# SHIV RAM AND ANR. ETC v. STATE OF UTTAR PRADESH

- **Citation:** [1997] Supp. 4 S.C.R. 531
- **Court:** Supreme Court of India
- **Decided:** 1997-10-21
- **Bench:** M.M. Punchhi, S.P. Kurdukar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shiv-ram-and-anr-etc-v-state-of-uttar-pradesh-15853
- **Pages:** 28

## Headnote

B
Penal Code, 1860 :
Section 149-Common object-Determination of-Brutal murder of A-1 's
brother whose head was severed prior to the mass murder in the instant C
case-Manner of assault and the mode of brutality in the present crime
indicates that common object of the unlawful assembly was not only to
commit murder of those who were suspected to have committed murder of Al's brother but also to commit mass murder to take revenge against their
family members-Jn these circumstances the plea of some of the accused D
persons that they had nothing to do with the murders of A-l's brother not
sustainable-Unlawful assembly could develop a common object on the spur
of the moment to commit massacre.
Criminal Procedure Code. 1973:
Sections 154 and I 57-FIR-Delay in sending a copy to MagistrateHeld, would not demolish the other positive and credible evidence on record--
Would only show carelessness on the part of the police.
Ante-timed FIR-FIR lodged at 9.05 p.m. with the police station located
E
at a distance of I 5 kms from the place of occurrence and the inquest report F
prepared on the following day-Non-mention of title of crime in the inquest
report-Police reaching the place of occurrence at I lp.m.-Held, such minor
omission is nothing but a bona fide error or casual approach on the part
of investigating agency which does not affect the substratum of the
prosecution story.
G
Criminal Trial :
Death Sentence--When justified -Accused persons forming unlawful
assembly to take revenge for the murder of A-1 's brother whose head was
severed-Mass murders of five committed in an extremely brutal, grotesque,
531
If
532
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A diabolical, revolting and dastardly manner-Three heads were severed and
an innocent boy of 10 years roasted alive-Accused persons first immobilized
three victims by firing on non-vital part and then severing their headsAccused taking out victory procession with three heads by raising slogansHeld, the case squarely falls within the ambit of rarest of rare cases and
B hence death penalty justified in respect of A-1 and five other co-assusedPenal Code, 1860-Sections 3021149-Sentence-Rarest of rare case-Death
penalty.
Death Sentence-Commutation of-Mass murder-A-6, member of the
unlawful assembly having common object to commit mass murdersC Prosecution alleged that A-6 fired from his gun which hit a boy of 10 years
who fell down-Other accused threw him into the fire-No other role
attributed to A-6-Dead body of the boy totally charred-No injury found on
his body-No pellet recovered from the dead body or from the ashes-Held,
there being no conclusive evidence that A-6 caused firearm injury to the
deceased boy, the High court was not justified in awarding him extreme
D penalty of death-Sentence commuted to imprisonment for life-Penal Code,
1860-Sections 3021149.
Witnesses-Related witness-Only close relatives of the deceased giving
evidence-No independent witnesses examined-Held, such evidence cannot
E be discarded on ground of their relationship with deceased-llowever, the
Court must scrutinize their evidence with care and caution--ln view of
common tendency of outsiders not to get themselves involved in a criminal
case, it would be quite natural that no independent witness would come
forward to assist the prosecution in a case of brutal mass murders-Penal
Code, 1860-Sections 3021149.
F
The brother of A-1 (Ck) was suspected to have been murdered by two
brothers of D-1. In revenge the present crime has been committed by 24
accused persons in which five persons were murdered including a child of 10
years who was roasted alive. The accused persons formed an unlawful
G assembly whose common object was not only to commit the murders of SP
and RG but also to commit the mass murders of family of D-2 as they ')Vere
under the belief that SP and RG were hiding and taking shelter in the house
of D-2. The accused persons first fired at D-1, injured him and thereafter
opened the door and searched for RG

## Text

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SHIV RAM AND ANR. ETC.
A
v.
STATE OF UTTAR PRADESH
OCTOBER 21, 1997
[M.M. PUNCHHI AND S.P. KURDUKAR, JJ.]
B
Penal Code, 1860 :
Section 149-Common object-Determination of-Brutal murder of A-1 's
brother whose head was severed prior to the mass murder in the instant C
case-Manner of assault and the mode of brutality in the present crime
indicates that common object of the unlawful assembly was not only to
commit murder of those who were suspected to have committed murder of Al's brother but also to commit mass murder to take revenge against their
family members-Jn these circumstances the plea of some of the accused D
persons that they had nothing to do with the murders of A-l's brother not
sustainable-Unlawful assembly could develop a common object on the spur
of the moment to commit massacre.
Criminal Procedure Code. 1973:
Sections 154 and I 57-FIR-Delay in sending a copy to MagistrateHeld, would not demolish the other positive and credible evidence on record--
Would only show carelessness on the part of the police.
Ante-timed FIR-FIR lodged at 9.05 p.m. with the police station located
E
at a distance of I 5 kms from the place of occurrence and the inquest report F
prepared on the following day-Non-mention of title of crime in the inquest
report-Police reaching the place of occurrence at I lp.m.-Held, such minor
omission is nothing but a bona fide error or casual approach on the part
of investigating agency which does not affect the substratum of the
prosecution story.
G
Criminal Trial :
Death Sentence--When justified -Accused persons forming unlawful
assembly to take revenge for the murder of A-1 's brother whose head was
severed-Mass murders of five committed in an extremely brutal, grotesque,
531
If
532
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A diabolical, revolting and dastardly manner-Three heads were severed and
an innocent boy of 10 years roasted alive-Accused persons first immobilized
three victims by firing on non-vital part and then severing their headsAccused taking out victory procession with three heads by raising slogansHeld, the case squarely falls within the ambit of rarest of rare cases and
B hence death penalty justified in respect of A-1 and five other co-assusedPenal Code, 1860-Sections 3021149-Sentence-Rarest of rare case-Death
penalty.
Death Sentence-Commutation of-Mass murder-A-6, member of the
unlawful assembly having common object to commit mass murdersC Prosecution alleged that A-6 fired from his gun which hit a boy of 10 years
who fell down-Other accused threw him into the fire-No other role
attributed to A-6-Dead body of the boy totally charred-No injury found on
his body-No pellet recovered from the dead body or from the ashes-Held,
there being no conclusive evidence that A-6 caused firearm injury to the
deceased boy, the High court was not justified in awarding him extreme
D penalty of death-Sentence commuted to imprisonment for life-Penal Code,
1860-Sections 3021149.
Witnesses-Related witness-Only close relatives of the deceased giving
evidence-No independent witnesses examined-Held, such evidence cannot
E be discarded on ground of their relationship with deceased-llowever, the
Court must scrutinize their evidence with care and caution--ln view of
common tendency of outsiders not to get themselves involved in a criminal
case, it would be quite natural that no independent witness would come
forward to assist the prosecution in a case of brutal mass murders-Penal
Code, 1860-Sections 3021149.
F
The brother of A-1 (Ck) was suspected to have been murdered by two
brothers of D-1. In revenge the present crime has been committed by 24
accused persons in which five persons were murdered including a child of 10
years who was roasted alive. The accused persons formed an unlawful
G assembly whose common object was not only to commit the murders of SP
and RG but also to commit the mass murders of family of D-2 as they ')Vere
under the belief that SP and RG were hiding and taking shelter in the house
of D-2. The accused persons first fired at D-1, injured him and thereafter
opened the door and searched for RG and SP. D-1 was immobilized by causing
a gun shot injury. D-2 came out of his room. He was fired at on a non-vital
H part, immobilized and thereafter the accused persons assaulted him with
SHIV RAM v. STATE OF U.P.
533
Banka, A-2, A-4 and A-13 held him facilitating A-1 severe his head. The A
accused did not stop there but thereafter they fired at D-4 and assaulted him
with Bankas A-2, A-4 and A-13 caught hold of him and A-1 severed his head.
D-3 a young boy of 10 when came out of the room which was then set on fire,
was bodily lifted and A-5 and A-8 threw him into the smoldering fire. He was
roasted alive. D-5 who was returning from the market was fired at and was B
given the same cruel treatment by severing his head. This only shows that
they were thirsty to severe the heads from the alive but injured bodies in order
to take revenge of the murder of Ck. All the three heads were put together in
a piece of cloth and a victory procession was taken out by accused. PW-1 along
with injured D-1 (since deceased) went to the Police station located at a
distance of 15 kms and filed the FIR After investigation charge sheet was C
filed against 24 accused persons. Out of 24 accused, Trial Court convicted
15 under Section 302 read with Section 149 Penal Code. Trial Court awarded
life imprisonment to A-3, A-6, A-7, A-8, A-11, A-12, A-20, A-21, A-22, A-23,
and A-24 and death sentence to A-1, A-2, A-4, and A-13. On appr.al, High
Court enhanced the sentence of life imprisonment to death sentence in respect D
of A-5, A-6 and A-8. Order of acquittal in !"espect of A-14, A-15, A-16, A-17,
A-18 and A-19 were reversed by the High Court and they were convicted under
Sections 148, 436, 449, 201, 302/149 IPC and awarded life imprisonment.
Hence these appeals.
Partly allowing the appeal, this Court
E
HELD : I. Taking the prosecution case as it is, if the object of the
unlawful assembly was to take revenge upon RG and SP and after coming to
know that they were not available at the house of D-5 and D-4, there was no
reason for the accused persons to fire on the victims indiscriminately; to catch
hold of the four victims one by one; severe the heads of three persons and F
keep them together in a piece of cloth; and threw D-3 into the smoldering
fire. D-3 was totally innocent and was hardly of an age to understand the
rivalry between the parties to take side of one or the other. He was thrown
into the fire and roasted alive. Injuries sustained by the deceased persons
unmistakably indicated that it could not be the job of handful of persons. It G
was preplanned and well thought of design to commit genocide. It is in this
context if one reads the evidence of P. W. 1 and P. W. 2, there is no manner of
doubt that the accused persons formed an unlawful assembly and the object of
that assembly was not only to take revenge against RG and SP but also to
take revenge upon the family members ofD-5 as RG and SP were related to
D-5 and the accused persons were under the belief that the victims were giving H
534
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A shelter to them. All the appellants formed an unlawful assembly with an object
to take revenge against RG and SP and also to commit mass murders in that
process to prove the supremacy and create a terror in the minds of the family
members of D-5. The occurrence in question was full of revenge which was
deep-rooted i.n the minds and action of the accused persons and they were
B determined to take revenge in the same manner in which Ck was murdered.
There is no difficulty in holding that the unlawful assembly could develop a
commC>n object on the spur of the moment to commit the massacre of the
family ofD-5. There is no reason whatsoever to differ from the findings of
the Court below that the common object of the unlawful assembly was to
commit the mass murders of the family members ofD-5. There is also another
C angle to judge the common object of the unlawful assembly in the present
crime and that is the mode of brutality. Ck was alleged to have been murdered
by RG and SP, the trial of which is pending. The manner in which Ck was
done to death and his head was severed, the accused wanted to take revenge
in the same manner and for this reason the modus operendi adopted by them
was to cause firearm injuries to these three persons on non-vital parts of the
D bodies so that they would be immobilized and then cause 'Banka' injuries
and at the end to severe their heads. Only one gun shot would have been
sufficient to cause the death of four victims as the assailants were standing
at a close range but that could not have satisfied the ego and vengeance because
they wanted to severe the heads of these three victims when they were lying
E !mmobiiized due to injuries. [551-A-G; 552-A-B]
Shambhu Nath Singh v. State of Bihar, AIR (1960) SC 725; Bhudeo
Manda/ v. State of Bihar, [1981) 2 SCC 755 and Raghubir Singh v. State of
Punjab, [1996) 9 SCC 233, distinguished.
F
2.1. The police reached the place of occurrence within a short time and
in fact the evidence of PW-14 (SI) would show that the wheels of investigating
machinery started moving the same night. The statements of some of the
persons were recorded during the same night. The inquest on the dead bodies
was carried out early in the morning. There is nothing in the evidence of
G PW-14 (SI) to indicate that he had ante dated all these documents to suit to
the complainant's version. There was no earthly reason for PW-14 (SI) to
implicate and spreacl the net so wide as contended for the accused to arraign
24 accused persons in the present crime. It is true that the complainant at
the relevant time was posted at a far off place but he testified that he had come
to village Bon two days' leave as he had not come till then to his village after
H he joined the service. The explanations given by the witness were right in
SHIVRAMv. STATEOFU.P.
535
accepting his presence at the time of occurrence. It is also true that there A
was delay in forwarding the copy of the FIR to the Ilaqa Magistrate but that
circumstance would not demolish the other positive and credible evidence on
record. This would only show how in such a serious crime the investigating
agency was not careful and prompt as it ought to be. [548-G-H; 549-A-C]
2.2. If really the complaint was not lodged at 9.05 P.M. the police could B
not have reached the place of occurrence at 11.00 P.M. Such minor omission
is nothing but a bona fide error or casual approach on the part of the
investigating agency which does not affect the substratum of the prosecution
story. (549-E)
2.3. D-1 was not traced for the whole night and only on the following C
day he appeared and was admitted in the hospital where he died after 17 days
due to septicemia. The contention that neither D-1 nor the complainant ever
went to the police station to lodge a complaint at 9.05 P.M. and this complaint
was manufactured at a later stage with the connivance of polic.:, has some
substance because of the fact remains that D-1 was injured. (549-F-G]
D
3.1. The accused persons formed an unlawful assembly and its common
object was not only to commit the murders of SP and RG but also to commit
the mass murders of family of D-2 as they were under the belief that SP and
RG were hiding and taking shelter in the house ofD-2. The accused persons
first fired at D-1, injured him and thereafter opened the door and searched E
for RG and SP. D-1 was immobilized by causing a gun shot injury. D-2 came
out of his room. He was fired at on a non-vital part by immobilizing him and
thereafter the accused persons assaulted him with Banka; A-2, A-4 and A-13
held him facilitating A-1 severe his head. The accused did not stop there but
thereafter they fired at D-4 and assaulted him with Bankas. A-2, A-4 and A13 caught hold of him and A-1 severed his head. D-3 a young boy of 10 years F
when came out of the room which was then set on fire, was bodily lifted by and
A-5 and A-8 who threw him into the smoldering fire. He was roasted alive. D5 who was returning from the market was fired at and was given the same
cruel treatment by severing his head. This only sho~s that they were thirsty
to severe the heads from the alive but injured bodies in order to take revenge G
of the murder of Ck. All the three heads were put together in a piece of cloth
and a victory procession was taken out by the accused. A simple question
which requires to be considered is as to whether the conscience of a society
was not shocked to see such ghastly and brutal murders. On drawing a final
balance sheet of the aggravating and mitigating circumstances after giving
due consideration to the rival contentions put forth by the six condemned H
536
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A prisoners (A-1, A-2, A-4, A-5, A-8 and A-13), justification clearly leans in
favour of death sentence to each of these six condemned prisoners. Sentence
of life imprisonment to these six accused persons would be totally inadequate
in the facts and circumstances of this case. The proved facts of this case
unmistakably indicate that the present case squarely falls within the ambit of
B "rarest of rare case". (557-B-F; H; 558-A]
Bachan Singh v. State of Punjab, [1980] 2 SCC 684; Machhi Singh_v.
State of Punjab, [1983] 3 SCC 470 and Allaudin Mian v. State of Bihar, [1989]
3 sec 5, relied on.
3.2. In the instant case, after giving due consideration to the rival
C contentions as regards the six condemned prisoners, this Court is of the
considered view that justification clearly leans in favour of death sentence to
each of the condemned prisoners. Totality of circumstances outweigh the
mitigating circumstances. Sentence of life imprisonment would be totally
inadequate in the facts and circumstances of this case. The proved facts of
D this case unmistakably indicate that the present case squarely falls within
the ambit of "rarest of rare" case. Five murders were committed in an
extremely brutal, grosteque, diabolic, revolting and dastardly manner which
would arou~e intense and extreme indignation of the community. Award of
lesser punishment to these six accused persons would disintegrate the rule
of law upon which the edific of our civilized society stand.[557-H; 558-A-BJ
4. A-6 was awarded iife imprisonment by the Triai Court whereas on
appeal by the State the High Court enhanced the sentence of life imprisonment
to death. The reason given by the High Court is that some of the accused
persons who have been awarded death sentence formed one group which must
include A-6 who had played an identical role and, therefore, there was no
F justification to award him lesser sentence. The role attributed to A-6 as stated
by both the eye witnesses was that he fired from his gun which hit D-3 (a boy
of IO years of age) whereupon he fell down. Thereafter A-8 and A-5 threw
him into the smoldering fire. No other role was attributed to A-6 as far as D3 is concerned. Doctor :who conducted the autopsy on the dead ·body of D-3
G could not find any pellet in his body. The prosecution also could not collect
the evidence to show that any pellet was recovered from the ashes. The dead
body ofD-3 was ttJtally charred and, therefore, doctor could not find any injury
·on his dead body. It is in these circumstances that A-6 could not be bracketed
with the other accused person who have been awarded death sentence. A-6 is
entitled to a different treatment for want of conclusive evidence that he has
H caused firearm injuries to D-3. This finding by itself would not absolve A-6
.
'
SHIV RAM v. STATE OF U.P.
537
from his culpability in the present crime with the aid of Section 149 IPC as A
regards other murders. His presence was proved beyond every reasonable
doubt at the time of occurrence. He was a member of the unlawful assembly
having a common object to commit the murders in question and in prosecution
thereof used his firearm along with the other accused who were armed with
fire arms. In view of these proved facts the death sentence awarded to A-6 is B
not proper and instead he must fall in the group comprising of accused/
appellants who used the fire arms and have been awarded life imprisonment.
This Court accordingly converts the death sentence awarded to A-6 to life
imprisonment without upsetting his conviction and sentence on other counts.
[554-D-F; 555-A]
5.1. Nowadays there is a common tendency that no outsider would like c
to get involved into criminal case much less in the crime of present magnitude
and, therefore, it was quite natural that no independent witness would come
forward to assist the prosecution. It is well settled that the evidence of witnesses
cannot be discredited only on the ground that they are close relatives of the
deceased persons. All that is required in such a situation is that the Court D
must scrutinize the evidence of such witnesses with utmost care and caution.
The magnanimity of the present crime and nature of prosecution evidence
had put this Court on guard to appreciate the evidence of these two eye
witnesses with utmost care and caution. The evidence of these two witnesses
is absolutely straightforward, unblemished and without any infirmity. The FIR E
which was lodged within four hours, naming all the accused also lends
assurance to the conviction that the evidence of these two witnesses is
trustworthy and cannot be discarded. (547-H; 548-A-C)
5.2. The evidence of PW-I finds corroboration from the Fm which was
lodged at 9.05 p.m. (within four hours of the occurrence). The complaint was
written after the incident was over. The Fm came to be registered against 24 F
accused persons. It needs to be noted that PW-I in his complaint had named
persons with the weapons which they were carrying and the manner in which
they assaulted five persons who lost their lives in the present crime. The FIR
fully corroborates the evidence of PW-I. The evidence of PW-I does not suffer
from any infirmity. This Court also scrutinized the evidence of PW-2 and it G
corroborated in all material particulars the evidence of PW-I. The trial Court
as well as the High Court had scrutinized their evidence very carefully and
accepted the same as truthful. This Court concurs with Courts below as
regards appreciation of the evidence of those two witnesses. 1547-C-E)
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. 715- H
538
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A I6ofl997.
From the Judgment and Order dated 28.1.97 of the Allahabad High Court
in Cr!. A. No. 523-24 of 1995.
WITH
B
Criminal Appeal No. 593/97.
c
A.K. Ganguli (A.C.), Sushi! Kumar, Dr. N.M. Ghatate, V. Krishnamurthy,
Mrs. Rekha Pandey, P.R. Kovilan, S.M. Rai, B.M. Sharma, T.N. Singh, Mrs.
Sushila Shukla (A.C.), Mukesh K. Giri, Shakil Ahmed Syed, C.D. Singh and
A.S. Pundir for the appearing parties.
The Judgment of the Court was delivered by
S.P. KURDUKAR, J. A primitive theory of punishment, "limb for limb;
eye for eye; ear for ear; etc., etc.," prevalent in the uncivilized society was
put into action in letter and spirit in the present time. The magnitude of the
present crime needs no elaboration. In the present crime five deaths were
D involved in which a boy of ten years had been assaulted and thrown into the
fire and roasted alive; heads of three human bodies were severed and the 5th
who sustained firearm injuries died in the hospital after about 17 days due
to septicaemia. Such is the gravity of the crime. 24 persons were arraigned
at the trial as accused and at the conclusion of the trial, the trial Court
E awarded death sentence to four accused, life imprisonment to twelve accused
and acquitted seven accused. The trial Court made a reference under Section
366 Cr. P.C. ; the convicted accused filed the appeals including those who had
been awarded capital punishment; the State of U .P. also filed two appeals; one
against the order of acquittal of seven accused and another for enhancement
of sentence in respect of other accused. The batch of criminal appeals was
F heard together by the High Court of Allahabad. The High Court confirmed
the death sentences awarded to four accused and in addition thereto while
allowing the State appeal for enhancement, awarded the death sentence to
three accused. The State appeal filed against the order of acquittal had been
allowed and they were convicted for various offences including substantive
G offence under Section 302 with the aid of Section 149 !PC and sentenced each
one of them to suffer life imprisonment. The particulars of the accused, the
weapons used during the assault and details of the deceased will be referred
to shortly. These criminal appeals have been filed in this Court by the
accused/appellants challenging the judgment and order of conviction and
sentence passed by the High Court on 28.1.1997. All these appeals were heard
H together. Since they arise out of a common judgment, they are, therefore,
SHIV RAM v. STATE OF U.P. (S.P. KUR[)UKAR, J.]
539
being disposed of by this judgment.
(2) Before we advert to the prosecution case we may set out the
particulars of the accused/appellants since most of them come from the same
family and some are close relatives. The accused/appellants will be referred
to in these appeals by their original description as in the trial Court :
Chandrika
Passi (died)
,,
,,
,,
Harish
(A-4)
Jodhey
Shy am
Manohar
(A-1)
Rajender
(A-6)
Sheo Ram
(A-2)
Ravindra
(A-5)
Lalla
(A-3)
Suresh
(A-13)
Raghubar (A-9)
Pattu
(A-7)
,,
,,
Prakash
(A-8)
Dhakan (A-18) is nephew of A-1, Nandlal (A-20) is uncle of A-1,
Srikrishna (A-19) is son ofNandlal (A-20). Sriram (A-14) and Rajaram (A-15)
A
B
c
D
are brothers and sons ofBhawan Passi. Rampa] (A-16) and ltwari (A-17) are
brothers and sons ofBharosey. Rakesh (A-11) and Rajesh (A-12) are brothers E
and sons of Prem Giri (A-10) who is now dead. Sankatta (A-22) and Mathura
(A-21) are brothers. Dorey (A-23) is related to A-22; Rampa! Verma is A-24.
(3) The deceased persons were also closely related to the complainant
Mahendra Kumar (P.W. I) as shown below :
Bhuwaneshwari (deceased)
Sukhdarshan
(deceased)
Mahendra Kumar
(P.W.l)
San deep
(deceased)
(4) In addition to the above list of deceased. persons from one family,
Surendra (since deceased) was cousin of P.W. !., Kamlesh (since deceased)
was a relative of P.W. I. Sheo Pal and Ram Gulam are the relatives of
F
G
Sukhdarshan (since deceased).
H
540
SUPREME COURT REPORTS (1997] SUPP. 4 S.C.R.
A
(5) The moiive of the present crime was sought to be traced by the
prosecution from the murder of Chandrika Passi, who was a brother of A-1
and resident of village Bajarakha. This murder took place two and a half
months prior to the present occurrence that took place on 23.6.1990. The
murder of Chandrika was alleged to be brutal one as his head was severed.
The family members of Chandrika were suspecting that Sheo Pal and Ram
B Gulam, the relatives of Sukhdarshan had committed the said murder and,
therefore, the criminal case against both of them for an offence of murder is
stated to be pending. The accused laboured under a belief that Sheo Pal, Ram
Gu lam and his relatives were responsible for the murder of Chandrika and it
was this belief which gave cause to nurture enmity against the family members
C of Bhuwaneshwari, Sheo Pal and Ram Gulam. The Second reason for enmity
sought to be alleged by the prosecution was that Prem Giri (A-I 0) (since
deceased) who was residing in an adjacent house to Bhuwaneshwari, had an
axe to grind against the family of latter as a civil dispute in regard to the
property belonging to "Thakurji Trust" was pending between them.
Bhuwaneshwari obtained the decree against Prem Giri in the trial court but we
D are told that the appeal filed by Prem Giri is pending in the higher court.
(6) The occurrence in question took place on 23.6.90 at about 5.00 p.m.,
Mahendra Kumar (P.W.1) lodged the FIR at about 9.05 p.m. at Mitauli Police
Station situated at a distance of 15 km. from the place of incident. In his
E complaint Mahendra Kumar (P.W.1) had disclosed all the 24 named accused
along with 8 to 10 unidentified persons who had come to the house of
Bhuwaneshwari. He then stated that at that time he and Surendra (deceased)
were sitting near the couldron and his father Sukhdarshan (deceased) was
sitting near the Kolhoo. All the accused persons, armed with deadly weapons,
reached near the Kolhoo. A-1, A-2, A-4 and A-13 were armed with Bankas,
F A-10 was carrying a DBBL licensed gun, A-3 and A-16 were armed with SBBL
guns, A-20 was carrying country made SBBL gun and the remaining accused
were armed with country made pistols and guns. The accused persons when
reached near the Kolhoo, started abusing Sukhdarshan and Bhuwaneshwari
(both since deceased) and were also giving bad words on other members of
G their family. Then all the accused demanded that Ram Gulam and Sheo Pal be
called and they would show how both could remain alive. Saying so all the
accused persons chased Sukhdarshan who out of fear entered into the house
of Shambhudayal and raised an alarm. Kamlesh (since deceased) s/o
Shambhudayal and Shakuntla after allowing Sukhdarshan inside the house
tried to shut the door but the accused inserted the barrel of the gun through
H the door and fired which hit Kamlesh who fell down.
•
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-(
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.)
541
(7) The miscreants then opened the door and after entering into the A
house fired at Sukhdarshan, who fell down in the courtyard. A-2, A-4 and A13 thereafter caught hold of the hands and feet of Sukhdarshan whereupon
A- I assaulted him with Banka and severed his head and kept it in a piece
of cloth. The assailants then surrounded the house of Mahendra Kumar
(P.W.l) the complainant, opened the door, demolished the walls and entered B
into his house. Family members ofMahendra Kumar (P.W. 1), namely, Goura
the grand mother of Surendra, and his wife Manorama, were inside the house,
they requested them not to assault any of the family members. Surendra
(since deceased) had a licensed gun. He immediately closed and bolted the
door of his room from inside. Since the door could not be opened, A-1 told
his associates to sprinkle the diesel on the house and set it on fire. The C
miscreants then took out the diesel from the drum and sprinkled it on the
Chappar (root) and also poured it into the room through a hole where
Surendra was hiding and then lit the fire to chappar and asked Surendra to
come out otherwise all his family members would be done to death. Sandeep
(since deceased) a boy aged about I 0 years, was the younger brother of the D
complainant, .came out and started abusing the accused persons. A-6 then
fired from his gun on Sandeep causing injuries to him and thereafter A-6 and
A-8 lifted Sandeep and threw him into the fire. Sandeep was burnt alive and
died in the said fire. This was the second casualty in the course of the attack
levelled by the accused on the family members of the complainant. Surendra
(since deceased) then came out of the room and tried to run away as by that E
time the fire had engulfed his house. When Surendra was running away he
was fired at and because of the fire arm injuries he fell down in the kitchen.
Thereafter A-2, A-4 and A-13 caught hold of the hands and legs ofSurendra,
facilitating A-I to assaalt him with Banka. A-I then severed the head of
Surendra and kept it in the same piece of cloth where the head of Sukhdarshan
was kept. It was then stated that in the meantime Bhuwaneshwari, the grand F
father of Mahendra Kumar (P. W. l) who was returning from Bajarkha market,
on seeing the accused in action, tried to rush towards his house but he was
also not spared and caused him fire arm injuries. A-2, A-4 and A-13 then
caught hold of the hands and feet of. Bhuwaneshwari and thereafter A-1
assaulted him with Banka and severed his head and kept it in the same piece G
of cloth where two heads already kept.· The accused persons thereafter went
in search of Sheo Pal but he was not found in the house. The accused
persons then stated that Sheo Pal was the person who had committed' the
murder of Chandrika Passi and, therefore, he must be traced. Seeing the
ghastly murders of four persons and gun shot injuries on Kamlesh, the family
members ofMahendra Kumar (P.W.l) requested the accused persons to spare H
542
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A other family members whereupon A-1 told his associates that let the remaining
members of the family be spared to mourn the deaths of their dear ones. A·
7 then took away the licensed gun of Sukhdarshan.
(8) It was then stated in the complaint that due to fire the house of
Surendra and articles therein were completely burnt and reduced to ashes.
B Such a ghastly attack continued for a period of one and a half hour. Although
it was a weekly market day of village Bajarkha and so many persons had
gathered in the market but nobody dared to come to the rescue. The brutality
committed by the accused persons, according to the complainant did not rest
at that but the accused persons then took out a victory procession and raised
C the slogans 'Shyam Manohar Zindabad', 'Nandlal and Prem Giri Zindabad';
Lakpal Bhaiya Zindabad'' and thereafter went towards the house of Chandrika
Passi (since deceased).
(9) Mahendra Kumar (P.W. I) then immediately prepared a complaint
D containing aforesaid facts and took injured Kamlesh in a tractor to the police
station which was at a distance of 1 S kms. They handed over the complaint
to SI Surendra Kumar Pandey who registered the FIR Ex. Ka·l at about 9.05
p.m. on the same evening. After registering the crime SI proceeded to the
place of occurrence but by that time it was too late in the night and, therefore,
he could not hold the inquest on the dead bodies but, however recorded the ·
E statements of various persons during late night hours. On the next day in the
early morning he held the inquest on the dead bodies of Sukhdarshan (Ex.
Ka-15), Bhuwaneshwari (Ex. Ka-22), Sandeep (Ex. Ka-26) and Surendra (Ex.
Ka-29). The dead bodies were then sent for post-mortem examination. Other
formal panchnamas etc., were carried out on 24.6.90. Kamlesh, who had
sustained the gun shot injuries was admitted in the hospital on 24.6.1990 at
F about 8:00 a.m., who later on succumbed to the injuries on 10.7.90. The
inquest report is at Ex. Ka-23. Eight empty cartridges, empty drum of diesel
and the ladder were seized from the place of occurrence. During investigation
the accused persons came to be arrested and while in custody A-4 made a
voluntary disclosure statement under Section 27 of the Evidence Act which
G came to be recorded and it led to the recovery of two severed heads of
Sukhdarhan and Bhuwaneshwari. A-1 after his arrest also made a statement
which led to the recovery of a gun from the well. After completing the
necessary investigation a charge-sheet came to be filed against 24 accused
persons for offences punishable under Sections 302, 147, 148, 307 ,436,452,404
read with Section 149 !PC. Shyam Manohar was separately charge-sheeted
H and tried under Section 25 of the Arms Act.
·,
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.]
543
(10) The accused persons denied the charges levelled against them. A
They pleaded that they have been falsely implicated in the present crime due
to enmity with the witnesses as well as the police. A-1 further pleaded that
he was leaving separate from Chandrika who had a quarrel with him. He was
not doing any pairvi in the murder case of Chandrika. According to him
Lakpati and Sripal were leading the gange of decoits and the present crime B
might have been the handy work of this gange. A-11 pleaded that he had no
grudge against the family members of the complainant on account of civil
dispute. Bhuwandeshwari had obtained a decree against his father Prem Giri
but the appeal against the said judgment and decree is still pending in the
High Court. He has no concern with this dispute. He and his brother A-12
were living at Gola where their children were studying and they were not C
present at the time when the incident took place. A-1 in his defence examined
Sher Ali (D. W. I). The other three defence witnesses were examined on behalf
of A-11 and A-12. The appellants pleaded that they were innocent and t.1.ey
be acquitted. The charge-sheet was submitted against 24 accused persons
but however Prem Giri (A-10) died during the pendency of trial and, therefore, D
trial abated against him.
11. In order to bring home the guilt, the prosecution mainly relied upon
the evidence of two star witnesses who claimed to have seen the entire
occurrences. The eye witnesses were Mahendra Kumar s/o Sukhdarhan (P. W.
I) and Lallu Ram (P.W. 2) who was residing in the adjacent house ofShambhu E
Dayal, brother ofKamlesh (since deceased). Dr. S.K. Shukla (P.W. 3) conducted
the post mortem examination on the headless dead body of Surendra and also
on his severed head (Ex. K-3). Dr. A.K. Gupta (P.W. 8) held the autopsy on
the skulls of deceased Bhuwaneshwari and Sukhdarshan (Ex. K-6 and K-7
respectively) .. Dr. S.K. Tiwari (P. W. 9) conducted the autopsy on the dead
bodies of Sandeep, Bhuwaneswari and Sukhdarshan. Post Mortem reports are F
Exs. 8., 9, and 10 respectively. Dr. A.K. Srivastava conducted the autopsy on
the dead body ofKamlesh. Dr. A.K. Patni (P.W. 10) examined Kamlesh when
he was brought in an injured condition on 24.6.90 at 8.45 p.m. SI Surendra
Kumar Pandy (P.W. 14), the Investigating Officer with the assistance of two
other Sis completed the entire investigation. In addition to the above ocular G
evidence the prosecution also relied upon the evidence relating to the recovery
of various incriminating articles including the recoveries of three heads of
Bhuwaneshwari, Sukhdarshan and Surendra. As already indicated above the
defence also examined four witnesses.
(12) The First Additional Sessions Judge, Kheri on careful scrutiny of H
544
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A oral and documentary evidence on record convicted A-1, A-2, A-3, A-4, A5, A-6, A-7, A-8, A-11, A-12, A-13, A-20, A-21, A-22, A-23, and A-24 for the
offences punishable under Sections 302, 302/149, 404, 148, 436, 449 and 201
!PC. A-I was also convicted under Section 25 of the Arms Act. After hearing
the parties and their respective counsel the trial court considered the complicity
and culpability of A-I, A-2, A-4 and A-13 and the common object shared by
B them under Section 14 !PC. Shyam Manohar (A-1) was held responsible for
committing the murders of Surendra, Sukhdarshan, Bhuwaneshwari and for
murders ofKamlesh and Sandeep with the aid of Section 149 !PC. Suresh (A13), Shivram (A-2) and Harish (A-4) were held liable for committing murders
of Surendra, Sukhdrashan, Bhuwaneshwari and Sandeep under Section 302/
C 149 !PC, and accordingly each one of them was awarded the extreme penalty
of death sentence. For other offences they were awarded various terms of
sentences. As regards A-3, A-5, A-6, A-7, A-8, A-11, A-12, A-20, A-21, A22, A-23, and A-24 the trial court inflicted sentence of life imprisonment on
each of these accused under Section 3021149 !PC and also various terms of
sentences on other counts. Substantive sentences were ordered to run
D concurrently. The Additional Sessions Judge accordingly made a reference
under Section 366 Cr. P.C. to the High Court for confirmation of the death
sentences. The trial court however acquitted A-9, A-14, A-15, A-16, A-17, A18, and A-19 of all the charges. The convicts including the condemned
prisoners preferred appeals to the High Court. The State Government also
E preferred appeals to the High Court for enhancement of sentences as also
against the order of acquittal in respect of seven accused persons. All these
appeals were heard together by the High Court of Allahabad Bench at Lucknow
and vide its impugned judgment dated 28.1.1997 dismissed the appeals filed
by the convicts and the condemned prisoners and partly allowed the appeal
filed by the State and enhanced the sentence of life imprisonment to death
F sentence in respect of Prakash (A-8), Rajendra (A-6) and Ravinder (A-5); the
order of acquittal in respect of A-14, A-15, A-16, A-17, A-18 and A-19 was
reversed and they were convicted under Sections 148, 436, 449, 20 I, 302/149
!PC and each of them has been sentenced to life imprisonment and various
other terms of sentences on other counts. The order of acquittal of Raghubar
G (A-9) has been upheld. The net result, therefore, is out of 24 charge sheeted
accused Prem Giri died, Raghubar (A-9) stood acquitted, 7 accused have been
awarded extreme penalty of death and remaining 15 accused have been awarded
life imprisonment for committing five murders. The sentences awarded to
other accused persons were upheld by the High Court vide its judgment and
order dated 28 .1.1997. 1t is against this judgment and order passed by the
H High Court, the appellants have preferred these criminal appeals to this Court.
-
SHIV RAM v. STATE OF U.P. [S.P. KURDUKAR, J.)
545
Since 7 accused person have been awarded death sentence and they have A
filed the appeals through jail, we thought it fit in the interest of justice to
appoint a Senior counsel to assist the court. Accordingly Mr. A.K. Ganguli,
Sr. Counsel was appointed as an amicus curiae to represent the condemned
prisoners. The other Criminal Appeal Nos. 721-24/97 and 726/97 have been
preferred by some of the accused persons, who were represented by Shri
Sushi! Kumar, Learned Sr. Counsel Shri Shakil Ahmed Syed, Learned Counsel B
also filed Criminal Appeal No. 593/97 on behalf of some of the accused/
appellants other than the condemned prisoners. The State was represented
by Dr. N.M. Ghatate, Learned Senior Counsel. All these appeals were heard
together, since they arise out of a common judgment.
( 13) At the outself it needs to be stated that counsel for the parties were
given full opportunity to represent their respective cases since seven accused
persons have been awarded capital sentence and other 15 accused/appellants
have been awarded sentence oflife imprisonment. We have carefully scrutinized
c
the oral evidence and other materials placed on record with the assistance. of D
the learned counsel for the parties and have also gone through the judgments
of the courts below.
(14) The very narration of facts given in the preceding paragraphs
would indicate the magnitude of the crime in question. The two eye witnesses
to the occunence are the dose relatives of the deceased. The prosecution E
sought to prove the motive against the accused in committing the present
crime. It is on this background we are required to scrutinize and appreciate
the evidence of the eye witnesses with utmost care and caution.
(15) The prosecution case substantially rested on the evidence of two F
eye witnesses, namely, Mahendra Kumar (P.W. 1) and Lallu Ram (P.W. 2).
Mahendra Kumar (P.W. !) is the son of Sukhdarshan (since deceased) and
grand son of Bhuwaneshwari (since deceased). Sandeep (since deceased)
was his brother and Surendra, another deceased was his cousin, Kamlesh
(since deceased) was a close relative.
Coming to the evidence of actual occurrence which took place on June
23, 1990 at about 5.00 p.m. it needs to be stated that a complaint was lodged
on the very same evening at about 9.05 p.m. in the police station at Mitauli
at a distance of 15 kms. from Bajarkha village. Mahendra Kumar (P.W. 1) in
G
his evidence testified that at about 5.00 p.m. all the 24 accused along with 8 H
546
SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.
A to I 0 unidentified persons crune in the direction of Krunlesh's house. At that
time Mahendra Kumar (P.W. 1) and Surendra were sitting near the couldron
and Sukhdarshan was sitting towards the north of the Kolhoo.