Back
1997(9) Supreme 34
SUPREME COURT OF INDIA
(From Allahabad High Court)
M.M. Punchhi and S.P. Kurdukar, JJ.
Shiv Ram & Anr. etc. -Appellants
versus
State of Uttar Pradesh -Respondent
Criminal Appeal Nos. 715-16 of 1997
(With Criminal Appeal Nos. 721-24/97, 717-20/97 & 725/97)
With
Criminal Appeal No. 593 of 1997
Decided on 21-10-1997
Counsel for the Parties :
For the Appearing Parties : A.K. Ganguli, Sr. Advocate (A.C.), Sushil Kumar, Dr. N.M. Ghatate, Sr. Advocates, V. Krishnamurthy, Mrs. Rekha Pandey, P.R. Kovilan, S.M. Rai, B.M. Sharma, T.N. Singh, Mrs. Sushila Shukla (A.C.), Mukesh K. Giri, Shakil Ahmed Syed, C.D. Singh and A.S. Pundir, Advocates.
Held : The prosecution case substantially rested on the evidence of two eye witnesses, namely, Mahendra Kumar (P.W.1) and Lallu Ram (P.W.2). Mahendra Kumar (P.W.1) is the son of Sukhdarshan (since deceased) and grand son of Bhuwaneshwari (since deceased). Sandeep (since deceased) was his brother and Surendra, another deceased was his cousin, Kamlesh (since deceased) was a close relative. (Para 15)
The evidence of P.W.1 finds corroboration from the First Information Report which was lodged at 9.05 p.m. (within four hours of the occurrence) at Mitauli Police Station. The complaint was written after the incident was over. Mahendra Kumar (P.W.1), Lallu Ram (P.W.2) and Kamlesh then went in a tractor to lodge the First Information Report. The FIR came to be registered against 24 accused persons. It needs to be noted that Mahendra Kumar (P.W.1) in his complaint had named the accused persons with the weapons which they were carrying and the manner in which they assaulted five persons who lost their lives in the present crime. The FIR fully corroborates the evidence of P.W.1. The evidence of Mahendra Kumar (P.W.1) does not suffer from any infirmity. We have also scrutinized the evidence of Lallu Ram (P.W.2) and it corroborates in all material particulars the evidence of Mahendra Kumar (P.W.1). The trial Court as well as the High Court had scrutinized their evidence very carefully and accepted the same as truthful. We concur with the courts below as regards appreciation of the evidence of these two witnesses. (Para 15)
The evidence of both these witnesses in our considered view is absolutely straightforward, unblemished and without any infirmity. The First Information Report which was lodged within four hours, naming all the accused also lends assurance is our conviction that the evidence of these two witnesses is trustworthy and cannot be discarded. (Para 16)
It is also true that there was a delay in forwarding the copy of the FIR to the Illaqa Magistrate but that circumstance would not demolish the other positive and credible evidence on record. This would only show how in such a serious crime the investigating agency was not careful and prompt as it ought to be. (Para 17)
After going through the medical evidence on record we have no manner of doubt that these four persons met with the homicidal deaths. They were brutally murdered. As far Kamlesh (since deceased) was concerned it was proved beyond any pale of doubt that he was the first person to sustain gun shot injuries and died in the hospital due to septicaemia which was the result of injuries on his person during occurrence in question. (Para 19)
The occurrence in question was full of revenge which was deep-rooted in the minds and action of the accused persons and they were determined to take revenge in the same manner in which Chandrika was murdered. Apart from this we see no difficulty in holding that the unlawful assembly could develop a common object on the spur of moment to commit the massacre of the family members of Bhuwaneshwari. We, therefore, see no reason whatsoever to differ from the findings of the courts below that the common object of the unlawful assembly was to commit the mass murders of the family members of Bhuwaneshwari. There is also another angle to judge the common object of the unlawful assembly in the present crime and that is the mode of brutality. Chandrika was alleged to have been murdered by Ram Gulam and Sheo Pal (trial of both is pending). The manner in which Chandirka was done to death and his head was severed the accused wanted to take revenge in the same manner and for this reason the modus operandi adopted by them was to cause firearm injuries to these three persons on a non-vital part of the bodies so that they would be immobilized and then cause Banka injuries and at the end to severe their heads. Only one gun shot would have been sufficient to cause the death of four victims as the assailants were standing at a close range but that could not have satisfied the ego and vengence because they wanted to severe the heads of these three victims when they were lying immobilized due to injuries. It is for this reason we have started our judgment by saying that the accused persons had in the letter and spirit followed the primitive theory of punishment. (Para 20)
(ii) SENTENCE-Indian Penal Code, 1860-Sections 302, 302/149-Mass murders of family members-Unlawful assembly-Death sentence awarded to A6-Appeal-Role attributed to A6 was that he fired from his gun which hit deceased S whereupon he fell down-Thereafter A8 and A5 throw him into smouldering fire-A6 could not be bracketed with accused persons who have been awarded death sentence-Award of life imprisonment to A6.
Held : A-6, in our considered view is entitled to a differential treatment for want of conclusive evidence that he had caused fire arm injuries to Sandeep. We must make it clear that this finding by itself would not absolve A-6 from his culpability in the present crime with the aid of Section 149 IPC as regards other murders. His presence was proved beyond every reasonable doubt at the time of occurrence. He was a member of an unlawful assembly having a common object to commit the murders in question and in prosecution thereof used his fire arm along with other accused who were armed with fire arms. In view of these proved facts we are of the considered view that the death sentence awarded to Rajendra (A-6) was not proper and instead he must fall in the group comprising of accused/appellants who used the fire arms and have been awarded life imprisonment. We accordingly convert the death sentence awarded to Rajendra (A-6) to a life imprisonment without upsetting his convictions on this count as also convictions and sentences on other counts. (Para 24)
(iii) SENTENCE-Indian Penal Code, 1860-Sections 302, 302/149-Convictions for committing mass murders of one family members-Accused awarded death sentence-Appeals-Unlawful assembly formed with common object to take revenge-Accused immobilised victims by causing gun shot injuries-Act of severing heads from injured bodies-All three heads were put together in a piece of cloth-A victory procession was taken out by accused persons-Totality of circumstances outweighed mitigating circumstances-Award of death sentence to each of the six condemned prisoners justified.
Held : The accused persons had shown scant regard for the human dignity. Upon taking overall view of the circumstances in the light of the ratio laid down by this Court in the aforesaid judgments and taking into account the manner of commission of crime, motive for commission of crime and criminals, magnitude of the crime and little regard for the human dignity and in particular a young boy of 10 years. (Para 28)
In our considered view justification clearly leans in favour of death sentence to each of the six condemned prisoners. Totality of circumstances outweighted the mitigating circumstances as pointed out by Mr. Ganguli. Sentence of life imprisonment to these six accused persons would be totally inadequate in the facts and circumstances of this case. The proved facts of this case unmistakably indicate that the present case squarely falls within the ambit of "rarest of rare" case. Five murders were committed in an extremely brutal, grosteoue, diabolical, revolting or dastardly manner which would arouse intense and extreme indignation of the community. Award of lesser punishment to these six accused persons would disintegrate the rule of law upon which the edific of our civilized society stands.Para 29)
(iv) CRIMINAL TRIAL-Evidence -Mass murders-Relation witnesses-Admissibility of evidence-Court must scrutinize evidence of such witnesses with care and caution.
Held : Now a days it is a common tendency that no outsider would like to get involved into criminal case much less in the crime of present magnitude and, therefore, it was quite natural that no independent witness would come forward to assist the prosecution. It is well settled that the evidence of witnesses cannot be discredited only on the ground that they are close relatives of the deceased persons. All that is required in such a situation is that the court must scrutinize the evidence of such witnesses with utmost care and caution. The magnanimity of the present crime and nature of prosecution evidence has put us on guard to appreciate the evidence of these two eye witnesses with utmost care and caution. (Para 16)
(v) CRIMINAL TRIAL-Evidence -Delay in forwarding copy of FIR to Illaqa Magistrate-That circumstance would not demolish the other positive and credible evidence on record. (Para 17)
(vi) UNLAWFUL ASSEMBLY-Common object could be developed on spur of moment to commit massacre of family members. (Para 20)
JUDGMENT
S.P. Kurdukar, J.-A primitive theory of punishment, "limb for limb; eye for eye; ear for ear; etc., etc.," prevalent in the uncivilized society was put into action in letter and spirit in the present time. The magnitude of the present crime needs no elaboration. In the present crime five deaths were involved in which a boy of ten years had been assaulted and thrown into the fire and roasted alive; heads of three human bodies were severed and the 5th who sustained firearm injuries died in the hospital after about 17 days due to septicaemia. Such is the gravity of the crime. 24 persons were arraigned at the trial as accused and at the conclusion of the trial, the trial Court awarded death sentence to four accused, life imprisonment to twelve accused and acquitted seven accused. The trial Court made a reference under Section 366 Cr.P.C.; the convicted accused filed the appeals including those who had been awarded capital punishment; the State of U.P. also filed two appeals; one against the order of acquittal of seven accused and another for enhancement of sentence in respect of other accused. The batch of criminal appeals was heard together by the High Court of Allahabad. The High Court confirmed the death sentences awarded to four accused and in addition thereto while allowing the State appeal for enhancement, awarded the death sentence to three accused. The State appeal filed against the order of acquittal had been allowed and they were convicted for various offences including substantive offence under Section 302 with the aid of Section 149 IPC and sentenced each one of them to suffer life imprisonment. The particulars of the accused, the weapons used during the assault and details of the deceased will be referred to shortly. These criminal appeals have been filed in this Court by the accused/appellants challenging the judgment and order of conviction and sentence passed by the High Court on 28.1.1997. All these appeals were heard together. Since they arise out of a common judgment, they are, therefore, being disposed of by this judgment.
2. Before we advert to the prosecution case we may set out the particulars of the accused/appellants since most of them come from the same family and some are close relatives. The accused/appellants will be referred to in these appeals by their original description as in the trial Court :
X
l
l l
Jodhey Raghubar (A-9)
l l
l l l l l
Chandrika Shyam Sheo Ram Lalla Pattu
Passi (died) Manohar (A-2) (A-3) (A-7)
l (A-1) l
l l
l l l l l
Harish Rajender Ravindra Suresh Prakash
(A-4) (A-6) (A-5) (A-13) (A-8)
Dhakan (A-18) is nephew of A-1, Nandlal (A-20) is uncle of A-1, Srikrishna (A-19) is son of Nandlal (A-20). Sriram (A-14) and Rajaram (A-15) are brothers and sons of Bhawan Passi. Rampal (A-16) and Itwari (A-17) are brothers and sons of Bharosey. Rakesh (A-11) and Rajesh (A-12) are brothers and sons of Prem Giri (A-10) who is now dead. Sankatta (A-22) and Mathura (A-21) are brothers. Dorey (A-23) is related to A-22; Rampal Verma is A-24.
3. The deceased persons were also closely related to the complainant Mahendra Kumar (P.W.1) as shown below :
Bhuwaneshwari
(deceased)
l
Sukhdarshan
(deceased)
l
l l
Mahendra Kumar Sandeep
(P.W.1) (deceased)
4. In addition to the above list of deceased persons from one family, Surendra (since deceased) was cousin of P.W.1., Kamlesh (since deceased) was a relative of P.W.1. Sheo Pal and Ram Gulam are the relatives of Sukhdarshan (since deceased).
5. The motive of the present crime was sought to be traced by the prosecution from t
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
