# CASE DETAILS MADAN v. STATE OF UTTAR PRADESH

- **Citation:** 2023 INSC 990
- **Court:** Supreme Court of India
- **Decided:** 2023-11-09
- **Case number:** Criminal Appeal Nos. 1381-1382 of 2017
- **Bench:** B. R. Gavai, B.V. Nagarathna, Prashant Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-madan-v-state-of-uttar-pradesh-36957
- **Pages:** 48

## Headnote

Issue for consideration: Six deaths were caused on account of brutal
fi ring by the appellants and other accused persons. The trial court imposed
sentence of capital punishment to the appellants ('M' and 'S') herein for the
off ence punishable u/s. 302 r/w. s.149 of IPC, while it sentenced accused
'I' to imprisonment for life for the same. (i) Whether the prosecution has
proved beyond reasonable doubt the case for conviction u/s. 302 of IPC;
(ii) Whether the present case falls in the category of rarest of rare cases; (ii)
Whether on the facts of the present case, the capital punishment imposed
on appellant- deserves to be maintained or not.
Penal Code, 1860 - s. 302 r/w. s.149 - The High Court, by the
impugned judgment, while commuting the sentence of appellant 'S' from
capital punishment to imprisonment for life, dismissed the appeals fi led
by appellant 'M' and accused 'I' and confi rmed their conviction and
sentence awarded by the trial court - The High Court further confi rmed
the Death Reference of the appellant 'M' - Propriety:
Held: The incident has taken place in two parts: The fi rst place is near
the house of 'R' - Appellant 'M' along with 'I' and other accused armed with
licensed guns, rifl es and country-made pistols came from behind and started
fi ring indiscriminately - As a result of which, two fell down on the Khadanja
and died on the spot - When 'MA', after hearing the sound of gunfi re, came
out of his house, the accused persons also fi red shots at him - As a result of
which, he also fell down - The second place is the house of Up-Pradhan-
766
SUPREME COURT REPORTS
[2023] 16 S.C.R.
'RN' - After indiscriminate fi ring by the accused persons, deceased 'RK' and
PW-2 ran away to save their lives and RK entered the house of 'RN' - The
accused persons followed them and entered into the house of 'RN' and fi red
shots at RK and two other persons - As a result of which, all three died - The
prosecution has duly proved its case beyond reasonable doubt in view of the
testimony of PW-1 being duly corroborated by the testimonies of PW-10
and PW-11 - This Court is of the considered view that the testimonies of
these witnesses duly establish that these witnesses have witnessed the fi ring
on three persons, who died on the spot - These witnesses have also seen
the accused persons assaulting RK and PW-2 who had received the fi rearm
injuries, who ran to the house of to take shelter - This Court is further of the
considered view that though PW-7 is a sole witness insofar as the fi ring on
deceased three persons is concerned, his testimony is cogent, reliable and
trustworthy and can be made basis for coming to a conclusion that it is the
present appellants along with other accused who have caused the death of
deceased - In any case, his testimony is duly corroborated by the evidence
of PW-1 who had immediately come to the second spot after the occurrence
of the incident when PW-7 informed PW-1 about the incident occurring
in his house - In the instant case, both the High Court and the trial court
have meticulously scrutinized the evidence and found the testimony of the
eye witnesses trustworthy and reliable - This Court after scrutinizing the
evidence again fi nd that merely because there are certain inconsistencies
in the evidence of the witnesses, their evidence cannot be discarded - In
totality of the circumstances, the prosecution has proved beyond reasonable
doubt the case for conviction u/s. 302 of IPC and the appeals in that regard
are liable to be rejected. [Paras 27, 39, 42, 43, 49]
Penal Code, 1860 - Whether the present case falls in the category
of rarest of rare cases:
Held: Six deaths were caused on account of brutal fi ring by the
appellants and other accused persons - The entire village and the people
residing in the surrounding areas must have been shocked by such heinous
and gruesome act - Not only that, one of the eye witnesses was also murdered
during the pendency of the trial - The terror of the appellants

## Text

_Characters 0–39,918 of 104,649. This is a partial read: ask again with offset=39918 for what follows._

[2023] 16 S.C.R. 765 : 2023 INSC 990
765
CASE DETAILS
MADAN
v.
STATE OF UTTAR PRADESH
(Criminal Appeal Nos. 1381-1382 of 2017)
NOVEMBER 09, 2023
[B. R. GAVAI, B.V. NAGARATHNA AND
PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Six deaths were caused on account of brutal
fi ring by the appellants and other accused persons. The trial court imposed
sentence of capital punishment to the appellants ('M' and 'S') herein for the
off ence punishable u/s. 302 r/w. s.149 of IPC, while it sentenced accused
'I' to imprisonment for life for the same. (i) Whether the prosecution has
proved beyond reasonable doubt the case for conviction u/s. 302 of IPC;
(ii) Whether the present case falls in the category of rarest of rare cases; (ii)
Whether on the facts of the present case, the capital punishment imposed
on appellant- deserves to be maintained or not.
Penal Code, 1860 - s. 302 r/w. s.149 - The High Court, by the
impugned judgment, while commuting the sentence of appellant 'S' from
capital punishment to imprisonment for life, dismissed the appeals fi led
by appellant 'M' and accused 'I' and confi rmed their conviction and
sentence awarded by the trial court - The High Court further confi rmed
the Death Reference of the appellant 'M' - Propriety:
Held: The incident has taken place in two parts: The fi rst place is near
the house of 'R' - Appellant 'M' along with 'I' and other accused armed with
licensed guns, rifl es and country-made pistols came from behind and started
fi ring indiscriminately - As a result of which, two fell down on the Khadanja
and died on the spot - When 'MA', after hearing the sound of gunfi re, came
out of his house, the accused persons also fi red shots at him - As a result of
which, he also fell down - The second place is the house of Up-Pradhan-
766
SUPREME COURT REPORTS
[2023] 16 S.C.R.
'RN' - After indiscriminate fi ring by the accused persons, deceased 'RK' and
PW-2 ran away to save their lives and RK entered the house of 'RN' - The
accused persons followed them and entered into the house of 'RN' and fi red
shots at RK and two other persons - As a result of which, all three died - The
prosecution has duly proved its case beyond reasonable doubt in view of the
testimony of PW-1 being duly corroborated by the testimonies of PW-10
and PW-11 - This Court is of the considered view that the testimonies of
these witnesses duly establish that these witnesses have witnessed the fi ring
on three persons, who died on the spot - These witnesses have also seen
the accused persons assaulting RK and PW-2 who had received the fi rearm
injuries, who ran to the house of to take shelter - This Court is further of the
considered view that though PW-7 is a sole witness insofar as the fi ring on
deceased three persons is concerned, his testimony is cogent, reliable and
trustworthy and can be made basis for coming to a conclusion that it is the
present appellants along with other accused who have caused the death of
deceased - In any case, his testimony is duly corroborated by the evidence
of PW-1 who had immediately come to the second spot after the occurrence
of the incident when PW-7 informed PW-1 about the incident occurring
in his house - In the instant case, both the High Court and the trial court
have meticulously scrutinized the evidence and found the testimony of the
eye witnesses trustworthy and reliable - This Court after scrutinizing the
evidence again fi nd that merely because there are certain inconsistencies
in the evidence of the witnesses, their evidence cannot be discarded - In
totality of the circumstances, the prosecution has proved beyond reasonable
doubt the case for conviction u/s. 302 of IPC and the appeals in that regard
are liable to be rejected. [Paras 27, 39, 42, 43, 49]
Penal Code, 1860 - Whether the present case falls in the category
of rarest of rare cases:
Held: Six deaths were caused on account of brutal fi ring by the
appellants and other accused persons - The entire village and the people
residing in the surrounding areas must have been shocked by such heinous
and gruesome act - Not only that, one of the eye witnesses was also murdered
during the pendency of the trial - The terror of the appellants and other
accused persons was of such a high magnitude that even the witnesses who
had received grievous injuries did not support the prosecution case and were
767
required to be declared hostile - As such, four innocent persons were shot
from behind - Therefore, the act of the appellants and the other accused
would certainly be the one which shocked the collective conscience of the
society and fall in the category of rarest of rare cases. [Para 57]
Penal Code, 1860 - Whether on the facts of the present case, the
capital punishment imposed on appellants deserves to be maintained
or not.
Held: As per the Prison Conduct Report submitted by the
Superintendent, District Jail, appellant 'M' is currently 64 years old - He
has been in prison for 18 years 3 months - During this entire duration, he
has no history of any kind of prison off ence - The Report further shows
that he has not been involved in any form of quarrels or fi ghts in prison -
The Report shows that he has cordial relations with other prisoners in his
barrack and follows the prison rules - Taking into consideration all these
factors, this Court fi nds that the present case is not a case wherein it can
be held that imposition of death penalty is the only alternative - Another
reason that weighs is that from the evidence of the witnesses, it is clear
that the role attributed to all the accused persons has been similar - The
evidence of witnesses would show that the role attributed is that all the
accused persons including both the appellants herein had fi red shots and
indiscriminately indulged in the said fi ring - The role attributed in the
evidence of the eye witnesses is identical to all the accused - In that view
of the matter, the High Court was not justifi ed in imposing death penalty
on appellant 'M' while converting the death penalty imposed upon 'S' to
life imprisonment - If the judgment of the High Court is maintained, it
would lead to an anomalous situation - Whereas appellant 'S' would be
entitled for consideration of his case for remission and pre-mature release
on completion of a particular number of years in accordance with the
relevant rules, appellant 'M' will have to face death penalty - Therefore,
the interest of justice would be met by converting death penalty into life
imprisonment i.e. actual imprisonment for a period of 20 years without
remission - Appeal fi led by 'S' dismissed and the appeal fi led by appellant-
'M'partly allowed by converting his death penalty into imprisonment for
a fi x term of 20 years.[Paras 69, 76-78]
MADAN v. STATE OF UTTAR PRADESH
768
SUPREME COURT REPORTS
[2023] 16 S.C.R.
LIST OF CITATIONS AND OTHER REFERENCES
Bachan Singh v. State of Punjab (1980) 2 SCC 684 - followed.
Piara Singh and Others v. State of Punjab [1978] 1 SCR 597 : (1977) 4
SCC 452; State of Uttar Pradesh v. Krishna Master and Others [2010] 9 SCR
563 : (2010)12 SCC 324; State of Andhra Pradesh v. Bogam Chandraiah
and Another (1986) 3 SCC 637; Darbara Singh v. State of Punjab [2012] 7
SCR 541 : (2012) 10 SCC 476; Subodh Nath and Another v. State of Tripura
[2013] 4 SCR 581 : (2013) 4 SCC 122; Karnel Singh v. State of M.P. [1995]
2 Suppl. SCR 629 : (1995) 5 SCC 518; Machhi Singh and Others v. State
of Punjab [1983] 3 SCR 413 : (1983) 3 SCC 470; Ramnaresh and Others
v. State of Chhattisgarh [2012] 3 SCR 630 : (2012) 4 SCC 257; Swamy
Shraddananda (2) alias Murali Manohar Mishra v. State of Karnataka
[2008] 11 SCR 93 : (2008) 13 SCC 767; Mohinder Singh v. State of Punjab
[2013] 3 SCR 90 : (2013) 3 SCC 294 - relied on.
Jaikam Khan v. State of Uttar Pradesh (2021) 13 SCC 716; Khema
@ Khem Chandra v. State of Uttar Pradesh 2022 SCC OnLine SC 991;
Acharaparambath Pradeepan and Another v. State of Kerala [2006] 10
Suppl. SCR 1101 : (2006) 13 SCC 643; Harjinder Singh alias Bhola v. State
of Punjab (2004) 11 SCC 253; Waman and Others v. State of Maharashtra
[2011] 6 SCR 1072 : (2011) 7 SCC 295; Shera Singh v. State of Punjab
(1996) 10 SCC 330; Shankar Kisanrao Khade v. State of Maharashtra
[2013] 6 SCR 949 : (2013) 5 SCC 546; Gandi Doddabasappa alias Gandhi
Basavaraj v. State of Karnataka (2017) 5 SCC 415 : [2017] 2 SCR 62;
Prakash Dhawal Khairnar (Patil) v. State of Maharashtra (2002) 2 SCC
35 : [2001] 5 Suppl. SCR 612; Sundar @ Sundarrajan v. State by Inspector
of Police 2023 SCC OnLine SC 310; Rajendra Pralhadrao Wasnik v. State
of Maharashtra [2018] 14 SCR 585 : (2019) 12 SCC 460; Santosh Kumar
Satishbhushan Bariyar v. State of Maharashtra (2009) 6 SCC 498 : [2009]
9 SCR 90; Chhannu Lal Verma v. State of Chhattisgarh [2018] 14 SCR 355
: (2019) 12 SCC 438; Manoj and Others v. State of Madhya Pradesh (2023)
2 SCC 353; Babasaheb Maruti Kamble v. State of Maharashtra (2019) 13
SCC 640; Irappa Siddappa Murgannavar v. State of Karnataka (2022) 2
SCC 801 - referred to.
769
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
1381-1382 of 2017.
From the Judgment and Order dated 22.02.2017 of the High Court of
Judicature at Allahabad in CCN No. 3520 of 2015 and RN No. 09 of 2015.
With
Criminal Appeal No. 1790 of 2017.
Appearances:
Anand Grover, Sr. Adv., Aarif Ali, Mohd. Irshad Hanif, Ms. Shreya
Rastogi, Mujahid Ahmed, Mohd. Ehatsham Rao, Kailesh U. More, Khalid
Azeez, Bhavesh Seth, Aditya P. Rath, Ms. Harini Raghupathy, Manish
Kumar Vikkey, Ms. Sunita Sharma, Himanshu Mehra, Ms. Kanchan Jha,
Advs. for the Appellant.
Brijender Chahar, Sr. Adv., Vishwa Pal Singh, Dr. Vijendra Singh
Mahndiyan, Mukesh Kumar, Bharpur Singh, Sandeep Kumar, Ashutosh
Bhardwaj, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
B. R. GAVAI, J.
1. These appeals challenge the judgment and order dated 22nd
February 2017, passed by the Division Bench of the High Court of
Judicature at Allahabad in Capital Case Nos. 3359 and 3520 of 2015 with
Reference No. 9 of 2015 and Criminal Appeal No. 3519 of 2015, thereby
dismissing the appeals fi led by appellant Madan and another accused
Ishwar; whereas, it allowed in part, the appeal fi led by appellant Sudesh
Pal. By the said judgment, the High Court confi rmed the judgment and
order of conviction and sentence dated 31st July 2015 passed by the Court
of Additional Sessions Judge, Court No. 3, Muzzaff arnagar (hereinafter
referred to as "trial court") in Sessions Case No. 09/2005 with Sessions
Case No. 838 of 2005 and 10/2005, in respect of appellant - Madan, while
MADAN v. STATE OF UTTAR PRADESH
770
SUPREME COURT REPORTS
[2023] 16 S.C.R.
commuting the sentence of capital punishment to life imprisonment in
respect of appellant - Sudesh Pal.
2. Shorn of details, the facts leading to the present appeals are as under:
2.1 The First Information Report ("FIR" for short) was lodged on a
written report given by informant Lokendra (PW-1), on 14th October 2003 at
P.S. Babri, District Muzzafarnagar, which was registered as Crime No. 197
of 2003, for off ences punishable under Sections 147, 148, 149, 302, 307, 323
and 452 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC").
The incident took place at 5.30 PM and the FIR came to be registered on
the same day at 7.40 PM.
2.2 The report was recorded by one, Naresh Pal s/o Vijay Pal r/o
village Barwala, District Baghpat on the oral report of Lokendra (PW1). According to the FIR, Smt. Vimla Devi, who was the mother of Ram
Kishan, cousin of Lokendra (PW-1), was a candidate in the election
for Gram Pradhan; whereas the wife of one Arshad was the opposing
candidate. On the one hand, Lokendra (PW-1) supported the candidature
of Vimla Devi; whereas, the family of appellant Madan and Ram Bhajan
supported the candidature of the wife of Arshad. When Vimla Devi came
to be elected as Gram Pradhan along with Lokendra (PW-1), who also
came to be elected as a member of the Gram Panchayat, appellant Madan
and his family members bore a grudge with Lokendra (PW-1) and others
on account of the feeling of jealousy.
2.3 The FIR states that on 14th October 2003, at about 5.30 PM,
when Satendra, the real brother of Lokendra (PW-1), his nephew Sunil s/o
Chandrapal, cousin Ram Kishan s/o Narain Singh @ Lala, Sukhpal Singh
(PW-2) s/o Lotan Singh and his father Jai Singh (PW-8) s/o Ganga Ram
were going to the house of Up-Pradhan Rizwan s/o Irshad Khan (PW-7) for
discussing problems of the village, and had reached the house of Rashid s/o
Mustafa, appellant Madan along with Rajveer, Ram Bhajan, Ramveer, and
Kanwar Pal who were the sons of Ishwar along with Ishwar himself, who
was the brother-in-law (sala) of appellant Madan, also known as Pahalwan,
appellant Sudesh Pal, who was the real brother-in-law (sadu) of appellant
Madan along with Neetu, who was the nephew of appellant Madan, armed
with licensed guns, rifl es and country-made pistols came from behind and
771
started fi ring indiscriminately. As a result of the said fi ring, Satendra and
Sunil fell down on 'Khadanja'. When Masooq Ali s/o Abdul Gaff ur came out
of his house upon hearing the sound of gunfi re, the accused persons shot fi re
at him due to which he also fell down. Following which, Ram Kishan and
Sukhpal Singh (PW-2) ran away to save their lives. Ram Kishan thereafter
entered into the house of the Up-Pradhan Rizwan.
2.4 It is further stated in the FIR that the accused persons thereafter
entered the house of Up-Pradhan Rizwan and fi red shots at Ram Kishan,
Rizwan and Rihan. They also fi red shots at Sukhpal Singh (PW-2). Ram
Kishan, Sunil and Satendra died on the spot. When Mumtaz Khan (PW5) s/o Imtyaz reached at the place of incident, the accused persons fi red
shots at him as well. The accused persons further assaulted Jai Singh
(PW-8), father of Lokendra (PW-1) with the 'butt' of the gun who then
ran away to save his life. Following which, when the villagers were taking
Rizwan, Rihan, Masooq Ali, Sukhpal Singh (PW-2) and Mumtaz Khan
(PW-5) to the hospital; Rizwan, Rihan and Masooq Ali succumbed to
their injuries and died on the way and their bodies were accordingly kept
in their houses. When the accused persons were fi ring at the place of the
incident, Ram Pal s/o Salet, Sudhir (PW-11) s/o Mahendra, Anil (PW-3)
s/o Chandrapal, Mahesh Pal (PW-4) s/o Prahlad, Harpal Singh (PW-10)
s/o Dhara, Mahipal s/o Atal Singh along with other villagers reached and
saw the said incident. Lokendra (PW-1) also reached the place of the
incident and witnessed the incident with his own eyes and requested to
register the report and take legal action.
2.5 The FIR was registered and the investigation was subsequently
taken over on 14th October 2003 by Mr. Raghunandan Singh Bhadauria (PW24), who was the then Station House Offi cer (for short 'SHO'). He recorded
the statement of Lokendra (PW-1) and proceeded to the place of the incident
in front of the house of Rashid s/o Mustafa where he found the dead bodies
of Satendra, Jai Singh (PW-8) and Sunil in a pool of blood. The dead body of
Masooq Ali s/o Abdul Gafoor was on the cot in his house. When he reached
the house of Rizwan, where he found the dead bodies of Rizwan and Rihan
s/o Irshad Khan (PW-7) lying on the cot, whereas the body of Ram Kishan
s/o Narain Singh was found lying in a pool of blood in the veranda of the
said house. Upon inspection of the place of the incident, Raghunandan Singh
MADAN v. STATE OF UTTAR PRADESH
[B. R. GAVAI, J.]
772
SUPREME COURT REPORTS
[2023] 16 S.C.R.
Bhadauria (PW-24) found empty cartridges near the dead body which were
taken into possession. Three empty cartridges of 12 bore 9 mm were found
and taken into possession in the presence of witnesses Anil Kumar (PW-3) s/o
Chandrapal Jat and Sri Dheer Singh s/o Prahlad Singh. The recovery memo
(Ext. Ka - 2) was accordingly prepared and signed. He then took plain and
blood-stained mud from the spot in the presence of the said witnesses. The
recovery memo for the same was prepared and kept sealed in two separate
containers (Ext. Ka-3). He also collected plain and blood-stained mud
from where the bodies of Rizwan, Rihan and Ram Kishan were lying and
a recovery memo (Ext. Ka - 6) was prepared to that eff ect. Further, empty
cartridges of 12 bore 9 mm, 5 bullets along with another such bullet were
recovered and taken into custody which were then sealed in the presence of
the witnesses. However, Raghunandan Singh Bhadauria (PW-24) could not
recover the blood-stained mud from the place where Masooq Ali, Rizwan
and Rihan fell down and were subsequently taken to the hospital due to the
movement of persons at the place of occurrence.
2.6 The Investigating Offi cer then recorded the statement of other
witnesses after which he inspected the place of the incident and prepared
the site plan. After panchayatnama of the dead bodies, the same were sent
for post-mortem examination through Head Constable Surendra Singh,
Head Constable Ram Kumar, Constable Yashpal and Constable Satya
Prakash. After Raghunandan Singh Bhadauria (PW-24) was transferred,
the investigation was taken over by Surajpal Singh (PW-23), SHO on 18th
October 2003. He took steps to execute non-bailable warrants issued against
the accused persons and also took steps to initiate proceedings under Sections
82-83 of the Code of Criminal Procedure, 1973 (hereinafter referred to as
"Cr.P.C."). After the copies of the post-mortem report were obtained, the
same were noted and enclosed with the C.D. of the deceased Ram Kishan,
Masooq Ali, Rizwan, Rihan, Satendra and Sunil. Statements of witnesses
Sudhir (PW-11), Harpal Singh (PW-10), Mahesh Pal (PW-4), and Mahipal
were recorded at village Butrada. Surajpal Singh (PW-23) also recorded the
statements of Rashid Sachdev and Ram Mehar, who were the witnesses of
the panchayatnama. During investigation, Surajpal Singh (PW-23) received
information that one co-accused, who was involved along with the accused
persons named in the FIR had died in the same incident and his body was
taken away by the accused persons and the same was found and recovered
773
from the jungle (agricultural fi eld) of village Pinana regarding which,
Case Crime No. 799 of 2003 was registered at P.S. Kotwali, for off ences
punishable under Sections 302 and 201 of IPC. Surajpal Singh (PW-23)
thereafter recorded the statements of other witnesses and also raided the
house of the accused persons.
2.7 Thereafter, investigation was transferred and taken over on 21st
December 2003 by Inspector Adesh Kumar Sharma (PW-20), EOW, Meerut.
Accused persons Ishwar and Kunwar Pal were taken in police remand. He
then proceeded to the place of the incident along with police personnel for
the recovery of weapon; whereupon, a country-made pistol and the gun used
in the incident were recovered at the instance of accused persons Ishwar
and Kanwar Pal. Further, one empty cartridge was found in the gun whereas
one empty cartridge of 9 mm was found in the country-made pistol. Both
the fi re-arms were in operating condition and the Recovery Memo for the
gun and the country-made pistol were prepared and sealed in two separate
clothes. Following which, panchayatnama was prepared by Sub-Inspector
Surendra Singh (PW-16) with regards to the three deceased, namely, Masooq
Ali, Rihan and Rizwan. Additionally, panchayatnama and inquest reports
with regards to the deceased, namely, Ram Kishan, Satendra and Sunil were
prepared by another Sub-Inspector.
2.8 Subsequently, the investigation was transferred and handed over to
Bahadur Singh Chauhan, the then C.B.C.I.D. (PW-17) on 13th January 2004
by the orders of higher authority. Bahadur Singh Chauhan (PW-17) recorded
the statement of Lokendra (PW-1), inspected the place of the incident and
accordingly prepared a site plan. The statements of other witnesses were
also recorded. Bahadur Singh Chauhan (PW-17) thereafter recorded the
statements of earlier investigating offi cers in C.D.
2.9 Subsequently, the investigation was again transferred from
C.B.C.I.D. to the civil police. After the chargesheet was submitted by
Bahadur Singh Chauhan (PW-17) against appellant Madan along with
other accused persons, namely, Kanwar Pal and Ishwar; the investigation
was taken over by the then S.H.O. P.S. Babri, Siddh Narayan Yadav on 18th
October 2004 who was examined as PW-19. Siddh Narayan Yadav (PW-19)
submitted the chargesheet against appellant Sudesh Pal and another accused
person who was absconding at the time. Siddh Narayan Yadav (PW-19) was
MADAN v. STATE OF UTTAR PRADESH
[B. R. GAVAI, J.]
774
SUPREME COURT REPORTS
[2023] 16 S.C.R.
the fi fth IO of this case and he also submitted a chargesheet against accused
Rajvir along with other accused persons.
2.10 The post-mortem of deceased Ram Kishan was conducted by Dr.
Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 12.50 PM. The
injuries sustained by deceased Ram Kishan are thus:
1.
Wound of fi rearm 4 cm X 1.5 cm in depth of the muscle in the
right side off ace and aside of the nose. Around the wound there
were tattooing in the area of 20 cm x 7 cm.
2.
Wound of entering of 8 fi rearms 20 cm X 19 cm towards left side
of chest which was in deep ranging from 1⁄2 cm X 1⁄2 cm from the
surface of the chest. Around the wound no blacking and tattooing
were present. One metal pellet was taken out from the cavity of
the chest.
3.
Wound of entering of fi rearm 1⁄2 cm X 1⁄2 cm X till the cavity of
abdomen, towards left of abdomen and 1 cm above of tunica crest.
4.
Wound of entering of fi rearms towards right side of the chest, 5
m away from the right side nipple. As per position of 2 hrs. 1.5
cm X 1 cm in deep in the cavity of the chest.
5.
Wound of entering of fi rearm 1⁄2 cm X 1⁄2 cm in deep of cavity of
the abdomen, around 5 cm away from the right side navel, in the
position of 8 hrs.
6.
Mark of bruises towards the opposite of chest in the area of 1.4
cm X 7 cm in right side of the chest.
7.
Wound of exit of fi rearm in the area of 33 cm X 21 cm, towards
back side of the chest and was in deep from 2 cm X 1.5 cm to
1cm X 1 cm in the cavity of the chest.
8.
Wound of entering of fi rearm 1.5 cm X 1 cm in depth of the
muscle, beneath knee on right forearm.
9.
Wound of exit of fi rearm 3.5 cm to 3 cm in depth of the muscle
in the mid of right side arm in the correspondence of injury No.
8 which is wound of entering of fi rearm.
775
10. Wound of entering of fi rearm in depth of muscle from 1 cm X 1⁄2
cm, in the inner portion of left upper side arm but 5 cm beneath
from armpit. Around the wound the tattooing was present.
11. Wound of exit of fi rearm in depth of the muscle 1 cm X 1.5 cm,
corresponding the injury No. 10.
12. Brusted wound in the area of 1.5 cm X 6 cm to 2.5 cm X 1 cm
deep in the muscle.
2.11 The post-mortem of deceased Masooq Ali was conducted by Dr.
Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 1.30 PM. The
injuries sustained by deceased Masooq Ali are thus:
1.
Wound of entering of fi rearm measuring 1⁄2 cm X 1⁄2 cm deep in
the cavity of the chest and 8 cm away from left side nipple in the
position of 11.00 hrs.
2.
Wound of exit of fi rearm measuring 2 cm X 1.5 cm in deep in
the cavity of chest, towards right side of chest beneath 11 cm of
armpit and 14 cm away from the nipple in the position of 9 hrs.
2.12 The post-mortem of deceased Rizwan was conducted by Dr.
Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 1.45 PM. The
injuries sustained by deceased Rizwan are thus:
1.
Wound of entering of fi rearm in deep of cavity of chest measuring
1⁄2 cm X 1⁄2 cm towards left side of chest, 2 cm beneath the outer
portion of clavicle.
2.
Wound of entering of fi rearm in deep of cavity of chest measuring
1 cm X 1 cm in front of the left side of chest 4 cm away from left
nipple in the position of 7.00 hrs.
3.
Wound of exit of fi rearm 2 cm X 1.5 cm in deep of the cavity
of the chest towards back side of the chest 3 cm away from the
middle line in right side and 7 cm beneath the neck corresponding
the injury No. 2.
2.13 The post-mortem of deceased Rihan was conducted by Dr. Arvind
Kumar Aggarwal (PW-14) on 15th October 2013 at 2.10 PM. The injuries
sustained by deceased Rihan are thus:
MADAN v. STATE OF UTTAR PRADESH
[B. R. GAVAI, J.]
776
SUPREME COURT REPORTS
[2023] 16 S.C.R.
1.
Wound of entering of fi rearm 1.2 cm X 1.2 cm in deep of the bone,
on upper side of the left shoulder. Around the wound tattooing
was present. The bone beneath the injury was fractured.
2.
Wound of exit of fi rearm 1 cm X 1 cm in deep of the cavity of the
chest towards right side of the chest, 12 cm beneath of imprear
angle of Scapula and 15 cm away from the middle line.
2.14 The post-mortem of deceased Satendra was conducted by Dr.
Arvind Kumar Aggarwal (PW-14) on 15th October 2013 at 2.30 PM. The
injuries sustained by deceased Satendra are thus:
1.
Wound of entering of fi rearm 1⁄2 cm X 1⁄2 cm in deep of the bone
towards the back side of the right shoulder and 7 cm beneath the
upper portion. The bone beneath the injury was fractured.
2.
Wound of exit of fi rearm 1.5 cm X 1 cm corresponding the injury
No. 1 and on outer portion of right side collarbone.
3.
Wound of exit of fi rearm 1⁄2 cm X 1⁄2 cm in deep of cavity of chest,
towards left side of chest and 7 cm beneath the left nipple in the
position of 7.00 hrs.
4.
Wound of exit of fi rearm 2 cm X 1 cm in deep of cavity of the
chest towards back side of left side chest, 16 cm beneath the
scapula corresponding the injury.
2.15 The post-mortem of deceased Sunil was conducted by Dr. Arvind
Kumar Aggarwal (PW-14) on 15th October 2013 at 3.00 PM. The injuries
sustained by deceased Sunil are thus:
1.
Wound of entering of fi rearm 4 cm x 3 cm in the deep of the
cavity of the chest towards left side of the chest and 11 cm away
from nipple in the position of 11.00 hrs.
2.
Second and third rib beneath the injury were fractured.
3.
The small four metal pellet and a bending piece of plastic in
cylindrical shape was taken out from the cavity of the chest.
2.16 After completing the investigation, chargesheet came to be
submitted against the arrested accused persons along with absconding ones in
the court of jurisdictional Magistrate. Since the case was exclusively triable
777
by the Sessions Court, the same came to be committed to the Sessions Judge,
Muzaff arnagar. Following which, charges were framed against appellants
Madan and Sudesh Pal and other accused persons, namely, Kunwar Pal and
Ishwar for off ences punishable under Sections 148 and 449, Section 302
read with Section 149, Section 307 read with Section 149, Section 323 read
with Section 149 of IPC by the trial court; whereas, an additional charge
for off ence punishable under Section 25 of the Arms Act, 1959 was framed
against accused Ishwar.
2.17 Subsequently, accused Kunwar Pal absconded and the trial
commenced against appellant Madan and co-accused Ishwar in Sessions
Trial No. 09 of 2005, against appellant Sudesh Pal in Sessions Trial No.
838 of 2005 and against accused Ishwar in Sessions Trial No. 10 of 2005
for the charge under Section 25 of the Arms Act, 1959 arising out of Case
Crime No. 204 of 2003. The accused persons denied the charges and
pleaded to be tried.
2.18 The prosecution examined as many as 25 witnesses to prove
the guilt of the accused persons. In the present case, three out of the six
deceased persons, namely, Ram Kishan, Satendra and Sunil were related with
Lokendra (PW-1) as his cousin, real brother, and nephew respectively. They
were also related with Jai Singh (PW-8) and Anil (PW-3). The statements of
the accused persons were recorded under Section 313 of Cr.P.C. wherein they
denied the allegations against them and stated that they were not involved
in the incident and were thus innocent. However, due to village election
rivalry, they were being falsely implicated in this case but did not examine
any witness in defence.
2.19 At the conclusion of trial, the trial court vide judgment dated 31st
July 2015 held the accused persons guilty of committing the murder of six
persons and accordingly convicted the appellants herein along with accused
Ishwar for off ences punishable under Sections 148 and 449, Section 302 read
with Section 149, Section 307 read with Section 149, Section 323 read with
Section 149 of IPC, while accused Ishwar was also additionally convicted
for the off ence punishable under Section 25 of the Arms Act, 1959. The trial
court, observing the off ences committed by the appellants herein to have
been falling in the ambit of the rarest of the rare case, imposed sentence of
capital punishment to the appellants herein for the off ence punishable under
MADAN v. STATE OF UTTAR PRADESH
[B. R. GAVAI, J.]
778
SUPREME COURT REPORTS
[2023] 16 S.C.R.
Section 302 read with Section 149 of IPC, while it sentenced accused Ishwar
to imprisonment for life for the same. The trial court sentenced each of the
three accused persons 3 years rigorous imprisonment under Section 148 of
IPC; life imprisonment under Section 449 and Section 307 read with Section
149 of IPC and one year rigorous imprisonment under Section 323 read with
Section 149 of IPC. The trial court further sentenced accused Ishwar to fi ve
years rigorous imprisonment under Section 25 of the Arms Act.
2.20 Being aggrieved thereby, the accused persons preferred their
respective appeals before the High Court with regards to the conviction
and sentence awarded by the trial court. The High Court, by the impugned
judgment, while commuting the sentence of appellant Sudesh Pal from
capital punishment to imprisonment for life, dismissed the appeals fi led by
appellant Madan and accused Ishwar and confi rmed their conviction and
sentence awarded by the trial court. The High Court further confi rmed the
Death Reference insofar as appellant Madan is concerned; whereas insofar
as appellant Sudesh Pal is concerned, his appeal was partly allowed and
the sentence of capital punishment imposed on him was converted to life
imprisonment.
2.21 Being aggrieved thereby, the present appeals.
3. We have heard Shri Anand Grover, learned Senior Counsel
appearing for appellant Madan in Criminal Appeal Nos. 1381-82 of 2017,
Shri Manish Kumar Vikkey, learned counsel appearing for appellant Sudesh
Pal in Criminal Appeal No. 1790 of 2017 and Shri Brijender Chahar, learned
Senior Counsel appearing for respondent-State of Uttar Pradesh.
4. Shri Grover, learned Senior Counsel appearing for appellant Madan
fi rstly, addressed us on merits of the matter. He submitted that the order of
conviction as passed by the trial court and confi rmed by the High Court is
not at all sustainable. He submitted that initially 11 witnesses were cited
as eye witnesses. However, 7 of them have turned hostile. The prosecution
case is therefore left with only 4 alleged eye witnesses i.e. Lokendra (PW1), Irshad Khan (PW-7), Harpal Singh (PW-10) and Sudhir (PW-11).
5. Shri Grover submitted that, from the testimony of Lokendra (PW1) itself, it can be seen that his presence at the scene of crime is doubtful.
It is submitted that the evidence of this witness is contradictory to his
779
original statement recorded under Section 161 Cr.P.C. There are substantial
improvements in his evidence. Though in his statement recorded under
Section 161 Cr.P.C., he stated that he was with a group of people, but in
cross-examination he admitted that he was not walking along with the group,
but was behind them by around 10 yards from the cross roads (towards the
north) when the group of people reached Rashid's house. He submitted that
Lokendra (PW-1) admitted that he could not clearly see the place of incident
or the group of people from where he was standing. He further submitted
that the said witness has admitted that on hearing the sound of fi ring, he ran
further northwards from the cross-roads from Rashid's house and could not
see the site.
6. Shri Grover submitted that there are also substantial contradictions
in the testimony of Lokendra (PW-1) which casts doubt with regard to his
presence at Rizwan's house. He submitted that, in the chief-examination, this
witness has stated that on witnessing the shooting at Rashid's house, he ran
towards Rizwan and Rihan's house and took cover there and witnessed the
incident at Rizwan's house. However, in cross-examination, he contrarily
stated that on hearing the sounds of fi ring, he ran further northwards from
the cross-roads and stayed there for 15-20 minutes. From the evidence of
Jai Singh (PW-8) and Sukhpal Singh (PW-2), father and uncle of Lokendra
(PW-1) respectively, it is clear that Lokendra (PW-1) was not present at
the place of incident. Even in the case registered by Lokendra (PW-1), he
does not show himself to be an eye witness. It is submitted that there are
contradictions in his testimony about the authorship of Tehrir.
7. Shri Grover submitted that if Lokendra (PW-1) had really
accompanied the group, then certainly he would also have received some
injuries. The learned Senior Counsel, relying on the judgments of this Court
in the cases of Jaikam Khan v. State of Uttar Pradesh1 and Khema @ Khem
Chandra v. State of Uttar Pradesh2, submitted that the testimony of this
witness, being totally contradictory, cannot be relied upon for convicting
the appellant Madan.
1
(2021) 13 SCC 716
2
2022 SCC OnLine SC 991
MADAN v. STATE OF UTTAR PRADESH
[B. R. GAVAI, J.]
780
SUPREME COURT REPORTS
[2023] 16 S.C.R.
8. Shri Grover further submitted that Irshad Khan (PW-7) is the father
of deceased Rizwan and Rihan, who were allegedly shot at their own house.
He submitted that there are material contradictions in the evidence of Irshad
Khan (PW-7) also. It is submitted that, in his statement recorded under
Section 161 Cr.P.C., Irshad Khan (PW-7) stated that he was present on the
roof of the adjoining house and not inside the room in his house and hence,
could not have witnessed the incident at his house. It is submitted that these
contradictions have been put to him in cross-examination. It is submitted
that non-examination of Mehmoona Begum, mother of deceased Rizwan
and Rihan, who was present at the place of incident, also casts doubt about
the presence of Irshad Khan (PW-7) at the place of incident. He submitted
that if Irshad Khan (PW-7) was really present at the place of incident, then
there was no reason as to why he did not receive any injury. The learned
Senior Counsel submitted that the presence of this witness is not supported
from his deposition given in Tehrir. It is submitted that the conduct of Irshad
Khan (PW-7) in not informing the police about the incident also casts doubt
about his presence.
9. Shri Grover submitted that the presence of Harpal Singh (PW10) at the place of incident is also doubtful. In his deposition, Harpal
Singh (PW-10) has stated that he was at the village main road, 4-5 steps
ahead of the victims at Rashid's house. On hearing the sound of fi ring, he
allegedly hid near Amanullah's house at the time of incident. However,
in his statement recorded under Section 161 Cr.P.C., he has stated that at
the time of incident, he was near the private school rickshaw stand which
was about 600 metres away from the place of incident. The learned Senior
Counsel submitted that a perusal of the spot map would show that the
private school is not near the place of incident. The learned Senior Counsel
submitted that further the evidence of this witness is not corroborated by
the injured witness or other eye witnesses including Sudhir (PW-11). It is
further submitted that there are material contradictions with regard to time
of incident in the deposition of the said witness and as such, the testimony
of this witness is not credible.
10. Insofar as Lokendra (PW-1) is concerned, Shri Grover submitted
that the testimony of the said witness suff ers from material omissions with
regard to involvement of appellant Madan in the incident. In his statement
781
recorded under Section 161 Cr.P.C., Lokendra (PW-1) had stated that there
were 2-3 unknown people involved in the crime. Further in his testimony,
there were material omissions in this regard. In his testimony, Lokendra
(PW-1) vaguely mentioned that the appellant Madan and his family members
were involved in the crime. However, he has not given any details with
regard to the same.
11. Shri Grover further submitted that there is improvement in the
evidence of Sudhir (PW-11) with regard to the cause of his presence at the
place of incident. In his statement recorded under Section 161 Cr.P.C., Sudhir
(PW-11) did not give any reason for his presence at the place of incident. It
was for the fi rst time in court that he deposed about being in the locality in
search of labourers to work in his fi eld. He submitted that there are serious
lapses in the prosecution case inasmuch as though Sudhir (PW-11) is alleged
to have accompanied Lokendra (PW-1) to Police Station Babri to register the
Tehrir, he did not permit Sudhir (PW-11) to go inside the police station while
registering the Tehrir. He submitted that such a conduct is not consistent with
human nature. The learned Senior counsel therefore submitted that Sudhir
(PW-11) would fall in the category of a chance witness and the testimony
of such a witness cannot be relied upon without there being corroboration
from any independent testimony. The learned Senior Counsel relies on the
judgments of this Court in the cases of Acharaparambath Pradeepan and
Another v. State of Kerala3 and Harjinder Singh alias Bhola v. State of
Punjab4.
12. Shri Grover further submitted that there are material contradictions
regarding the place where deceased Masooq Ali was shot. According to
Lokendra (PW-1) and Harpal Singh (PW-10), Masooq Ali was shot and
killed in front of his own house. However, this version is not supported by
the testimony of Irshad Khan (PW-7).
13. Shri Grover submitted that all the aforesaid witnesses are related to
the deceased and they or their relatives held posts in the village panchayat.
He submitted that Lokendra (PW-1) is the brother of deceased Satendra, son
of injured Jai Singh (PW-8) and cousin of deceased Ram Kishan. Sudhir
3
 (2006) 13 SCC 643
4
 (2004) 11 SCC 253
MADAN v. STATE OF UTTAR PRADESH
[B. R. GAVAI, J.]
782
SUPREME COURT REPORTS
[2023] 16 S.C.R.
(PW-11) is an immediate cousin of Ram Kishan and related to Lokendra
(PW-1). Irshad Khan (PW-7) is the father of deceased Rizwan and Rihan.
It is submitted that these witnesses also supported Vimla Devi, the then
sarpanch and Ram Kishan's mother. Lokendra (PW-1) and Sudhir (PW-11)
are related witnesses of deceased Ram Kishan and Satendra. It is submitted
that all these witnesses have falsely implicated appellant Madan so as to
ensure the conviction of appellant Madan and his family members.
14. Shri Grover submitted that the injured eye witnesses Sukhpal
Singh (PW-2), Mumtaz Khan (PW-5) and Jai Singh (PW-8) have not
supported the prosecution story alleging the involvement of the present
accused. It is submitted that though Mumtaz Khan (PW-5) has stated in
his statement recorded under Section 161 Cr.P.C. that the appellant Madan
along with other accused was involved in the shooting, in his examinationin-chief, he has stated that when he came out on hearing the sound of
fi ring, he saw 3-4 persons who had covered their faces with masks and
these persons were involved in shooting. Mumtaz Khan (PW-5) does not
specifi cally name the appellant Madan. He submitted that even there are
contradictions in the evidence of Sukhpal Singh (PW-2). It is submitted
that even Jai Singh (PW-8), father of Lokendra (PW-1) has not supported
the prosecution case and was declared hostile. It is therefore submitted that
in the absence of the independent witnesses supporting the prosecution
case, the conviction could not have been based on the basis of testimony of
interested witnesses.