# State of U.P v. Buddha

- **Citation:** (2022) 5 ILRA 1533
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-09
- **Case number:** Capital Cases No. 2 of 2020
- **Bench:** Ramesh Sinha, Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-buddha-48442
- **Pages:** 24

## Headnote

A. Criminal Law - Indian Penal Code, 1860
- Sections 302/34, 323/34 & 452/34 -
Arm Act, 1878 - Section 4/25 - Conviction
under. Imposition of death penalty. Committed
double murder and attempted to commit murder
of one Shivangi. Convicted and sentenced to
death by a trial Court for committing double
murder in a cruel and diabolic manner. Case
does not fall in the rarest of rare cases and in
view of mitigating circumstances death penalty
commuted to life term.

B. Criminal Law - Indian Penal Code, 1860
- Section 34 - To attract the applicability of
Section 34, it must be proved that there existed
a common intention before a person can be
convicted vicariously for the criminal act of the
other. The ultimate act should be done on
furtherance of the common intention. Thus an
overt act is not a requirement of law.
Capital case dismissed and Jail Appeal
partly allowed. (E-12)

List of Cases cited:-

## Text

_Characters 0–39,971 of 81,281. This is a partial read: ask again with offset=39971 for what follows._

5 All. State of U.P. Vs. Buddha
1533
Fees Act for payment of fee relating to
relief claimed. Since Section 7 (iv-A) of the
Court Fees Act as applicable to the State of
U.P. specifically provides for payment of
Court Fee in a case where the Suit is for
declaration/involving cancellation of an
instrument relating to property which mostsurely a Will Deed relating to bequeathing
of property is all about, the said Section
would squarely be applicable. It is apparent
that the petitioners/plaintiff had sought the
relief of cancellation/declaration of Will as
null
and
void
alongwith
relief
of
prohibitory injunction as a consequential
relief. The Will Deed related to movable
and immovable properties of the Testator
and therefore, the Suit had to be valued
only on the face value of such a Will till it
was declared void by the Court, and was to
chargeable to Stamp Duty "ad valorem" i.e.
awarding to the value of the property which
has been dealt with in the Will or the
instrument bequeathing property.

16. The Order dated 04.04.2022 is set
aside, the matter is remitted to the trial
court to decide afresh, both Issues No. 3
and 4 in the Suit, after giving opportunity
to both the parties to lead evidence. Since
the defendant to the Suit has already filed a
list of properties, movable and immovable
of the testator, the plaintiff is granted four
weeks time to file his list of property,
which according to him are involved in the
Will prayed by him to be declared void.

17. Accordingly, this petition is
allowed.

18. Let such issues to be decided by
the Trial Court within a period of three
months from the date a copy of this order is
produced before it.
----------
(2022)05ILR A1533
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 09.05.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE BRIJ RAJ SINGH, J.

Capital Cases No. 2 of 2020
connected with
Jail Appeal No. 364 of 2020

State of U.P. ...Appellant
Versus
Buddha ...Respondent

Counsel for the Appellant:
Govt. Advocate

Counsel for the Respondent:

A. Criminal Law - Indian Penal Code, 1860
- Sections 302/34, 323/34 & 452/34 -
Arm Act, 1878 - Section 4/25 - Conviction
under. Imposition of death penalty. Committed
double murder and attempted to commit murder
of one Shivangi. Convicted and sentenced to
death by a trial Court for committing double
murder in a cruel and diabolic manner. Case
does not fall in the rarest of rare cases and in
view of mitigating circumstances death penalty
commuted to life term.

B. Criminal Law - Indian Penal Code, 1860
- Section 34 - To attract the applicability of
Section 34, it must be proved that there existed
a common intention before a person can be
convicted vicariously for the criminal act of the
other. The ultimate act should be done on
furtherance of the common intention. Thus an
overt act is not a requirement of law.
Capital case dismissed and Jail Appeal
partly allowed. (E-12)

List of Cases cited:-

1. Bachan Singh Vs St. of Pun. AIR 1980 SC 898

2. Machhi Singh & ors. Vs St. of Pun. (1983)
SCC 470
1534 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Ram Naresh Vs St. of Chhattisgarh, (2012)4
SCC 257

4. Sk. Sayed Abdul Hamid Vs St. of M.P. (1998)3
SCC 188

5. Allauddin Mian Vs St. of Bihar (1989)3 SCC 5

6. A. Devendran Vs St. of T.N. (1997)11 SCC
720

7. Om Prakash Vs St. of Har. (1999)3 SCC 19

8. Accused X Vs St. of Mah. (2019)7 SCC 1
(Delivered by Hon'ble Brij Raj Singh, J.)

1. This appeal has been filed under
Section 374(2) Cr.P.C. against the judgment
and order dated 24.01.2020 passed by the
IVth Additional District and Sessions
Judge/Special Judge/E.C. Act, Lucknow in
Sessions Trial No.471 of 2010, arising out
of Case Crime No.577 of 2009, under
Sections 302/34, 307/34, 323/34, 452/34
I.P.C. and in Sessions Trial No.472 of 2010
arising out of Case Crime No.580 of 2009,
under Section 3/25 Arms Act, Police
Station
Malihabad,
District
Lucknow,
whereby the appellant was convicted and
sentenced under Section 302/34 I.P.C. to
death sentence and fine of Rs.25,000/- and
in default of payment of fine to undergo
simple imprisonment of one year, under
Section
307/34
I.P.C.
to
rigorous
imprisonment of ten years and fine of
Rs.10,000/- and in default of payment of
fine to undergo simple imprisonment of
additional six months, under Section
323/34 I.P.C. to simple imprisonment of
one year, under Section 452/34 I.P.C. to
rigorous imprisonment of seven years and
fine of Rs.5,000/- and in default of payment
of fine to undergo simple imprisonment of
additional three months, under Section 3/25
Arms Act to rigorous imprisonment of two
years and fine of Rs.2,000/- and in default
of payment of fine to undergo simple
imprisonment of additional one month.

2.

As
per
prosecution
case,
complainant - Rakesh Kumar lodged report
at
4.50
A.M.
on
12.12.2009.
The
complainant stated in the F.I.R. that at
about 2.00 A.M. in the night of 12.12.2009
his mother Smt. Sursati, wife of late Sukru,
nephew Suraj, aged about 10 years and
niece Shivangi, aged about 8 years, were
sleeping
inside
the
house
and
the
complainant was also sleeping beside them.
The brother-in-law
of
complainant
-
Buddha, son of Galhu Raidas, resident of
Village Raja Kheda, Police Station Mall,
was married to the complainant's sister
Deshpati prior to 10 years, but there was no
cordial relation between them that is why
Dehspati
was
married
to
Panchram,
resident of Village Vilauli Fatehpur, Police
Station Barabanki. She had come to meet
the family members on Sunday and after
meeting them she returned back. Buddha
had enmity with the family and he entered
into the house along with his two
companions and he killed complaint's
mother Sursati, nephew Suraj by using
sharp-edged weapon and caused serious
injuries on his niece Shivngi. Buddha and
his companions assaulted the complainant
and ran away from the place.

3. On the basis of written Tahrir, the
report was lodged against the accusedBuddha and the Investigation Officer,
Chandra Bhan Yadav investigated the case
and after recording statement the charge
sheet was filed in the Court under Sections
302, 307, 323, 452 I.P.C.

4. S.H.O. - Rajveer Singh lodged
report on 15.12.2009 at 19.00 hours, in
which it has been mentioned that Buddha
was arrested by him and on his pointing
5 All. State of U.P. Vs. Buddha
1535
out, the Banka was recovered and case was
lodged under Section 3/25 Arms Act. The
charge sheet was filed under Section 3/25
Arms Act. The charges were framed against
Buddha under Sections 302/34, 307, 323,
452/34 I.P.C. on 20.09.2010 and similarly
the charges were framed under Section 3/25
Arms Act on 20.09.2020.

5. Since both the cases were arising
out of the same case crime, therefore, both
the cases were connected together and trial
of both the cases were held together.

6. The prosecution had produced as
many as 15 witnesses to prove the case.
P.W.-1
Rakesh
Kumar,
P.W.-2
Ram
Chandar, P.W.-3 Constable Raj Dev, P.W.-4
Nazrul Hasan, P.W.-5 Rajesh, P.W.-6
Harish Chandra, P.W.-7 Deshpati, P.W.-8
Dr. S.N.S. Yadav, P.W.-9 Dr. Sunil Kumar
Yadav, P.W.-10 Vinod Kumar Pandey, P.W.-
11 Kishan Lal Jatav, P.W.-12 Retired
Inspector Chandra Bhan Yadav, P.W.-13
Constable Tribhuvan Singh, P.W.-14 Raj
Veer Singh, P.W.-15 S.I. Amrish Kumar.

7. The prosecution had also produced
35 exhibits on record. The F.S.L. report
dated
25.02.2010,
18.05.2010
and
05.03.2010 were also available on record.

8. The accused has produced D.W.-1
Shankar Ram, D.W.-2 Sundar Lal and
D.W.-3 Kewal in his defence.

9. The trial court conducted the trial
and the statements were recorded of the
prosecution witness and thereafter the
accused was confronted with circumstances
on which prosecution relied upon its case
under Section 313 Cr.P.C. on 09.08.2019.
The accused denied the prosecution case. In
the statement under Section 313 Cr.P.C., he
deposed that he was falsely implicated out
of enmity. He further denied the recovery
of Banka at his pointing out and pleaded
that he was falsely implicated under
Section 3/25 Arms Act. The accused further
deposed before the court below that his
wife had married to other person that is
why he was falsely implicated in the case
on the basis of doubt.

10. After adducing evidence on
record, the trial court convicted the accused
under Sections 302/34, 307/34, 323/34,
452/34 I.P.C. and Section 3/25 Arms Act
and further reference dated 24.01.2020 has
been
sent
to
this
Court
seeking
confirmation of death penalty, hence the
present appeal.

11. Heard Shri Raza Zaheer, learned
Amicus Curiae appearing on behalf of
convict/respondent/appellant- Buddha and
Shri Vimal Kumar Srivastava, learned
Government Advocate assisted by Ms.
Smiti
Sahai,
learned
Additional
Government Advocate for State/appellant.

12. The complainant - Rakesh Kumar
(P.W.-1) deposed in examination-in-chief
that his mother Smt. Sursati, nephew Suraj,
niece Shivangi were sleeping inside the
house on 12.12.2009. He further deposed
that he was also lying on the cot beside
them and Buddha along with his two
companions entered into the house. His
nephew Suraj raised alarm and he saw that
Buddha along with two companions were
assaulting his mother. He further stated that
out of three assailants someone assaulted
him with knife and he caught hold of the
hand which was armed with knife. He
threw quilt to the assailant and entered into
other room which was filled with husk and
escaped himself. It was further deposed
before the court below that his sister
Deshpati was married to Buddha ten years
1536 INDIAN LAW REPORTS ALLAHABAD SERIES
back, thereafter, his sister was married to
other man Panchram, due to which Buddha
was having enmity. Buddha used to come
to his village and used filthy language and
many times he threatened his family to face
dire consequences. He further stated that
his sister had come to the village but she
had returned back to her husband's
residence prior to one day from the date of
the incident. On the alarm raised by him
many villagers came to the place of
occurrence and in the meantime, his mother
and nephew died. Shivangi was badly
injured who was admitted to Trauma
Centre by the police. The said facts were
narrated by him to his cousin Prem
Chandra who read over the contents of the
application and the same was signed by
him.

13. He admitted in the crossexamination that his sister was married
second time but there was no divorce
between her and accused-Buddha. She was
married in the court. He further admitted that
when his sister was present at the house,
Buddha had come one or two times and he
threatened his sister and the family members.
The information was sent to the police
regarding the threat given by Buddha but no
action was taken by the police. He further
admitted in the cross-examination that his
sister was married second time in the year of
the incident. He stated that there are ten or
eleven houses nearby his house and there are
three accused. He raised alarm due to which
people of the village came to the place of
occurrence but he could not tell for how long
they stayed there. He could not chase the
accused and he jumped in the husk-room. He
accompanied the police who raided the house
of the accused. The dead-body of the mother
was taken away for last rites at 5.00 a.m. He
further admitted that his sister was separated
from Buddha and no notice was given to
Buddha regarding the separation of his sister.
He submitted that it is wrong to say that
Buddha did not commit the murder. He
received injury caused by the accused at the
time of occurrence and accused has been
charged because of his gruesome act of
committing murder.

14. In the cross-examination P.W.-1
admitted that his sister was married in the Court
and he was not present at the time of marriage.
His sister lived with Buddha for 10 years,
thereafter, he and his family members arranged
second marriage of his sister. He stated that he
received injury on his hand who was examined
by the Doctor and he had no idea whether the
injury report was available on record.

15. P.W.-2, Ram Chandar was also
examined who supported the prosecution
case and stated that he was present at the
brick kiln where he was working. He
admitted that he got information while he was
present at brick kiln (Bhattha) and got
information that there was incident of loot at
his house. He admitted that on the
information, he reached to his village where
he found that his mother and male child had
died and his daughter was badly injured and
hospitalized by the police in Trauma Centre.
He further admitted that is daughter Shivangi
died in Trauma Centre. In his crossexamination, P.W.-2 Ram Chandar admitted
that accused - Buddha was brother in law and
was of a bad character due to which he was
sent to jail number of times. His sister was
unhappy due to bad habits of Buddha,
therefore, she was married second time with
Pancharam. Buddha was having enmity due
to the second marriage of his sister and many
times he threatened to kill the family
members.

16. P.W.-3 Constable Raj Dev, P.W.-4
Nazrul Hasan SSI, P.W.-8 Dr. S.N.S. Yadav,
5 All. State of U.P. Vs. Buddha
1537
C.M.O., P.W.-9 Dr. Sunil Yadav, P.W.-10
Vinod Kumar Pandey, P.W.-11 Kishan Lal
Jatav S.I., P.W.-12 Inspector Chandra Bhan
Yadav, P.W.-13 Tribhuvan Singh, Constable
Moharrir, P.W.-14 Raj Veer Singh, Station
In-charge, Malihabad, P.W.-15 Amrish
Kumar, S.I., are formal witnesses, who
have proved the document. P.W.-5, Rajesh
brother of P.W.-1 and P.W.-6 Harish
Chandra the brother of complainant and
P.W.-7 Deshpati, sister of the complainant
was also examined before the court. It is
worth to be noted here that P.W.-5, P.W.-6
and P.W.-7 are not witnesses of the incident
and all the three witnesses have admitted in
the cross examination that they were not
present at the time of the incident otherwise
they have supported the prosecution case to
the effect that accused Buddha had enmity
with their family due to the reason that
Dehspati was married to other man
Pancharam. All the three witnesses have
stated that due to enmity the accused
Buddha has committed the crime by killing
Sursati, Suraj and Shivangi.

17. P.W.-3, Constable Raj Dev was
examined before the court and he deposed
that the Banka was recovered from Buddha
and the recovery memo was prepared
which was signed by him and he proved the
documents of recovery. P.W.-4, S.S.I.
Nazrul Hasan deposed before the court that
he arrested the accused Buddha on
15.12.2009 and recovered Banka and
Section 3/25 Arms Act was imposed by him
due to recovery of illegal arms. He further
stated before the court that Buddha made
confession that he killed Sursati, Suraj and
Shivangi. P.W.-8 Dr. S.N.S. Yadav, C.M.O.
was also examined who stated that he was
posted as Medical Officer in Balrampur
Hospital on 12.12.2009 and the postmortem of all the three deceased was
conducted by him. The injuries received by
the deceased, have been described by the
doctor.
The
post-mortem
report
of
Shivangi, Sursati and Suraj indicates the
nature of injury. Following antemortem
injuries were found on the body of
Shivangi:-

"Ante-mortem Injuries:-

Multiple incised wound in an
area 18 cm X 12 cm present in Rt. Side
forehead, face & Rt. side Head joint infront of Rt. ear size varying from 2.5 cm X 1
cm X Bone deep to 7 cm X 2 cm X Brain
cavity deep. Margins of all above injuries
are sharp clean cut & well defined.

On-Opening:-
Ecchymosis
present
underneath
all
the
injuries
mentioned above. Frontal bone on Rt. side
Rt. maxilla, Rt. Temporal & parietal Bone
(Rt.) found cut underneath the injury
mentioned above. Meaninges & brain
matter Rt. side found cut at multiple places.
Subdural haematoma present above the
brain. Rt. middle cranial Fossa & Rt. Ant.
Cranial fossa fractured. Lt. Ring finger,
middle finger & index finger found cut
through & through. Amputated part is
missing, Margin Sharp clean cut & well
defined. Ecchymosis present underneath the
injuries."

Cause of death of Shivangi as
opined by the doctor is due to coma as a
result of ante-mortem head injury as noted.

Post-mortem report of Sursati
indicates five injuries:-

"Ante-Mortem Injuries-

1. Incised wound 2.5 cm X 1 cm X
bone deep present on Rt. side face 1 cm
below lobule of Rt. ear.

2. Incised wound 3 cm X 1 cm X
bone deep present on Rt. side near the
below injury no.1.

3. Incised wound 2 cm X 1 cm X
Bone deep present on Rt. side Forehead 2
cm above Rt. eyebrow.
1538 INDIAN LAW REPORTS ALLAHABAD SERIES

4. Incised wound X Bone deep
present on Lt. Cheek.

5. Multiple Incised wound in an
area 18 cm X 12 cm present in side face &
head 2 cm behind outer angle of Lt. eye
size varying from 3 cm X 1 cm X Bone deep
X 2 cm X Brain cavity deep. Margins of all
above injury are sharp clean cut & well
defined.

On-Opening:-
Ecchymosis
present
underneath
all
the
injuries
mentioned above. Underlying bone found
cut underneath the injury mentioned above.
Margins & Brain matter found cut &
Multiple places. Sub dural haematoma
present above the brain."

The Doctor has opined that the
cause of death is due to coma as a result of
ante-mortem injuries as noted.

Post-mortem
report
of
Suraj
indicates one injury:-

"Anti-Mortem Injuries:-

1. Multiple incised wound in area
18 cm X 12 cm present on left side face and
head 3 cm behind outer angle of the left eye
size has varries from 3 cm X 1 cm into bone
deep to 8 cm X 3 cm in brain cavity deep.

Margin sharp clean cut and well
defined.

On-Opening:- Ecchymosis present
underneath injury left side temporary, left
parietal, frontal and occipital bone on left
side
found
cut
and
depression
and
underneath the injury noted above.

- Left side middle cranial fossa
fracture margins and brain matter on left side
found cut at multiple places.

- Sub dural haematoma present all
over the brain."

The doctor has opined that the
cause of death is due to coma as a result of
ante-mortem injury as noted.

18. P.W.-9, Dr. Sunil Kumar Yadav
was also examined before the court below
and he proved the fact that he conducted
the postmortem. According to him, Suraj
aged about 10 years died prior to half day.
He has given opinion that death is due to
comma and ante-mortem injuries.

19. P.W.-10, Vinod Kumar Pandey
was also examined before the court below
and he stated that he conducted the
Panchayatnama of deceased Suraj. The
Panchayatnama was conducted in presence
of Shyam Bihari, Shiv Sagar, Laxman
Prasad and Vinod Kumar. He proved the
exhibit of Panchayatnama and all the
related documents were proved by him.

20. P.W.-11, Kishan Lal Jatav deposed
in his examination-in-chief that he was
posted as S.I. in Police Station Malihabad
on 15.12.2009 and he conducted the
investigation of Case Crime No.580 of
2009, under Section 3/25 Arms Act. On the
pointing out of the witnesses, he prepared
the site plan of the place of occurrence and
accused Buddha was charge-sheeted by
him on the basis of approval dated
04.02.2010 by the prosecution authority. He
proved all the related documents. He
further admitted in the examination that he
investigated the case under Section 3/25
Arms Act and visited the place of
occurrence and prepared the site plan. He
stated that he recorded the statement of
witnesses who were belonging to the police
party and there was no independent
witness. He further admitted that recovery
of weapon was made in his presence.

21. P.W.-12, Retired Inspector,
Chandra Bhan Yadav was also examined
before the court. He admitted that the
aforesaid Case Crime No.577 of 2009,
under Sections 307, 302, 452, 323 I.P.C.
was registered in his presence. He further
deposed before the court that on the
5 All. State of U.P. Vs. Buddha
1539
pointing of complainant, the site plan was
prepared by him. He also collected the
blood stained soil. He also sealed blood
stained bed. The entire documents related
to the aforesaid proceeding were proved by
the witnesses. In his cross-examination, he
admitted that S.I., Vinod Kumar Pandey
and other police constable reached the
place of occurrence, Rakesh Kumar was
not appointed as Panch. He further
admitted that he did not send the blood
stained soil and blood stained clothes for
examination by F.S.L. He further admitted
that the entire bundle which was sealed by
him, was opened before him and they are
pertaining to blood stained soil, blood
stained cloth and blood stained bed on
which case crime numbers are mentioned.
P.W.-12 has proved the entire exhibits from
exhibit 1 to 14. He also proved exhibit Ka21 and Ka-19. He admitted that inquest of
deceased Sursati was prepared by him on
12.12.2009. He proved the inquest of
deceased Sursati as Exhibit - 26.

22. P.W.-13, Constable Tribhuvan
Singh was also examined before the court
who admitted that he was posted as
Constable Moharrir on Police Station
Malihabad on 12.12.2009. On the written
Tahrir of Rakesh Kumar, the F.I.R. was
lodged. Similarly P.W.-14, Raj Veer Singh
also deposed that earlier the said case was
investigated by S.I., Chandra Bhan Yadav
and thereafter, he started the investigation
on Parcha - A. He recorded the statement of
complainant and his family members. He
further admitted that he prepared the
recovery memo of blood stained Banka and
site plan of the place of incident. He further
submitted that on the basis of material
collected by him accused Buddha was
charge-sheeted by him in Charge Sheet
No.38/2010. He proved the related exhibit
documents.

23. P.W.-15, S.I. Amrish Kumar was
examined before the court below. He
submitted that the death memo of Shivangi
was
made
available
to
him
and
Panchayatnama was done at 14.20 hours
and ended 15.15 hours. He further admitted
that the inquest was prepared before him.
He proved the inquest report Ex.-30, Ex.-11
and Ex.-12.

24. D.W.-1, Shankar Ram was also
examined before the court and he deposed
in examination-in-chief that Buddha is
known to him who used to ply rickshaw.
He further admitted that Buddha was
married with Deshpati prior to 6-7 years
and she deserted Buddha and married
somewhere else. Buddha used to reside
with his mother and he came to know in the
year 2009 that Buddha was arrested by the
police for the reason that he committed
murder of his mother-in-law. He further
deposed before the court that Buddha was
present with him on the night of the
incident and he remained with him
throughout night. He further deposed that
Buddha had never gone to any place. In the
cross-examination, D.W.-1 has admitted
that his village and village of Buddha is
same and he further deposed that Buddha
used to ply rickshaw in Lucknow prior to
6-7 years from the date of incident. Buddha
was working at brick kiln at Bakshi Ka
Talab on the date of incident. Buddha used
to come to his house after every 10-15
days. He further admitted that Buddha is
his nephew.

25. D.W.-2, Sundar Lal was examined
before the court below who deposed that
Buddha is son of his elder father and used
to work at brick kiln. He further admitted
that he was married with working woman
at brick kiln and he has no knowledge
about the date of the incident. He further
1540 INDIAN LAW REPORTS ALLAHABAD SERIES
deposed that Buddha met him at the
morning and evening on the date of the
occurrence
and
Buddha
was
falsely
implicated. He deposed that Buddha did not
commit the crime.

26. D.W.-3, Kewal was also produced
before the court, who deposed that the
incident took place prior to 10 years. He
also admitted that Buddha met him in the
morning and at evening on the date of
occurrence
and
Buddha
was
falsely
implicated. He also admitted that Buddha
used to ply rickshaw at Lucknow.

27. Learned counsel for the appellantaccused has submitted that there is no
source of light mentioned in the F.I.R. as
well as in the statement of P.W.-1 and the
incident took place on 12.12.2009 at 2.00
a.m. He further submitted that there is no
description as to how the informant
recognized the accused and parentage of
the accused, has not been mentioned. The
informant has also not mentioned the type
of the weapon used by the accused. It has
been further submitted that informant has
not stated as to how long he had hidden
himself during the commission of offence
and when the villagers came to the place of
occurrence and it has been submitted that
the presence of informant at the place of
occurrence is highly doubtful.

28. He has further submitted that
P.W.-2, Ram Chandar has admitted that he
got information on mobile phone that the
loot had taken place at his house, therefore,
the entire prosecution story appears to be
false and the murder took place in the
incident of dacoity. He has
further
submitted that two witnesses of the
recovery, namely, Harish Chandra and
Rajesh were not produced in the court and
their statements were not recorded. It is
argued that in absence of the cross
examination of the aforesaid two witnesses,
the recovery of Banka is false. The
recovery is not genuine and the prosecution
case is standing on weak footing.

29. Learned counsel for the appellantaccused has further submitted that defence
witness-1, Shankar Ram has clearly stated
that accused Buddha was present with him
in the night of the incident and on the basis
of plea of alibi the accused is liable to be
acquitted. He has further submitted that
D.W.-2 and D.W.-3 deposed before the
court that Buddha met them and told that
he was not present at the place of
occurrence and strong plea of alibi has been
pleaded by the counsel for the appellant.

30. Learned counsel for the accusedappellant has further submitted that trial
has not been conducted in fair manner and
P.W.-1 was not cross-examined in detail. It
is, thus, clear that the evidenciary value of
the witnesses were destroyed. Lastly, he has
further submitted that death punishment
was not warranted and it is not coming
from the purview of the rarest of the rare
case. There is no material which shows that
the accused has grave and serious threat to
the society.

31. Learned counsel for the appellant
has further submitted that there is no source
of light mentioned in the F.I.R. It is
admitted case that Buddha is brother-in-law
of P.W.-1 and they are closely related to
each other. It is always easy to recognize
the close acquainted relative, even if there
is no source of light. The alarm was raised
by Suraj, nephew of P.W.-1 and he woke up
and made protest and was caused injury by
the accused. There is sufficient time and
circumstance to recognize Buddha who is
close relative of the appellant. The
5 All. State of U.P. Vs. Buddha
1541
argument of the source of light, has no
relevance in the present case. His other
argument that two witnesses, namely,
Harish Chandra and Rajesh were not
produced, has also no relevance. It is worth
to be mentioned that Banka was proved by
P.W.-14 Constable Raj Veer Singh. He
admitted that he prepared recovery memo
of blood stained Banka and site plan of the
place of incident. The F.S.L. report was
obtained and it was found that human blood
was found on the Banka. In absence of
examination of witnesses, Harish Chandra
and Rajesh, recovery of Banka cannot be
falsified.

32. P.W.-1, Rakesh Kumar has
categorically stated that the accusedBuddha entered into his house at 2.00 a.m.
on 12.12.2009 and assaulted his mother,
Sursati and nephew Suraj by causing injury
with Banka and killed them. He also
assaulted his niece Shivangi with Banka
who was badly injured and later on died in
the Trauma Centre. P.W.-1 has submitted
that he is witness of the incident and injury
was caused to him by Buddha and his
companions with knife. He ran away from
the place and could hide himself in the
husk-room. It is noted that the blood
stained sweater Ex. Ka-2 and injury of
P.W.-1 Ex. Ka-3 was proved before the
court. It is, thus, clear that P.W.-1 is the eye
witness of the incident and strong motive
has been assigned behind triple murder.
The motive is very strong, the accused had
come to kill his ex-wife, the daughter of
deceased Sursati. It has already come on
record that her ex-wife, Deshpati had
returned to her husband's house prior to one
day. The accused came to kill her but he
could not find Deshpati in the house and
the deceased were killed by him out of
enmity. The strong motive can be attributed
to accused in view of the fact that the
deceased mother-in-law was instrumental
in the second marriage of Deshpati, due to
which accused Buddha had strong motive
to eliminate her. Since, the two children
were also sleeping side by side of their
grandmother and were witnesses of the said
incident that is why they were also
eliminated
by
the
accused
and
his
companion by making assault on them. In
cross-examination, P.W.-1 has admitted that
his sister Deshpati was married with
accused-Buddha prior to ten years. Buddha
was a drunkard and did not do anything to
earn livelihood for sustenance of the
family. His sister was beaten many times by
Buddha, that is why P.W.-1 and his family
members married his sister second time
with Pancharam, the resident of Barabanki.
In cross-examination, it is admitted by
P.W.-1 that his sister Deshpati had come to
his house one day before and she had
returned back to her husband's house. It is
further stated that Buddha had information
that his sister was present in his house that
is why he came to kill her but killed his
mother Surasati, nephew Suraj and niece
Shivangi. It is direct evidence against the
accused.

33. P.W.-1 is the eye witness who was
present at the place of occurrence. P.W.-1,
Rakesh Kumar, P.W.-2 Ram Chandar, P.W.-
5, Rajesh, P.W.-6 Harish Chandra, P.W.-7
Deshpati have strongly attributed the strong
motive behind killing of Sursati, Suraj and
Shivangi. P.W.-7, Deshpati has stated that
Buddha was married with her and did not
do any work for sustenance of the family
and she further stated that she was married
second time with Pancharam that is why
Buddha had enmity with her and entire
family. She further stated that prior to one
day she had returned back to her husband's
residence. It is further relevant to mention
here that the marriage of Buddha with
1542 INDIAN LAW REPORTS ALLAHABAD SERIES
Deshpati was admitted by D.W.-1 Shankar
Ram and D.W.-2 Sundar Lal, thus, the
strong motive can be attributed to the
accused in the present case.

34. The prosecution witness, Nazrul
Hasan P.W.-4, deposed before the court that
Buddha was arrested by him on 15.12.2009
and on his pointing out Banka Ex.-5 was
recovered which was proved in the court.
F.S.L. report on the Banka was also
obtained from laboratory and the human
blood was found on the Banka. As per
report, the recovery of Banka was also
proved before the court. S.I. Vinod Kumar
Pandey (P.W.-10) had proved the inquest
report of deceased Suraj, Shivangi and all
the documents relating to the inquest
proceedings have been proved in the court.

35. Chandra Bhan Yadav (P.W.-12)
had collected the blood stained soil and
sweater and exhibit of the same were
proved. He proved the entire Ex.-1 to Ex.-
14 related to sweater, blood stained soil,
box, soil, the bed, the hair of the deceased,
bundle, papers etc. The blood stain was
found on sweater, Kathari, blood stained
soil, Saree, Blouse, Petticoat, Pant.

36. The inquest of deceased, Sursati,
the Police Form No.13, photographs were
also proved by the I.O. Chandra Bhan
Yadav before the court. Similarly, the
inquest of deceased Shivangi and all the
related papers of Shivangi including
postmortem
were
also
proved.
The
postmortem of Sursati was also proved
before the court by Dr. S.N.S. Yadav (P.W.-
8). The doctor had deposed before the court
that deceased Shivangi and Sursati were
assaulted on their face and head with sharp
edged weapon and they received many
injuries. The doctor further admitted that
the deceased died due to ante-mortem
injuries. The postmortem of Suraj was also
proved by Dr. Sunil Kumar Yadav (P.W.-9)
who stated that Suraj also received injury
with sharp-edged weapon on his face and
head. He also opined that Suraj died due to
ante-mortem
injuries.
The
site
plan
prepared by Chandra Bhan Yadav (P.W.12)
also proved as Ex.-Ka-28. He also proved
blood stained sweater, box and lighter. The
I.O., Raj Veer Singh (P.W.14) also proved
the recovery of the Arm and he also proved
the site plan and the F.I.R. in Case Crime
No.577 of 2009, under Sections 307, 302,
452, 323 I.P.C.

37. D.W.-1 was examined before the
court below who said that accused Buddha
was present with him in the night of
occurrence but in cross examination the
said witness has admitted that Buddha used
to work at brick kiln situated at Bakshi Ka
Talab. The timing was not ascertained as to
when he used to come. He admitted that
Buddha was his nephew. Similarly, D.W.-2,
Sundar Lal deposed before the court that he
met with Buddha in the morning and at the
evening. It was further stated that Buddha
used to work at Barabanki, Sitapur,
Lucknow and used to come after one week.
D.W.-3 had admitted that Buddha met him
in the morning and evening on the date of
occurrence. He also admitted that Buddha
used to ply rickshaw in Lucknow but he
could not tell as to when Buddha used to
come to village. All three defence witnesses
did not make statement either before
Investigating Officer or Superintendent of
Police regarding the presence of Buddha.
These witnesses could not produced
credible evidence to prove the plea of alibi.
Thus, the plea of alibi is not trustworthy.

38. P.W.-1 Rakesh Kumar received
injury Ex.Ka-3, which is not serious one
but he had received two cut wound 1 cm x
5 All. State of U.P. Vs. Buddha
1543
1.5 cm, deep muscle on the right palm. The
second cut injury 1 cm x 2 cm deep muscle
on left side. Though, the doctor was not
examined but the injured witness Rakesh
Kumar had deposed before the court that he
received two injuries on his hand and ran
away from the place and could hide himself
to save his life. It is, thus, clear that P.W.-1
was assaulted and is the witness of
incident, therefore, the prosecution has
proved the case beyond reasonable doubt.

39. Accused - Buddha was arrested on
15.12.2009 and there was recovery of 12
bore country made pistol, two live
cartridges of 12 bore. The said fact was
admitted by Nazrul Hasan (P.W.-4) in the
court during examination-in-chief. Exhibits
of recovery was also proved and the site
plan for recovery, the charge sheet Ex.Ka17 were proved by Kishan Lal Jatav (P.W11).

40.
 The
defence
counsel
has
vehemently argued that it was the case of
dacoity and murders were committed. P.W.-
2 Ram Chandar got information that there
was dacoity in his house. It is astonishing
as to how the information of loot was given
to Ram Chandar (P.W.-2) and why the
information of murder was not given to
him. It is, thus, clear that the prosecution
cannot be disbelieved on the aforesaid
statement of Ram Chandar (P.W.-2) who is
not witness of the case. The statement of
P.W.-1, Rakesh goes to show that accused -
Buddha was arrested and on his pointing
out the weapon of assault Banka was
recovered. There was human blood found
on it. P.W.-1 has narrated the manner of
assault by the accused and how the
deceased were mercilessly assaulted by
accused. The prosecution case is intact and
cannot be disbelieved. The argument that
there is no independent witness of the case,
has no relevancy in the present case. The
statement of P.W.-1, P.W.-2, P.W.-5, P.W.-6
and P.W.-7, if perused together, the
prosecution case is intact and there is no
iota of doubt that accused has not
committed the crime. Though, there is no
independent
witness
but
the
entire
prosecution case as stated by the aforesaid
witnesses goes to show that offence has
been committed by the accused. The formal
witnesses have proved the documents and
the weapon used in furtherance of crime.

41. It is true that capital punishment is
discussed in the social and judicial platform
frequently. Undisputedly, neither possible
nor prudent to state any cursory form which
would be applicable to all the cases of
criminology whether capital punishment
has been prescribed. Each cases should be
examined on its own fact in the light of the
principles
for
death
penalty,
the
circumstances of the offender are also
required to be taken into consideration
along with the circumstance of crime for
the reason that life imprisonment is the rule
and death sentence is an exception.

42. Before going into the propriety of
sentence imposed upon the accused -
appellant, we have to deal the cases with
respect to the death penalty and a glance is
required to be taken in view of the
judgment of Hon'ble the Supreme Court.

43. Hon'ble Supreme Court in the
case of Bachan Singh Vs. State of Punjab
: AIR 1980 SC 898 has dealt the capital
punishment
in
detail.
The
relevant
paragraph of the judgment is reproduced
here-in-below:-

"132. To sum up, the question
whether or not death penalty serves any
penological purpose is a difficult, complex
1544 INDIAN LAW REPORTS ALLAHABAD SERIES
and intractable issue. It has evoked strong,
divergent views. For the purpose of testing
the constitutionality of the impugned
provision as to death penalty in Section 302
of the Penal Code on the ground of
reasonableness in the light of Articles 19
and 21 of the Constitution, it is not
necessary for us to express any categorical
opinion, one way or the other, as to which
of these two antithetical views, held by the
Abolitionists and Retentionists, is correct.
It is sufficient to say that the very fact that
persons of reason, learning and light are
rationally and deeply divided in their
opinion on this issue, is a ground among
others,
for
rejecting
the
petitioners
argument that retention of death penalty in
the impugned provision, is totally devoid of
reason and purpose. If, notwithstanding the
view of the Abolitionists to the contrary, a
very large segment of people, the world
over, including sociologists, legislators,
jurists, judges and administrators still
firmly believe in the worth and necessity of
capital punishment for the protection of
society, if in the perspective of prevailing
crime conditions in India, contemporary
public opinion channelized through the
people's representatives in Parliament, has
repeatedly in the last three decades,
rejected all attempts, including the one
made recently, to abolish or specifically
restrict the area of death penalty, if death
penalty is still a recognised legal sanction
for murder or some types of murder in most
of the civilised countries in the world, if the
framers of the Indian Constitution were
fully aware -- as we shall presently show
they were -- of the existence of death
penalty as punishment for murder, under
the Indian Penal Code, if the 35th Report
and subsequent reports of the Law
Commission suggesting retention of death
penalty, and recommending revision of the
Criminal Procedure Code and the insertion
of the new Sections 235 (2) and 354 (3) in
that
Code providing
for
presentence
hearing and sentencing procedure on
conviction for murder and other capital
offences were before the Parliament and
presumably considered by it when in 19721973 it took up revision of the Code of
1898 and replaced it by the Code of
Criminal Procedure, 1973, it is not possible
to hold that the provision of death penalty
as an alternative punishment for murder, in
Section 302 of the Penal Code is
unreasonable and not in the public interest.
We would, therefore, conclude that the
impugned provision in Section 302, violates
neither the letter nor the ethos of Article
19."

"200.