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ALLAHABAD HIGH COURT
BEFORE : BHARAT BHUSHAN AND ALOK KUMAR MUKHERJEE, JJ.
SALIG RAM AND OTHERS ....Appellants
Versus
STATE ....Respondent
(Criminal Appeal No. 318 of 1983, decided on 6th January, 2017)
(B) (Indian) Penal Code, 1860—Sections 300, 364—Circumstantial Evidence—Last seen together—Deceased were ‘last seen’ near a particular place in clutches of all seven appellants by witnesses—Against this cogent evidence with regard to ‘last seen’ appellants/defence were/was unable to give any plausible explanation—Further family members of deceased and members of his community of locality were so terrified that they were neither in a position to trace their missing relatives nor were in a position to inform police till case was handed over to CID—Held evidence of ‘last seen’ advanced by two trustworthy witnesses cannot be brushed aside—Further all four deceased were seen by reliable witnesses in evening/night and their beheaded and castrated semi decomposed bodies were seen by Chowkidar of village on next day—Evidence of doctors who executed postmortem categorically corroborated testimony of witnesses—Held on a such small time gap last seen theory can be applied.
(C) Evidence Act, 1872—Section 134—Non-examination of an eye-witness—Cannot be pressed into service like ritualistic formula for discarding prosecution case—Court can convict accused on statement of a sole eye witness even if he is relative of deceased and non-examination of an independent witness would not be fatal to case of prosecution.
(D) Evidence Act, 1872—Section 27—Discovery evidence—Fact as to whether accused was formally arrested or not—Would not vitiate factum of leading to discovery.
(E) Criminal Procedure Code, 1973—Section 162—Seizure memos—Prepared by investigating officer—Absence of signature/thumb impression of appellant on recovery memo and lack of reference that said memo was read over and explained to accused/appellant—Would not vitiate testimony of accused in Court.
(F) (Indian) Penal Code, 1860—Section 149—‘Common object’—Does not require prior concert or meeting of minds before attack—Generally no direct evidence is available regarding existence of common object which, in each case has to be ascertained from attending facts and circumstances—Accused persons/appellants have been proved to be on inimical terms with all deceased/informant-party— Enmity between parties had been aggravated on account of sudden murder of C - close relation/acquaintance of appellants—Some of accused persons/appellants who came to spot and apprehended deceased persons were also shown to have been armed with deadly weapons—Held there is existence of ‘common object’ of such persons forming ‘unlawful assembly’ who had come to spot and apprehended all deceased—Against whom they had strong animus as well as immediate motive in consequence of which four persons were murdered. Order Accordingly.
(Delivered by Hon'ble Alok Kumar Mukherjee, J.)
1. This appeal has been directed against the judgment and order dated 05.02.1983 passed by the VII Additional Sessions Judge, (Higher Criminal Court), Badaun in Sessions Trial No. 550 of 1980 (State v. Salig Ram and others) arising out of Crime No. 401 of 1980, P.S. Ujhani, district Budaun, convicting all the accused-appellants namely Salig Ram, Rajendra Pratap alias Rajendra Prasad, Ram Bilas, Jai Govind, Netra Pal, Munendra Kumar and Ram Vir for the offences under sections 302 read with section 149, 364 read with Section 149, and 201 I.P.C. and sentencing them each for life imprisonment, ten years rigorous imprisonment and five years rigorous imprisonment, respectively and further accused-appellants Salig Ram, Rajendra Pratap alias Rajendra Prasad and Netrapal for two years rigorous imprisonment each under section 148 IPC while accused-appellants Ram Bilas, Jai Govind, Munendra Kumar and Ram Vir for one year rigorous imprisonment each under section 147 I.P.C. which shall run concurrently.
2. It is relevant to mention here that during the pendency of this appeal, appellant nos. 3, 4 and 5 namely Rajendra Pratap alias Rajendra Prasad, Jai Govind and Netra Pal have already died; therefore, the appeal filed on their behalf was abated vide order dated 13.10.2014 passed by the coordinate Bench of this Court. As such the appeal on behalf of the remaining surviving appellant nos. 1, 2 , 6 and 7 namely Salig Ram, Ram Bilas, Munendra Kumar and Ram Vir, respectively are being heard and disposed off by this judgment.
3. The surviving appellants have filed the present appeal against the aforementioned judgment and order dated 05.02.1983 on the ground that the conviction of the aforesaid surviving appellants is against the weight of evidence available on record and against law. Further, the sentences awarded to them are too severe.
4. Brief facts of the prosecution are that in the morning of 16.07.1980 at about 7.00 a.m. one Chhote Lal of village Bheekhampur, P.S. Bilsi, District Budaun was murdered, who had close intimacy with all the police officers including S.H.O. of the P.S. Bilsi. It is alleged by the prosecution that after the murder of Chhote Lal, his brother Saligram appellant, suspecting that 'Murao' and 'Muslim' community of the area were behind the murder of his brother, armed with guns walked in the village shortly after the said murder, openly threatening that all the Muraos and Muslims of the area would be killed one by one. The reason behind the said strained relationship was that the deceased Chhote Lal was alleged to have illicit relation with Smt. Ram Pyari wife of Bhawani Murao, who was in the employment of the said deceased. The said Bhawani was a close relative of the deceased of this case, Jauhari, Gopi and Ummedi, who, therefore, denounced all relations with Bhawani. Further, the daughter of the said Chhotey Lal eloped with one Ghani Khan (his own driver), who was framed in criminal cases by him using his clout. Also, in a marriage ceremony of the daughter of one Net Ram (murao), the said Ram Pyari was not invited. Infuriated by it he (Chhotey Lal) prevented the priest from performing the said marriage, which was then performed by a person of Murao community itself. In view of the aforesaid threat to their lives almost all the Muraos, particularly close relatives of the said Bhawani, i.e., deceased Jauhari, Gopi and Ummedi and some muslims as well, left the village in the morning of 16.07.1980 and took refusing in a nearby Jungle in the day time. But in the evening when it started raining heavily, they allegedly moved to nearby 'Madaiya' of deceased Zaki at sunset.
5. It is alleged by the prosecution that subsequently the deceased Jauhari had an urge of smoking (Biris). Consequently, he sent his son Ganga Singh to the shop of one Munshi in the village to fetch 'Biris'. Meanwhile, the aforesaid seven appellants, who are either close family members of the sai
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