirmity in the depositions
of the aforesaid witnesses which could persuade us to take a different view.
Upon analysis of the evidence and the other relevant record produced in the
case, we have no doubt in our mind regarding the involvement of the aforesaid
accused persons for the offences with which they were charged, convicted and
sentenced.
Mr.Ranjit
Kumar, Senior Counsel who appeared for Subhash Chander, (PW2) vehemently argued
that the trial court was not justified in commuting the death sentence and
awarding the life imprisonment to the aforesaid accused persons. He has
submitted that the present case was one which could be termed as rarest of the
rare case warranting the extreme penalty imposable upon them under law. It is
contended that mere fact that some of the accused persons were acquitted could
not be made a ground for converting the death sentence into the life
imprisonment. The manner in which the crime was committed on the helpless
sleeping members of a family and design of the accused to eliminate the whole
family justified the grant of death sentence. The reason given by the High
Court for not awarding the death sentence being vague and irrelevant, the
judgment impugned to that extent is sought to be modified. In support of his
contention the learned senior counsel has relied upon the judgments of this
Court in Nirmal Singh & Anr. v. State of Haryana[1999 (2) Scale 133), State of U.P. v. Dharmendra Singh
& Anr. [1999 (6) Scale 113], Ram Deo Chauhan @ Raj Nath Chauhan v. State of
Assam [JT 2000 (8) SC 430] and Narayan Chetanram
Chaudhary & Anr. v. State of Maharashtra [JT 2000 (10) SC 78].
There
is no denial of the fact that the accused convict- appellants, who were earlier
involved in the murder of Om Prakash, son of Bhagwarn Ram left no stone
unturned to eliminate the whole family of said Bhagwan Ram including three
eye-witnesses in that case, namely Bhagwan Ram, Sunder Ram and Subhash Chander.
It is also established that the aforesaid accused persons attacked the deceased
and the injured at the dead hour of the night when they were sleeping being
incapable of defending themselves. The means adopted in execution of the evil
designs speak of the mental condition of the accused persons whom the trial
court found to have been involved in the commission of a crime termed by it as
rarest of the rare cases. The High Court, while commuting the death sentences,
appears to have completely ignored various pronouncements of this Court dealing
with the yardsticks to be adopted while awarding the death sentence. Merely
because 8 persons, convicted by the trial court, were acquitted, by itself
cannot be termed to be a justified ground for commuting the death sentence.
However, as the High Court, presumably on general conspectus and upon
consideration of facts of the case, found that accused persons should not be
awarded with death sentence, we feel that for interfering with the discretion
of the court, further exceptional grounds are required to be made out.
When
two views are possible about the quantum of sentence, a view which favours the
grant of life in comparison of death is generally accepted. But for the
exercise of the powers by the High Court in commuting the death sentence we had
some reservations about the sentence awarded vide the impugned judgment but in
view of the exercise of discretion in commuting the death sentence we are not
inclined to interfere with the sentence awarded to the accused persons
specially Vishnu (A6), Bhanwari (A7), Prithvi (A8).
Mr.Ranjit
Kumar, Senior Counsel alternatively contended that if a desperate accused like Krishan
Lal (A1) is not awarded death sentence, he is likely to eliminate the remaining
family members of Bhagwan Ram, as is evident from his past conduct and behaviour.
It is submitted that to protect the lives of innocent surviving family members
of Bhagwan Ram, it is necessary to atleast deprive Krishan Lal (A1) of his
life. We feel that the apprehensions expressed by the senior counsel are not
without substance Faced with the situation Mr.U.R. Lalit, Senior Counsel
appearing for the aforesaid respondents submitted that instead of depriving Krishan
Lal (A1) of his life, the Court can pass appropriate orders to deprive the
aforesaid accused person of his liberty throughout his life. Upon instructions,
the learned Senior Counsel submitted that the said Krishan Lal, if sentenced to
life imprisonment, would never claim his pre-mature release or commutation of
his sentence on any ground. We record such a submission made on behalf of the
said accused, upon instructions. Section 57 of the Indian Penal Code provides
that in calculating fractions of terms of punishment of imprisonment for life
shall be reckoned as equivalent to imprisonment for 20 years. It does not say
that the transportation for life shall be deemed to be for 20 years. The
position at law is that unless the life imprisonment is commuted or remitted by
appropriate authority under the relevant provisions of law applicable in the
case, a prisoners sentenced to life imprisonment is bound in law to serve the
life term in prison. In Gopal Vinayak Godse v. The State of Maharashtra &
Others [1961 (3) SCR 440], the convict petitioner contended that as the term of
imprisonment actually served by him exceeded 20 years, his further detention in
jail was illegal and prayed for being set at liberty. Repelling such a
contention and referring to the judgment of the Privy Council in Pandit Kishori
Lal v. King Emperor [1944 (1) 72 LR I.A.] this Court held: "If so, the
next question is whether there is any provision of law whereunder a sentence
for life imprisonment, without any formal remission by appropriate Government,
can be automatically treated as one for a definite period. No such provision is
found in the Indian Penal Code, Code of Criminal Procedure or the Prisons Act.
Though
the Government of India stated before the Judicial Committee in the case cited
supra that, having regard to s.57 of the Indian Penal Code, 20 year's
imprisonment was equivalent to a sentence of transportation for life, the
Judicial Committee did not express its final opinion on that question. The
Judicial Committee observed in that case thus at p.10:
"Assuming
that the sentence is to be regarded as one of twenty years, and subject to
remission for good conduct, he had not earned remission sufficient to entitle him
to discharge at the time of his application, and it was therefore rightly
dismissed, but in saying this, their Lordships are not to be taken as meaning
that a life sentence must and in all cases be treated as one of not more than
twenty years, or that the convict is necessarily entitled to remission."
Section 57 of the Indian Penal Code has no real bearing on the question raised
before us. For calculating fractions of terms of punishment the section
provides that transportation for life shall be regarded as equivalent to
imprisonment for twenty years. It does not say that transportation for life
shall be deemed to be transportation for twenty years for all purposes; nor
does the amended section which substitutes the words "imprisonment for
life" for "transportation for life" enable the drawing of any
such all-embracing fiction. A sentence of transportation for life or
imprisonment for life must prima facie be treated as transportation or
imprisonment for the whole of the remaining period of the convicted person's
natural life." In State of Madhya Pradesh v. Ratan Singh & Ors.[1976
(3) SCC 470] this Court held that a sentence of imprisonment for life does not
automatically expire at the end of the 20 years, including the remissions.
"The sentence for imprisonment for life means a sentence for the entire
life of the prisoner unless the appropriate Government choses to exercise its
discretion to remit either the whole or a part of the sentence under Section
401 of the Code of Criminal Procedure", observed the court. To the same
effect are the judgments in Sohan Lal v. Asha Ram & Others [1981 (1) SCC
106], Hagirath v. Delhi Administration [1985(2) SCC 580] and the latest
judgment in Zahid Hussein & Ors.v. State of West Bengal & Anr. [Writ
Petition (Crl.) Nos.274-277 of 2000 decided on 15.3.2001].
Agreeing
with the plea raised by the senior counsel of the convict-respondents and in
view of the circumstances of the case particularly awarding of lesser
punishment by the High Court, we are not inclined to award death sentence to
any of the accused persons. While dismissing their appeals we confirm the
conviction and sentence awarded to the aforesaid accused persons, namely, Krishan
Lal (A1), Vishnu (A6), Bhanwari (A7), Prithvi (A8).
However,
in the peculiar circumstances of the case, apprehending imminent danger to the
life of Subhash Chander and his family in future, taking on record the
statement made on behalf of Krishan Lal (A1), we are inclined to hold that for
him the imprisonment for life shall be the imprisonment in prison for the rest
of his life. He shall not be entitled to any commutation or premature release
under Section 401 of the Code of Criminal Procedure, Prisoners Act, Jail Manual
or any other statute and the Rules made for the purposes of grant of commutation
and remissions.
In
view of what has been stated hereinabove, the conviction and sentences awarded
by the High Court to Krishan Lal (A1), Vishnu (A6), Bhanwari (A7), Prithvi (A8)
are upheld with the rider that Krishan Lal (A1), for the rest of his life,
shall remain in prison.
All
the appeals filed by Subhash Chander, accused persons and the State are
dismissed with a rider that Krishan Lal (A1) shall remain in prison for the
rest of his life.
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