# 16 (ADDL.) S.C.R. 154 STATE OF U.P v. RAM SAJIVAN & ORS

- **Citation:** [2009] 16 S.C.R. 154
- **Court:** Supreme Court of India
- **Decided:** 2009-12-04
- **Case number:** Criminal appeai No. 686 of 2002
- **Bench:** Dalveer Bhandari, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/16-addl-s-c-r-154-state-of-u-p-v-ram-sajivan-ors-25267
- **Pages:** 36

## Headnote

Penal Code, 1860 - ss. 3021149, 364 and 201 -
Commission of dacoity by accused-thakurs, abduction of eight
"
C persons of lower caste and thereafter, commission of brutal
murder and bodies thrown in river - One victim survived -
Only two dead bodies found - Conviction of accused for the
said offence - Sentenced to life imprisonment along with
other sentences - Acquittal by High Court - On appeal, held:
D High Court acquitted the accused without analyzing the entire
evidences and assigning cogent reasons - On facts, trial
court's view is the only possible view - Evidence of surviving
.,
witness and head constable to the effect that accused
committing the 'Said crime - No doubt regarding participation
E of six accused in the crime, thus, their conviction by trial court
restored, while others given benefit of doubt.
Unfortunately, the centuries old Indian Caste System
still takes its toll from time to time. This case unfolds the
worst kind of atrocities committed by the so called upperF caste (Kshatriya or Thakur) against the so called lowert
caste-Harijan caste in a civilized country. It is absolutely
imperative to abolish the caste system as expeditiously
G
as possible for the smooth functioning of Rule of Law
and Democracy in our country.
In the instant case, accused persons belong to
Thakur caste. On the fateful day, accused persons armed
with weapons committed dacoity in the house of K and
J-belonging to the Harijan caste. Thereafter, accused
H
154
-
STATE OF U.P. v. RAM SAJIVAN & ORS.
155
abducted K, J, DD, ·SK, SP, T, GR, ON; took them to the
A
bank of the river; brutally murdered them and then threw
....
them in river where currents were very strong. K jumped
into the stream of the river and saved his life. J was
recovered from the river in an injured and unconscious
state. Out of seven persons, bodies of only two persons B
-
were recovered. J regained consciousness and lodged
the report. Her dying declaration was recorded.
Thereafter, J succumbed to her injuries. The statements
~
of the witnesses were recorded. K-PW-14 was the only
surviving injured eye-witness. Trial court convicted the c
accused persons u/s. 302/149 IPC for committing murder
and sentenced them to life imprisonment. Accused were
also convicted for committing dacoities and sentenced
to seven years rigorous imprisonment; convicted u/s.
364 IPC for abduction and sentenced to five years of D
rigorous imprisonment; and u/s. 201 with four years
y
rigorous imprisonment. High Court acquitted all the
accused. Hence the present appeal.
Disposing of the appeal, the Court
E
HELD: 1. The scope of the powers of the appellate
court in an appeal is well settled. The powers of the
appellate court in an appeal against acquittal are no less
than in an appeal against conviction. The appellate court
1
may review the evidence in appeals against acquittal u/
F
ss. 378 and 386 CrPC, 1973. Its power of reviewing
.evidence is wide and the appellate court can reappreciate
the entire evidence on record. It can review the trial
court's conclusion with respect to both facts and law. The
accused is presumed to be innocent until proved guilty. G
The accused possessed this presumption when he was
before the trial court. High Court's acquittal bolsters the
presumption that he is innocent. There must also be
substantial and compelling reasons for reversing an
order of acquittal. This Court would be justified in
H
156 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A interfering with the judgment of acquittal of High Court
only when there are very substantial and compelling
reasons to discard the High Court decision. [Paras 36 and
49) [178-B; 187-D-H]
2.1. Trial court carefully examined the witnesses. It
8 observed that K-P.W.14 is the eye-witness to the
occurrence and the only surviving person out of 8
persons who were abducted from village. It also
observed that there was absolutely no material elicited by
the defence in his cross-examination which may render
C his statement unbelievabl

## Text

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A
B
[2009] 16 (ADDL.) S.C.R. 154
STATE OF U.P.
v.
RAM SAJIVAN & ORS.
(Criminal appeai No. 686 of 2002)
DECEMBER 04, 2009
[DALVEER BHANDARI AND A.K. PATNAIK, JJ.]
Penal Code, 1860 - ss. 3021149, 364 and 201 -
Commission of dacoity by accused-thakurs, abduction of eight
"
C persons of lower caste and thereafter, commission of brutal
murder and bodies thrown in river - One victim survived -
Only two dead bodies found - Conviction of accused for the
said offence - Sentenced to life imprisonment along with
other sentences - Acquittal by High Court - On appeal, held:
D High Court acquitted the accused without analyzing the entire
evidences and assigning cogent reasons - On facts, trial
court's view is the only possible view - Evidence of surviving
.,
witness and head constable to the effect that accused
committing the 'Said crime - No doubt regarding participation
E of six accused in the crime, thus, their conviction by trial court
restored, while others given benefit of doubt.
Unfortunately, the centuries old Indian Caste System
still takes its toll from time to time. This case unfolds the
worst kind of atrocities committed by the so called upperF caste (Kshatriya or Thakur) against the so called lowert
caste-Harijan caste in a civilized country. It is absolutely
imperative to abolish the caste system as expeditiously
G
as possible for the smooth functioning of Rule of Law
and Democracy in our country.
In the instant case, accused persons belong to
Thakur caste. On the fateful day, accused persons armed
with weapons committed dacoity in the house of K and
J-belonging to the Harijan caste. Thereafter, accused
H
154
-
STATE OF U.P. v. RAM SAJIVAN & ORS.
155
abducted K, J, DD, ·SK, SP, T, GR, ON; took them to the
A
bank of the river; brutally murdered them and then threw
....
them in river where currents were very strong. K jumped
into the stream of the river and saved his life. J was
recovered from the river in an injured and unconscious
state. Out of seven persons, bodies of only two persons B
-
were recovered. J regained consciousness and lodged
the report. Her dying declaration was recorded.
Thereafter, J succumbed to her injuries. The statements
~
of the witnesses were recorded. K-PW-14 was the only
surviving injured eye-witness. Trial court convicted the c
accused persons u/s. 302/149 IPC for committing murder
and sentenced them to life imprisonment. Accused were
also convicted for committing dacoities and sentenced
to seven years rigorous imprisonment; convicted u/s.
364 IPC for abduction and sentenced to five years of D
rigorous imprisonment; and u/s. 201 with four years
y
rigorous imprisonment. High Court acquitted all the
accused. Hence the present appeal.
Disposing of the appeal, the Court
E
HELD: 1. The scope of the powers of the appellate
court in an appeal is well settled. The powers of the
appellate court in an appeal against acquittal are no less
than in an appeal against conviction. The appellate court
1
may review the evidence in appeals against acquittal u/
F
ss. 378 and 386 CrPC, 1973. Its power of reviewing
.evidence is wide and the appellate court can reappreciate
the entire evidence on record. It can review the trial
court's conclusion with respect to both facts and law. The
accused is presumed to be innocent until proved guilty. G
The accused possessed this presumption when he was
before the trial court. High Court's acquittal bolsters the
presumption that he is innocent. There must also be
substantial and compelling reasons for reversing an
order of acquittal. This Court would be justified in
H
156 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A interfering with the judgment of acquittal of High Court
only when there are very substantial and compelling
reasons to discard the High Court decision. [Paras 36 and
49) [178-B; 187-D-H]
2.1. Trial court carefully examined the witnesses. It
8 observed that K-P.W.14 is the eye-witness to the
occurrence and the only surviving person out of 8
persons who were abducted from village. It also
observed that there was absolutely no material elicited by
the defence in his cross-examination which may render
C his statement unbelievable. According to the trial court,
the statement of P.W.14 regarding the occurrence appears
to be a true version of the occurrence. The accused
persons and their companions committed multiple
murders of the seven innocent persons of Harijan caste
D in cold blood. It was a ghastly crime committed by them
which can shock the conscience of any person of a
civilized society. The trial court found that the
prosecution had succeeded in establishing the charges
against the accused persons. [Paras 26, 27 and 28) [172E G; 173-F; 174-D-G]
2.2. The appeal before the High Court was in the
nature of first appeal and the High Court in a case of this
nature was expected to carefully analyze the entire
F evidence and documents on record. High Court termed
the testimony as PW 14 as trustworthy. The findings of
the High Court are not based on proper analysis and
marshalling of the entire evidence on record. The findings
of the High Court are palpably erroneous and
unsustainable. High Court without analyzing the evidence
G and assigning any cogent reason set aside the well
reasoned judgment of the trial court and acquitted all the
respondents. [Paras 29, 30 and 34) [175-B-F; 177-B-C]
2.3. A careful examination of the instant case in a
H proper perspective leads to an entirely different
-
y
i
STATE OF U.P. v. RAM SAJIV.'\1\1 & ORS.
157
/
conclusion. High Court ought to have appreciated the
A
mental frame of J wherein she gave a statement which
was construed as a dying declaration. Eight persons who
were abducted and tied with rope and brought to river
Ganges in the midstream and after their murder were
thrown in the river one by one except PW14 who escaped
B
because he jumped into the river. In that fear psyche,
naming the appellants would have meant risking her life
and in that state of mind, the omission of mentioning the
names of the appellants is not unnatural and her
testimony cannot be discarded on that count. [Para 31] c
(175-G-H; 176-A-B]
2.4.
High Court failed to appreciate the
circumstances in which PW14 survived by jumping into
the river and hiding at certain places. In a genocide and
massacre which was witnessed by him, wherein all his D
seven close relatives including his wife were killed one
after other in his presence and were thrown in the river
Ganga, his escaping the death was a miracle. Hiding and
saving his life from a mighty cruel upper caste group was
a normal human instinct. Any reasonable or prudent
E
person would have behaved in the same manner.
Immediately after his escape, he tried to make a complaint
but he did not succeed. Ultimately when he wrote to
politcal leaders perhaps at the intervention of someone,
the police seriously investigated the matter and he was
F
brought to his village under police protection. The delay
in giving his statement is fully explained and in the facts
and circumstances of the case delay was quite natural.
In a case of this nature, the witnesses turning hostile is
not unusual particularly in a scenario where upper caste
G
people have created such a great fear psyche. The
instinct of survival is paramount and the witnesses
cannot be faulted for not supporting the prosecution
version. Even the evidence which is on record
particularly of J and K-PW14 supported by the evidence
H
158 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A of Head Constable PW27 is sufficient to bring home the
guilt of the accused. The evidence of PW14 and PW27
lead to the only conclusion that the accused were
squarely responsible for committing such a ghastly
crime. [Para 32) [176-C-G]
B
2.5. Reversal of the judgment of the High Court
would mean sentence of life imprisonment for some of
the accused. The entire evidence and documents on
record is examined and re-examined to ensure that no
C innocent person is punished. On a careful scrutiny of the
statement of PW-14, only one aspect creates slight doubt
in the minds about his remembering the names of the 18
accused persons along with the names of their villa_ges
after a lapse of three months. Some people with sharp
memory may perhaps be able to recount and recall all the
D names and villages correctly. But when the case of
ordinary rustic illiterate villager is taken tt?e possibility of
over implications cannot be fully ruled out. PW14 named
all the 18 accused but the independent witness Head
Constable-PW 27 named L, M, MS, VK, CS and OS. So as
E far as these names are concerned, corroboration from
the testimony of Head Constable PW 27 is found and
there cannot be slightest doubt regarding their
participation in this ghastly crime. There is strQng
suspicion about participation of RS but benefit of doubt
F is given to him because he was not named by PW 27.
[Para 35) [177-D-H; 178-A]
2.6. High Court in the impugned judgment did not
correctly follow the legal position. Trial court exhaustively
G dealt with the entire evidence and documents on record
and the findings of the trial court is based on proper
marshalling and analyzing the evidence and documents
on record. The trial court gave graphic description of the
entire case of the prosecution and the detailed
circumstances in which the evidence of PW14 was
H
STATE OF U.P. v. RAM SAJIVAN & ORS.
159
recorded. To satisfy the conscience and to ensure that A
even the miscarriage of justice should not take place, the
entire evidence and documents on record are reexamined. The trial court's view is the only possible view
in the facts and circumstances of the case. [Para 50) [188A-E]
B
2.7. This Court is usually very slow in interfering with
the acquitall of the accused. This Court would not have
'"\
interfered if the view which has been taken by the High
-
Court is a possible or plausible view. On proper scrutiny
of the entire evidence and documents on record, no c
other view is possible except the guilt of some of the
accused. [Paras 33 and 34) [176-H; 177-A-C]
2.8. The trial court convicted 18 accused but to
ensure that even the slightest miscarriage of justice D
should not take place, the order of the trial court is
modified and the benefit of doubt is giv~n to 12 accused
but as regard other six accused, there is no iota of doubt
about their participation in this ghastly crime where seven
innocent persons of lower caste were literally butchered
E
and were thrown in the river Ganges at a point where
there were strong currents to .wipe out the entire
evidence in this case. [Para 50) [188-D-F]
-I
2.9. On consideration of the totality of the facts and
F
circumstances of the case, the acquittal of six accusedMS, UB, OS, M. RN and VK recorded by the High Court
is set aside and their conviction as recorded by the trial
court is restored. However, during the pendency of the
instant appeal. One accused died and consequently his
appeal abates. Other accused who were convicted by the
G
trial court are given benefit of doubt. They were acquitted
by the High Court in the impugned judgment. Their
acquittal is maintained. [Paras 51 and 52) [188-G-H; 189A-CJ
H
160 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A
State of UP. v. Banne alias Baijnath and Ors. (2009) 4
sec 271, relied on.
Tu/siram Kanu v. The State, AIR 1954 SC 1; Lekha
Yadav v. State of Bihar (1973) 2 SCC 424; Bishan Singh and
B
Ors.v. The State of Punjab (1974) 3 SCC 288; Umedbhai
Jadavbhai v. The State of Gujarat (1978) 1 SCC 228; B.N.
Mutto and Anr. v. Dr. T.K. Nandi (1979) 1 SCC 361; Tota
Singh and Anr. v. State of Punjab (1987) 2 SCC 529; Harijana
Thirupa/a and Ors. v. Public Prosecutor, High Court of A.P.,
.,
~
c
Hyderabad (2002) 6 SCC 470; Chandrappa and Ors. v. State
of Kamataka (2007) 4 SCC 415; Raj Nauin v. State of UP.
and Ors. Ors. [2009] 14 (ADDL.) SCR 755; Chikkarangaiah
and Ors. v. State of Kamataka [2009] 13 (ADDL.) SCR 1182;
Sambasivan and Ors. v. State of Kera/a (1998) 5 SCC 412;
Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC 225;
D Ghurey Lal v. State of UP (2008) 10 SCC 450, referred to.
Case Law Reference:
AIR 1954 SC 1
Referred to.
Para 37
E
(1973) 2 sec 424
Referred to.
Para 38
(1974) 3 sec 288
Referred to.
Para 39
(1978) 1 sec 228
Referred to.
Para 40
(1979) 1 sec 361
Referred to.
Para 41
t
F
(1987) 2 sec 529
Referred to.
Para 42
(2002) 6 sec 470
Referred to.
Para 43
(2007) 4 sec 415
Referred to.
Para 44
G
[2009] 14 (ADDL.) SCR 755 Referred to.
Para 45
[2009] 13 (ADDL.) SCR 1182 Refer-~d to. Para 45
(1998) 5 sec 412
Referred to.
Para 46
H
(1996) 9 sec 225
Referred to.
Para 46
STATE OF U.P. v. RAM SAJIVAN & ORS.
161
(2008) 1 o sec 450
(2009)4 sec 211
Referred to.
Relied on.
Para 47
A
Para 48
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 686 of 2002.
From the Judgment & Order dated 10.1.2001 of the High
Court of Judicature at Allahabad in Criminal Appeal No. 1715
of 1982.
B
Ratnakar Das, S.N. Pandey, Chandra Prakash Pandey for
C
the Appellant.
Vishwajit Singh, N.P. Singh, Siddharth Sengar, Abhindra
Maheshwari, Pankaj Singh for the Respondents.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. Unfortunately, the centuries
D
old Indian Caste System still takes its toll from time to time. This
case unfolds the worst kind of atrocities committed by the so
called upper-caste (Kshatriya or Thakur) against the so called
lower-caste -Harijan caste in a civilized country. It is absolutely
E
imperative to abolish the caste system as expeditiously as
possible for the smooth functioning of Rule of Law and
Democracy in our country.
2. In the instant case, the accused persons belonging to
F
Thakur caste literally butchered seven totally innocent persons
belonging to the Harijan caste and to wipe out the entire
evidence of their atrocities, after shooting they were thrown in
the river Ganges where currents were very strong. Out of seven,
even the bodies of five persons could not be recovered.
G
3. This appeal emanates from the judgment and order
dated 10.01.2001 delivered by the High Court of judicature at
Allahabad in Criminal Appeal No. 1715 of 1982. By this
impugned judgment, all the 18 accused who were convicted
H
162 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A and sentenced to life imprisonment by the trial court have been
subsequently acquitted by the High Court.
4. The learned Additional Sessions Judge, Fatehpur, in an
elaborate, exhaustive and well considered judgment, sentenced
8 the 18 accused persons under section 302 read with section
149 IPC for committing the murder of Jasodiya, Ganga, Tulsi,
Deo Nath alias Madan, Din Dayal, Sukhlal and Shripal.
Accused persons were further sentenced to undergo seven
years rigorous imprisonment on each counts for committing the
c dacoities. The accused persons were also sentenced to
undergo five years of rigorous imprisonment under section 364
IPC for abduction of Kallu, Jasodiya, Ganga, Tulsi, Deo Nath,
Din Dayal, Sukhpal and Shripal. All the accused persons were
also sentenced to undergo four years rigorous imprisonment
under section 201 ·IPC for ~limination of evidence of murder
D by throwing the dead bodies of the seven persons in the river
Ganga. All the sentences awarded to the accused persons on
all counts were directed to run concurrently.
5. In appeal, the High Court acquitted all the eighteen
E accused. The appellant, State of U.P. has preferred this appeal
against the impugned judgment of the High Court acquitting all
the accused persons.
6. Brief facts necessary to dispose of this appeal are
t
F recapitulated as under:-
On the intervening night of 9/10.9.1979 in the village
Lohari, Police station Hussainganj, U.P. 20-22 accused
persons committed dacoities in the Harijan locality by breaking
open the doors of the main gate of the house of Jasodiya and
G Kallu P.W.14. They looted the house. Thereafter, Kallu,
Jasodiya. Din Dayal, Sukhlal, Shripal, Tulsi, Ganga Ram, Deo
Nath alias Madan were tied with rope and were taken to the
bank of the river Ganges, pushed in the boats and brutally
murdered and thereafter all of them were thrown in the river
H
STATE OF U.P. v. RAM SAJIVAN & ORS.
163
[DALVEER BHANDARI, J.]
Ganges, at a point where there were strong currents. Out of A
seven, five dead bodies could not be retrieved. Kallu P.W.14
jumped into the stream of the river Ganges and saved his life.
Jasodiya, wife of Kallu was recovered from the river Ganges
in an injured and unconscious state and after she regained
consciousness, she got a written report Ex. KA.1 scribed by
B
the witness Shyam Lal P.W.4 and the report was lodged at the
police station Hathgaon of the District, U.P .. The statement of
Jasodiya recorded under section 161 Cr.P.C. was recorded
by the Investigating Officer, the extract of which is Ex. KA.25.
The dying declaration Ex. KA.6 of Jasodiya was recorded by c
Dr. C. M. Mittal, Medical Officer at midnight on 10.9.1979. She
narrated that on the previous night i.e. 09.09.1979 at about 11
p.m. about 20-22 persons came to her house. They forced their
entry inside the house by cutting open the door shutters of the
house and looted the property. The accused perscns caught
D
hold of her and her husband Kallu, Tulsi, Madan, Ganga Ram,
Din Dayal, Sukhlal and Shripal sons of Din Dayal were also tied
by a rope. The accused had pretended to be the Police officials
of the District Rai Bareilly who had come to arrest persons in
connection with some dacoity which took place in Rai Bareilly.
E
7. The accused persons had taken eight persons after
tying them by a rope to the village Maheva on the bank of river
Ganges. These abducted persons from that point were taken
by two boats towards the east. These two boats were being
rowed by two boys belonging to the village Mahewa. Jasodiya
F
, did not mention their names. After they covered some distance
on boats towards the east they were forced to disembark from
the boats. Jasodiya started weeping and crying and her
husband Kallu, who was also terribly frightened managed to
jump into the stream of the river Ganges and swam to safety.
G
Jasodiya, who continued to cry and weep, was attacked by the
accused with knives and she was shot at by firing from gun and
she was thrown in the river Ganges. Jasodiya was taken by the
swift current of the river Ganges to village Jafrabad where she
was spotted by two persons who took her out of the river
H
164 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
t
A Ganges. She expressed her apprehension about the killing of
the remaining abducted persons by the said accused who were
pretending to be the police personnel. This report Ex. KA.1 was
'
sent to the Station Officer of the Police Station Hussainganj for
investigation and necessary action. Similar story was narrated
B by Jasodiya to the Investigating Officer Devi Dayal Dixit, as
would appear from the extract Ex. KA 25 and also in the dying
declaration Ex. KA.6.
8. Two persons spotted Jasodiya when she reached near
c the bank of the river in village Jafrabad. They reached at the
bank of the river, took her out and put her on a small cot and
she was warmed by fire under a Mahuwa tree. Thereafter, she
was taken for medical examination of her injuries at the Public
Health Centre (for short, PHC) Hathgaon, where Dr. C. M. Mittal
D
examined the injuries of Jasodiya. She was taken there by Chet
Ram 149 C.P. and Rais Ahmad 454 C.P. of the Police Station
•
Hathgaon who had identified Jasodiya before Dr. C. M. Mittal.
The examination took place at 10.30 pm on 10.9.1979. Dr.
Mittal assessed the age of Jasodiya around 50 years and he
found the following injuries on the person of Jasodiya:
E
"1. Two incised wounds of W' x 1/8", depth not measured,
other wound Yi" x 1/8" x depth not measured, which are
on the left side neck 2" below from the left mastoid
process. The wounds are paralleled and one inch distance
F
between two wounds. Bleeding not there. Margins were
clear cut and well defined.
2. A gun shot wound entry of Yi" x Yi" x muscle deep size
on the lower abdomen 3 Yi" below the umbilicus.
G
3. Gun shot wound of entry Yi" x Yi" x muscle deep size on
the outer aspect of right thigh 3%" from the right anterior
superior iliac spine. No bleeding.
Injury No. (1) kept under observation caused by some
H
sharp weapon. Rest injuries caused by fire arm weapon.
i
...
t
STATE OF U.P. v. RAM SAJIVAN & ORS.
165
[DALVEER BHANDARI, J.]
Referred to District Hospital, Fatehpur for treatment and
advised X-ray of all the affected parts. Duration about one
day old."
Dr. Mittal prepared injury report Ex KA.5 and according to
his statement these injuries could be caused in the night
between 9/10.9.1979 at any time after 11 PM. Dr. Mittal
also recorded the dying declaration of Smt. Jasodiya in
the same night at about mid night. The dying declaration
is Ex. KA.6."
9. Jasodiya succumbed to the injuries and died on
11.9.1979. Shim Singh conducted inquest proceedings in
respect of the dead body of Jasodiya. He prepared inquest
report Ex. KA.17, Photo Nash Ex. KA.18, Challan Nash Ex.
KA.19, Report for post-mortem examination Ex. KA.20 and
report for sending clothes etc. removed from the dead body of
Jasodiya Ex. KA.21 .
10. The post-mortem of Jasodiya was conducted by Dr.
S.K. Tandon, P.W.6, Medical Officer working at the District
Hospital, Fatehpur on 12.9.1979 at 2 p.m. Dr. Tandon found the
following ante-mortem injuries on the dead body:
"1. One gun shot wound of entry Yi" x Yi" x bone deep on
the anterior lateral surface of upper third of right thigh.
Margins lacerated. Blackening and tattooing present.
2. One gun shot wound of exit Yi" x Yi" x muscle deep on
the leluic region 4" below umbilicus. Margins everted and
lacerated. No blackening present.
A
B
c
D
E
F
Injury No. (1) and (2) are interconnected with each other.
G
There is laceration of right femual vessel under injury No.
1. No Gun shot recovered from the body after extensive
search. Direction right to left and upward.
3. Contusion 4" x 1" right side back.
H
166 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A
4. Abrasion %" x W' x on ankle region.
5. Incised wound 1" x %"muscle deep on left side neck 1
%" below the left ear. Margins everted and clean out.
B
6. Incised wound 1" x %" x muscle deep, left side of neck.
In internal examination heart was found empty and
the stomach was also found empty.
The death was caused due to shock and
c
haemorrhage due to ante-mortem injuries. The antemortem injuries were quite sufficient in the ordinary course
of nature to cause the death. He had taken off ei Dhoti, One
keel of nose, ring, 17 Chooriyan (bangles), 6 Bachchey,
two ear-rings and sealed them and gave them to Constable
D
Rais Ahmad for being taken to the police station."
11. The dead body of Shripal, S/o Din Dayal was
recovered from the river Ganges and its inquest was conducted
•
by Bhim Singh, Sub-Inspector posted at the Police Station
Hathgaon. After appointing Panchas, Sub-Inspector Bhim Singh
E inspected the dead body of Shripal and prepared the inquest
report. Dr. P. Joshi, P.W.7 who was working as the Medical
Officer, District Hospital, Fatehpur, conducted the post-mortem
on the dead body of Shripal and found the following injuries:
F
"1. One gun shot wound of entrance 1" x 1" x abdominal
cavity deep at 11 O' clock position 1 %" apart frum
umblicus loop of bowes protruding out of the ".'.Jund.
Margins lacerated and inverted. Blackening c:1nd tattooing
present.
G
2. One gun shot wound of entrance 1" x 1" x chest cavity
deep on the left side of chest 3 O'clock po"ition, 1 W'
apart from left nipple. Margins lacrrated, inverted.
Blackening and tattooing present.
H
STATE OF U.P. v. RAM SAJIVAN & ORS.
167
[DALVEER BHANDARI, J.]
.,
3. One gun shot wound of entrance 1" x 1" x chest cavity
A
deep on right side back upper third part scapular region.
Margins lacerated. Blackening and tattooing present.
4. Multiple gun shot wound of entrance on the left side of
chest and abdomen 1/8" x 1.8" x muscle cavity deep in an
B
area of 5" x 7" x 1 O" downwards from left anterior axillary
fold. Margins lacerated and everted. Blackening and
1
tattooing absent."
On internal examination, Dr. Joshi found fracture of 4th rib
from side and 11th and 12th ribs on side. Fracture of c
scapula right side. Right and left lungs were found
lacerated and perforated at places. Clotted blood was
found in the lungs in substance. Both pleural cavity
;
contained 1 LB and 10Z. blood. Peritoniat cavity contains
<
blood mixed with digested food one pound ounce clotted
D
blood present. Stomach was found normal and its contents
were digested food measuring 4 Oz. with gasses. Small
and large intestines were perforated throughout at places
along with mesenteric vessels. The liver was found
lacerated in left lobe. Gall bladder was found normal.
E
Spleen was found perforated and left kidney was found
lacerated and perforated.
The death was caused due to shock and haemorrhage as
t
a result of ante-mortem injuries."
F
12. The dead bodies of the remaining abducted persons
viz. Madan, Tulsi, Ganga, Sukhlal and Din Dayal could not be
traced.
'
13. On 15.9.1979, the Investigating Officer recorded the
G
statements of Dashrath and other witnesses. The Investigating
Officer arrested the accused Udai Bhan Singh alias Lal(an
Singh on 22.9.1979. On 23.9.1979, the Investigating Officer
raided the houses of the other accused persons but they were
not traceable. On that very day, he recorded the statements of
H
168 SUPREME COURT REPORTS [2009) 16 (ADDL.) S.C.R.
A witnesses Suraj Prasad, Lalta Prasad, Budhuwa, Tejram Prem
Shankar and Uma Shanker.
14. On 24.9.1979, the Investigating Officer arrested the
accused Virendra Singh and recorded his statement. On
B 28.9.1979, the Investigating Officer recorded the statements of
witnesses Jagat Narain, Bhagwat and Sumer. On 1.10.1979
accused Lavkush was arrested. On 3.10.1979 accused Man
Singh and Chaturbhuj Singh were arrested. On 7.10.1979
accused Faiyaz was arrested. Accused Dhirendra Singh,
c Ganga Din, Banwari and Cheddu alias Virendra Singh
surrendered in court on 7.10.1979 and they were sent to jail.
15. On 11.10.1979, the Investigating Officer recorded the
statement of witness Rai Dutt. On that very day, accused Suraj
Bali Singh surrendered himself in court and was sent to jail. On
D the next day, i.e. 12.10.1979 accused Ram Niwas Singh alias
•
Chhaila Singh and Mathura Singh alias Vijai Bahadur Singh
surrendered themselves in court and were sent to jail. On
13.10.1979 accused Vijai Karan Singh surrendered himself in
court and was sent to jail. The Investigating Officer recorded
E the statements of witnesses Barati Lal and Nanku on
20.10.1979. Accused Subhash Singh surrendered himself in
court on 29.10.1979 and he was also sent to jail. Accused
Chunna surrendered himself in court on 12.11.1979.
F
16. On 25.11.1979, the Investigating Officer filed a chargesheet against 15 persons, namely Mathura Singh, Ram
Sajiwan, Udai Bhan Singh, Ram Niwas Singh, Suraj Pal Sirigh,
Banwari, Lavkush, Man Singh, Virendra Singh, c;·,irendra
Singh, Tejpal Singh, Faiyaz, Munna, Vijai i~aran Singh and
Chandra Bhan Singh. Thereafter on 7.12.19/9, a second
G charge-sheet was filed by the Investigating Officer against three
accused, namely Cheddu Singh, Subhash Singh and Ganga
Din.
17. The Investigating Officer recorded the statement of the
H
STATE OF U.P. v. RAM SAJIVAN & ORS.
169
[DALVEER BHANDARI, J.]
witness Kallu P.W.14, s/o Sukkha on 7 .. 12.1979. The evidence
A
of this witness is extremely significant in the entire case. Kallu
P.W.14 is the only surviving injured eye-witness who has given
graphic description of the entire incident. He narrated that he
and his wife were in their house. Out of about 25 to 30 people,
about seven people were in the police uniform and others in
B
plain clothes. He named 18 accused persons along with their
villages. He stated that the accused persons entered their
house by breaking open the door. They caught hold of him and
his wife and also Ganga, Tulsi, Dea Nath, Din Dayal, Sukhlal
and Shripal. According to him, the accused were holding rifles, c
guns, revolvers, axes etc. The accused had large sized lights
and they were keeping the lights on. They forcibly took them to
the side of the river Ganges. They were made to sit in two boats.
The accused also sat on the boat and took them between
Surajpur and Naroli. There was a dense forest on the side of D
1
the river. They got descended there. According to Kallu P.W.14,
the accused first killed his brother Dea Nath and then Shripal.
Thereafter, they killed Sukhlal, Ganga Ram and Tulsi. According
to his statement, they were standing on the said bank of the
river. According to him, when his turn came, he took a
E
somersault and jumped into the river Ganges. Thereafter,
according to him, his wife was also killed. He further stated that
he made a deep dip in the water and came out at some
distance. At that point the accused were showing lights at him.
Then, he again made a dip and thereafter he reached floating
the sand in middle of the river Ganges in the forest and
F
continued lying there.
18. Kallu stated that thereafter, he went to the police station
of Dalmau where he was not heard and his statement was not
recorded. Then he went to the forest of Munna and spent the
G
night lying there. Next day, he went towards Lalganj and reached
Rai Bareilly and from there, he went to Bijnore and stayed there
for some days. Thereafter, he went to Lucknow. He also
mentioned in his statement that he had no enmity with Mathura
H
170 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A Singh. He further stated that before this incident, a dacoity was
committed at the place of Mathura Singh in which brother of
Mathura Singh, Raj Bahadur was killed.
19. In his cross-examination, he stated that he was brought
B by the police from Punjab. He came to the village in police
escort. In his statement, he has stated that the accused persons
used to come to the place of Mathura Singh frequently and
therefore, he knew and recognized them. He stated that he had
1'
also sent a complaint of 50 typed papers to Smt. Indira Gandhi
c and Shri Jagjivan Ram. Perhaps at the intervention of some
senior leader, the police investigated this matter. In his crossexamination, he has stated that in Lucknow he met one M.L.A.
at Darulshafa (M.L.A's Hostel). He also met Shri Chhotey Lal,
M.L.A. of District Hardoi. He also stated that Shri Chhotey Lal
advised him to hide in the forests to save his life and that when
D it would be needed, they would locate him. He further stated
that his statement was recorded before the Magistrate.
According to him, the night of the incident was bright because
it was a moonlit night. He also denied that he gave the statement
to the Magistrate under pressure.
E
20. The prosecution, apart from Kallu P.W.14, also
examined the other 32 witnesses and a large number of
documents to prove its case. We would not like to burden the
judgment by naming all the prosecution witnesses. We will deal
F with their statements as and when it becomes imperative. The
statements of the accused persons were recorded under
section 313 of the Code of Criminal Procedure. The accused
denied their participation and suggested that they have been
falsely implicated because of enmity.
G
21. Most of the prosecution witnesses have turned hostile.
Kallu P.W.14 who was one of the victims of dacoity and
abduction and whose death was attempted by the accused
persons, has fully supported the prosecution case. Head
Constable Kashi Prasad Tiwari P.W.27 has also supported the
H
STATE OF U.P. v. RAM SAJIVAN & ORS.
171
[DALVEER BHANDARI, J.]
prosecution case. He had seen accused Lallan Singh, Munna,
A
Mathura Singh, Vijai Karan, Chhaila Singh and Dhirendra
Singh on 9.9.1979 at 6 p.m. at the road running towards east
of the police out-post Chheolaha. According to him accused
...,
Mathura Singh and Vijai Karan Singh had rifles. He stated that
he enquired from Lallan Singh alias Udai Bhan Singh as to
B
where they were going or whether they were going to do some
big job and then in reply accused Lallan Singh told him that they
•
were going to village Lohari.
22. Maharajiya P .W.3 had been treated as a hostile c
witness, though she had corroborated the prosecution story to
some extent. She is the wife of Din Dayal who had been
abducted and murdered in this occurrence. Her two sons
Shripal and Sukhlal have also been abducted and murdered.
P.W.3 has supported the prosecution case only to the extent
D
that her husband Din Dayal and sons Sukhlal and Shripal were
taken away by the accused persons.
'
23. The other witness who has partly corroborated the
prosecution story, though he has also been treated as a hostile
witness by the prosecution and subject to cross-examination
E
is Dashrath PW.28. He stated that about 1 Y2 years ago he was
going to his village within police station Hussainganj from
Fatehpur and when he reached mile no. 7 at 6.30 p.m. he saw
'
5-6 persons sitting on the bridge. Out of these 5-6 persons he
recognized accused Mathura Singh, resident of Lohari,
F
Chandra, resident of Gaura, but he could not identify the
remaining persons. He stated that he heard these persons
talking that they would go to Lohari and kill the residents of
Lohari and to throw away their dead bodies in the river Ganges.
He also stated that the father of Ram Prasad of Lohari be killed
G
and his body be thrown in the Ganges. He has named
Dhirendra Singh Thakur, Man Singh Thakur and Vijai Karan
Singh Thakur who were armed with rifles.
24. In this case, the statement made by Jasodiya, another
H
172 SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.
A victim in this occurrence, was treated as a dying declaration.
,..
She stated that on 09.09.1979 at 11 p.m. 20-22 persons armed
with guns and rifles forced their entry inside her house and
caught hold of her and her husband Kallu. They also caught hold
of Ganga, Tulsi, Madan, Din Dayal and his two sons Shripal
B and Sukhlal and all of them were tied with ropes and were
made to go to jungle and thereafter they were taken to the bank
of the river Ganges. They crossed the river on two boats and
across the river those persons fired guns and rifles. She further
f
narrated that immediately after her husband was untied, he
c jumped into the river Ganges. She was also attacked and
injured with knife and gun shots and was thrown in the river
Ganges. She apprehended that the other persons namely
Ganga, Tulsi, Madan Din Dayal and his two sons Shripal and
/
Sukhlal would have been killed and thrown in the river Ganges.
D She further stated that she floated in the river and reached by
the side of Jafrabad and she succeeded in coming out of the
river Ganges, when two persons saw her and took her on a cot
~
and brought under a Mahua tree and there she was warmed
by the fire.
E
25. Dr. H.K. Tandon conducted the post-mortem
examination on the dead body of Jasodiya. According to him,
her omission to mention the names of the accused Mathura
Singh and Ram Sajiwan in the dying declaration could be
attributed to the state of deep shock in which she was when
F she made the statement.
26. The trial court has carefully examined the witnesses and
also appreciated the defence version as to why the testimony
of Kallu P.W.14 should not be believed. It was contended that
G his testimony could not be believed because he was brought
from Punjab in police escort. The trial court observed that the
evidence of Kallu P.W.14 was the only surviving witness of the
occurrence. The possibility of his being attacked and killed
could not be ruled out and it was imperative for the District
H
Police Administration to provide police escort to him so he
•
STATE OF U.P. v. RAM SAJIVAN & ORS.
173
[DALVEER BHANDARI, J.]
could safely reach the court and back. It cannot be inferred that
A
P.W.14 had been tutored by the police to support the
prosecution case because they provided police escort.
According to the trial court, Kallu is the eye-witness to the
occurrence and the only surviving persons out of 8 persons who
were abducted from village Lohari. The trial court observed that
B
there was absolutely no material elicited by the defence in his
cross-examination which may render his statement
unbelievable. Kallu P.W.14 clearly stated that he had no animus
against the accused persons and he could not say as to why
the accused persons committed dacoities and abducted and c
killed the persons named above in the occurrence. He had
recognized 18 accused persons. He stated that he knew Ram
Sajiwan and Mathura Singh because they belong to his village
Lahori and also other accused persons because they used to
visit the house of Mathura Singh frequently. P.W.14 had stated
D
that it was a moonlit night and they were all having big lights
with them and all the accused had open faces and none of them
had concealed or covered their faces. In the instant case,
accused persons were with Kallu PW14 for quite sometime.
Accused persons had tied Kallu and other seven persons with
rope and took them to the bank of river Ganga and put them in
two boats and they were thrown in the river where currents were
strong. There was enough time to recognize the accused
persons properly .
E
27. According to the trial court, the statement of Kallu
F
P.W.14 regarding the occurrence appears to be a true version
of the occurrence. The relevant observation of the trial court is
set out as under:
"47. Kallu after escaping death went to Dalmau Police
G
Station but he was not heard and believed. Then he went
to Rae Bareilly and from there to Bijnore, Lucknow etc.
During this period he sent some applications to the various
leaders of the country. The fact remains that Kallu was
quite shocked and frightened and he could not dare to
H
174 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.
A
come to Fetehpur all alone. It cannot be said that Kallu had
been tutored there to implicate the accused persons in this
occurrence."
The trial court further observed that:
8
" ..... Once abduction of these persons is established it is
for the accused to show as to what happened to them and
that they were alive and not dead. In the instant case there
t
is evidence of Kallu that these persons were murdered by
the accused and their companions and there is no
c
evidence of these persons being alive. Under these
circumstances it is proved that these five persons were
also killed and thus murdered in this incident."
28. The trial court further observed that in view of the
D testimony of Kallu, who is an independent and reliable witness
and his statemcr.t cuntains the true version of the occurrence.
The accused persons and their companions committed multiple
murders of the seven innocent persons of Harijan caste in cold
blood. It was a ghast:y 1,;1i111e committed by them which can
E shock the conscience of any person of a civilized . society.
According to the trial court, it may be a case of a caste war in
which the accused and their companions wanted to teach a
lesson to the persons of the lower caste (Harijan and Chamars
in this case). The trial court found that the prosecution had
F succeeded in establishing the charge of abduction of Kallu, his
wife Jasodiya, Ganga, Tulsi, Deo Nath, Din Dayal, Shripal and
Sukhlal with the intention of committing their murder. The trial
court observed that the prosecution has also succeeded in
establishing beyond any shadow of reasonable doubt of the
G
charge of dacoity punishable under section 395 IPC against
the accused. The trial court further observed that the accused
persons were further liable to be held guilty of the charge
punishable under section 201 IPC for destroying the evidence
of murder by throwing the dead bodies of the said victims in
the river Ganges, except Jasodiya who at that time had not died
H
-
STATE OF U.P. v. RAM SAJIVAN & ORS.
175
[DALVEER BHANDARI, J.]
but was seriously wounded and later on succumbed to her
A
injuries.