AI Drafter 
TaxTMI 
TaxTMI 
1994 (7) TMI 351
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....of evidence of murder of Urshia Bahri by the Additional Judicial Commissioner, anchi by judgment dated 27-7-1990 who awarded the sentence of death for the offences under Sections 302 and 302/120-B of the Penal Code and rigorous imprisonment to all the three appellants for a period of seven years for the offence under Section 201 of the Penal Code. The learned trial Judge made a reference to the High Court of Patna, Ranchi Bench under Section 366 of the Code of Criminal Procedure for confirmation of the sentence of death and at the same time the three appellants also preferred separate Criminal Appeal Nos. 142, 143 and 152 of 1990 challenging their convictions under Sections 302/120B and 201 of the IPC. The High Court of Patna (Ranchi Bench) dismissed the three appeals preferred by the three appellants affirming the sentences awarded to them and accepted the death reference by judgment dated 16-12-1991 against which these three appeals by leave of this Court have been preferred. Since all these appeals arise out of the common judgment of the High Court, they are being disposed of together. 2.It may be pointed out that along with the above named three appellants three other accuse....
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....n at America. 5.The prosecution case is that the parents of deceased Urshia Bahri have settled down in America and their deceased daughter Urshia used to write letters to her parents from time to time but they did not receive any letters from Urshia in America for quite some time and on the contrary they received two letters in America from the appellant Suresh Bahri, one dated 29-10-1983 and another dated 3-11- 1983 which are marked Exts. 23/6 and 23/7, intimating them that henceforth his wife Urshia will not be in a position to address to them any letter as she was engaged in urgent work and, therefore, in her place he himself would be writing letters to them. This gave rise to a serious suspicion in the mind of the parents of deceased Urshia and they suspected some foul play. Consequently, the parents of Urshia directed their son Bineet Singh Sarang, PW 69, working in Libya to proceed to India with a view to find out the welfare and whereabouts of Urshia and her children. 6.Further prosecution case is that acting on the advice of his parents Bineet Singh Sarang (hereinafter referred to as Bineet) landed in India on 16-1-1984 and reached the house of his brother-in-law, the....
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....tness Murari, PW 1, further told him that in the morning of 12-10-1983 the appellant Suresh Bahri told him that Urshia Bahri had left Ranchi for Delhi by aeroplane that very morning and Suresh remained at Ranchi till end of October 1983. Witness Murari Lal also told him that thereafter he did not see Urshia and her two children at Ranchi. The informant Bineet also met one B.N. Mishra, PW 2, another neighbour of appellant Suresh at Ranchi who told him that his sister Urshia Bahri was known to him because he was negotiating with her for purchase of the House No. 936, Station Road, Ranchi and the sale would have completed but for the sudden disappearance of Urshia Bahri, the sale could not take place. B.N. Mishra, PW 2, also told him that he had gone to the house of Suresh Bahri at Ranchi in the evening of 11-10-1983 to meet Urshia Bahri but he did not find her there. He, however, met Suresh Bahri there who was sitting in the verandah of the house and there was no electric light in the house of Suresh Bahri though there was light in the other neighbouring houses. The witness Mishra also told to Bineet that when he was ascending the verandah of the house the appellant Suresh Bahri caug....
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....he appellant Raj Pal Sharma murdered her in the night of 11-10-1983 in a room of the said house. The head of Urshia Bahri was truncated and severed from her body. At or about the same time the appellant Gurbachan Singh also arrived along with his servant Ram Sagar Vishwakarma who was also arrayed as an accused but later turned approver and was examined as PW 3. It is said that the headless body of Urshia Bahri was wrapped in a blanket and saree piece and tied with rope was dumped in a sceptic tank situated within the compound of the said house. Later on in the morning of 13-10-1983 it is said that the appellant Raj Pal Sharma and Suresh Bahri took the head of Urshia Bahri and threw the same under a bush in the forest on the Ranchi-Patratru Road. It is also alleged that sometime in the month of January 1984 the appellant Suresh Bahri and Gurbachan Singh managed to take out the body of Urshia from the sceptic tank and took the body in Truck No. BHM 5879 driven by the acquitted accused Mohd. Suhail and threw it in a dumping pit known as Madhukam dump. 10.Further prosecution case with regard to the murder of the two children Richa Bahri and Saurabh Bahri is that they were studying i....
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....ceived information that one gadda, one quilt and one bedsheet were lying at the dumping place of Panchkoshi-Varanasi Road. The Police Officer, Atma Nand Singh, PW 46 seized the said articles by seizure memo Ext. 5/9 as also two bedsheets which were also found on the same road near the Forest Department Nursery vide seizure memo Ext. 5/ 10. 12.Dr B.K. Bhatnagar, PW 27, District Hospital, Varanasi performed an autopsy on the dead body of the boy on 21-12- 1983 at about 4.15 p.m. He found that it was a dead body of a male child aged about 12 years. The doctor noticed two incised wounds in the neck. The trachea and blood vessels and larynx were cut. There was also a contusion on the chest. There were various other injuries found on his person which were ante-mortem in nature caused by sharp object. 13.Police Officer, Sarnath, Atma Nand Singh, PW 46 got the photographs of the dead body taken by the photographer Ashok Kumar PW 48 and published the same in newspapers to collect information about the identity of the dead child but as nobody claimed the dead body he disposed of the same after preparing a panchnama to that effect. Consequently, the Police Officer, Sarnath closed the in....
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....tement that he had thrown the dead body of Urshia Bahri in Madhukam dump known as "Khad gaddha". On digging of the said dumping pit no dead body was recovered but a piece of blanket, saree and rope were recovered from there which were seized as per seizure memo Ext. 5/12. These articles were put on the test identification parade on 6-3-1984 in which the witnesses Murari Lal Sharma PW 1 and B.N. Mishra PW 2 had identified the said articles of piece of blanket, saree and rope to be the materials used in wrapping the dead body of Urshia Bahri on 11-10-1983. 17.The appellant Suresh Bahri was absconding but he was arrested on 31-7-1984 at Delhi. The appellant Raj Pal Sharma was arrested at Delhi by CBI Officer on 8-8-1984. He was produced before the Metropolitan Magistrate, New Delhi on 8-8-1984 and police remand for 10 days was obtained. On 12-8-1984 while in police custody, Raj Pal Sharma made a disclosure statement, Ext. 32 to the CBI Investigating Officer Madanlal, PW 85. In pursuance of the disclosure statement the appellant Raj Pal Sharma took the Investigating Officer and witnesses to the said forest on Ranchi-Patratru Road. The skull, some hairs and pieces of cotton were reco....
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.... the defence that the prosecution has failed to prove factum of death of Urshia Bahri and her two children and that in any case the prosecution has failed to bring home the guilt against any of the appellants for alleged murders and they have been implicated only on the basis of suspicion. 20.On evaluation of the evidence adduced by the prosecution and relying on various circumstances found to be established against the three appellants which according to the learned trial Judge are of conclusive nature and consistent only with the hypothesis of the guilt of the appellants convicted and sentenced them as said above. The said conclusions and findings found favour with the High Court also in appeals and, therefore, the High Court dismissed all the three appeals affirming the conviction and sentence awarded by the trial court. 21.At the very outset we may mention that sometimes motive plays an important role and becomes a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with ....
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....esh, his maternal uncle Y.D. Arya (since acquitted) was also living with Suresh and his mother in the same house and used to interfere not only in the family matters but in the business affairs also by reason of which Suresh had suffered great setback and loss to his property and business assets at Calcutta. Consequently Urshia had developed a dislike towards Y.D. Arya and ultimately Arya was made to leave Delhi house at the instance of the deceased. It is also said that the acquitted accused Smt Santosh Bahri mother-in-law of deceased Urshia had no love and affection either for Urshia or for her two children, namely, Richa and Saurabh and for that reason she never kept the children with her. According to the prosecution it is in this background that the deceased Urshia was forced to take the decision in her own interest and to fulfil her dreams of a better future of her two children, to dispose of the Ranchi house and migrate to America along with her two children with the sale proceeds of the property and settle down there. But the idea of migration with the sale proceeds of the house entertained by late Urshia could not be cherished by appellant Suresh Bahri and, therefore, the ....
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....ions between the appellant Suresh Bahri and his deceased wife Urshia were not cordial but strained as Urshia used to complain against her husband, mother-in-law and the maternal uncle of her husband. According to the evidence of Badri Narayan Mishra PW 2 through whom Laxmi Narayan PW 21 had negotiated for purchase of the Ranchi house, it turns out that the deal was almost finalised for purchase of the house by him but for the sudden disappearance of Smt Urshia on 11-10-1983, the same could not take place. 25.Besides the aforementioned oral evidence the prosecution has produced documentary evidence also to support the allegation that the relations of the appellant Suresh, his mother and maternal uncle were not cordial with the deceased Urshia Babri and that the deceased Urshia was determined to sell out the Ranchi house and migrate to America with her children and the sale proceeds against the wishes of the appellant Suresh Bahri and his mother. The trial court has elaborately dealt with the documentary evidence in this behalf. The High Court has also in paragraphs 25 to 28 of its judgment not only discussed but has reproduced various letters written by deceased Urshia to her par....
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....e too expensive as he had not only to pay the price with his own life but also the lives of his two associates who helped him actively in the commission of the crime in question. 26.Learned Senior Counsel Shri Sushil Kumar appearing for the appellant Raj Pal Sharma submitted that in view of the fact that no question relating to motive having been put to the appellants on the point of motive under Section 313 of the Code of Criminal Procedure, no motive for the commission of the crime can be attributed to the appellants nor the same can be reckoned as circumstance against the appellants. It is no doubt true that the underlying object behind Section 313 CrPC is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance without affording the accused an opportunity of explaining the said incriminating circumstance. The provisions in Section 313, therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so a....
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....his house at Delhi. He with the consent of Santosh Bahri the mother of Suresh Bahri, was interfering in the family affairs as well as in business matters by reason of which the maternal uncle had to leave the house and that having regard to the future of her children Urshia Bahri not only wanted to manage the property but also to dispose of the same which was not liked by Suresh Bahri and with a view to remove Urshia Bahri from his way the appellant Suresh Bahri wanted to commit her murder. In view of these questions and examination of Suresh Bahri, it cannot be said that he was totally unaware of the substance of the accusation and charge against him or that he was not examined on the question of motive at all. In the facts and circumstances discussed above it cannot be said that any prejudice was caused to the appellant. The contention of the learned counsel for the appellants in this behalf therefore has no merit. 28.Learned counsel for the appellants strenuously urged that there was utter non-compliance of clauses (a) and (b) of sub-section (4) of Section 306 of the Code of Criminal Procedure inasmuch as that after recording the statement of the approver Ram Sagar Vishwakarm....
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....isonment which may extend to seven years or with a more severe sentence. (3)Every Magistrate who tenders a pardon under sub-section (1) shall record- (a) his reasons for so doing; (b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under sub-section (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5)Where a person has accepted a tender of pardon made under subsection (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case,- (a) commit it for trial- (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii)to a Court of Special Judge appointed unde....
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.... the evidence of an approver before the committing court itself at the very threshold so that he may take steps to show that the approver's evidence at the trial was untrustworthy in case there are any contradictions or improvements made by him during his evidence at the trial. It is for this reason that the examination of the approver at two stages has been provided for and if the said mandatory provision is not complied with, the accused would be deprived of the said benefit. This may cause serious prejudice to him resulting in failure of justice as he will lose the opportunity of showing the approver's evidence as unreliable. Further clause (b) of sub-section (4) of Section 306 of the Code will also go to show that it mandates that a person who has accepted a tender of pardon shall, unless he is already on bail be detained in custody until the termination of the trial. We have, therefore, also to see whether in the instant case these two mandatory provisions were complied with or not and if the same were not complied with, what is the effect of such a non- compliance on the trial? 31. It may be noted that the approver Ram Sagar Vishwakarma hereinafter referred to as R....
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....7 of 1985. This order of the High Court was not challenged further by any of the appellants and same attained finality and, therefore, it cannot be questioned now. 32. It may be noticed that similar question arose for consideration of Madras High Court in Ramasamy, Re4 and relied on by the learned counsel for appellants, wherein the learned Magistrate had committed the case for trial to the Court of Sessions without examining the approver as a witness in his court before committing the case. But Pandian, J. (as he then was) took the view that the action of the Magistrate in committing the case to the Court of Session without examining the approver was a clear violation of the mandatory provisions of Section 306 of sub-sections (4) and (5) of the new Code and as such he committed irregularity. The learned Judge, therefore, quashed the committal order and directed the Magistrate to comply with the provisions of Section 306 of the Code by examining the approver and then again pass fresh order of committal, if called for. In almost similar circumstances similar view was taken by the High Court of Andhra Pradesh in the case of U. Vijayaraj5 and in this case also the Magistrate was di....
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.... of the prosecution but to protect him from the possible indignation, rage and resentment of his associates in a crime whom he has chosen to expose as well as with a view to prevent him from the temptation of saving his one time friends and companions after he is granted pardon and released from custody. It is for these reasons that clause (b) of Section 306(4) casts a duty on the court to keep the approver under detention till the termination of the trial and thus the provisions are based on statutory principles of public policy and public interest, violation of which could not be tolerated. But one thing is clear that the release of an approver on bail may be illegal which can be set aside by a superior court, but such a release would not have any affect on the validity of the pardon once validly granted to an approver. In these circumstances even though the approver was not granted any bail by the committal Magistrate or by the trial Judge yet his release by the High Court would not in any way affect the validity of the pardon granted to the approver Ram Sagar. 35.Learned counsel for the appellants next contended that the statement Ext. 28/1 of the co-accused Ram Sag....
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....g agency or from any official in authority. The statement that he made gives an impression that it was made on his own volition which fact is further fortified from the statement of the Judicial Magistrate who recorded his statement. 38.The Judicial Magistrate, Ranchi, Shri Bhuneshwar Ram PW 76, on the order passed by Chief Judicial Magistrate, Ranchi, recorded the confessional statement of Ram Sagar PW 3 as stated earlier from 19-12-1984 to 21-12-1984 which was marked as Ext. 28/1. Shri Bhuneshwar Ram deposed that before recording the statement of Ram Sagar under Section 164 he had given the necessary warning to him as required by law and this fact is borne out from the certificate Ext. 'A' appended to that effect in the confessional statement Ext. 28/1 before he proceeded to record the confession. This is indicative of the fact that he did caution Ram Sagar and sounded a note of warning that he is not bound to make the confessional statement and if he chooses to make any the same may be used against him and it was thereafter that he made the confession voluntarily on his own volition. He deposed that Ram Sagar did not tell him that he made his confessional statement un....
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....the appellants Suresh Bahri and Gurbachan Singh. Before we discuss the merits or demerits of the aforesaid submissions we would like to state that the law relating to conviction based on circumstantial evidence is well settled and it hardly requires a detailed discussion on this aspect. Suffice to say that in a case of murder in which the evidence that is available is only circumstantial in nature then in that event the facts and circumstances from which the conclusion of guilt is required to be drawn by the prosecution must be fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with the guilt of the accused but they also must entirely be incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. 41.In order to meet the aforementioned arguments of the learned counsel for the appellants, we shall now proceed to state the law relating to the grant of pardon to an accomplice/approver, the value of his evidence and the extent of reliance that can be placed on his evidence. 42.We have already reproduced above Section 306 of the Code the provisions ....
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....dence Act which deal with the testimony of an accomplice. It contemplates that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. The first part envisages that an accomplice, in other words, a guilty companion in crime, shall be a competent witness while the second part states that conviction is not illegal merely because it is based on the uncorroborated testimony of an accomplice. But if we read Section 133 of the Evidence Act with illustration (b) of Section 114 of the Evidence Act it may lead to certain amount of confusion and misunderstanding as to the real and true intention of the Legislature because quite contrary to what is contained in Section 133 illustration (b) to Section 114 of the Evidence Act lays down "that an accomplice is unworthy of credit, unless he is corroborated in material particulars". A combined reading of the two provisions that is Section 133 and illustration (b) of Section 114 of Evidence Act goes to show that it was considered necessary to place the law of accomplice evidence on a better footing by stating in unambiguous te....
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...., not accept the evidence of such a witness without corroboration in material particulars. There should be corroboration of the approver in material particulars and qua each accused. Similar observations were made by this Court in Ram Narain v. State of Rajasthan(1973) 3 SCC 805 : 1973 SCC (Cri) 545 ) in the following words: (SCC headnote) "Section 133 expressly provides that an accomplice is a competent witness and the conviction is not illegal merely because it proceeds on uncorroborated testimony of an accomplice. In other words, this section renders admissible such uncorroborated testimony. But this section has to be read along with illustration (b) to Section 114. The latter section empowers the court to presume the existence of certain facts and the illustrations elucidate what the court may presume and make clear by means of examples as to what facts the court shall have regard in considering whether or not the maxims illustrated apply to a given case before it. Illustration (b) in express terms says that an accomplice is unworthy of credit unless he is corroborated in material particulars. The statute permits the conviction of an accused person on the basis of uncorroborate....
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....e Evidence Act. 46. The two courts below after a thorough examination of the statement of the approver Ram Sagar PW 3 took the view that his testimony was corroborated on all material particulars by the independent witnesses and, therefore, he was worthy of reliance. Ordinarily this Court under Article 136 of the Constitution does not review and reappraise the evidence for itself and the conclusions of the High Court on questions of fact or appreciation of evidence are considered to be final. It is, therefore, not necessary for us to scrutinize the evidence of approver threadbare again. We shall, however, scrutinize his evidence on broad and material particulars to satisfy ourselves whether the two courts below were justified in recording conclusion that the testimony of the approver deserved credence. 47. The examination of the approver Ram Sagar Vishwakarma commenced in the trial court on 6-1-1986 as PW 3 and continued for several days in which he deposed that he worked in the furniture shop of the appellant S. Gurbachan Singh from 1979 to 1984, which covers the relevant period. He stated that the appellant Suresh Bahri was known to him as he used to visit the shop of S. Gu....
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....about 10.00 a.m. and told to Ram Sagar that the baton he had prepared will not work being very thin and asked him to prepare a heavy baton. Then he along with S. Gurbachan Singh proceeded to the house of Suresh Bahri at about 7.30 p.m. same day, but he stopped the scooter on the way and Ram Sagar declined to go with him saying that it was the festival day and the police was patrolling the area. S. Gurbachan Singh also did not go to the house of Suresh that day as he too had to go to the hospital. Next day the appellant Suresh Bahri came to the shop of S. Gurbachan Singh and asked the reason for not reaching his house the previous day. According to the statement of Ram Sagar Suresh again approached Gurbachan Singh at his shop next day saying that the work has to be done urgently and if it could not be done that day 'Machhiwala' would come for registration of sale deed and then Gurbachan Singh took him on a scooter that very day i.e. 11-10-1983 at about 4.30 p.m. to a house in the Railway Colony, Ranchi for taking measurements for fixing doors and windows and while they were returning at about dusk on 11-10- 1983 Gurbachan Singh took him to the house of Suresh Bahri. Gurbacha....
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....g the glasses. Murari Lal PW 1 came with four glasses whose house was situated adjacent to the house of Suresh and then went back. All of them then consumed liquor. Thereafter when Ram Sagar PW 3 wanted to go Suresh made him to stay in order to help them in tying up the dead body. Suresh brought a plastic sheet from inside the house. Raj Pal Sharma spread the plastic sheet in the room in which the dead body was laid and the witness Ram Sagar and Raj Pal Sharma lifted the dead body and placed it on the plastic sheet. Suresh Bahri then tore half of the saree already kept there and wrapped the dead body with it. S. Gurbachan Singh tore a piece of rope from the cot, Suresh Bahri brought a blackish blanket and then the witness Ram Sagar himself and the appellant Raj Pal Sharma wrapped the dead body in the blanket and tied it with the rope. 50. The approver Ram Sagar PW 3 further stated that appellant Suresh Bahri asked Gurbachan Singh to prepare a box with a view to put the dead body in the box and leave the box in any train. But later on changed the idea because of the risk involved in carrying the dead body in the wooden box and decided to dump the dead body in sceptic tank of the ....
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....e kept in the almirah of his house in which there is a 'chhuri'. Suresh asked Gurbachan to get the chhuri sharpened and keep the three kataries and chhuri in that very attache again. Ram Sagar also deposed that he had fixed the handles in the three kataries and Gurbachan Singh had given him Rs. 20 for purchasing the kataries. The witness Ram Sagar was shown the kataries, Ext. 5 which he identified to be the same. Ram Sagar goes on to state that he went to Dhulli farm along with Gurbachan Singh with the said attache and the bag in which chhuri and kataries and some papers were kept. The witness Ram Sagar was shown 13"-14" long knife which he identified as the one with which wife of Suresh Bahri was murdered. At Dhulli farm Gurbachan Singh gave that attache to the gardener of Suresh Bahri and asked him to keep the attache and give it to Suresh who was due to come within 3-4 days. Ram Sagar further stated that he had sent four chairs and one cot to Dhulli farm through the son of the gardener of Suresh. 53.Further approver Ram Sagar PW 3 deposed that one morning in the month of December appellant Raj Pal Sharma came to the shop of Gurbachan Singh and told him that the appell....
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....r neighbour but a family friend of Suresh Bahri for the last about 15 to 20 years prior to the occurrence and in fact he also served as caretaker of the Bungalow No. 936. Murari Lal PW1 stated that the appellant Raj Pal Sharma met him for the first time on 26-9-1983 or 27-9-1983 when he came with a letter of Suresh stating therein that he should hand over the keys of the house to Raj Pal Sharma. Murari Lal, therefore, directed the gardener Mool Chand Mali PW 24 to allow Raj Pal to stay in the house where Raj Pal stayed till 1-10-1983. Murari Lal also stated that on 1-10-1983 when Suresh came to Ranchi accompanied by his wife Urshia, Raj Pal Sharma could not be seen in the house thereafter and that he saw Raj Pal Sharma only after 5-6 days later on Chutia Road along with Suresh. When Murari Lal enquired about Raj Pal Sharma, Suresh told him that he had arranged a job to him in the shop of S. Gurbachan Singh. Murari Lal further stated that on 11-10-1983 at about 5.00 p.m. Suresh and his wife Urshia came to his shop when he was told by Urshia that both of them would be leaving next day for Delhi and, therefore, he should not give the bill of the articles purchased by them from his sho....
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....t on 7-1-1984 Gurbachan Singh came to his house and told him that he would himself demolish the sceptic tank and when Murari PW 1, along with Bhola Nath went to the sceptic tank they met Gurbachan Singh there who told that there was a headless body in the sceptic tank tied with a blanket and rope. Gurbachan Singh told them to fill up the sceptic tank by dumping red soil in it. At this Bhola Nath said that he would like to take neat and clean land to which Gurbachan Singh agreed but at the same time gave a threat that if he divulged these facts to anybody else he would kidnap the only son of Bhola Nath and blow him with a bomb. Murari Lal stated that same evening Gurbachan Singh brought truck load of soil in the compound of the house of Suresh Bahri and after half an hour the truck went back. He stated that same day at about 9.00 p.m. Gurbachan Singh again came to him and asked him to call Choubey. He called Bhola Nath Choubey when Gurbachan Singh told him that mall has been removed from the sceptic tank (meaning thereby that the dead body has been removed from the sceptic tank). When the witness Murari Lal PW1 enquired from Gurbachan Singh as to where has he disposed of the same th....
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....elevant time an employee of Gurbachan Singh in his furniture shop who stated about his acquaintance with Suresh who was on friendly terms with his master and was a frequent visitor to his shop. He stated that sometime in the month of October 1983 Suresh visited the shop of Gurbachan Singh when Gurbachan Singh handed over a dagger to the witness to sharpen it. Rameshwar further stated that after a couple of days he returned the dagger to Gurbachan Singh after getting it sharpened. As said John Linda, PW 31, was also an employee of Gurbachan Singh in his furniture shop. Linda also stated that he was acquainted with Suresh Bahri who made frequent visits to his master's shop. He deposed that Gurbachan Singh called him along with Ram Sagar, PW 3, at the house of Suresh in the month of January 1984 for taking out soil from the sceptic tank but when he along with others after digging the sceptic tank noticed a bundle of dead body tied with blanket and rope, he became upset. He further deposed that when Gurbachan Singh asked them to take out the dead body, they refused to comply the direction and he as well as other workers went back to the shop. 60.Moolchand Mali PW 24 was the gard....
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.... meals of Raj Pal Sharma and therefore he took him to the hotel where he took his meals. Moolchand also stated that Raj Pal continued to stay in the bungalow for about 4-5 days when Suresh Bahri also came to Ranchi along with his wife and stayed in the bungalow. Suresh asked Moolchand to vacate the quarter of the bungalow and therefore he vacated and left the place. 62.Shambhu Tiwari, PW 7 who at the relevant time was running a tea stall opposite Chutia Police Station, Ranchi stated that sometime towards the end of September 1983 Raj Pal Sharma had come to his tea shop for taking tea and continued to take tea twice or thrice a day for about 10-12 days but he had no money to make payment of tea for 5-6 days and when he demanded the money he told him that he was a man of Suresh and had come to Ranchi to look after the house of Suresh which was going to be sold. He further stated that Murari Lal PW1 confirmed that Raj Pal Sharma was a man of Suresh and that Suresh will make payment of his dues. Witness Tiwari PW 7 identified Suresh also. 63.In addition to what has been discussed above clearly establishing the conspiracy hatched by the appellant Suresh along with his two associat....
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.... Lal, PW 85, and Rajendra Singh PW 82. There is nothing on record to disbelieve or doubt their testimony with regard to disclosure statement and the recovery of a skull, hair and other articles at the instance of the appellant Raj Pal Sharma. 66.The skull and other articles seized as per seizure memo, Ext. 33 referred to above were sent to the Director, Medico- Legal Institute, Gandhi Medical College, Bhopal for examination and report by its Director, Dr Harish Chander. Dr Harish Chander, the Director of the Institute-cum-Legal Advisor to the Government of M.P. sent big report Ext. 2/81 after examination with his opinion that the skull belonged to a female human being whose age was 33 years plus minus 5 years. Dr Harish in his report had also asked for some other information and photograph and clothings of the deceased in order to fix up the identity of the person to whom the skull belonged to but the prosecution could not furnish the required information. Dr Harish submitted another report giving his opinion that in the absence of the material required by him it cannot be said with certainty that identity was established though there is resemblance with the skull of the decease....
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.... the skull belonged to none else but Urshia. 68.There is yet another piece of circumstantial evidence to connect the accused appellants with the conspiracy and murder of Urshia in the shape of recovery of certain articles which were used in wrapping the dead body while throwing the same in the sceptic tank, and which were recovered from a khad gaddha at Ranchi where the waste of Ranchi was dumped. Rajeshwar Singh PW 59 was the Station House Officer, Police Station Chutia at the relevant time, stated that on the report of Bineet Singh PW 69 P.S. Case No. 27/84 with regard to murder of Urshia was registered in Lower Bazaar Police Station as at that time Chutia Police Station was under Lower Bazaar Police Station and the case was handed over to CBI by notifications of the Central and State Governments. Rajeshwar Singh PW 59 investigated the case. During the course of investigation as stated earlier PW 59 had arrested the appellant Gurbachan Singh. He deposed that during the course of investigation the appellant Gurbachan Singh took him near Khad gaddha hillock where the waste of Ranchi city is dumped. He deposed that at the instance of Gurbachan Singh he got the place unearthed by ....
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....id to have been made by the investigating agency at the instance of the appellant Gurbachan Singh in the absence of any disclosure statement and without any pointing out memo of the place of recovery and without the public witness to the alleged recovery could not be treated as valid recovery in the eye of law within the meaning of Section 27 of the Evidence Act. It is true that no disclosure statement of Gurbachan Singh who is said to have given information about the dumping of the dead body under the hillock of Khad gaddha dumping ground was recorded but there is positive statement of Rajeshwar Singh, PW 59, Station House Officer of Chutia Police Station who deposed that during the course of investigation Gurbachan Singh led him to Khad gaddha hillock along with an Inspector Rangnath Singh and on pointing out the place by Gurbachan Singh he got that place unearthed by labourers where a piece of blanket, pieces of saree and rassi were found which were seized as per seizure memo Ext. 5. He further deposed that he had taken two witnesses along with him to the place where these articles were found. Rajeshwar Singh PW 59 was cross- examined with regard to the identity of the witness N....
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....sure made by the appellant Gurbachan Singh is confirmed by the recovery of the incriminating articles as said above and, therefore, there is reason to believe that the disclosure statement was true and the evidence led in that behalf is also worthy of credence. 72.In the light of the facts stated above we are afraid the two decisions mentioned above and relied on by the learned counsel for the appellants have no application to the facts of the present case and do not advance the case of the appellants challenging the discovery and seizure of the incriminating articles discussed above. In Nari Santa9 the accused of that case was charged for the theft and it is said that in the course of investigation the accused produced certain articles and thereafter made a confessional statement and it was in these facts and circumstances it was held that there was no disclosure statement within the meaning of Section 27 as the confessional statement was made only when the articles were already discovered having been produced by the accused. Similarly the decision rendered in Abdul Sattar10 also does not help the appellants in the present case. In the case of Abdul Sattar10 recovery of wearing....
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.... concealing their real names and giving out different names and addresses under the fear of being apprehended as they had received intimation that the rumours were circulating about the murder of Urshia Bahri and had also learnt about the arrival of Bineet Sarang PW 69 brother of Urshia in January 1984 at Delhi who was searching and making enquiries about his sister and her children and had visited the Delhi house, business premises and Ranchi house of the appellant Suresh Bahri and made reports to the Chutia Police Station. 75.Thus on an overall independent consideration of the circumstantial and expert evidence as well as the evidence of the approver adduced by the prosecution and discussed by us in the foregoing paras it is abundantly clear and satisfactorily established that the evidence of the approver Ram Sagar Vishwakarma, PW 3 has received requisite corroboration on all material particulars and the totality of the surrounding circumstances, antecedents and subsequent conduct amongst other factors established against the three appellants prove beyond all reasonable doubt that at the instance of Suresh Bahri who masterminded the plan, the other two appellants conjointly ha....
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.... (10)Her mother-in-law had once tried to kill her by administering poison in the garb of medicine as deposed by her sister PW 66 and her life was saved only by timely medical aid. (11) For all the aforesaid reasons Urshia had decided to shift to America to her parents for the better future of her children but she was helpless in doing so for want of citizenship and ready money. (12)In order to overcome this problem Urshia persuaded her parents through letters to immediately arrange for her citizenship and to get over the monetary problems she decided to dispose of Ranchi House No. 936. (13)With a view to shift to America permanently she was even ready to take divorce from her husband Suresh as is evident from her letters addressed to parents. (14)The appellant Suresh was not happy with the decision of Urshia to shift to America with children specially with the sale proceeds of Ranchi house. (15)Being convinced that Urshia had finally decided to shift to America with children by disposing of Ranchi house, appellant Suresh decided to do away with her life at any cost and to meet this end he hatched a conspiracy with the appellants Raj Pal Sharma and Gurbacha....
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....made on the next day but as police was patrolling in the area on the eve of festival, PW 3 declined to do the work under apprehension of being detected. (27)After the deal with regard to sale of Ranchi house was complete with Laxmi Narayan PW 21 for a consideration of rupees five and a half lakhs, Laxmi Narayan inspected the house in the presence of Suresh and Urshia on 11-10- 1983 when Urshia told him to bring the income tax clearance certificate so that document could be executed and thereafter she would return to Delhi on 12-10-1983. (28)The appellant Suresh purchased two railway tickets in the waiting list in his name and his wife Urshia for Delhi to give a colour that the couple would be leaving on 12- 10-1983 but in fact none of them travelled on 12-10-1983 as per the reservation chart and evidence of the then Chief Reservation Supervisor of Ranchi Railway Station. (29)On 10-11-1983 electric light of the house of Suresh was deliberately put off though there was light in the vicinity so that in the darkness murder of Urshia could be committed by Suresh and Raj Pal in a room of the house. (30)As per plan appellant Gurbachan and PW 3 also arrived at th....
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....tion to his in-laws even after Urshia was murdered by sending two letters dated 29-10-1983 and 3- 11-1983 Exts. 23/6 and 23/7 stating that henceforth only he would be writing letters to them as Urshia was busy like a bee at Dhulli farm and was not in a position to write letters. (38)In letter dated 3-11-1983 Ext. 23/7 purporting to have been written from Ranchi house while in fact on that date Suresh was staying in a hotel named Blue Heaven at Ranchi in the name of S. Saxena mentioning his arrival on 2-11-1983 and departure on 5-11- 1983 giving his address as 409, Defence Colony though he had no house in Defence Colony (vide Exts. 2/9 and 4/12). (39)In the letters Suresh not only tried to impress upon his in-laws that they were leading a very happy life and at the same time also made attempts to explain the sudden silence of Urshia by a improbable story. The said letters also indicated the pre-planned idea of Suresh in committing the murder of his two issues subsequently by informing them that Urshia was staying at Ranchi for about one and a half years and the children were to shift there for studies. This unusual information given by Suresh created a serious susp....
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.... (47)The conspiratory acts of the appellants are established by the fact that after the murder of Urshia they were in contact with each other for communicating developments of offences committed and action of the public and police in that sequence. Gurbachan had sent the approver PW 3 to Delhi to meet Suresh and inform him that suspicion had arisen in the vicinity and Chutia police was searching Suresh who was moving from hotel to hotel in different names. (48)Raj Pal Sharma was equally very close to Suresh from before otherwise he would not have taken the leading part in the murder of Urshia. Raj Pal also went underground forcing Chutia police to move the CJM, Ranchi, on 23-8-1984 for issuance of warrant against him leading to his arrest on 28-8-1984 by CBI in a border village of Delhi and Haryana." 77. After going through the evidence and material on record we are also satisfied that the aforementioned facts and circumstances found to be established by the trial court as well as by the High Court are well founded and fully supportable by evidence on record. Since we find ourselves in agreement with the said conclusions the same do not call for any interference b....
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.... both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of TI parade. In the present case as stated earlier the appellant Raj Pal Sharma approached Murari Lal PW1 with a letter of Suresh in pursuance of which Murri Lal had directed the bungalow gardener Moolchand PW 24 to open the house and permit Raj Pal Sharma to stay there. Raj Pal Sharma came and stayed in the Ranchi house in the last week of September and continued to live there till 1-10-1983 when Suresh along with Urshia arrived and stayed there. Thus Murari Lal PW1 and Moolchand Mali PW 24 had an opportunity to see Raj Pal for several days and it was not for the first time that they saw him in the court when they identified him to be the one who took active part in the crime. Similarly Shambhu Nath Tiwari PW 7 who was running a tea stall at Chutia where Raj Pal used to take tea and other eatable articles for a number of days and had no money to pay the charges but continued to serve him with tea, etc., on the assura....
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....ldren named above. The application about Richa Bahri was received by her class teacher named Sonia and the other application relating to Saurabh Bahri was received by Mrs Randhawa and he recognized the endorsement and signatures made by the two class teachers on the aforesaid two applications. The Principal of the school further deposed that both the applications were seized by CBI officials. A copy book Ext. 1/2 of Richa Bahri was also seized by the CBI in his presence and he had signed at pages 1, 2, 23 and 36 of the said copy book. He also identified Richa in the photograph Ext.1 and Saurabh in the photograph Ext. 1/3. He also identified the father and mother of the two children Saurabh and Richa in the photograph Ext. 1/2. Mrs George PW 34 a teacher of Father Agnel School was also examined who was the class teacher of Richa when she was in 4th and 5th standard and claimed to be fully acquainted with her handwriting. She identified the handwriting of Richa in her copy book from pages 2 to 26 seized by CBI from the Principal of the school as she had seen the writings when the copy book was submitted to her for correction and she had signed the said copy book at pages 5, 16, 20 an....
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.... and the maidservant would travel only up to Basti and it was for this reason that only the appellants Suresh, Raj Pal and the two children had stayed in the guest house on 13-12-1983 and 14-12-1983. The entries made by Suresh in his handwriting in the Guest House Register were compared with his admitted writings by the handwriting expert Shri S.C. Mittal PW 65 who found both the writings to be in the hand of Suresh. After leaving Varanasi in the evening of 14-12-1983 the appellant Suresh, Raj Pal along with the two children proceeded further by car to Ranchi and before reaching Ranchi stayed in New Punjab Rest House at Daltonganj, as testified by its Proprietor S. Gurbax Singh PW 19 who deposed that in 1983-1984 the hotel was known as Punjab Rest House but the name was subsequently changed as New Punjab Rest House. The witness stated that Suresh along with the two children and another person came and stayed in the hotel on 15-12-1983 in Room No. 4 as per entry at Serial No. 576 of the Guest Register. The entries in the Guest Register were made by Richa Bahri which was also signed by Suresh. The number of passengers as given in the entry was shown as four coming from Delhi and goin....
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....PW 60 was sought to be assailed by the learned counsel for the appellants by pointing out some minor and insignificant contradictions as also the statement of PW 60 that he tried to look inside the car through the glasses when he was shouted down and directed to be away by the appellant which statement has not been made by his father PW 29. We are not impressed at all by these arguments as the immaterial omissions and contradictions have hardly any bearing on the reliability of these two witnesses whose evidence is consistent on all material aspects and there is no reason at all to discredit their testimony. 84. In the series of circumstances connecting the appellant Suresh Bahri and Raj Pal with the murder of the two children the prosecution has examined Vijay Kumar Asthana PW 12 who was the Manager of Hotel India, Varanasi at the relevant time. Asthana deposed that Suresh had stayed in his hotel on 18-121983 by making entry Ext. 4/2 in his presence in the Guest Register Ext. 8/1 at SI. No. 1448 at Page No. 25 in his handwriting in the name of Mahesh Chandra Gupta. The said handwriting was compared with the specimen writing and signature of Suresh by the expert S.C. Mittal PW 6....
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....phs of none else but Saurabh and thus there is overwhelming evidence to establish that the dead body found floating in Varuna River was that of Saurabh. 87. However, learned counsel for the appellants referring to the statement of Dr Bhargav PW 27 contended that the prosecution story that the two children were done to death in the intervening night of 17-12-1983 and 18-12-1983 at Dhulli farm is not consistent with the medical evidence and on the contrary it is falsified by the medical evidence inasmuch as the dead body was found at about 8.00 a.m. on 20-12-1983 but without any sign of decomposition and only rigor mortis was present while putrefaction starts after about 24 hours of the death but the same was not found at the time of postmortem which was performed after 60 hours of the alleged time of murder. On that basis, therefore, it was submitted that the dead body recovered was either not the dead body of Saurabh or the murder was not committed in the intervening night of 17-12-1983 and 18-12-1983. Learned counsel for the appellants further submitted that the doctor had found that the stomach of the deceased was empty while according to the evidence of Gopi Mistry PW 29 and ....
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.... some more links to the circumstantial evidence against the appellants in the shape of recovery of some incriminating articles on Panchkoshi Road, near Nursery of Forest Department and some other places. The Investigating Officer, Sarnath, Atma Nand Singh PW 46 stated that in the evening of 27-12-1983 he received information from some persons that some articles stained with blood were lying at Panchkoshi Road near Paighambarpur Village where the refuse is dumped. PW 46, therefore, rushed there and in the presence of witnesses seized bed sheet and a gadda which looked like a quilt by seizure memo Ext. 5/9. At the same time he also learnt that some articles were also lying near a Nursery of the Forest Department at Asapur Road crossing.He, therefore, visited that place also and seized two bloodstained bedsheets in the presence of witnesses by seizure memo Ext. 5110. All these articles seized under seizure memo Exts. 5/9 and 5/10 were sent to the Central Forensic Science Laboratory, Delhi which were examined by Dr G.D. Gupta PW 53, a Senior Scientist who found human blood on the quilt and its cover. These articles were further sent for examination by Serologist Dr P.K. Bhatnagar PW 56....
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....y not come to light and be not detected or suspected by anyone. After their withdrawal from school on 5-12-1983 by the appellant Suresh he took them to his South Extension residence, Delhi and thereafter Suresh left Delhi along with the children on 8-12-1983 and reached Dhulli farm in the afternoon of 16-12- 1983 via Basti, Varanasi and Daltonganj having their halts in the hotels at two places as already discussed earlier. The entries of the said hotels indicated that there were four persons appellants Suresh and Raj Pal and the two children. The fact that the two children were accompanying these two appellants is fully established from the entries in Daltonganj hotel which were made and signed by Richa and Saurabh. The said entries are proved by the opinion and evidence of the expert. The return journey of the appellants Suresh and Raj Pal which commenced on 18-12-1983 tells a different story that though the two children were shown to be fast asleep in the rear seat of the car but thereafter the two children were not found accompanying them either dead or alive on their onward journey as is evident from the entries made in different hotels in different names by these two appellant....
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....rent hotels and needed money to go to Nepal according to his plan and create false evidence in support of his defence plea which he had pre-planned in case he was apprehended by police. Here it may also be pointed out that the appellant Suresh went to Kathmandu (Nepal) and firstly he stayed in Kozy Hotel from 8-4-1984 to 29-4-1984 vide Ext. 4/34 and thereafter from 15-5-1984 to 22-5-1984 vide Exts. 4/35 and 4/36. It is interesting to note that thereafter Suresh left the hotel Kozy of Kathmandu and lodged himself in a private house obtained on rent only with a view to create false evidence for sudden disappearance of his children at Kathmandu according to his plan with which he had gone to Nepal because Suresh thought that his ultimate apprehension would be unavoidable as the Chutia police had submitted a charge-sheet with regard to the murder of Urshia against him in which he was shown absconding accused. In furtherance of his plan to create evidence for his defence the appellant Suresh made a false report Ext. 25/1 to Nepal Police on 10-8-1984 that his two children who came to Kathmandu (Nepal) with him were missing while in fact they were already done to death on the nights of 17....
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....t or an act which by itself may not be illegal but the same is done or executed by illegal means. Thus the essential ingredient of the offence of criminal conspiracy is the agreement to commit an offence. In a case where the agreement is for accomplishment of an act which by itself constitutes an offence, then in that event no overt act is necessary to be proved by the prosecution because in such a fact situation criminal conspiracy is established by proving such an agreement. In other words, where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120-B read with the proviso to sub-section (2) of Section 120-A of the IPC, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120-B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions in such a situation do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfilment of the object of conspiracy, the essential ingredient being an agreement between the conspirators t....
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.... have already discussed the facts and circumstances appearing against the appellants Gurbachan Singh and Raj Pal Sharma indicating their direct involvement in the conspiracy of murder of Urshia and her two children yet at the risk of repetition we shall in brief re-state the same. It is evidently clear from the series of circumstances established by the prosecution and discussed by us in the foregoing paras that the main brain behind the conspiracy who masterminded the plan for the killings of the three innocent lives is the appellant Suresh Bahri, the unworthy husband of Urshia and a brute cruel father of the two unfortunate children, who approached the other appellants Gurbachan Singh and Raj Pal Sharma for help in the commission of the said ghastly crime by winning over their favour on account of his friendship and close association with them and as such it appears that they had no hesitation in extending their helping hands by constituting themselves as members of the criminal conspiracy hatched by Suresh Bahri. No doubt there is no direct evidence about the conspiracy and as said earlier it is seldom available. But the trial court has catalogued a large number of circumstances....
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.... confirm the conclusions recorded by the two courts below as well as the convictions of the appellants under Sections 302, 302/120-B and 201 of the Penal Code. 99.Shri Sushil Kumar, learned senior counsel lastly contended that the prosecution kept away for reasons best known to it the disclosure statement running in 22 pages alleged to have been made by the appellant Suresh Bahri on 1-8-1984 before Metropolitan Magistrate, Delhi for which not only the adverse inference has to be drawn against the prosecution but it vitiated the whole trial. He submitted that when the appellant Suresh Bahri was arrested on 31-7- 1984 and on 1-8-1984 produced before the Metropolitan Magistrate he had made a statement running in 22 pages as mentioned in the remand order itself dated 1-8-1982 and also in his application for grant of bail. That statement has not been produced by the prosecution for reasons best known to it. In our considered opinion there is no force in the argument. If actually ;appellant Suresh Bahri had made any disclosure statement it was within his special knowledge as to what he had stated in those alleged 22 pages but he did not divulge anything in this connection in his state....
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....bel of variation as disparity in sentencing necessarily involves a value-based judgment, i.e., disparity to one person may be a simply justified variation to another. It is only when such a variation takes the form of different sentences for similar offenders committing similar offences that it can be said to be disparate sentencing. 102.It appears that it was to minimise these considerations indicating the areas of imposition of penalties including the extreme penalty of death that the Legislature introduced sub-sections (3) and (4) in Section 354 of the Code of Criminal Procedure in the new Code of 1973. Sub-section (3) contemplates that when conviction is for an offence punishable with death or in the alternative, the imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded, and, in the case of sentence of death, the special reasons for such sentence (emphasis supplied). Thus, sub- section (3) of Section 354 lays down that in case of sentence of death the judgment shall state special reasons for such sentence. This gives an impression that in the new Code of Criminal Procedure the emphasis is that the life impris....
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.... and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system's credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considering all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration." In the said report it has been further observed in para 15 as follows: (SCC p. 239) "In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the courts respond to the society's cry....
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....ad bodies in the Varuna river having no consideration for the human life and that too for his own flesh and blood. Suresh Bahri may be having some differences with his wife with regard to the sale of house and her idea about settlement with the children at America but he certainly had no grievance or even any remote cause against his innocent minor children who could never conceive that their father who was their guardian of the first degree was taking them to Dhulli farm for committing their gruesome murder. 105.The cold-blooded cruel murder of the innocent children by none else but by their own real father shows the enormous proportion with which it was committed eliminating almost all members of the family. We have given our serious thoughts and consideration and posed the question to ourselves whether there could be still a worse case than this where a husband could hatch a 7 conspiracy and kill his wife in a most callous and ghastly fashion as in the present case only on a trifling matter which could have been sorted out in an amicable manner for which no effort appears to have been made by Suresh. Not only this but the appellant Suresh became thirsty of the blood of his ow....