Criminal Appeal Nos. 239 and 429 of 2005. Case: 1. Dharnidhar, 2. Ram Sanehi and Ors. Vs 1. State of U.P. and Ors., 2. State of Uttar Pradesh, [Alongwith Criminal Appeal No. 430 of 2005]. Supreme Court (India)
| Case Number | Criminal Appeal Nos. 239 and 429 of 2005 |
| Judges | B.S. Chauhan and Swatanter Kumar, JJ. |
| Issue | Evidence Act - Section 8; Indian Penal Code - Sections 34, 141, 142, 147, 148, 149 and 302; Criminal Procedure Code (CrPC) - Sections 161, 173, 313, 342 and 540 |
| Judgement Date | July 08, 2010 |
| Court | Supreme Court (India) |
Judgment:
Swatanter Kumar, J.
1. The accused Ram Sanehi, Baladin, Ramadin, Shiv Dayal and Dharnidhar were tried for the murder of two persons differently, namely, Bahadur Singh and his father Pyare Lal in Sessions Trial No. 44 of 1989. The ld. Sessions Judge, Jhansi, vide its judgment dated 7th August, 1992 after finding all the accused guilty of different offences, including Section 302 of the Indian Penal Code (hereinafter referred to as "IPC") punished them. The order of punishment reads as under:
Accused Ram Sanehi, Ramadin, Baladin and Shiv Dayal are hereby sentenced to suffer life imprisonment under Section 302/34, I.P.C. for committing murder of Bahadur Singh. They and accused Dharnidhar are also sentenced to life imprisonment under Section 302/149, I.P.C. for committing murder of Pyare Lal. Accused Ram Sanehi, Ramadin, Baladin and Shiv Dayal are mentioned to the year's R.I. Under Section 148 I.P.C. and accused Dharnidhar is sentenced to six month's R.I. Under Section 147, I.P.C. All these sentences shall run concurrently.
2. All the accused preferred appeals against the judgment of conviction and order of sentence before the High Court which also came to be dismissed vide judgment dated March 22, 2004, wherein the High Court declined to interfere either with the findings of conviction or order of sentence which consequently stood confirmed. Accused Dharnidhar filed Criminal Appeal No. 239 of 2005 against the judgment of the High Court, accused Ram Sanehi along with other accused filed an appeal being Criminal Appeal No. 429 of 2005 and Shiv Dayal preferred a separate appeal being Criminal Appeal No. 430 of 2005 against the judgment of the High Court. Thus, by this judgment we shall dispose of all the above three appeals as they are directed against the common judgment of the High Court and are based upon common evidence. The challenge to the judgment of the High Court and the Ld. Sessions Judge, inter alia, is primarily on the following grounds:
i) The alleged eye witnesses PW1 and PW3 are family members of the deceased and as such are interested witnesses. The conviction of the appellants is based, primarily, on the statements of these witnesses, which as such, is liable to be set aside.
ii) The prosecution has failed to prove any motive for the alleged commission of the crime. The appellants had no motive to commit the said crime and, therefore, the story put forward by the prosecution stands falsified.
iii) The evidence, including the evidence of Dr. P.N. Dwivedi (PW6) creates serious doubts in the case advanced by the prosecution. Particularly, when the Court had disbelieved Devi Singh, PW2, who is alleged to have been a witness to both the incidents, the Court ought to have come to the conclusion that the prosecution has failed to prove its case beyond any reasonable doubt. The conduct and role of the accused as attributed by the prosecution is not only improbable, but is impossible to be believed. It is contended that why would the accused leave the brother of deceased Bahadur Singh, who was standing there at the time of his murder and go all the way to kill his father Pyare Lal. Seeing this, in the light of the documentary and ocular evidence, benefit of doubt ought to have been given to the appellants.
iv) The learned trial Court as well the High Court has fallen in error of law in convicting accused Ram Sanehi, Baladin, Ramadin and Shiv Dayal with the aid of Section 34 and accused Dharnidhar with the aid of Section 149 of the IPC respectively. In the facts and circumstances of the case, the basic ingredients for application of these provisions had not been satisfied by the prosecution. Thus, the conviction is vitiated in law.
3. On the contrary, learned Counsel appearing for the respondent has vehemently argued that there was sufficient documentary and expert evidence on record. The version of the eye witnesses cannot be doubted, their presence on the site was natural and they had no reason to falsely implicate all or any of the accused in the murder of their brother and father. It is contended that the version of eye witnesses is fully supported by expert evidence and the statement of the Investigating Officer. Once the prosecution is able to fully corroborate the incident as recorded in the FIR, the judgment under appeal cannot be interfered with.
4. In order to examine the rival contentions raised in the present appeals, it will be necessary for us to refer to the facts appearing from the case of the prosecution.
5. On 19.11.1988 at about 6.15 P.M. one Deo Pal, who was examined as PW1, had lodged the FIR in the Police Station at Kakkarwai stating that on the evening of 19.11.1988 at about 4.30 P.M., he along with his brother Devi Singh and one Kallu were sitting in the cattle shed of Jawahar, carpenter. He had gone to sharpen his sickle. After about 10 minutes, his brother Bahadur Singh (since deceased) came there to sharpen his gandasa. In the meanwhile, appellants Ram Sanehi, Baladin @ Balla, Shiv Dayal and Ramadin came there. Accused Shiv Dayal has a sphere and Ram Sanehi, Baladin and Ramadin had guns. Appellant Shiv Dayal inflicted sphere blow on the left shoulder of Bahadur Singh and thereafter, the three accused carrying guns fired from their respective guns. After receiving the bullet injuries, Bahadur Singh fell down and died. The witnesses, present there, were not able to save him because of the fear caused by the accused persons. After murdering Bahadur Singh, Ram Sanehi said that they had killed him and his father Pyare Lal should also be killed. Saying these words, the appellants proceeded towards the fields where Pyare Lal was watering his bajara crops. Deopal, Devi Singh and his wife Moola Bai were present in the field. At that time, appellant Dharnidhar also came there and joined the other appellants. Dharnidhar snatched the kulhari of Pyare Lal. Thereafter, the said three accused, who were carrying guns, fired on Pyare Lal. Sustaining the fire arm injuries, Pyare Lal fell down. Not satisfied with the same, Dharnidhar then cut his neck with kulhari. Deopal then raised an alarm and made a hue and cry. Several village persons rushed towards the spot but before they could reach, the appellants escaped and went towards the jungle. This incident took place at about 4.45p.m. PW1 reported the matter to the police station, as already noticed, and on the basis of the report, H.C. Shiv Charan prepared the report (Ext.Ka 27) made endorsement on the same at the G.D. report (Ext. Ka 28) and registered the case against all the appellants under Sections 147, 149, 302 and 149 of the I.P.C.
6. The case was initially investigated by Ram Autar Mathur (PW 10) who went to the spot along with two constables but the investigation could not be completed because of paucity of light. Next morning the I.O. conducted inquest of the body of deceased Bahadur Singh and recovered one empty cartridge from the spot, collected blood stained and simple earth sample from the spot and prepared recovery memos. He also completed the investigation at the place of the murder of Pyare Lal. The dead bodies of Bahadur Singh and Pyare Lal were subjected to autopsy on 21.11.1988 by PW6, and he found the following injuries on the bodies of the deceased.
Postmortem report of Bahadur Singh
Ante mortem injuries:
(1) Gun shot wound of entry 2 = cm x 2 cm x thoracic cavity deep on the left nipple. Blackening present. Direction from front to back. Margins inverted.
(2) Gun shot wound of entry 1 cm x 0.75 cm x thoracic cavity deep on upper and medical portions of chest of right side, 2 cm below from medical margin of clavicle. Blackening present and direction from back to front and backwards. Margins inverted.
(3) Two gun shot wounds of exit measuring 1 cm x 0.75 cm diameter in an area of 2 cm on right lower portion of back of chest. Corresponding to injury No. 2.
(4) Gun shot wound of entry 2 cm x 2 cm on left lower portion of back, 30 cm below from left shoulder joint, direction from left to right.
(5) Gun shot wound of entry 2 cm x 1 cm x muscle deep on epigastria portion of abdomen 18 cm above from umbilicus. Direction front to back.
(6) Gun shot wound of entry 2 cm x 1 cm on the epigtastrian portion of abdomen, 1 cm above from injury No. 5, Direction from front to back.
(7) Contusion 4 cm x 3 cm on middle and front of forehead.
(8) Contusion 5 cm x 2 cm on middle and right side of back of chest, 4 cm away from mid line.
(9) Contusion 3 cm x 2 cm on lower and left side of back of chest.
(10) Incised wound 2 cm x 2 cm x muscle deep, 9 cm below from the left shoulder. Internal examination showed that third and fourth ribs of left side and third rib of right side were fractured. Pleura was lacerated. Both lungs were lacerated. Thoracic cavity contained about 1 = liters of liquid blood. Peritoneal cavity contained about = liter of Liquid Blood. Stomach was lacerated and contained semi digested food material. Liver, gall bladder and spleen were lacerated, death was caused due to shock and hemorrhage resulting from ante mortem injuries.
The doctor recovered one cork and 21 metallic pellets from left lung and thoracic cavity. One cork and 12 metallic shots were recovered from right lung, liver and thoracic cavity. Two corks, 18 metallic shots were recovered from spleen stomach and abdominal cavity.
Postmortem report of Pyare Lal
Ante mortem injuries:
(1) Incised wound 8 cm x 3 cm x bone deep on right lower jaw. 4 cm below from angle of mouth right side.
(2) Incised wound 10 cm x 6 cm x bone deep on front portion of neck. Under lying bone of cervical vertebrae No. 3 fractured. Soft tissues and muscle cut.
(3) Gun shot wound of entry 3 cm x 2 cm x muscle deep on lower and front portion of left arm. Direction from left to right, 8 cm above from elbow joint. Blackening present. Margins inverted.
(4) Gun shot wound of exit 4 cm x 2 = cm on lower and front portion of left arm. Margins everted. Injury corresponding to...
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