BADRU RAM & ORS. Vs. STATE OF RAJASTHAN
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 806 of 2009, Judgment Date: Feb 26, 2015
-
The Doctrine of parity cannot replace the substantive evidence of the two injured eye-witnesses mentioned above, who have been believed concurrently by the courts below. -
The evidence of the two injured eye-witnesses is clear - this is not a case of sudden provocation and the mere absence of motive does not bring home the lesser charge. -
The appeal is, accordingly, dismissed.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.806 OF 2009
BADRU RAM & ORS. ...APPELLANTS
VERSUS
STATE OF RAJASTHAN ...RESPONDENT
J U D G M E N T
R.F.Nariman, J.
1. This is an appeal by four persons who have been convicted and
sentenced under Section 302 read with 149 IPC, each of whom are to
suffer life imprisonment and fine of Rs.500/- together with various
other lesser offences all of which were ordered to run concurrently.
Two persons Kamal Kumar and Om Prakash lost their lives in an incident
which took place on 11th November, 1999. 11 persons were charge-
sheeted, one of whom, Shiv Lal, died during trial. The learned
Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu convicted the
other 10 accused of the murder of Kamal Kumar and Om Prakash and
sentenced all of them to life imprisonment. In the judgment impugned
in this appeal, six persons were acquitted as they were not named by
the star witness Radhey Shyam - PW.3 in the pancha bayan. 4 persons,
namely, Badru Ram, Sita Ram, Ramavtar and Lakshman were, however,
found guilty by the High Court and were sentenced under Section 302
IPC to life imprisonment.
2. Heard Mr. Vidya Dhar Gaur and Mr. G.S. Mani, learned Amicus
Curiae for the appellants and Mr. Shovan Mishra, learned counsel for
the State.
3. The complainant Radhey Shyam - PW.3, made a complaint on 12th
November, 1999 that he was one of four brothers, two of whom were
murdered in the incident which took place at 11.15 p.m. on the
previous day, i.e., on 11th November, 1999. In his evidence, he
stated:
"It was around 11.15 pm on 11th November 1999. We were four
brothers, I Radhey Shyam was the eldest, Om Prakash was younger
to me, Kamal Kumar was younger to Om Prakash and Matu Ram was
the youngest. Bhagwana Ram is my elder Uncle. Bhagwana Ram has
agricultural land and electric well near our Dhani. We have
taken the land of Bhagwana for cultivation on half-sharing
basis. On the date of incident, at 11.15 pm I was sitting near
the well and was looking after the electricity. We had sown
gobhi (vegetable) in the field and my brothers Kamal Kumar and
Om Prakash were watering the fields. From the side of Mandrella
Road near the pyao, loud noises were heard. I came out and saw
that my brothers Kamal and Om Prakash. were shouting "Bhai,
hamare ko bachao. Hamare ko Badru Ram, uske ladke Shiv Lal, Sita
Ram, Ramavtar, Lakshman, Shish Ram Mahesh aur unki aurate
Nanchi, Nanadi, Jamuna aur Lalita hume mar rahe hain. Aakar ke
hame jaldi bachao." Then I started calling for Rakesh, Chaju
Ram, Gopi Ram, Babu Lal, Ram Singh that "my brothers are being
beaten. Come fast" and reached my brothers at the spot of
incidence. On reaching there I saw that Badru had lathi in his
hand, Shiv Lal had lathi in his hand, Sita Ram had lathi in his
hand, Ramavtar had barchi-like axe in his hand, Lakshman had
gandasi in his hand, Mahesh and Shish Ram had lathis in their
hands and all the four women Nanchi, Nanadi, Yamuna, Lalita had
lathis in their hands. All these were beating my brothers.
Ramavtar and Lakshman were continuously hitting with barchi-like
gandasi and axe. I said that "why are you beating them. Leave
them." Shiv Lal, Badru Ram, Nanchi Devi, Sita Ram then left
Kamal and Om Prakash and stated attacking me. I received several
injuries on my head and my hand was broken. They also made
several attacks to kill me. When my brother's son Rakesh came
there to our rescue then these persons started to hit him too.
In the meantime, Gopi Ram, Chaju Ram, Babu LaI, Ram Singh
reached the spot of incident. On seeing them, the accused
persons left us and ran away. Then Gopi LaI, Babu Ram etc.
brought the vehicle of Mahinder and took me, Om Prakash, Kamal
and Rakesh to the B.D. Hospital in the jeep. My brothers Kamal
Kumar and Om Prakash died on the way due to their injuries. I
and Rakesh were admitted to the Khaitan Hospital, Jhunjhunu.
Accused persons had beaten us on the Mandrella Road near the
well and pyao. At about 2.30 am police came to B. D. Hospital,
Jhunjhunu. My statement was recorded and the same is exhibit P-
9. When the statement was read out to the witness he himself
stated that this was the statement which he had given to the
Police. Due to injuries caused during the incident, I was not in
a position to put my signatures therefore I put my thumb
impression on my statement exhibit P-9 and also on the police
proceeding related documents I had put my thumb impression. My
medical examination and X-ray was done. Police seized and sealed
and marked my blood stained clothes one pant and one shirt vide
furd exhibit P-10 on which my thumb impression is at point 'X'.
Accused wanted to grab the land of our uncle Bhagwana Ram and
were unhappy with us. Therefore, they beat me and my brothers.
I know the accused persons out of which Jamuna and Lalita are
present in the Court. I also know the rest of the accused
persons."
4. Similarly, Rakesh - PW.4, Radhey Shyam's nephew and the son of
the deceased Om Prakash who was the second injured eye witness also
deposed, corroborating the statement of his uncle - PW.3. His
statement is as follows:-
"The incident happened on 11.11.99. It was 11.15 pm at night
and I was studying at home. My father and uncles and my baba
Radhey Shyam had gone to the well to water the field because the
electricity used to come there at night. On hearing "Mar diya,
bachao bachao", I ran towards the well. These cries of bachao,
bachao were of Om Prakash, Kamal and Radhey Shyam and then I
ran towards the well. When I ran and reached near pyao near
Mandrella Road, I saw that Badru Ram, Badru Ram's sons - Shiv
Lal, Sita Ram, Ramavtar, Lakshman, Mahesh, Shish Ram and their
womenfolk Nanchi, Lalita, Jamuna were there. Among these
persons, Ramavtar had barchi-like axe in his hand, Lakshman had
gandasi in his hand, and all the accused had lathis in their
hands. All the accused persons were assaulting my father Om
Prakash, my uncles Kamal Kumar and Radhey Shyam with sharp
weapons and lathis.
I also shouted "Bachao, bachao" and that the accused persons are
assaulting and beating my father and uncles etc. On hearing my
cries, Chaju Ram, Babu Lal, Sam Singh, Chandgi Ram and Gopi Ram
came running. When I cried bachao bachao, all the accused
persons started beating me too. All the above persons who came
running on hearing my cries rescued us and the accused persons
left us and went away. After that I, Radhey Shyam, Kamal and Om
Prakash were taken in a jeep to the hospital. Kamal and Om
Prakash died on the way as a result of the injuries. I and
Radhey Shyam were admitted in the hospital. I know the
assaulters among whom Lalita and Yamuna are present today in the
Court and I know rest of the accused too. My medical
examination and X-ray was done in the Jhunjhunu hospital."
5. These two injured eye witnesses not only corroborated their
respective accounts but were not shaken in cross-examination. PW.3 -
Radhey Shyam, stated in cross-examination:-
"I cannot tell as to how many injuries were received by Kamal
before I reached there and also cannot tell how many injuries
were received by Om Prakash but both these persons were beaten
up because I did not see as to who was beaten up with what
weapons. Therefore I cannot say how many injuries were caused
with barchi and axe. When I reached there fight was going on.
I did not see the time and I cannot tell for how long the fight
went on. I did not see the blood lying on the land. I do not
know whether there was blood on the jeep or not. All the
accused persons assaulted Rakesh and I cannot tell which accused
caused how many injuries. It is wrong to suggest that I was not
present on the spot and therefore I am not able to tell about
the different injuries."
6. Similarly, PW.4 - Rakesh Kumar, stated in cross-examination:-
"We reached the hospital at around 1.30 am. Police came to the
hospital at around 2 am. After sometime I fell asleep and I do
not know upto what time the police remained there. I woke up in
the morning. I was awake till 2 am. My statement was recorded
at 2 am and thereafter the police did not come to me. Yamuna
was married at Sikar. I do not know how as to many days prior
to the incident she was married. In the police statement
exhibit D-3, I did not mention about studying at home, I do not
know why police had written this. In exhibit D-3 I got it
written that I had heard the noises coming from Mandrella Road
pyao and then I reached there, I do not know why this is not
written in the Police statement exhibit D-3. I had stated about
accused persons carrying different weapons, but I do not know
why this is not written in exhibit D-3. I had told about
separate assaults on my father and uncles with sharp weapons, I
do not know why this is not written in exhibit D-3. I had
stated in exhibit D-3 about my making noises in which we had
told about assault. It is wrong to state that I am deposing
falsely because my uncle and father were injured. I did not see
any injury on the accused persons in this incident. It is wrong
to suggest that I am deposing falsely."
7. It is clear from a reading of the examination-in-chief as well
as the cross-examination that short of PW.3 not being able to tell the
Court as to how many injuries were received by the deceased and with
what weapons, the factum of their being beaten up by the persons who
were named is not shaken. It is obvious that in the night it is very
difficult to make out who hit whom and with what. The learned
Additional Sessions Judge painstakingly went through the evidence of
all 14 witnesses including the two injured eye witnesses and the
Doctor PW.8 - who testified that the deaths were homicidal in nature.
PW.7 and the Investigating Officer deposed as to the recovery of the
weapons that were used in the incident. The Investigating Officer
PW.13 stated that according to the voluntary information of the
accused Ramavtar one axe was seized and sealed. Similarly, lathis
were recovered from the others - from Badru Ram which was recovered
from water behind his house, from Shiv Lal from plants and bushes
behind his house and a gandasi from the statement of accused Lakshman
from a field where brinjals were planted. The same is with respect to
the lathi recovered at the instance of accused Sita Ram.
8. The courts below have painstakingly gone through the evidence
and have relied heavily upon the evidence of two injured eye witnesses
and the Investigating Officer together with the opinion of Dr. J.P.
Bugaliya - PW.8 stating that the cause of death was coma as a result
of injury to the brain and shock due to internal and external
hemorrhage.
9. Learned Amicus Curiae appearing on behalf of the appellants have
argued that since the High Court has acquitted six persons, on the
Doctrine of parity the appellants before us should also be acquitted.
We find from the High Court judgment that the reasons for acquittal of
the six other accused is only because they were not named by Radhey
Shyam in the Parcha Bayan. The State is not in appeal before us on
this finding of the High Court. The Doctrine of parity cannot replace
the substantive evidence of the two injured eye-witnesses mentioned
above, who have been believed concurrently by the courts below.
10. The further argument by the learned Amicus Curiae on behalf of
the appellants is that this is a case which ought to be converted into
a case of culpable homicide not amounting to murder under Section 304
Part-II IPC because according to learned Amicus Curiae seeing the
overall circumstances of the case, the incident might have occurred on
sudden provocation, there being no reason or motive. This contention
has only to be stated to be rejected. The evidence of the two injured
eye-witnesses is clear - this is not a case of sudden provocation and
the mere absence of motive does not bring home the lesser charge.
11. We find no infirmity in either of the judgments below and
confirm them. The appeal is, accordingly, dismissed.
..............................................J.
(Sudhansu Jyoti Mukhopadhaya)
............................................J.
(R.F. Nariman)
New Delhi,
February 26, 2015.