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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,  

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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  11 th  

November, 1999.  In his evidence, he stated:  

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“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,  

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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:-

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“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.”

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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  

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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 -  

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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  8

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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.

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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.  

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