# HARI & ANR v. THE STATE OF UTTAR PRADESH

- **Citation:** [2021] 10 S.C.R. 1022
- **Court:** Supreme Court of India
- **Decided:** 2021-11-26
- **Case number:** Criminal Appeal No. 186 of 2018
- **Bench:** L. Nageswara Rao, Sanjiv Khanna, B. R. Gavai
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/hari-anr-v-the-state-of-uttar-pradesh-34611
- **Pages:** 39

## Headnote

Penal Code, 1860:
ss. 147, 302/149, 323/149, 324/149 and 201/149 - Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
- s. 3(3)(10) - Matter pertaining to honour killing - Jat girl wanted
to marry Jatav boy which infuriated the Jat community - Jat girl
and Jatav boy along with another Jatav boy who accompanied them,
physically assaulted for 12 hours and killed by accused for violating
caste-ridden societal norms - 54 persons charged - Trial court
convicted 35 persons for the commission of offences u/ss. 147, 302/
149, 323/149, 324/149 and 201/149 and s. 3(3)(10) of the SC/ST
Act and imposed death sentence on eight of them - However, the
High Court commuted the death sentence to life imprisonment - On
appeal, held: From the evidence of four eye-witnesses, the medical
and scientific evidence, and documentary evidence it is proved that
the youngsters were tortured, then killed by hanging and thereafter,
their bodies were cremated - Testimonies of the four eye-witnesses
are credible - Inconsistencies and contradictions in their evidence
are trivial - Eye-witnesses' account stating about the involvement
of the accused and ascribed specific overt acts to some of them,
believed by the courts below - As regards those, not assigned any
active role or overt act, there is no doubt that they shared the common
object to punish the victims and kill them - Their presence in the
Panchayat continuously for nearly 12 hours without any protest
lends support to the prosecution version - Relevant portion of the
testimony of the hostile witness rightly relied upon by the High Court
- Informant not able to mention all the names of those involved due
to the trauma of witnessing an egregious crime, is accepted -
Recovery of clothes of deceased, recovery of half burnt body remains
support the prosecution's version about the burning of the bodies
of the victim - Thus, the murder established beyond doubt - Courts
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below committed no error in convicting the accused u/s. 302 with
the aid of s. 149 - Entire incident squarely falls under the head of
anti-social and abhorrent nature of the crime - Thus, order passed
by the High Court is upheld, except for three who are acquitted in
view of the ambiguity in their identity - Evidence - Witnesses.
s. 149 - Unlawful assembly - Vicarious liability u/s. 149 -
Held: s. 149 is declaratory of the vicarious liability of the members
of an unlawful assembly for acts done in prosecution of the common
object of that assembly or for such offences which the members
knew would be committed in prosecution of that object - Prosecution
need not prove each of the members' involvement especially
regarding which or what act - While overt act and active
participation may indicate common intention of the person
perpetrating the crime, the mere presence in the unlawful assembly
may fasten vicariously criminal liability u/s. 149.
s. 149 - Unlawful assembly - Common object of an assembly
- Held: Common object is different from common intention as it
does not require a prior concert and a common meeting of minds
before the attack - It is enough if each has the same object in view
and their number is five or more and that they act as an assembly to
achieve that object - Common object of an assembly is to be
ascertained from the acts and language of the members composing
it, from the surrounding circumstances and the course of conduct
adopted by the members.
Witnesses:
Hostile witness - Evidentiary value - Held: Part of the
evidence of the hostile witness which is creditworthy, can be acted
upon - Criminal trial.
Protection of - Implementation of Witness Protection Scheme
- Need to formulate scheme/guidelines/programmes to safeguard
rights of the witnesses.
Constitution of India:
Art. 136 - Interference by this Court in a criminal appeal by
a Special Leave - Governing principles - Stated.
Art. 19(1)(a) and Art. 21 - Right to life - Right to life
guaranteed to the people also includes in

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SUPREME COURT REPORTS
[2021] 10 S.C.R.
 [2021] 10 S.C.R. 1022
HARI & ANR.
v.
THE STATE OF UTTAR PRADESH
(Criminal Appeal No. 186 of 2018)
NOVEMBER 26, 2021
[L. NAGESWARA RAO, SANJIV KHANNA
AND B. R. GAVAI, JJ]
Penal Code, 1860:
ss. 147, 302/149, 323/149, 324/149 and 201/149 - Scheduled
Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989
- s. 3(3)(10) - Matter pertaining to honour killing - Jat girl wanted
to marry Jatav boy which infuriated the Jat community - Jat girl
and Jatav boy along with another Jatav boy who accompanied them,
physically assaulted for 12 hours and killed by accused for violating
caste-ridden societal norms - 54 persons charged - Trial court
convicted 35 persons for the commission of offences u/ss. 147, 302/
149, 323/149, 324/149 and 201/149 and s. 3(3)(10) of the SC/ST
Act and imposed death sentence on eight of them - However, the
High Court commuted the death sentence to life imprisonment - On
appeal, held: From the evidence of four eye-witnesses, the medical
and scientific evidence, and documentary evidence it is proved that
the youngsters were tortured, then killed by hanging and thereafter,
their bodies were cremated - Testimonies of the four eye-witnesses
are credible - Inconsistencies and contradictions in their evidence
are trivial - Eye-witnesses' account stating about the involvement
of the accused and ascribed specific overt acts to some of them,
believed by the courts below - As regards those, not assigned any
active role or overt act, there is no doubt that they shared the common
object to punish the victims and kill them - Their presence in the
Panchayat continuously for nearly 12 hours without any protest
lends support to the prosecution version - Relevant portion of the
testimony of the hostile witness rightly relied upon by the High Court
- Informant not able to mention all the names of those involved due
to the trauma of witnessing an egregious crime, is accepted -
Recovery of clothes of deceased, recovery of half burnt body remains
support the prosecution's version about the burning of the bodies
of the victim - Thus, the murder established beyond doubt - Courts
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below committed no error in convicting the accused u/s. 302 with
the aid of s. 149 - Entire incident squarely falls under the head of
anti-social and abhorrent nature of the crime - Thus, order passed
by the High Court is upheld, except for three who are acquitted in
view of the ambiguity in their identity - Evidence - Witnesses.
s. 149 - Unlawful assembly - Vicarious liability u/s. 149 -
Held: s. 149 is declaratory of the vicarious liability of the members
of an unlawful assembly for acts done in prosecution of the common
object of that assembly or for such offences which the members
knew would be committed in prosecution of that object - Prosecution
need not prove each of the members' involvement especially
regarding which or what act - While overt act and active
participation may indicate common intention of the person
perpetrating the crime, the mere presence in the unlawful assembly
may fasten vicariously criminal liability u/s. 149.
s. 149 - Unlawful assembly - Common object of an assembly
- Held: Common object is different from common intention as it
does not require a prior concert and a common meeting of minds
before the attack - It is enough if each has the same object in view
and their number is five or more and that they act as an assembly to
achieve that object - Common object of an assembly is to be
ascertained from the acts and language of the members composing
it, from the surrounding circumstances and the course of conduct
adopted by the members.
Witnesses:
Hostile witness - Evidentiary value - Held: Part of the
evidence of the hostile witness which is creditworthy, can be acted
upon - Criminal trial.
Protection of - Implementation of Witness Protection Scheme
- Need to formulate scheme/guidelines/programmes to safeguard
rights of the witnesses.
Constitution of India:
Art. 136 - Interference by this Court in a criminal appeal by
a Special Leave - Governing principles - Stated.
Art. 19(1)(a) and Art. 21 - Right to life - Right to life
guaranteed to the people also includes in its fold the right to live in
HARI & ANR. v. THE STATE OF UTTAR PRADESH
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a society which is free from crime and fear, and the right of witnesses
to testify in courts in free and fair manner without fear or pressure
- If one is unable to testify in courts due to threats or other pressures,
it is a clear violation of Art. 19(1)(a) and Art. 21 - One of the main
reasons for witnesses to turn hostile is that they are not accorded
appropriate protection by the State - State to ensure the safety of
the witnesses irrespective of case, creed, religion, such that they
could safely depose the truth in the court at least in sensitive cases
involving those in power, political patronage.
Honour killings: Preventive steps, remedial and punitive
measures to combat honour crimes - Suggestion of, in Shakti Vahini's
case - Stated.
Casteism: Commission of atrocities in the name of castes -
Ghastly murders of three youngsters, by physically assaulting them
for nearly 12 hours for violating caste-ridden societal norms - Held:
Episodes of honour killing demonstrate that the casteism has not
been annihilated even after 75 years of independence - Bigotry
perpetuated by such caste-based practices impedes the objective
of the Constitution of equality for all its citizens - High time for the
civil society to react and respond with strong disapproval about the
ghastly crimes committed in the name of caste.
Administration of justice: Administration of criminal justice
- Racial and religiously motivated crimes, if to be treated as
aggravating factors for enhanced punishment - Foreign laws-United
Kingdom, Canada, United States vis-a-vis Indian laws - Discussed.
Disposing of the appeals, the Court
HELD: 1.1 Right to testify in courts in a free and fair manner
without any pressure and threat whatsoever is under serious
attack today. If one is unable to testify in courts due to threats or
other pressures, then it is a clear violation of Art. 19 (1) (a) and
Art. 21 of the Constitution. Right to life guaranteed to the people
of this country also includes in its fold the right to live in a society
which is free from crime and fear and the right of witnesses to
testify in courts without fear or pressure. It needs to be
emphasised that one of the main reasons for witnesses to turn
hostile is that they are not accorded appropriate protection by
the State. It is a harsh reality, particularly, in those cases where
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the accused persons/criminals are tried for heinous offences, or
where the accused persons are influential persons or in a
dominating position that they make attempts to terrorise or
intimidate the witnesses because of which these witnesses either
avoid coming to courts or refrain from deposing truthfully. This
unfortunate situation prevails because of the reason that the State
has not undertaken any protective measures to ensure the safety
of these witnesses, commonly known as "witness protection".
[Para 28][1046-B-E]
1.2 The State has a definite role to play in protecting the
witnesses, to start with, at least in sensitive cases involving those
in power, who have political patronage and could wield muscle
and money power, to avert trial getting tainted and derailed and
truth becoming a casualty. As a protector of its citizens, it has to
ensure that during a trial in the court the witness could safely
depose the truth without any fear of being haunted by those against
whom the witness had deposed. Every State has a constitutional
obligation and duty to protect the life and liberty of its citizens.
That is the fundamental requirement for observance of the rule
of law. There cannot be any deviation from this requirement
because of any extraneous factors like caste, creed, religion,
political belief or ideology. [Para 29][1046-F-H]
1.3 The instant case squarely falls under the situations
contemplated by this Court while necessitating the formulation
of scheme/guidelines/programmes for protection of witnesses.
Implementation of the Witness Protection Scheme at the time
when the witnesses were deposing in the present case, would
have prevented the prosecution witnesses from turning hostile.
If the material witnesses were relocated from the village and
escorted to the courtroom, they would have deposed freely in
court. [Para 31][1047-C]
Mahender Chawla & Ors. v. Union of India & Ors.
(2019) 14 SCC 615 : [2018] 14 SCR 627; Zahira
Habibullah Sheikh and Anr. v. State of Gujarat & Ors.
(2006) 3 SCC 374 : [2006] 2 SCR 1081; Ashwin Kumar
Upadhyay v. Union of India and Anr. (2020) SCC
OnLine SC 1228 - referred to.
HARI & ANR. v. THE STATE OF UTTAR PRADESH
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2.1 Section 149 IPC is declaratory of the vicarious liability
of the members of an unlawful assembly for acts done in
prosecution of the common object of that assembly or for such
offences as the members of the unlawful assembly knew would
be committed in prosecution of that object. If an unlawful assembly
is formed with the common object of committing an offence, and
if that offence is committed in prosecution of the object by any
member of the unlawful assembly, all the members of the assembly
will be vicariously liable for that offence even if one or more, but
not all committed the offence. Again, if an offence is committed
by a member of an unlawful assembly and that offence is one which
the members of the unlawful assembly knew to be likely to be
committed in prosecution of the common object, every member
who had that knowledge will be guilty of the offence so committed.
It is not necessary for the prosecution to prove each of the
members' involvement especially regarding which or what act.
While overt act and active participation may indicate common
intention of the person perpetrating the crime, the mere presence
in the unlawful assembly may fasten vicariously criminal liability
under Section 149. [Para 35][1048-C-F]
Masalti v. State of UP [1964] 8 SCR 133; Shambhu
Nath Singh v. State of Bihar AIR 1960 SC 725; Lalji v.
State of U.P. (1989) 1 SCC 437 : [1989] 1 SCR 130 -
referred to.
2.2 Common object is different from common intention as
it does not require a prior concert and a common meeting of
minds before the attack. It is enough if each has the same object
in view and their number is five or more and that they act as an
assembly to achieve that object. The common object of an
assembly is to be ascertained from the acts and language of the
members composing it, and from a consideration of all the
surrounding circumstances. It may be gathered from the course
of conduct adopted by the members of the assembly.
[Para 36][1048-G; 1049-A]
Charan Singh v. State of U.P. (2004) 4 SCC 205 : [2004]
2 SCR 925; Kattukulangara Madhavan (dead) through
LRs. v. Majeed and Ors. (2017) 5 SCC 568 : [2017] 4
SCR 658 - referred to.
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3.1 The High Court found that the contradictions and
inconsistencies indicated in the statements of the four eyewitnesses were trivial in nature. The High Court ignored the
contradictions and inconsistencies which did not affect the
substratum of the prosecution's case. The High Court
disapproved the approach of the Trial Court in discarding the
formula of at least two witnesses deposing the presence/overt
act of the accused in case where large numbers of accused are
involved. The High Court gave benefit of doubt to two persons
whose presence/involvement was spoken by only one witness.
Concurrent findings of fact pertaining to the commission of the
crime and involvement of the appellant cannot be subjected to
further scrutiny by this Court, according to the well-established
law laid down by this Court. It is not necessary to undertake
fresh appraisal of the evidence as there is no inclination to
take a view different from the concurrent findings since the
appreciation of evidence by the Courts below is not erroneous.
[Para 20][1041-G-H; 1042-A-D]
State of MP v. Ramesh (2011) 4 SCC 786 : [2011] 5
SCR 1; Masalti v. State of UP [1964] 8 SCR 133; Kaur
Sain v. State of Punjab (1974) 3 SCC 649 : [1974] 2
SCR 393 - referred to.
3.2 From the evidence of PW-1, PW-13, PW-14 and PW-15
who are eye-witnesses, the medical and scientific evidence, and
documentary evidence it is proved that RK, V and R were tortured
and then were killed by hanging. Thereafter, their bodies were
cremated. The testimonies of the eye-witnesses are credible and
have been rightly accepted by the courts below. The recovery of
clothes of deceased RK, recovery of clothes of V, recovery of
half burnt pieces of bones, ribs, spinal cord, parts of intestine
and burnt pieces of flesh support the prosecution's version about
the burning of the bodies of the deceased. The murder of R, V
and RK is established beyond doubt. The eye-witnesses' account
of PW-1, PW-13, PW-14 and PW-15 was believed by the courts
below. They have stated about the involvement of the appellants
and ascribed specific overt acts to some of them. The role
assigned to each of the appellants by the witnesses is stated in
the chart. [Para 22][1044-E-G]
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3.3 The High Court was of the opinion that the evidence of
PW1 cannot be eschewed from consideration only on the ground
that they turned hostile. The relevant portion of their testimony
was rightly relied upon by the High Court after recording the
compelling reasons prompting the 12 prosecution witnesses,
including PW1, to turn hostile. [Para 23][1045-A-B]
3.4 The evidence of prosecution witnesses cannot be
rejected in toto merely because the prosecution chose to treat
them as hostile and cross- examined them. The evidence of such
witnesses cannot be treated as effaced or washed off the record
altogether but the same can be accepted to the extent that their
version is found to be dependable on a careful scrutiny thereof.
It is for the judge of fact to consider in each case whether as a
result of such cross-examination and contradiction, the witness
stands thoroughly discredited or can still be believed in regard
to a part of his testimony. If the judge finds that in the process,
the credit of the witness has not been completely shaken, he
may, after reading and considering the evidence of the witness,
as a whole, with due caution and care, accept, in the light of the
other evidence on the record, that part of testimony which he
finds to be creditworthy and act upon it. Even if the witnesses
have turned hostile, their evidence can be accepted, if they are
natural and independent witnesses and have no reason to falsely
implicate the accused. [Paras 25, 26][1045-D-G]
Radha Mohan Singh v. State of UP (2006) 2 SCC 450 :
[2006] 1 SCR 519; Syad Akbar v. State of Karnataka
AIR 1979 SC 1848 : [1980] 1 SCR 95; Mrinal Das
and Others v. State of Tripura (2011) 9 SCC 479 : [2011]
14 SCR 411 - referred to.
3.5 In the instant case, the evidence of PW1 finds complete
corroboration from the evidence of PW13, PW14, and PW15 who
are also the reliable eye-witnesses of the incident. The testimony
of PW1 is unshaken and it was only after a long period of stay of
trail for 6 years, that she turned hostile. The courts below were
right in placing reliance on the testimony of PW 1, who is also a
reliable witness, for the conviction of the accused persons even
after she was declared hostile. [Para 27][1046-A-B]
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4.1 The explanation given by the informant that he was not
in a proper frame of mind when he gave the complaint and that he
was in the hospital for the next ten days, attending to his family
members who were physically assaulted and only after that he
could give the names of the rest of the accused, was rightly
accepted by the courts below. PW-15-informant managed to escape
the well-guarded boundaries of the village after witnessing a
prolonged torture of the deceased persons for nearly 12 hours
throughout the night and reached the police station to lodge the
complaint. He would not have been able to mention all the names
of those involved due to the trauma of witnessing an egregious
crime which resulted in the murder of his nephew and two other
persons. [Para 32][1047-E-G]
4.2 On examination of the evidence of PW-1, PW-13, PW14 and PW-15 the holding by the Courts below that the all four
witnesses are reliable and the inconsistencies and contradictions
in their evidence are trivial is accepted. The ghastly crime was
committed at four different places for a prolonged period of more
than 12 hours. Inconsistencies in the version of the witnesses
are natural, especially when a large number of persons are
involved. [Para 33][1047-G-H; 1048-A-B]
4.3 The harrowing torture of the three deceased which
commenced at 9 pm at night and continued till 9 am on the next
day with the participation of the appellant in the Panchayat, was
proved by the testimony of the eye-witnesses. Specific overt acts
have been ascribed to some of the appellants - B, G, CS, P, M, J,
BC, K, RS, R for dragging the deceased from their houses to the
panchayat of M; appellants KS, RS for physically assaulting the
deceased and their family members; appellants BC, K, R, M for
forcing the parents of the deceased to hang them; appellants N,
G, P, M, N, BT, J, BC, K, RS, SC for being involved in the hanging
of the deceased; appellants BT, J, for dragging the bodies of the
deceased to the cremation ground and appellants BT, J, BC, KS,
S for lighting the fire to the bodies of the deceased at the cremation
ground. The courts below committed no error in convicting the
appellants under Section 302 with the aid of Section 149 IPC.
Even in respect of those who are not assigned any active role or
overt act, there is no doubt that they shared the common object
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to punish the deceased and kill them. Their presence in the
Panchayat continuously for nearly 12 hours without any protest
or any attempt made by them to stop the violence would lend
support to the prosecution version that all the appellants shared
the common object of murdering the deceased. [Para 38]
[1050-A-E]
5.1 Two young men and a woman were physically assaulted
for nearly 12 hours and killed by the accused for violating casteridden societal norms. These episodes of caste-motivated
violence in the country demonstrate the fact that casteism has
not been annihilated even after 75 years of independence.
According to Dr. B. R. Ambedkar, inter-caste marriage is one
remedy to get rid of casteism in order to achieve equality. His
vision for ensuring justice and equality to all sections of the
society, especially to the repressed segments, is well enshrined
in the preamble of the Constitution. The bigotry perpetuated by
such caste-based practices which are prevalent even today,
impedes this objective of the Constitution of equality for all its
citizens. Proposal of marriage by R who belongs to Jat community,
with V who is a Jatav, has resulted in their deaths. Though the
number is a tad less, honour killings have not stopped in this
country and it is high time that the civil society reacts and
responds with strong disapproval about the ghastly crimes
committed in the name of caste. This Court issued several
directions to the administrative authorities and police officials to
take strong measures to prevent honour killings. Honour killings
pursuant to the decree of Khap Panchayats have been strongly
criticized by this Court. Harsh punishment was recommended to
those brutal and feudal minded persons who commit atrocities in
the name of castes. The Law Commission of India in its 242nd
Report suggested the legal framework on Prevention of
Interference with the Freedom of Matrimonial Alliances in the
name of Honour and Tradition. The Law Commission was of the
opinion that there must be a threshold bar against congregation
or assembly for the purpose of objecting to and condemning the
conduct of young persons of marriageable age marrying according
to their choice, the ground of objection being that they belong to
the same gotra or to different castes or communities. The
Panchayatdars or caste elders have no right to interfere with the
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life and liberty of such young couples whose marriages are
permitted by law and they cannot create a situation whereby such
couples are placed in a hostile environment in the village/locality
concerned and exposed to the risk of safety. The Law Commission
further recommended that the very assembly for an unlawful
purpose viz. disapproving the marriage which is otherwise within
the bounds of law and taking consequential action should be
treated as an offence as it has the potential to endanger the
lives and liberties of individuals concerned. [Para 39][1050-F-H;
1051-A-E]
Shakti Vahini v. Union of India and Ors. (2018) 7 SCC
192 : [2018] 3 SCR 770 - relied on.
Arumugam Servai v. State of Tamil Nadu (2011) 6 SCC
405 : [2011] 5 SCR 488; - referred to.
5.2 The ghastly murders of three youngsters which are
honour killings squarely falls under the head of anti-social and
abhorrent nature of the crime. [Para 46][1059-B]
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413 - referred to.
6.1 Appellants TS, K, S, BC, RS, R and K were sentenced
to death by the trial court for committing the gruesome murders
of three youngsters in a barbaric manner. However, the High
Court converted the death sentence of the appellants to that of
life imprisonment till their last breath. The reasons given by the
High Court for converting the death sentence of the appellants
to life imprisonment are the advance age of some of the appellants,
the passage of long time after the commission of crime and mental
sufferings that they have undergone. Keeping in view the facts
and circumstances of this case, the judgment of the High Court
insofar as the conversion of death sentence to life imprisonment
in respect of accused is upheld. [Para 47][1059-C-E]
6.2 The judgment of the High Court is upheld and affirm
the conviction and sentence imposed on the accused namely DH,
NT, SR, TJ, BC, KM, RM, RN, SR, MH, CH, PT, BT, JV, KR,
MN, GN, DH, BL, DR, MN, KS, DM. Accused namely H, LS and
G are acquitted in view of the ambiguity in their identity.
[Para 50][1060-D-F]
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Dalbir Kaur v. State of Punjab (1976) 4 SCC 158:[1977]
1 SCR 280; Ramaniklal Gokaldas v. State of Gujarat
(1976) 1 SCC 6; Duli Chand v. Delhi Admn. (1975) 4
SCC 649; Bachan Singh v. State of Punjab (1980) 2
SCC 684; Masalti v. State of UP 1964 (8) SCR 133 -
referred to.
Wisconsin v. Mitchell [508 US 476 (1993)] - referred
to.
Case Law Reference
[1977] 1 SCR 280
referred to
Para 18
(1976) 1 SCC 6
referred to
Para 19
(1975) 4 SCC 649
referred to
Para 19
[2011] 5 SCR 1
referred to
Para 20
[1964] 8 SCR 133
referred to
Para 20, 35, 48
[1974] 2 SCR 393
referred to
Para 20
[2006] 1 SCR 519
referred to
Para 25
[1980] 1 SCR 95
referred to
Para 25
[2011] 14 SCR 411
referred to
Para 26
[2018] 14 SCR 627
referred to
Para 28, 30
[2006] 2 SCR 1081
referred to
Para 29
AIR 1960 SC 725
referred to
Para 35
[1989] 1 SCR 130
referred to
Para 35
[2004] 2 SCR 925
referred to
Para 36
[2017] 4 SCR 658
referred to
Para 37
[2011] 5 SCR 488
referred to
Para 39
[2018] 3 SCR 770
relied on.
Para 40, 41
(1980) 2 SCC 684
referred to
Para 44
[1983] 3 SCR 413
referred to
Para 45, 46
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.186 of 2018.
From the Judgment and Order dated 31.05.2016 of the High Court
of Judicature at Allahabad in Criminal Case No.7039 of 2011.
With
Criminal Appeal Nos.190-192, 188, 1553-1556, 189, 187 of 2018
And Criminal Appeal Nos. 1503 and 420 of 2021.
Mrs. Amita Gupta, Sanjay Kumar Tyagi, P. V. Yogeswaran, Ashish
Kumar Upadhyay, Vivek Tripathi, Y. Lokesh, Ms. V. Keerthana, Pankaj
Agarwal, C. S. N. Mohan Rao, Advs. for the Appellants.
Ms. Garima Prashad, AAG, Vishnu Shankar Jain, Ms. Marbiang
N. Khongwir, Parth Yadav, Advs. for the Respondent.
The Judgment of the Court was delivered by
L. NAGESWARA RAO, J.
1. Leave granted.
2. By a judgment dated 14.11.2011, the Trial Court held the
following persons guilty of the offences under Sections 147, 302 read
with 149, 323 read with 149, 324 read with Section 149 and 201 read
with Section 149 of Indian Penal Code ("IPC") and Section 3(3)(10) of
the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989 ("SC/ST Act"): -
Dhanni son of Ratan Singh, Tej Singh son of Kerori, Dharamveer
son of Kanhayalal, Shivcharan son of Maniram, Singh Ram son of Mani
Ram, Mahender son of Mangtu, Balli son of Kishanlal, Dharam son of
Kallu, Nirto son of Bhavar Singh, Bacchu son of Nabli, Gopi son of
Hariom, Tulsi Ram son of Bhanwar Singh, Kamal son of Kanhaya, Ram
Singh son of Dayaram, Jeevan son of Bhaggo, Girraj son of Kamar,
Kashi son of Bhavar Singh, Chattar Singh son of Lal Singh, Karan son
of Dayaram, Naval Singh son of Narayan, Daya Ram son of Inder,
Harchand son of Leela, Mangtu son of Sunder Lal, Dayaram son of
Bhavar Singh, Dharam son of Harchandi, Sirro son of Manni, Baato son
of Bhaggo, Pritam son of Naval, Shrichand son of Deepchand, Deepi
alias Deepchand son of Nathi, Harchandi son of Maharaj Singh, Hariram
son of Yadram, Gangaram son of Hiralal, Hari son of Govinda, and
Lalsingh son of Khushiram.
HARI & ANR. v. THE STATE OF UTTAR PRADESH
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3. Appellants-Accused namely Dhanni son of Ratan Singh,
Dharamveer son of Kanhaya, Shivcharan son of Maniram, Singhram
son of Maniram, Balli son of Kishanlal, Mahendra son of Mangtu, Dharam
son of Kallu, Nirto son of Bhavarsingh, Gopi son of Hariom, Girraj son
of Govinda, Manni son of Natthi, Girraj son of Kamar, Kashi son of
Bhavar Singh, Chattar Singh son of Leele, Harchand son of Leele,
Dharam son of Harchandi, Pritam son of Naval, Gangaram son of Hiralal,
Hari son of Govinda, Lalsinghson of Khushiram, Mangtu son of Sunderlal,
Naval son of Narayan, Dayaram son of Bhavarsingh, Baato son of
Bhaggo, Shrichand son of Deepchand, Deepi alias Deepchand son of
Nathi, Jeevan son of Bhaggo were sentenced to life imprisonment under
Section 302/149 of IPC, rigorous imprisonment for one year under Section
323/149 of IPC, 3 years under Section 324/149 of IPC, 7 years under
Section 201/149 of IPC and 3 years under Section 3 (3) 10 of the SC/ST
Act.
4. Appellants-accused namely Tej Singh son of Kirori, Bacchu
son of Nabali, Tulsi Ram son of Bhavar Singh, Kamal son of Kanhaya,
Ram Singh son of Dayaram, Raman son of Roopi, Karan son of Dayaram,
Sirro son of Bhajni were sentenced to death under Section 302/149 of
IPC.
5. Criminal appeals were filed by the above-named convicted
persons in which the conviction was upheld by the High Court. However,
the death sentence imposed on Tej Singh and 7 others was altered to
imprisonment for life. Aggrieved by their conviction and sentence, the
appellants have approached this Court by filing the above criminal
appeals.
6. Criminal Appeal Nos. 1553-1556 of 2018 have been filed by
the State of Uttar Pradesh against the commutation of death sentence
of Tej Singh son of Kirori, Bacchu son of Nabali, Tulsi ram son of Bhavar
Singh, Kamal son of Kanhaya, Ram Singh son of Dayaram, Raman son
of Roopi, Karan son of Dayaram, Sirro son of Bhajni to life imprisonment.
During the pendency of the appeals, Tulsi Ram son of Bhavar Singh
passed away.
7. At 11.40 am on 27.03.1991, FIR was registered on the statement
made by Amichand (PW-15) at Police Station, Barsana. It was stated in
the complaint that Roshni daughter of Ganga Ram eloped with Vijendra
son of Shyama Jatav on 21.03.1991 and they were accompanied by
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Ram Kishan son of Maharam. They returned back to the village on
24.03.1991. At 9.00 pm on 26.03.1991, Mangtu S/o Sunder Lal, Pritam
S/o Nawal Singh, Chatar S/o Lal Singh, Girraj S/o Kanwar Singh Bagera
forcibly took Ram Kishan and Vijendra along with their family members
to attend the Panchayat. Roshni was a Jat and Vijendra and Ram Kishan
were Jatavs. Roshni stated that she wanted to marry Vijendra and live
with him, which infuriated persons belonging to the Jat community.
8. Nawal S/o Narain, Purna S/o Chandan Singh, Deep Chand S/
o Sunder Lal, Dayaram S/o Sunderlal, Mangtu S/o Sunder Lal, Raman
S/o Roopi, Kamal S/o Kanehiya, Amar Singh S/o Daya Ram, Ram Singh
S/o Daya Ram, Dhanni S/o Rattan Singh, Hari S/o Yadu, Battari S/o
Nand Ram, Bal Kishan S/o Maan Singh, Deepi S/o Nathi, Bairam S/o
Deep Chand, Bacchu S/o Nabali, Tej Singh S/o Karori, Ganga S/o Heera
Lal, Papu S/o Ganga Ram, Baato S/o Bhaggo, Jeevan S/o Bhaggo, Lal
Singh S/o Yadram, Ram Singh S/o Handoo, Dharamveer S/o Kanahiya,
Lala S/o Ramji Lal, Parmi S/o Ajinal, Daya Ram S/o Bhanwar Singh,
Harchand S/o Lal Singh, Pitam S/o Nawal, Girraj S/o Kunwar Singh,
Harchandi S/o Maharaj Singh, Tulsi S/o Bhawar Singh, Bhawar Singh
S/o Lehri, Nirto S/o Bhanwar Singh, Chatar S/o Lal Singh, Gultia S/o
Nand Ram, etc. of Jat caste were present during the Panchayat. Mangtu,
Raman, Kamal, Bacchu, Baato, Gutia, and others physically assaulted
Vijendra and Ram Kishan during the Panchayat which was convened
on 26.03.1991 at 9 pm and continued till 5 am next day. Vijendra and
Ram Kishan were hung upside down and their private parts were burnt.
Mangtu, Nawal, Harchandi, Tulsi and other members of the Panchayat
announced the unanimous view of the Panchayat that Vijendra and Ram
Kishan should be hanged to death. Vijendra, Ram Kishan and Roshni
were taken to 'Banyan tree' near the house of Radhey Shyam Jogi and
the parents of the three youngsters were compelled to tighten the noose
around the neck of their children. Parents of Vijendra and Ram Kishan
were physically assaulted when they refused to hang their children and
were ultimately made to hang them forcefully by putting their hands on
the ropes and pulling it. The dead bodies of Vijendra, Ram Kishan and
Roshni were then taken to the cremation ground and were cremated
between 8 am to 9 am on 27.03.1991. During the course of Panchayat
from 9 pm on 26.03.1991 to the next day morning on 27.03.1991 till the
cremation was concluded, nobody was allowed to leave the village.
Somehow, Amichand escaped from the village after the cremation and
reached the police station at Barsana to lodge the complaint. Upon lodging
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of the complaint, PW-20, SI Kripal Singh Rathi, Police Station Barsana,
rushed to the place of occurrence and doused the pyre at the cremation
ground. He collected the remaining pieces of flesh and bones and
recovered a Loongi and watch of deceased Vijendra from the place of
cremation. On the basis of statement of PW 14 Hukam Singh, 15 accused
including Daya Ram and others were arrested and the injured family
members of the deceased Vijendra and Ram Kishan were sent for
medical examination.
9. 54 accused persons were charged under Sections 302/149 of
IPC. During the course of the trial, applications were filed for
consolidation of the cases in which the High Court stayed the trial in
1992 which subsisted till 1998. 20 witnesses were examined by the
prosecution and 4 witnesses were produced by the defence. When the
trial resumed in 1998, 12 out of the 20 prosecution witnesses turned
hostile.
10. PW-1 Shanti, mother of Ram Kishan, was initially examined
on 09.04.1992. She stated that at 9 pm on 26.03.1991 Naval Singh, Pritam,
Girraj, Bhagantu, Dayaram, Ram Singh, Raman, Bacchu, Hari Ram,
Gutiya, Batesh, Lal, Ram Singh son of Handu, Daya Ram S/o Susse,
Billi, Chatar, Harchand, Rajendra, Harchandi, Bagle, Kamal came to
her house and forcibly took Ram Kishan. Her husband Maharam and
her son Vijay Singh followed them. She also rushed to the room of Mangtu
where Daya Ram gave her a lathi blow due to which two of her teeth
broke. She deposed that Ram Kishan was hung upside down in the
room. Vijay Singh was also given two/three lathi blows due to which he
tried to run away but was caught and confined in the room of Mangtu.
Unable to see the torture of her children, PW-1 went back to her house.
Next day morning, the son of her sister informed that the accused persons
were hanging Ram Kishan. She reached the Banyan tree where she
saw Pritam, Naval Singh, Mangtu, Daya Ram, Deep Chand, Amar Singh,
Ram Singh, Raman, Kamal, Dhani, Hari Ram, Gutiya, Bacchu, Jeevan,
Deepi, Ram Singh, S/o Handu, Daya Ram, Billi Chattar, Harchand,
Dharam Chand, Parbhi. Mangtu and Naval Singh tightened a rope around
the neck of Ram Kishan which was pulled by Bato, Raman, Nirto,
Bacchu, Kamal and Amar. Vijendra and Roshni were also hanged to
death. Thereafter, Ram Kishan, Vijendra and Roshni were cremated.
She identified Mangtu, Deep Chand, Daya Ram S/o Amar Singh, Ram
Singh, Gudda, Bacchu, Nirto, Raman, Tulsi Ram, Hari Ram, Pappu, Ganga
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Ram, Naval Singh, Pritam and Harchandi. After the interim order of
stay granted by the High Court was vacated, her evidence was recorded
on 21.02.1998 during which she turned hostile.
11. PW-13, Vishram is the brother of Vijendra. He corroborated
the statement made by PW-1 Shanti relating to Ram Kishan and Vijendra
being taken to the Panchayat forcibly. He deposed that Roshni was also
summoned to the Panchayat. He also mentioned the names of persons
and the active role played by Naval Singh, Poorna, Deep Chand, Mangtu,
Daya Ram, Kamal,Raman, Amar Singh, Ram Singh, Nathi,Gothari,
Harkishan, Deepu, Bairam, Bacchu, Ganga Ram, Pappu, Batu, Jeevan,
Ram Ji Lal, Ram Singh, Dharamveer, Duli, Daya Ram, Harchand, Pritam,
Girraj, Harchandi, Tulsi, Chatar, Bhanwar Singh, Neto, Gutiya, Shayam,
Dharam, Kashi, S/o Manni, Hari S/o Kallu, Kanni S/o Natthi, Bharti,
Shreechand, Mahesh, Gopi, Balli, Lal Singh during the Panchayat. He
stated that Ram Kishan, Vijendra and Roshni were hung to death and
they were cremated later. He further stated that Vijendra did not die due
to hanging and was burnt alive. He deposed in the Court that he was
also beaten up and categorically mentioned the names of Naval Singh,
Mangtu, Daya Ram, Harchandi, Baato, Gutiya, Ram Singh, Karan, Deepi,
Shreechand etc. who executed the hanging and Gutiya, Baato, Tej Singh,
Bacchu, Karan, Jeevan and Sirro for their active role in cremating the
bodies of Ram Kishan, Vijendra and Roshni. He stated that he was
made to sit through the incident for 12 hours and was not allowed to
move even a single inch. During the course of recording of his evidence
PW-13 turned hostile. However, on being cross-examined again by the
defence, he deposed against the accused persons.
12. PW-14, Hukum is the son of Shyama and brother of deceased
Vijendra. He described the incident from 9 pm on 26.03.1991 till the
next day morning and stated in detail about the hanging and cremation of
Ram Kishan, Vijendra and Roshni. He corroborated the evidence of
PW-1. He deposed before the Court about him being beaten up at his
home and at the panchayat and about the boundaries of the village being
guarded by the people belonging to the Jat caste who did not allow
anybody to leave the village during the course of the incident.
13. PW-15, Amichand is the uncle of Ram Kishan and was the
first informant who gave a vivid description of the crime. He stated that
he came to village Mahrana to attend the Theravi Bhoj of Mangtu's
mother. He gave the names of 35 persons in his complaint on 27.03.1991
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and later, names of 19 other persons were furnished by him on 04.04.1991.
In his evidence, PW 15 corroborated the evidence of PW-1 as well.
14. 54 persons were charged for offence under Sections 147,
302/149, 323/149, 324/149 and 201/149 of IPC and Section 3(3)(10) of
SC/ST Act. Some of them died and some accused were juveniles. 39
accused were tried by the Trial Court. Out of the 39 accused, three of
them namely, Dayaram son of Inder, Harchandi son of Maharaj Singh
and Hari son of Yadram died after their statements were recorded under
Section 313 Cr.P.C. Except Balkishan son of Mansingh, and the 3 accused
who died, remaining 35 accused were convicted by the Trial Court.
15. Appeals were filed by these 35 convicts before the High Court.
Out of the 35 convicts, the High Court acquitted two - namely Shivcharan
son of Maniram and Singhram son of Maniram. The conviction of the
remaining convicts was upheld by the High Court. However, the death
sentence awarded to the 8 accused was commuted to life imprisonment
till the end of natural life.
16. Against this judgement of the High Court, the following persons
have filed Criminal Appeals before this Court:
In Criminal Appeal No. 186 of 2018
1. Hari son of Govinda
2. Lal Singh son of Khushi Singh
In Criminal Appeal No. 187 of 2018
3. Karan Singh son of Daya Ram
In Criminal Appeal No. 188 of 2018
4. Chattar Singh son of Lal Singh
5. Daya Ram son of Bhanwar Singh
6. Pritam son of Naval
7. Baato son of Bhambhu
8. Jeewan son of Bhaggo
9. Deepi alias Deep Chand son of Natthi
In Criminal Appeal No. 189 of 2018
10. Dharmvir son of Kanhaiya
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11. Balli son of Kishan
12. Dharm son of Kallu
13. Gopi son of Hair
14. Girraj son of Govinda
15. Manni son of Natthi
16. Kashi son of Bhanwar Singh
17. Dharm son of Harchand
In Criminal Appeal Nos. 190-192 of 2018
18. Dhanni son of Ratan Singh
19. Nirto son of Bhanwar Singh
20. Girraj son of Kamar
21. Shrichand son of Deepchand
22. Tej Singh son of Karodi
23. Bachchu son of Nabali
24. Kamal son of Kanhaiya
25. Ram Singh son of Dayaram
26. Raman son of Roopi
27. Sirro son of Bhajini
28. Mahender son of Mantu
In SLP (Crl.) No. 1975 of 2018
29. Mangtu son of Sunder Lal
In Criminal Appeal No. 420 of 2021
30. Ganga Ram son of Heera Lal
In addition to the above Criminal Appeals, Criminal Appeal
Nos.1553-1556 of 2018 have been filed by the State against the
commutation of death sentence awarded to eight accused to life
imprisonment.
17. We are informed by the learned counsel for the Appellant that
during the pendency of these appeals, 4 Appellants namely, Dayaram
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son of Bhanwar Singh (Appellant 2 in Crl. A. 188 of 2018), Deepi alias
Deep Chand son of Natthi (Appellant 6 in Crl. A. 188 of 2018), Gopi son
of Hari Om (Appellant 4 in Crl. A. 189 of 2018) and Girraj son of Kamar
(Appellant 3 in Crl. A. 190-192 of 2018) died. At present, we are
concerned with 26 Appellants.
18. The principles governing the interference by this Court in a
criminal appeal by a special leave have been laid down by this Court in
Dalbir Kaur v. State of Punjab1 which are as follows: -
8.