2002 Supreme(SC) 864

2002(6) Supreme 68
SUPREME COURT OF INDIA
(From Allahabad High Court)
Y.K. Sabharwal & H.K. Sema, JJ.
Lakshmi & Ors. -Appellants
versus
State of U.P. -Respondent
Criminal Appeal No. 619 of 2000
(With Criminal Appeal Nos. 620 and 944-945 of 2000)
Decided on 29-8-2002
Counsel for the Parties :
For the Appearing Parties : P. Malhotra, R.K. Shukla, S.C. Maheshwari, O.P. Sharma, Sr. Advocates, Mukand Sharma, M.P.S. Tomar, Ms. Sandhya Goswami, R.C. Gubrele, K.R. Gupta, Ms. Nanita Sharma, Vivek Sharma, Abhishek Atrey, Rajbalam Sharma, Praveen Swarup, Prashant Choudhary, Praneet Ranjan, Pramod Swarup, J.B. Singh, D.K. Garg, Ajay K. Agrawal, P.S. Tomar, Advocates.

IMPORTANT POINT
A charge of murder may stand established against the accused even in absence of identification of dead body and cause of death and non-recovery of the weapons if the prosecution case can stand ignoring these fallacies as in this case despite said fallacies conviction of appellants is sustainable on evidence of eye witnesses PW 1, PW 2 and PW 5.

Headnote:Indian Penal Code, 1860-Sections 147, 148, 302, 149 and 201-Offences under-8 persons tried-Trial Court convicted six and acquitted two-High Court upheld conviction of 4 but acquitted two more-Convicted accused appealed and State appealed against acquittals of accused Roshan and Dharamvir-Contention that dead bodies of Rattan and Ramesh not identifiable, cause of death not ascertainable and recovery of weapons not made render the conviction doubtful-Whether sustainable? (No)-Result-Their appeal dismissed-Whether absence of name of Dharamvir in FIR and non-belief of prosecution case that Dharamvir and Roshan caught hold of deceased Ratan and then he was shot by Brahma and Laxmi justify acquittal? (No)-Result-State appeal allowed-Order accordingly.

       Held : 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. The 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. (Paras 20 and 21)

       Held further : From the evidence, it is fully established that deceased Ratan had to be immobilized as he was carrying in his neck his revolver; he was 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. The 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. (Para 25)

       Held consequently : In 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. All the appeals are disposed of accordingly. (Paras 26 and 27)