& Ors Vs. State of U.P  Insc 367 (29 August 2002)
& H.K. Sema. Y.K. Sabharwal, J.
first information report (FIR) was recorded on the statement of Sitaram father
of deceased Ratan and Uncle of deceased Ramesh.
the names of accused Roshan and his four sons Lakshmi, Brahma, Kishan Chand and
Shyam Sunder are mentioned. The 6th accused mentioned in the FIR is by
description viz. brother-in-law of Ishwar Chand.
FIR, inter alia, records that Ishwar Chand of the same village as the informant
had been murdered. The murder had taken place in different village, namely, Sondha,
Police Station Modi Nagar, District Ghaziabad.
Ratan, Moolchand who is brother of Sitaram and other men accompanied Brahma and
Roshan to bring back the body of Ishwar.
was son of Roshan. After the body of Ishwar had been brought back to the
village, when the villagers asked Roshan and his sons to perform the funeral
rights of Ishwar, they said that it would be performed the next day in the
morning. Brahma told Ratan that along with the body of Ishwar, they would also
burn the bodies of his murderer. On this, Ratan told Brahma that first perform
the ceremony of Ishwar. Next morning, Brahma and Lakshmi called Ratan and Ramesh,
took them into confidence and asked them to get ready for funeral ceremony and
to carry their revolver with them and also told them that they were also doing
so as they were apprehending some danger. Sitaram, Moolchand, Ratan, Ramesh and
other villagers reached the cremation ground to attend the funeral of Ishwar.
The funeral pyre was prepared and fire was ignited by Shyam Sunder and the body
started burning. At this stage, when it was about 8.30 a.m., Brahma asked Ratan for his revolver which Ratan refused to
give. Roshan and 'sala' (brother-in-law) of Ishwar caught hold of Ratan; Brahma
fired with his rifle on the head of Ratan and Lakshmi fired Ratan with the
country-made pistol; meantime Kishan Chand and Shyam Sunder fired at Ramesh;
there was pandemonium; all started screaming and shouting; Lakshmi removed
revolver of Ratan. Sitaram told him that these persons had always helped him
and that is how he was repaying on which Brahma said that Ratan had got Ishwar
murdered and they have taken revenge. Further, it records that all these people
took the dead bodies of Ratan and Ramesh and put the said bodies on the pyre of
Ishwar and these bodies also started burning.
the investigation, 8 persons were put to trial for offences under Section 147,
148, 302, 149 and 201 IPC. Besides the aforesaid five named persons and Dharamvir
brother-in-law of Ishwar, two other persons who were put to trial were accused
No.7 Shatrughan and accused No.8 Baleshwar.
Court acquitted Shatrughan and Baleshwar. The remaining six were convicted of
the offences. It was held that the prosecution had established that the said
six accused had formed an unlawful assembly with the common object of
committing murders of Ratan and Ramesh;
and Dharamvir had no arms, the remaining four were armed with deadly weapons
gun and pistols; the murder was committed in the funeral ground with a view to
take revenge by burning their dead bodies along with the dead body of Ishwar as
accused thought that Ratan and Ramesh were responsible for committing murder of
Ishwar. For offence under Section 302 read with Section 149 IPC, imprisonment
for life was imposed on all the six besides other sentences for offences on
which they were found guilty including rigorous imprisonment for three years
for offence under Section 201 read with Section 149 IPC.
criminal appeals and one criminal revision were preferred before the High Court
challenging the judgment and order of the trial court. One appeal was filed by
six accused challenging their conviction and sentence. Two appeals were filed
by the State in one appeal acquittal of Shatrughan and Baleshwar was questioned
and in the other the State prayed for enhancement of imprisonment for life
imposed on Brahma on the ground that he had committed murder while undergoing
life imprisonment and, therefore, death penalty should have been imposed on
him. Criminal revision was filed by the complainant praying for the enhancement
of sentence of the six accused persons.
aforementioned appeals and revision petitions were disposed of by a common
judgment and order of the High Court. Both the appeals of the State and
criminal revision were dismissed. The criminal appeal filed by the accused
persons was partly allowed. The conviction and sentence of Dharamvir was set
aside. The conviction and sentence of Roshan for offence other than that under
Section 201/149 was set aside.
conviction of Roshan for offence under Section 201/149 was converted to one
under Section 201 IPC and sentence of three years imposed on him by the trial
court in respect of Section 201/149 IPC was confirmed. Conviction of other
accused persons, namely, Brahma, Lakshmi, Shyam Sunder and Kishan Chand was in
substance confirmed with the only modification that their conviction under
Sections 302/149 and 201/149 was converted to one under Section 302 and Section
201 IPC and sentences imposed by the trial court were maintained. They were,
however, acquitted of charge under Section 148 IPC.
these appeals, the judgment and order of the High Court has been challenged.
Criminal appeal No.619/2000 has been preferred by Lakshmi, Shyam Sunder and Kishan
Chand challenging their conviction and consequent sentence by the trial court
as confirmed by the High Court in the manner aforestated. Criminal Appeal
No.620/2000 has been filed by Roshan challenging his conviction and sentence
for offence under Section 201. Special Leave Petitions filed by the State
challenging the judgment of High Court confirming the acquittal of Shatrughan
and Baleshwar and also the dismissal of the other criminal appeals that had
been filed by the State in the High Court seeking enhancement of sentence of
Brahma have already been dismissed. The State has, however, been granted leave
only in respect of its challenge to the acquittal of Roshan and Dharamvir
(Criminal Appeal Nos.944-45/2000).
have heard Mr. P.P. Malhotra, in support of Criminal Appeal No.619/2000, Mr.
R.K. Shukla in support of Criminal Appeal No.620/2000, Mr. Praveen Swarup for
State in all the appeals, Mr. R.K. Shukla and D.K. Garg for respondents in
State appeals and Mr. O.P. Sharma for the complainant. Mr. Malhotra, on
instructions, stated that Brahma died after the decision of the appeals by the
have with the assistance of learned counsel perused the relevant documents and
the testimony of the witnesses. The conviction of the accused persons is based
on the testimony of eye-witnesses PW1 Sitaram, PW2 Moolchand and PW5 Babu who
have all deposed being present at the cremation ground when Ratan and Ramesh
were shot and thereafter thrown on the pyre of Ishwar. PW1 is father of Ratan.
PW2 is father of deceased Ramesh. PW1 and PW2 are brothers. PW5 is resident of
the same village. PW3, Smt. Usha is wife of Ratan Lal and is said to have
reached the cremation ground soon after the incident. She has not been believed
by the trial court as also by the High Court. Her presence at the cremation
ground as claimed was doubted and on that basis, Shatrughan and Baleshwar were
acquitted in absence of any evidence to connect them with other accused. We are
also not placing any reliance on Smt. Usha.
incident took place at 8.30
a.m. The FIR on the
statement of PW1 was recorded at 10 a.m. The FIR named six persons in the manner earlier noticed.
contended that the prosecution has failed to prove its case beyond reasonable
doubt. Learned counsel points out that despite the fact that according to the
case of the prosecution four fire arms were used for shooting Ratan and Ramesh,
neither of the weapon was recovered nor the weapon which was allegedly removed
from Ratan and said to have been taken away by the accused was recovered nor
any bullet or pallet was recovered. The contention that has been more
strenuously put forth by the learned counsel is that the two bodies have not
been identified and also that their cause of death could not be ascertained.
Mr. Malhotra contends that in absence thereof, the conviction could not be
have perused the two post mortem examination reports one in respect of Ramesh
and the other in respect of Ratan. Both bodies had been extensively burnt. They
were burning for about two hours before extraction from the burning pyre of Ishwar.
The report in respect of Ramesh reads as under :
whole body except to external charred and burnt except the middle part of the
back. Both the upper extremities are absent at the level of the shoulder Jts.
The bones of shoulder and both the clavicles are visible and burnt. Both the
lower extremities are absent at the level of lines r 2/3.
exposed in it are burnt. Face and scalp is burnt. The scalp line is visible.
Ear, Nostrils, Eyes are not burnt. Mouth is closed and differed. The abdomen
Cavity is lapsed and burnt, intestine and liver are visible." The report
in respect of Ratan Lal reads as under :
whole body is externally burnt and charred upper of the scull is absent. Cr.
Ear is lying burnt.
nose & Eyes are burnt, Mouth Y 2 open and in upper lateral. In lower to
liver left lateral & crnisetoth are visible. Both the upper extreenitus are
absent at level of just below the elbow jt. and the both visible in it are
burnt. Both lever extremities are absent at the level of the lower Y 2 of both
the thighs. The bones visible in it are burnt. The thorasic & abdomal
cavity is exposed non-existent. The vice are fully in it which are burnt."
As the bodies were extensively charred and burnt, the definite cause of death
could not be ascertained. In respect of Ramesh, one gun shot wound was stated
to be visible. The post mortem report in respect of Ratan does not state
anything about any gun shot injury.
the identification of the two bodies, we perused Exhibit K-2 prepared after the
bodies from burning pyre were taken out as aforestated. K-2 notices that the
bodies have been taken out by putting water. This document mentions that the
bodies had been badly burnt and had no sign of identification except one was of
heavy built up and other was of lightweight. Ratan was identified by his wife
and Ramesh by his father. The theory that Ratan was wearing a muffler and could
be identified on that basis has not been believed by the trial court and the
High Court. We do not propose to take a different view of that aspect.
these circumstances, it was strenuously contended that in view of this position
of the bodies as is also clear from the post mortem reports, there was no
proper, valid and legal identification and this discrepancy is fatal to the
case of the prosecution coupled with absence of proof of cause of death.
to Exhibits K-5 and K-16, it was also sought to be contended that although PW6
Constable Natha Singh took the bodies from Police Station at 6.30 p.m. for
taking the bodies to the doctor for post mortem reports, but the same were
delivered for the post mortem at about 12 noon. It was also pointed out that
although PW1 was said to be present at the time of the preparation of inquest
documents, but he was not a witness to the said documents which makes his
presence at the time of the preparation of the documents doubtful. Learned
counsel further pointed out that PW5 deposed that he only saw accused Brahma
carrying the weapon and none else and as per aforesaid post mortem reports,
there was only one injury of gun and, thus, it is possible that only Brahma had
committed the offence and none else but the entire family has been implicated.
Some fault was sought to be found in the preparation of the documents of
investigation by the Police pointing out that the documents were prepared in
pencil and that in some documents the first accused mentioned was Kishan Chand
whereas in other documents other accused was mentioned and on that basis
investigation was challenged as tainted.
the identification of the body, cause of death and recovery of weapon with
which injury may have been inflicted on the deceased are some of the important
factors to be established by the prosecution in an ordinary given case to bring
home the charge of offence under Section 302 IPC. This, however, is not an
inflexible rule. It cannot be held as a general and broad proposition of law
that where these aspects are not established, it would be fatal to the case of
the prosecution and in all cases and eventualities, it ought to result in the
acquittal of those who may be charged with the offence of murder. It would
depend on the facts and circumstances of each case. A charge of murder may
stand established against an accused even in absence of identification of body
and cause of the death.
present case falls under this latter category. We would assume in favour of the
accused persons that the prosecution had failed to conclusively prove as to
which was the body of deceased Ratan and which was that of Ramesh. The trial
court and the High Court, as earlier noticed, have disbelieved PW3 Usha wife of
Ratan. The theory of his identification from muffler has not been accepted. It
is also possible that the Police or the complainant thinking that
identification of the dead bodies would be one of the important aspects to be
established may have introduced the theory of muffler. The mere fact that in
this regard, the case of the prosecution is not believed by itself does not
lead to the conclusion that the accused persons are to be let off when the
charges against them otherwise stand established on the basis of the other
reliable and trustworthy evidence. Every faulty investigation or padding in
evidence cannot by itself lead to total demolition of prosecution case if it
can otherwise stand ignoring these fallacies.
to the present case, it has to be kept in view that it stands fully established
that Ramesh and Ratan and the accused persons were present at the cremation
ground on the date and the time alleged by the prosecution. It has not been
disputed and even otherwise stands established that Ratan and Ramesh went with
the dead body of Ishwar Chand to the cremation ground. Roshan in his statement
under Section 313 Cr.P.C. also does not dispute the presence of PW5 Baburam in
the funeral procession of Ishwar Chand. Though some attempt was made in the
trial court to dispute the presence of Roshan at the cremation ground by taking
a plea that it was not customary for the father to attend the cremation of his
son but rightly no such attempt was made before us. It stands fully established
that Roshan and his sons the accused persons and Dharamvir were all present at
the cremation ground. The factum of the murder of Ratan and Ramesh on the date
and the time alleged has also been established and has rightly not been
challenged by the defence. Their case, however, was that the two deceased were
shot by some unknown person. The occurrence took place in the broad daylight in
the presence of so many persons who had accompanied the dead body of Ishwar Chand
to the cremation ground. It also stands established that the two bodies were
recovered from the funeral pyre of Ishwar Chand after they had been badly burnt
for over two hours.
not and could not, under the circumstances of the case, be the plea of anyone
that all the three persons died together and were cremated together. The facts
and circumstances do not suggest any such theory. Further, even in case of all
simultaneous cremations of persons dying together, separate pyres are set up
for individual dead bodies and not one for three persons belonging to three
families, i.e., one son of Roshan, another son of Sitaram and another that of Moolchand.
A great stress was laid by Mr. Malhotra that it could not be said as to which was
the body of Ratan and which was that of Ramesh and that it was not possible to identify
the said bodies on the basis that one of them was of heavy built up. We would
assume that it was so. The assumption that bodies could not be identified, as
contended, on the contextual facts, would make no difference. Keeping in view
the manner in which Ratan and Ramesh were killed and put on the pyre of Ishwar Chand,
it would hardly make any difference as to which out of them was the body of Ratan
and which was that of Ramesh.
reasons given above would equally apply to the absence of cause of death. The
bodies had been extensively burnt and for that reason, it could not be
ascertained whether the cause of death was shooting or burning. That also
explains non-recovery of the pallets which would have lost in the burning pyre.
The fact that the investigating team was not vigilant and did not take the
trouble of searching pallets in the pyre would not be destructive of the
prosecution case when it has been otherwise proved. It is not open to the
accused persons to first make an attempt to destroy the evidence by throwing
the two in fire and then contending that they are entitled to be acquitted for
want of proof of identification of bodies and cause of death. There is
unimpeachable evidence of PW1, PW2 and PW5 as to the manner in which the
accused persons shot Ratan and Ramesh and threw them in the burning pyre of Ishwar
Chand. The FIR was recorded within about an hour and half naming Roshan and his
sons and brother-in-law of Ishwar Chand as accused and also narrating the
manner of committing the crime. Once we believe PW1, PW2 and PW5, the aspect
whether one gun shot wound entry on the body of Ramesh could be found while
there was no exit entries or no gun shot injury was found on the body of Ratan,
would be of no importance. As already stated, all this was a result of
extensively burning of the bodies.
accused persons were absconding and surrendered nearly three months after the
commission of the crime. That explains the non- recovery of the weapons which
is of no effect on the case. There is also no substance in the other minor
points sought to be urged and noticed hereinbefore including the point
regarding the timing of taking of the bodies by the Constable for post mortem
or the preparation of some of the documents by the Police in pencil and mentioning
of name of some or the other as the first accused in some documents or PW1 not
being the witness to inquest documents. Regarding the contention that PW5 only
saw Brahma carrying weapon and none else, it has to be borne in mind that
Brahma was carrying double barrel gun whereas others were carrying revolver and
country-made pistol which obviously had to be in the pocket and not
demonstrated outside. We are unable to accept the contention that only Brahma
may have committed the offence and others were falsely implicated.
dealing with the criminal appeal filed by Roshan (Criminal Appeal No.620/2000)
challenging his conviction under Section 201 IPC and criminal appeals filed by
the State (Criminal Appeal Nos.944- 45/2000) challenging the acquittal by the
High Court of Dharamvir of all the charges and of Roshan of charge of murder,
the factors that have prevailed with the High Court for their acquittal are two
Absence of the name of Dharamvir in the FIR; and
Not believing the prosecution case that Dharamvir and Roshan caught hold of Ratan
and then he was shot by Brahma and Lakshmi.
High Court has, however, found that there is definite and consistent evidence
that Roshan joined hands with other accused persons in throwing Ratan and Ramesh
on the funeral pyre. In respect of Dharamvir and Roshan, the High Court has
this to say :
name of Dharamveer was not indicated although the complainant knew him
role of Dharamveer is only to the extent of catching hold of Ratan. The other
man who caught hold of Ratan was Roshan. According to the initial story, these
two persons embraced Ratan from behind ('kauli bhar liya'). Sensing the
difficulty that two persons at the same time may not embrace a person from
behind, the story was changed to catching hold by each, by one hand of Ratan.
It was argued on behalf of the defence that when every thing was pre-planned
and when shooting was done from a very close range, there was no necessity for
any person to catch hold of Ratan. It was argued on behalf of the State that Ratan
was armed, it was necessary to catch hold of him by his hands. The fact that Ratan
was armed goes against the theory of catching hold, as Taran in that case could
have tried to free himself and to use his arms against the persons catching
hold of him. Moreover, when he was within the range of fire, the story of
catching hold from behind or even catching hold by hand, does not appeal to
reason. One of those persons who caught hold was not named and his name had
come only during evidence. The story so far this aspect is concerned appears to
be doubtful." As already stated, Roshan got benefit of doubt for the
charge under Section 302/149 but was convicted for offence under Section 201
High Court said that :
story of catching hold of Ratan by this Dharamveer and Roshan has been changed
from the FIR stage to the trial stage and when everything was settled according
to the prosecution story, there was no reason for catching hold of Ratan and
the story is not only contradictory at two different stages, it appears
improbable also as Ratan having an arm with him, does not offer any resistance,
however, short the period might have been of that alleged confinement. There is
no other evidence of participation of Roshan in the killing of Ramesh and Ratan.
Dharamveer, therefore, must be given the benefit of doubt for all the charges
against him while Roshan gets a benefit of doubt so far the charge under
section 302/149 as also under section 147 is concerned. There is, however,
definite and consistent evidence that he had joined hands with the other
accused persons in throwing the dead bodies of Ratan and Ramesh on the funeral
pyre. A plea was taken by Roshan that customarily, in their religion, the
father does not attend the cremation of his son.
overwhelming evidence regarding his presence and participation in disposing of
the dead body/injured body of Ratan and Ramesh suggests falsehood of this plea.
Roshan although entitled for acquittal of charges under section 147 and 302/149
IPC may not escape the charge under section 201 IPC." The evidence clearly
demonstrates that none of the aforesaid two factors are justified. Firstly, in
the FIR recorded on the statement of PW1 Sitaram, it is stated that Roshan and
'sala' (brother-in-law) of Ishwar Chand caught hold of Ratan who was fired with
rifle on the head by Brahma and by country-made pistol by Lakshmi. Sitaram also
states in the FIR that he can recognize the brother-in-law of Ishwar Chand on
seeing him. It further notices that all of them threw the dead bodies on the
pyre of Ishwar Chand. In evidence, PW1 has stated that he was perplexed and
could not remember at that time the name of Dharamvir.
has deposed that when Ratan refused to handover his revolver to Brahma, Roshan
caught hold of Ratan from one side while Dharamvir took him in his grip from
the other side and within no time Brahma fired his gun on his head while Lakshmi
opened fire from his revolver. Dealing with the catching of Ratan by Roshan and
Dharamvir, the trial court said :
this connection it was pointed out on behalf of defence that in the report
(Ext.Ka.1) (PW1) has stated that Roshan and the brother-in-law of Ishwar Chand
(Dharamvir) clasped (Koli Bharli) Ratan. But now in his statement (PW1) said that
Roshan caught him from one side, while Dharamvir caught him from the other
side. I think the word "koli" also means taking in the grip. This
difference of wordings is immaterial. The fact is the same. So there is no
difference or contradiction in the statement of PW1 or of any other witness on
this point. 'Koli Bharna' also means catching hold of the person from both the
sides. At the same point it may be pointed out that it was argued on behalf of
the defence that the theory of clapping or (Koli Bharna) is most improbable and
unnatural. The case of the prosecution is that Roshan and Dharamvir caught hold
of Ratan, while Brahma and Lakshmi opened their fires on him. It was contended
that this position is highly improbable, because there was every risk of
causing injury to Roshan and Dharamvir as well. In that position the accused
would not open fire on their own companions. In this connection 1961 Criminal
Law Journal page 396 was cited on behalf of the defence. But in the instant
case there was a reason for this clapping or catching hold of Ratan by Roshan
and Dharamvir. It has come in evidence that Ratan was also armed with a
Revolver which was hanging around his neck. In that position there was every
possibility of Ratan's opening fire on the accused in case he saw the accused
aiming towards him. In order to render Ratan unable to use his arm he was
caught hold of by Roshan and Dharamvir making him quite helpless to be used as
a target of the fires of Brahma and Lakshmi. Moreover, to avoid risk of injuries
on the persons of Roshan and Dharamvir, Lakshmi and Brahma fired their fire
arms on Ratan by placing the barrels of their fire arms on the very person of Ratan.
Fixing by putting the weapons on the head of Ratan itself shows that it was
precaution to avoid any injury to Roshan and Dharamvir who were controlling Ratan.
So this was quite natural process in the circumstances of the case. As there
were other persons also including the accused near Ratan and Ramesh, the letter
were fired at them very close.
to PW1 the fires were shot instantaneously in a short while. Ramesh was shot at
the same moment by Shyam Sunder and Kishan Chand." We have minutely
examined the evidence. By no stretch of reasoning, any fault could be found
with the aforenoted finding of the trial court. By adopting a wholly erroneous
approach, the High Court held that the role of Dharamvir was only to the extent
of catching hold of Ratan or for coming to the conclusion that there was no
such need or that there was any change of the story. Clearly, there is
consistency right from the stage of recording of FIR as to the manner of
commission of crime and upto the stage of deposition by PW1 corroborated by
other eye-witnesses PW2 and PW5. From the evidence, it is fully established
that deceased Ratan had to be immobilized as he was carrying in his neck his
immobilized by catching hold of by Roshan and Dharamvir which facilitated his
shooting by Brahma and Lakshmi and Roshan and Dharamvir with others threw him
on the pyre of Ishwar. Roshan and Dharamvir had been charged for offence under
Section 302/149 IPC.
prosecution has fully established its case against them as well. We are unable
to sustain the acquittal of Dharamvir of the charges under Sections 302/149 and
201/149 IPC of which he was convicted and consequently sentenced by the trial
court. Similarly, we are also unable to sustain the acquittal of Roshan of
charge under Section 302/149 IPC.
view of the aforesaid discussion, we dismiss the appeal (Criminal Appeal
No.620/2000) of Roshan Lal and also Criminal Appeal No.619/2000 of the other
accused and allow the appeals of the State (Criminal Appeal Nos.944-45 of 2000)
and set aside the impugned judgment and order and restore that of the trial
court holding Roshan and Dharamvir guilty as aforesaid for offences under
Section 302/149 IPC and Section 201/149 IPC and consequently sentencing them as
well. We restore the judgment and order of the trial court in respect of Roshan
and Dharamvir also and to that extent allow the appeals of the State. In this
view, Roshan and Dharamvir shall be taken into custody to undergo the remaining
part of their sentences.
the appeals are disposed of accordingly.