Holding

All six accused, including Roshan and Dharamvir, were held guilty of murder under Section 302 IPC read with Section 149 and of culpable homicide not amounting to murder under Section 201 IPC, and the High Court's acquittals were set aside.

Summary

The case involved eight accused who allegedly shot two men, Ratan and Ramesh, and burned their bodies on a funeral pyre in retaliation for the murder of Ishwar Chand. The trial court convicted six of the accused under Sections 302, 149 and 201 of the IPC, while acquitting two; the High Court later reduced the convictions, acquitting two of the six and refusing to enhance a sentence. On appeal, the Supreme Court examined whether a murder charge can stand despite the absence of body identification, cause of death, and recovered weapons, and whether faulty investigation alone can defeat the prosecution. Relying on consistent eye‑witness testimony, the Court held that the prosecution had sufficiently proved the participation of all six accused, and that lack of identification or weapon recovery does not per se invalidate a murder charge. Consequently, the Court set aside the High Court’s acquittals, restored the trial court’s convictions, and ordered the accused to continue serving their sentences.

Issues considered

Can a charge of murder under Section 302 IPC be sustained when the dead bodies are not positively identified, the cause of death is not established, and the weapon is not recovered?
Does a faulty investigation or padding of evidence automatically lead to the demolition of the prosecution's case?
Whether accused D and R can be acquitted of offences under Sections 302/149 and 201/149 based on the evidence presented.
Whether the High Court erred in acquitting two of the six accused and in refusing to enhance the sentence of the convicted accused.
Whether the prosecution proved the participation of all six accused in the murder and related offences under Sections 302, 149 and 201 IPC.

Legislation cited

Code of Criminal Procedure, 1973s. 313
Indian Penal Code, 1860s. 147, s. 148, s. 149, s. 201, s. 302

Subjects

murderidentification of bodycause of deathweapon recoveryeye‑witness testimonyunlawful assemblySection 302 IPCSection 149 IPCSection 201 IPCconvictionacquittalfaulty investigation

Judgment

LAKSHMI AND ORS. A
V.

STATE OF U.P.

AUGUST 29, 2002

[Y.K. SABHARWAL AND H.K. SEMA, JJ.] B

Penal Code, 1860:

Sections 3021149, 2011149, 147 and 148-Murder by 8 accused-
Evidence of eye witnesses-Trial court convicted 6 accused and acquitted 2 C
accused-High Court convicted 4 of the 6 accused u/ss 302 and 201, convicted
one of them u/s 201 and acquitted him u/s 302/149; acquitted one, of all the
charges-Upheld the acquittal of the 2 accused-Cross appeals by accused
and State-Held, in the facts and circumstances of the case all the 6 accused
liable to be convicted-Acquittal of 2 of the 6 accused by High Court not D
justified-Hence, judgment of High Court set aside and that of trial court
1 restored

Criminal trial:

Non-identification of dead body, failure to establish cause of death and
non-recovery of weapon of offence-Effect of-Held, a charge of murder muy E
stand established even in their absence.

Faulty investigation and padding in evidence-Effect of-Held, would
by itself not lead to total demolition of prosecution case, if it can otherwise
stand.
F
For offences including the murder of two persons, eight accused
including the appellants were put on trial. According to the prosecution,
one 'I' son of accused 'R' was murdered in a different village, and the
accused persons thought that the two deceased persons were responsible
for his murder. They also tol.d one of the accused that along with the body G
of 'I' they would burn the bodies of his murderers. They invited the
deceased persons to the funeral ground for the funeral ceremony of 'I'.
There they shot them and then burnt their bodies in the funeral pyre of
'I'. 4 accused were armed with deadly weapons while accused 'R' and 'D'
were unarmed who had caught hold of one of the deceased when he was
shot by one of the four accused. H
733
734 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A PWs 1, 2, 3 and 5 were eyewitnesses to the incident. PWS was
independent witness. Names of 5 accused were specifically mentioned in
FIR while accused 'D' was mentioned as brother-in-law of' I'. PW3 had
deposed as to the involvement of other two accused in the incident. She
also identified the body of one of the deceased.

B Trial court held that prosecution established the case against six
accused and convicted them of the offences and sentenced them to life
imprisonment. However, it acquitted other two accused disbelieving the
evidence of PW3.

C 6 accused filed appeal before High Court against their conviction.
State filed appeals against acquittal of the other two accused and for
enhancement of sentence of accused 'BR', as he was life convict when he
committed the offence. High Court convicted the four accused u/ss 302
and 201, acquitted accused 'D' of all the charges giving him benefit of
doubt and convicted accused 'R' u/s 201, and acquitted him u/s 302/149
D and section 147. Acquittal of the other two accused was confirmed. Appeal
for enhancement of sentence of accused 'BR' was dismissed.

Special Leave Petitions against acquittal of the other two accused,

E
and refusal to enhance sentence of accused 'BR' were dismissed by this
Court.

Appeals were filed by the accused against their conviction and by
·-
the State against the acquittal of accused 'R' and 'D'.

Appellant-accused contended that prosecution failed to prove its case
beyond reasonable doubt as identification of dead bodies, recovery of
F weapons and cause of death were not established by prosecution; that
evidence of PWl was doubtful; that evidence of PWS indicated that only
accused 'BR' might have committed the offence and thus rest of the
accused were falsely implicated; and that the investigation was doubtful.

G Disposing of the appeals, the Court

HELD: 1.1. A charge of murder may stand established against an
accused even in absence of identification of body and cause of the death.
Undoubtedly, the identification of the body, cause of death and recovery
of weapon with which injury may have been inflicted on the deceased are
H some of the important factors to be established by the prosecution in an
LAKSHMI v. STATE OF U.P. 735

ordinary given case to bring home the charge of offence under Section A
302 IPC. This, however, is not an inflexible rule. It rnnnot be held as a
general and broad proposition of law that where these aspects are not
established, it would be fatal to the case of the prosecution and in all cases
and eventualities, it ought to result in the acquittal of those who may be
charged with the offence of murder. It would depend on the facts and B
circumstances of each case. (741-F, G]

1.2. Every faulty investigation or padding in evidence cannot by itself
lead to total demolition of prosecution case, if it can otherwise stand
ignoring these fallacies. (742-B]

1.3. The factum of murder of the deceased persons on the date and C
the time alleged has been established. The occurrence took place in the
broad daylight in the presence of so many persons who had accompanied
the dead body of 'I' to the cremation ground. It also stands established
that the two bodies were recovered from the funeral pyre of 'I' after they
had been badly burnt for over two hours. It was not and could not, under D
the circumstances of the case, be the plea of anyone that all the three
persons died together and were cremated together. The facts ancl
circumstances do not suggest any such theory. [742-E, F, G]

1.4. The assumption that bodies could not be identified on the
contextual facts would make no difference. Keeping in view the manner E
in which the deceased persons were killed and put on the pyre of 'I', it
would hardly make any difference as to which out of them was the body
of one deceased and which was that of the other. (743-B]

1.5. There is unimpeachable evidence of PWI, PW2 and PWS as to
the manner in which the accused persons shot the deceased persons and F
threw them in the burning pyre. The FIR was recorded within about an
hour and half naming 'R' and his sons and brother-in-law of'I' as accused
and also narrating the manner of committing the crime. Once PWI, PW2
and PWS are believed, the aspect whether one gun shot wound entry on
the body of the deceased could be found while there was no exit entries G
or no gun shot injury was found on the body of another deceased would
be of no importance. All this was a result of extensively burnt bodies.
(743-D-EJ

1.6. It cannot be said that only 'BR' might have committed the
offence and others were falsely implicated. It has to be borne in mind that H
736 SUPREME COURT REPORTS [2002] SUPP. 1 S.C.R.

A 'BR' was carrying double barrel gun whereas others were carrying
/ '
revolver and country-made pistol which obviously had to be in the pocket
and not demonstrated outside and thus could not have been seen by PWS.
1743-G, HJ

2. No fault could be found with the finding of the trial court. By
B adopting a wholly erroneous approach, the High Court held that the role
of accused 'D' was only to the extent of catching hold of the deceased or
for coming to the conclusion that there was no such need or that there
was any change of the story. There is consistency, right from the stage of
recording of FIR as to the manner of commission of crime and upto the
C stage of deposition by PWl corroborated by other eye-witnesses PW2 and
PWS. The prosecution has fully established its case against accused 'R'
and 'D' as well. Acquittal of accused 'D' of the charges under Sections
302/149 and 201/149 IPC and acquittal of accused 'R' of charge under
Section 302/149 IPC, cannot be sustained. Thus the judgment of High
Court is set aside and that of the trial court restored.
D [746-H; 747-A, B, C, DJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
619 of 2000.

From the Judgment and Order dated 12.10.1999 of the Allahabad High (

E Court in Cr!. A. No. 3159 of 1982.
WITH

Crl. A. Nos. 620 and 944-945 of 2000.
I
P. Malhotra, R.K. Shukla, S.C. Maheshwari, O.P. Sharma, Mukand L
F Shrma, M.P.S. Tomar, Ms. Sandhya Goswami, R.C. Gubrele, K.R. Gupta,
Ms. Nanita Sharma, Vivek Sharma, Abhishek Atrey, Rajbalam Sharma,
Praveen Swarup, Prashant Choudhary, Praneet Ranjan, Pramod Swarup, J.B.
Singh, D.K. Garg, Ajay K. Agrawal and P.S. Tomar for the appearing parties.

G The Judgment of the Court was delivered by

Y.K. SABHARWAL, J. The first information report (FIR) was recorded
on the statement of Sitaram father of deceased Ratan and Uncle of deceased
Ramesh. Therein the names of accused Roshan and his four sons Lakshmi,
Brahma, Kishan Chand and Shyam Sunder are mentioned. The 6th accused
H mentioned in the FIR is by description viz. brother-in-law of Ishwar Chand.
LAKSHMI v. STATE OF U.P. [Y.K. SABHARWAL, J.] 737
-I •

The FIR, inter alia, records that lshwar Chand of the same village as A
the informant had been murdered. The murder had taken place in different
village, namely, Sondha, Police Station Modi Nagar, District Ghaziabad.
Deceased Ratan, Moolchand who is brother of Sitaram and other men
accompanied Brahma and Roshan to bring back the body of lshwar. lshwar
was son of Roshan. After the body of lshwar had been brought back to the B
village, when the villagers asked Roshan and his sons to perform the funeral
rights of lshwar, they said that it would be performed the next day in the
morning. Brahma told Ratan that along with the body of lshwar, they would
also bum the bodies of his murderer. On this, Ratan told Brahma that first
perform the ceremony of lshwar. Next morning, Brahma and Lakshmi called
Ratan and Ramesh, took them into confidence and asked them to get ready C
for funeral ceremony and to carry their revolver with them and also told them
that they were also doing so as they were apprehending some danger. Sitaram,
Moolchand, Ratan, Ramesh and other villagers reached the cremation ground
to attend the funeral of Jshwar. The funeral pyre was prepared and fire was
ignited by Shyam Sunder and the body started burning. At this stage, when
it was about 8.30 a.m., Brahma asked Ratan for his revolver which Ratan D
refused to give. Roshan and 'sala' (brother-in-law) of Ishwar caught hold of
Ratan; Brahma fired with his rifle on the head of Ratan and Lakshmi fired
Ratan with the country-made pistol; meantime Kishan Chand and Shyam
Sunder fired at Ramesh; there was pandemonium; all started screaming and
shouting; Lakshmi removed revolver of Ratan. Sitaram told him that these E
persons had always helped him and that is how he was repaying on which
Brahma said that Ratan had got Jshwar murdered and they have taken revenge.
Further, it records that all these people took the dead bodies of Ratan and
Ramesh and put the said bodies on the pyre of Ishwar and these bodies also
started burning.
F

- After the investigation, 8 persons were put to trial for offences under
Sections 147, 148, 302, 149 and 20 I !PC. Besides the aforesaid five named
persons and Dharamvir-brother-in-law of Jshwar, two other persons who
were put to trial were accused No.7 Shatrughan and accused No.8 Baleshwar.

Trial Court acquitted Shatrughan and Baleshwar. The remaining six G
were convicted of the offences. It was held that the prosecution had established
that the said six accused had formed an unlawful assembly with the common
object of committing murders of Ratan and Ramesh; while Roshan and
Dharamvir had no arms, the remaining four were armed with deadly weapons,
gun and pistols; the murder was committed in the funeral ground with a view H
738 SUPREME COURT REPORTS [2002] SUPP. I S.C.R. ..
A to take revenge by burning their dead bodies along with the dead body of
Ishwar as accused thought that Ratan and Ramesh were responsible for
committing murder of Ishwar. For offence under Section 302 read with Section
149 IPC, imprisonment for life was imposed on all the six besides other
sentences for offences on which they were found guilty including rigorous
B imprisonment for three years for offence under Section 20 I read wJ'~ Section
149 IPC. -.

Three criminal appeals and one criminal revision were preferred before
the High Court challenging the judgment and order of the trial court. One f

appeal was filed by six accused challenging their conviction and sentence.
C Two appeals were filed by the State-in one appeal acquittal of Shatrughan
and Baleshwar was questioned and in the other the State prayed for
enhancement of imprisonment for life imposed on Brahma on the ground that
he had committed murder while undergoing life imprisonment and, therefore,
death penalty should have been imposed on him. Criminal revision was filed
by the complainant praying for the enhancement of sentence of the six accused
D persons.

The aforementioned appeals and revision petitions were disposed of by
a common judgment and order of the High Court. Both the appeals of the
State and criminal revision were dismissed. The criminal appeal filed by the ,.-.
accused persons was partly allowed. The conviction and sentence of
E Dharamvir was set aside. The conviction and sentence of Roshan for offence
other than that under Section 201/149 was set aside. The conviction ofRoshan
for offence under Section 201/149 was converted to one under Section 201
IPC and sentence of three years imposed on him by the trial court in respect
of Section 2011149 IPC was confirmed. Conviction of other accused persons,
F namely, Brahma, Lakshmi, Shyam Sunder and Kishan Chand was in substance
confirmed with the only modification that their conviction under Sections
302/149 and 201/149 was converted to one under Section 302 and Section
20 I IPC and sentences imposed by the trial court were maintained. They
were, however, acquitted of charge under Section 148 IPC.

G In these appeals, the judgment and order of the High Court has been
challenged. Criminal appeal No.6:9/2000 has been preferred by Lakshmi,
Shyam Sunder and Kishan Chand challenging their conviction and consequent
sentence by the trial court as confirmed by the High Court in the manner
aforestated. Criminal Appeal No.620/2000 has been filed by Roshan
H challenging his conviction and sentence for offence under Section 20 I. Special
-·
LAKSHMI v. STATE OF U.P. [Y.K. SABHARWAL J.I 739

Leave Petitions filed by the State challenging the judgment of High Court A
confirming the acquittal of Shatrughan and Baleshwar and also the dismissal
of the other criminal appeals that had been filed by the State in the High
Court seeking enhancement of sentence of Brahma have already been
dismissed. The State has, however, been granted leave only in respect of its
challenge to the acquittal ofRoshan and Dharamvir (Criminal Appeal Nos.944-
45/2000). B
We have heard Mr. P.P. Malhotra, in support of Criminal Appeal No.619/
2000, Mr. R.K. Shukla in support of Criminal Appeal No.620/2000, Mr.
Praveen Swarup for State in all the appeals, Mr. R.K. Shukla and D.K. Garg
for respondents in State appeals and Mr. O.P. Sharma for the complainant. C
Mr. Malhotra, on instructions, stated that Brahma died after the decision of
the appeals by the High Court.

We have with the assistance of learned counsel perused the relevant
documents and the testimony of the witnesses. The conviction of the accused
persons is based on the testimony of eye-witnesses-PW l Sitaram, PW2 D
Moolchand and PW5 Babu who have all deposed being present at the cremation
ground when Ratan and Ramesh were shot and thereafter thrown on the pyre
of Ish war. PW l is father of Ratan. PW2 is father of deceased Ramesh. PW I
and PW2 are brothers. PW5 is resident of the same village. PW3, Smt. Usha
is wife of Ratan Lal and is said to have reached the cremation ground soon
after the incident. She has not been believed by the trial court as also by the E
High Court. Her presence at the cremation ground as claimed was doubted
and on that basis, Shatrughan and Baleshwar were acquitted in absence of
any evidence to connect them with other accused. We are also not placing
any reliance on Smt. Usha.

The incident took place at 8.30 a.m. The FIR on the statement of PW! F
was recorded at 10 a.m. The FIR named six persons in the manner earlier
noticed.

Mr. Malhotra contended that the prosecution has failed to prove its case
beyond reasonable doubt. Learned counsel points out that despite the fact G
that according to the case of the prosecution four fire arms were ust::d for
shooting Ratan and Ramesh, neither of the weapon was recovered nor the
weapon which was allegedly removed from Ratan and said to have been
taken away by the accused was recovered nor any bullet or pellet was
recovered. The contention that has been more strenuously put forth by the
learned counsel is that the two bodies have not been identified and also that H
740 SUPREME COURT REPORTS (2002] SUPP. I S.C.R.

A · their cause of death could not be ascertained. Mr. Malhotra contends that in
absence thereof, the conviction could not be maintained.

We have perused the two post mortem examination reportS--One in
respect of Ramesh and the other in respect of Ratan. Both bodies had been
extensively burnt They were burning for about two hours before extraction
B from the burning pyre of Ishwar. The report in respect of Ramesh reads as
under :
' ,· l . . . ..

."The whole body except to external charred and burnt except the
.middle part of the back.. Both the upper extremities are absent at the
level of the shoulder Jts. The bones of sho~lder and both the clavicles
c· . are visible and burnt. Both the lower extremities are absent at the
level of lines r 2/3. The bones exposed in it are burnt. Face and scalp
is burnt. The scalp line is visible. Ear, Nostrils, Eyes are not burnt.
Mouth is. closed and differed. The abdomen Cavity is lapsed and
burnt, intestine and liver are visible."
D. "The report in respect of Ratan Lal.reads as under: "The whole body

i is externally burnt and charred upper of the scull is absent. Cr. Ear
is lying burnt. Ear, nose & Eyes are burnt, Mouth Y 2 open and in
. upper lateral. In. lower to liver left lateral & crnisetoth are visible.
Both the upper extreenitlls are absent at level of just below the elbow
E · jt. and the both visible in it are burnt. Both lever extremities are
absent at the level of the lower Y 2 of both the thighs. The bones
visible in it are bu,.;,t. The thorasic & abdomal cavity is exposed non-
existent. The vice are fully in it which are burnt."

As the bodies were extensively charred and burnt, the definite cause of
F . death could not be ascertained. In respect of Ramesh, one gun shot wound
was stated to be visible. The post mortem report in respect of Ratan does not
state anything about any gun shot injury.

Regarding the identification of the two bodies, we perused Exhibit K-
2 prepared after the bodies from burning pyre were taken out as aforestated.
G K-2 notices that the bodies have been taken. out by putting water. This
document mentions that the bodies had been badly burnt and had no sign of
· identification except one was of heavy built up and other was of lightweight.
Ratan was identified by his wife and Ramesh by his father. The theory that
Ratan was wearing a muffler and could be identified on that basis has not
H b~en believed by the trial court and tho High Court. We do not propose to

,-'•
LAKSHMI v. STATE OFU.P. [Y.K. SABHARWAL, J.) 741

take a different view of that aspect. Under these circumstances, it was A
strenuously contended that in view of this position of the bodies as· is also
clear from the post mortem reports, there was no proper, valid and legal
identification· and this discrepancy is fatal to the case of the prosecution
coupled with absence of proof of cause of death.

Referring to Exhibits K-5 and K-16, it was also sought to be contended . B
that although PW6 Constable Natha Singh took the bodies from Police Station ·
at 6.30 p.m. for taking the bodies to the doctor for post mortem reports, but
the same were delivered for the post mortem at about 12 noon. !t was also
pointed out that although PW I was said to· be present at the time of the
preparation of inquest documents, bui he was not a witness to the said C
documents which makes his presence at the time of the preparation of the
documents doubtful. · Learned counsel further pointed out that PW5 deposed
that he only saw accused Brahma carrying the weapon and none else and as
per aforesaid post mortem reports, there was only one injury of gun and,
. thus, it is possible that only Brahma had committe.d the offence and none else
but the entire family has been implicated. Some fault was sought to be found D
in the preparation of the documents of investigation by the Police pointing
out !{lat the documents were prepared in pencil and that iri some documents
the first accused mentioned was Kishan Chand whereas in other documents ·
other accused was mentioned and on that basis investigation was challenged
as tainte.-:!.
E
Undoubtedly, the identification of the body, cause of death and recovery
of weapon with which injury may have been inflicted on the deceased are
some of the important factors to be established by the prosecution in an·
ordinary given case to bring home the charge of offence under Section 302
!PC. This, however, is not an inflexible rule. It cannot be held as a general F
and broad proposition 'of law that where these aspects are not established, it
would be fatal to the case of the prosecution and in all cases and eventualities,
it ought to result in the acquittal of those who may be charged with the
offence of murder. It would depend on the facts and circumstances of each
case. A charge of murder may stand established against an accused even in
absence of identification of body and cause of the d:oath. G

The present case falls under this latter category. We would assume in
favour of the accused persons that the prosecution had failed to conclusively
prove as to which was the body of deceased Ratan and which was that of
Ramesh.·" The trial court and the High Court, as earlier noticed, have' H
742 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A disbelieved PW3 Usha wife of Ratan. The theory of his identification from
muffler has not been accepted. It is also possible that the Police or the
complainant thinking that identification of the dead bodies would be one of
the important aspects to be established may have introduced the theory of
muffler. The mere fact that in this regard, the case of the prosecution is not
believed by itself does not lead to the conclusion that the accused persons are
B to be let off when the charges against them otherwise stand established on the
basis of the other reliable and trustworthy evidence. Every faulty investigation
or padding in evidence cannot by itself lead to total demolition of prosecution
case if it can otherwise stand ignoring these fallacies.

C Reverting to the present case, it has to be kept in view that it stands
fully established that Ramesh and Ratan and the accused persons were present
at the cremation ground on the date and the time alleged by the prosecution.
It has not been disputed and even otherwise stands established that Ratan and
Ramesh went with the dead body of Ishwar Chand to the cremation ground.
Roshan in his statement under Section 313 Cr.P.C. also does not dispute the
D presence of PW5 Baburam in the funeral procession of Ishwar Chand. Though
some attempt was made in the trial court to dispute the presence of Roshan
at the cremation ground by taking a plea that it was not customary for the
father to attend the cremation of his son but rightly no such attempt was
made before us. It stands fully established that Roshan and his sons-the
E accused persons and Dharamvir were all present at the cremation ground.
The factum of the murder of Ratan and Ramesh on the date and the time
alleged has also been established and has rightly not been challenged by the
defence. Their case, however, was that the two deceased were shot by some
unknown person. The occurrence took place in the broad daylight in the
presence of so many persons who had accompanied the dead body of lshwar
F Chand to the cremation ground. It also stands established that the two bodies
were recovered from the funeral pyre of Ishwar Chand after they had been
badly burnt for over two hours.

It was not and could not, under the circumstances of the case, be the
plea of anyone that all the three persons died together and were cremated
G together. The facts and circumstances do not suggest any such theory. Further,
even in case of all simultaneous cremations of persons dying together, separate
pyres are set up for individual dead bodies and not one for three persons
belonging to three families, i.e., one son of Roshan, another son of Sitaram
and another that of Moolchand. A great stress was laid by Mr. Malhotra that
H it could not be said as to which was the body of Ratan and which was that
LAKSHMI v. STATE OF U.P. [Y.K. SABHARWAL, J.] 743
>
of Ramesh and that it was not possible to identify the said bodies on the basis A
that one of them was of heavy built up. We would assume that it was so. The
assumption that bodies could not be identified, as contended, on the contextual
facts, would make no difference. Keeping in view the manner in which
Ratan and Ramesh were killed and put on the pyre of lshwar Chand, it would
hardly make any difference as to which out of them was the body of Ratan B
and which was that of Ramesh.

The reasons given above would equally apply to the absence of cause
of death. The bodies had been extensively burnt and for that reason, it could
not be ascertained whether the cause of death was shooting or burning. That
also explains non-recovery of the pallets which would have lost in the burning C
pyre. The fact that the investigating team was not vigilant and did not take
the trouble of searching pallets in the pyre would not be destructive of the
prosecution case when it has been otherwise proved. It is not open to the
accused persons to first make an attempt to destroy the evidence by throwing
the two in fire and then contending that they are entitled to be acquitted for
want of proof of identification of bodies and cause of death. There is D
unimpeachable evidence of PWI, PW2 and PW5 as to the manner in which
the accused persons shot Ratan and Ramesh and threw them in the burning
pyre of lshwar Chand. The FIR was recorded within about an hour and half
naming Roshan and his sons and brother-in-law of Ishwar Chand as accused
and also nc::citing the manner of committing the crime. Once we believe E
PW!, PW2 and PW5, the aspect whether one gun shot wound entry on the
body of Ramesh could be found while there was no exit entries or no gun
shot injury was found on the body of Ratan, would be of no importance. As
already stated, all this was a result of extensively burning of the bodies.

The accused persons were absconding and surrendered nearly three F
months after the commission of the crime. That explains the non-recovery
of the weapons which is of no effect on the case. There is also no substance
in the other minor points sought to be urged and noticed hereinbefore including
the point regarding the timing of taking of the bodies by the Constable for
post mortem or tl1e preparation of some of the documents by the Police in G
pencil and mentioning of name of some or the other as the first accused in
some documents or PWI not being the witness to inquest documents.
Regarding the contention that PW5 only saw Brahma carrying weapon and
none else, it has to be borne in mind that Brahma was carrying double barrel
gun whereas others were carrying revolver and country-made pistol which
obviously had to be in the pocket and not demonstrated outside. We are H
744 SUPREME COURT REPORTS (2002] SUPP. I S.C.R.

A unable to accept the contention that only Brahma may have committed the
offence and others were falsely implicated.

Now, dealing with the criminal appeal filed by Roshan (Criminal Appeal
No.620/2000) challenging his conviction under Section 201 IPC and criminal
appeals filed by the State (Criminal Appeal Nos.944-45/2000) challenging
B the acquittal by the High Court of Dharamvir of all the charges and of
Roshan of charge of murder, the factors that have prevailed with the High
Court for their acquittal are two (1) Absence of the name of Dharamvir in
the FIR; and (2) Not believing the prosecution case that Dharamvir and
Roshan caught hold of Ratan and then he was shot by Brahma and Lakshmi.
C The High Court has, however, found that there is definite and consistent
evidence that Roshan joined hands with other accused persons in throwing
Ratan and Ramesh on the funeral pyre. In respect of Dharamvir and Roshan,
the High Court has this to say :

"The name ofDharamveer was not indicated although the complainant
·-. D knew him thoroughly. The role of Dharamveer is only to the extent
of catching hold of Ratan. The other man who caught hold of Ratan
was Roshan. According to the initial story, these two persons
embraced Ratan from behind ('kauli bhar liya'). Sensing the difficulty
that two persons at the same time may not embrace a person from
behind, the story was changed to catching hold by each, by one hand
E
of Ratan. It was argued on behalf of the defence that when every
thing was pre-planned and when shooting was done from a very close
range, there was no necessity for any person to catch hold of Ratan.
It was argued on behalf of the State that Ratan was armed, it was
necessary to catch hold of him by his hands. The fact that Ratan was
F armed goes against the theory of catching hold, as Taran in that case
could have tried to free himself and to use his arms against the
persons catching hold of him. Moreover, when he was within the
range of fire, the story of catching hold from behind or even catching
hold by hand, does not appeal to reason. One of th~se persons who
caught hold was not named and his name had come only during
G
evidence. The story so far this aspect is concerned appears to be
doubtful."

As already stated, Roshan got benefit of doubt for the charge under
Section 302/149 but was convicted for offence under Section 201 IPC. The
H High Court said that :
LAKSHMI v. STATE OF U.P. [Y.K. SABHARWAL, J.] 745
.>

"The story of catching hold of Ratan by this Dharamveer and Roshan A
has been changed from the FIR stage to the trial stage and when
everything was settled according to the prosecution story, there was
no reason for catching hold of Ratan and the story is not only
contradictory at two different stages, it appears improbable also as
Ratan having an arm with him, does not offer any resistance, however, B
short the period might have been of that alleged confinement. There
is no other evidence of participation ofRoshan in the killing of Ramesh
and Ratan. Dharamveer, therefore, must be given the benefit of
doubt for all the charges against him while Roshan gets a benefit of
doubt so far the charge under section 302/149 as also under section
147 is concerned. There is, however, definite and consistent evidence C
that he had joined hands with the other accused persons in throwing
the dead bodies of Ratan and Ramesh on the funeral pyre. A plea
was taken by Roshan that customarily, in their religion, the father
does not attend the cremation of his son. The overwhelming evidence
regarding his presence and participation in disposing of the dead D
body/injured body of Ratan and Ramesh suggests falsehood of this
plea. Roshan although entitled for acquittal of charges under section
147 and 302/149 JPC may not escape the charge under section 201
IPC."

The evidence clearly demonstrates that none of the aforesaid two factors E
are justified. Firstly, in the FIR recorded on the statement of PWI Sitaram,
it is stated that Roshan and 'sala' (brother-in-law) of Jshwar Chand caught
hold of Ratan who was fired with rifle on the head by Brahma and by
country-made pistol by Lakshmi. Sitaram also states in the FIR that he can
recognize the brother-in-law of lshwar Chand on seeing him. It further
notices that all of them threw the dead bodies on the pyre of Ishwar Chand. F
In evidence, PW! has stated that he was perplexed and could not remember
., at that time the name of Dhararnvir. PW I has deposed that when Ratan
refused to handover his revolver to Brahma, Roshan caught hold of Ratan
from one side while Dharamvir took him in his grip from the other side and
within no time Brahma fired his gun on his head while Lakshmi opened fire G
from his revolver. Dealing with the catching of Ratan by Roshan and
Dharamvir, the trial court said :

"In this connection it was pointed out on behalf of defence that in
the report (Ext.Ka.I) (PW!) has stated that Roshan and the brother-
in-law of Ishwar Chand (Dharamvir) clasped (Koli Bharli) Ratan. But H
746 SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A now in his statement (PWI) said that Roshan caught him from one
side, while Dharamvir caught him from the other side. I think the
word "koli" also means taking in the grip. This difference of wordings
is immaterial. The fact is the same. So there is no difference or
contradiction in the statement of PWI or of any other witness on this
point. 'Koli Bharna' also means catching hold of the person from
B
both the sides. At the same point it may be pointed out that it was
argued on behalf of the defence that the theory of clapping or (Koli
Bhama) is most improbable and unnatural. The case of the prosecution
is that Roshan and Dharamvir caught hold of Ratan, while Brahma
and Lakshmi opened their fires on him. It was contended that this
C position is highly improbable, because there was every risk of causing
injury to Roshan and Dharamvir as well. In that position the accused
would not open fire on their own companions. In this connection .
1961 Criminal Law Journal page 396 was cited on behalf of the
defence. But in the instant case there was a reason for this clapping
-:
or catching hold of Ratan by Roshan and Dharamvir. It has come in
D evidence that Ratan was also armed with a revolver which was hanging
around his neck. In that position there was every possibility ofRatan's
opening fire on the accused in case he saw the accused aiming towards
him. In order to render Ratan unable to use his arm he was caught
hold of by Roshan and Dharamvir making him quite helpless to be
E used as a target of the fires of Brahma and Lakshmi. Moreover, to
avoid risk of injuries on the persons of Roshan and Dharamvir,
Lakshmi and Brahma fired their fire arms on Ratan by placing the
barrels of their fire arms on the very person of Ratan. Fixing by
putting the weapons on the head of Ratan itself shows that it was
precaution to avoid any injury to Roshan and Dharamvir who were
F controlling Ratan. So this was quite natural process in the
circumstances of the case. As there were other persons also including
the accused near Ratan and Ramesh, the latter were fired at them very
close. According to PWI the fires were shot instantaneously in a
short while. Ramesh was shot at the same moment by Shyam Sunder
G and Kishan Chand."

We have minutely examined the evidence. By no stretch of reasoning,
any fault could be found with the aforenoted finding of the trial court. By
adopting a wholly erroneous approach, the High Court held that the role of
bharamvir was only to the extent of catching hold of Ratan or for coming
H to the conclusion that there was no such need or that there was any change
LAKSHMI v. STATE OF U.P. [Y.K. SABHARWAL, J.] 747
of the story. Clearly, there is consistency right from the stage of recording A
of FIR as to the manner of commission of crime and upto the stage of
deposition by PWI corroborated by other eye-witnesses PW2 and PW5. From
the evidence, it is fully established that deceased Ratan had to be immobilized
as he was carrying in his neck his revolver; he was immobilized by catching
hold of by Roshan and Dharamvir which facilitated his shooting by Brahma B
and Lakshmi and Roshan and Dharamvir with others threw him on the pyre
of Ishwar. Roshan and Dharamvir had been charged for offence under Section
302/I 49 IPC. The prosecution has fully established its case against them as
well. We are unable to sustain the acquittal of Dharamvir of the charges
under Sections 302/149 and 201/149 IPC of which he was convicted and
consequently sentenced by the trial court. Similarly, we are also unable to C
sustain the acquittal of Roshan of charge under Section 302/l49 !PC.

In view of the aforesaid discussion, we dismiss the appeal (Criminal
Appeal No.620/2000) of Roshan Lal and also Criminal Appeal No.619/2000
of the other accused and allow the appeals of the State (Criminal Appeal
Nos.944-45 of 2000) and set aside the impugned judgment and order and D
restore that of the trial court holding Roshan and Dharamvir guilty as aforesaid
for offences under Section 302/149 IPC and Section 2011149 !PC and
consequently sentencing them as well. We restore the judgment and order
of the trial court in respect of Roshan and Dharamvir also and to that extent
allow the appeals of the State. In this view, Roshan and Dharamvir shall be E
taken into custody to undergo the remaining part of their sentences.

All the appeals are disposed of accordingly.

K.K.T. Appeals disposed of.

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