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HIGH COURT OF MADHYA PRADESH
C.M. LODHA AND S.R. VYAS, JJ.
Sarveshwar Prasad
V.
State of M.P.
Cr. Ref. No.1 of 1977
Decided on : 13-4-1977
In case of circumstantial evidence the prosecution should establish such circumstances as unmistakingly point to the guilt of the accused and are applicable only to one hypothesis, namely, that the accused and the accused alone committed the murder. [Para 8
(2) Evidence Act 1872 - S.27-what information may be proved.
Under section 27 of the Evidence Act, so much of information. whether it amounts to confession or not, as relates distinctly to the fact thereby discovered may be proved. [Para 17
(3) Evidence Act 1872-S.114 (a)-recent possession of stolen property - presumption of murder when may be drawn - Penal Code, 1860 - S.302.
(4) Penal Code, 1860-S.302-recent possession of property stolen in course of murder-presumption of murder when permissible."
The law is well settled that where murder and robbery are proved to have been integral parts of a certain transaction the presumption that can be drawn from the possession of the property may consistent with all the facts proved in the case be that the person to whom such possession was traced not only committed the theft thereof but also committed the murder which forms part of the same transaction as theft. Of course, before any such presumption can be drawn the primary thing to be proved is that the accused had no satisfactory explanation to offer for possession of the property. AIR 1956 SC 54 distinguished. AIR 1954 SC 1, AIR 1954 SC 28 and AIR 1954 SC 704 relied on. Para 38
(5) Criminal P.C., 1973-S.354 (3)-death sentence-when awarded-Penal Code, 1860-S. 302.
The accused committed these blood chilling murders of the nine innocent persons for monetary gain and to destroy the evidence of the crime he had committed. It is difficult to find words strong enough to condemn these gruesome and distardly murders. Ironically the accused chose not to spare even the two infant daughters of Ram Swaroop who dearly used to address him as 'Dr. Chacha' and were incapable of giving evidence even if they had been left alive. The tragedy has few parallels. The accused was neither demented nor mentally sick. There are absolutely no extenuating circumstances for passing a lesser sentence. On the other hand, the case is eminently fit for imposing the extreme penalty of law. [Para 42
(6) Evidence Act, 1872-S.9-identification-of things of daily use-identification marks-pointing out of-not necessary.
As regards absence of particular identifying marks on the articles. we may point out, that in advancing this criticism it is forgotten that small and even nice points of difference distinguishing one thing from others of the same kind may merely by the frequent sight of them and without any special attention to them make an impression on the mind. They are component parts of the thing and go on to make the whole of which the mind receives an impression. In this case the impression is the general appearance of the thing. This sort of impression is exceedingly common; a workman has it of his tools and most people have it of their clothes, ornaments and other things they are frequently seeing, handling or using. It occurs every day that by remembrance of their general appearance a person recognises his tools, dress, ornaments and other property. Observation teaches that such identification may be safely relied upon. At the same time, a witness would not be able to formulate his reasons for the identification since it is based upon general untranslatable impressions of the mind. It would therefore be fatuous to discredit such identification on the ground that reasons are not being formulated for them. [Para 23
C.M. Lodha. J.- l. These are two connected matters arising out of the judgment dated 31-1-1977 by the Sessions Judge, Gwalior in Sessions cases Nos. 157 to 165 whereby the accused Sarveshwar Prasad Sharma has been convicted under section 302 IPC for committing nine murders and sentenced to death. The learned Sessions Judge has made reference to this Court under section 366 Cr. P.C. for confirmation of the death sentence which is registered as Death Reference No.1 of 1977. The accused has also filed appeal from the conviction and sentence. This order will dispose of both.
2. The accused is B.A.M.S. and is a qualified medical practitioner. The prosecution case is that he was a close friend of the deceased Ram Swaroop and used to visit the latter's house very frequently. The houses of the accused as well as the deceased are situated in the same locality called Khallasi Pura or Shinde-ki-Chhawani, Lashkar in the city of Gwalior. The financial position of the accused, it is alleged, was very bad so much so that he was leading a life of utter frustration. The deceased Ram Swaroop was employed as an Upper Division Clerk in the Madhya Pradesh Girls N.C., Battalion at Gwalior, He also used to practice Homeopathy as his hobby. Thus medicine being the common interest of the accused as well as the deceased Ram Swaroop they became thick friends. It is stated that in order to purchase a motor-cycle Ram Swaroop withdrew Rs.2.400/- on 6-3-1976 and Rs.840/-on 13-5-1976 out of his G.P. Fund. He also received a sum of Rs.348/- on account of surrender leave on 1-5-1976, and Rs.271/ -on account of salary on 2-7-1976. Besides the aforesaid amounts Ram Swaroop withdrew Rs.3,495/-on 26-6-1976 out of his Savings Bank Account with Indian Overseas Bank. Ram Swaroop's father Mool Chand deceased is also alleged to have withdrawn Rs.800/-from his Savings Bank Account with Bank of India. Gwalior Branch on 16th June 1976. Thus according to prosecution there was considerable cash lying in the house of Ram Swaroop at the relevant time. Besides cash, there were also a few ornaments belonging to Ram Swaroop's mother and wife lying in the house. The prosecution story is that to steal away the cash and the gold and silver ornaments lying in the house of the deceased, the accused committed murders of all the nine members of Ram Swaroop's family on the night intervening 4th and 5th July 1976. First, the accused and the deceased Ram Swaroop took liquor inside the room and when Ram Swaroop was heavily drunk and fell down unconscious, the accused gave a fatal blow with the wrong side of an axe on his head. Then his wife Smt. Bhagwati Bai who was on the terrace came down to see the condition of her husband and when she bent down to look at him the accused gave a blow on her head and then strangulated her with a string (Nada). Then came Ram Baboo son of Ram Swaroop to enquire about Ram Swaroop's condition and he also met the same fate at the hands of the accused. Thus all the members of the family excepting the child Simla the youngest daughter of Ram Swaroop came one by one and met death at the hands of the accused. Lastly the accused brought down the infant daughter Simla from the terrace and finished her also. Thus the accused wiped out the whole family by committing murders of all the nine members of the family mentioned below:
Deceased.
1. Mool Chand aged 60 years.
2. Smt. Govindi Bai, wife of Mool Chand aged 60 years.
3. Ram Swaroop son of Mool Chand aged 45 years.
4. Bhagwati Bai wife of Ram Swaroop aged 35 years.
5. Ram Baboo son of Ram Swaroop aged 16 years.
6. Ghanshyam alias Pappu, aged 13 years.
7. Hemlata daughter or Ram Swaroop aged 10 years.
8. Bimla daughter of Ram Swaroop aged 5 years.
9. Simla daughter of Ram Swaroop aged 3 years.
3. After having done to death all the nine members of the family, the accused piled up their bodies in the room and then collected the booty consisting of cash, ornaments, clothes etc., belonging to the deceased and then went to
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