BADRU RAM vs. STATE OF RAJASTHAN

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.806 OF 2009 BADRU RAM & ORS. …APPELLANTS VERSUS STATE OF RAJASTHAN …RESPONDENT J U D G M E N T R.F.Nariman, J. JUDGMENT 1. This is an appeal by four persons who have been convicted and sentenced under Section 302 read with 149 IPC, each of whom are to suffer life imprisonment and fine of Rs.500/- together with various other lesser offences all of which were ordered to run concurrently. Two persons Kamal Kumar and Om Prakash lost their lives in an incident which took place th on 11 November, 1999. 11 persons were charge-sheeted, 1 Page 1 one of whom, Shiv Lal, died during trial. The learned Additional Sessions Judge (Fast Track) No. 2 Jhunjhunu convicted the other 10 accused of the murder of Kamal Kumar and Om

judgment impugned in this appeal, six persons were acquitted as they were not named by the star witness Radhey Shyam – PW.3 in the pancha bayan. 4 persons, namely, Badru Ram, Sita Ram, Ramavtar and Lakshman were, however, found guilty by the High Court and were sentenced under Section 302 IPC to life imprisonment. 2. Heard Mr. Vidya Dhar Gaur and Mr. G.S. Mani, learned Amicus Curiae for the appellants and Mr. Shovan Mishra, learned counsel for the State. JUDGMENT 3. The complainant Radhey Shyam – PW.3, made a th complaint on 12 November, 1999 that he was one of four brothers, two of whom were murdered in the incident which th took place at 11.15 p.m. on the previous day, i.e., on 11 November, 1999. In his evidence, he stated: 2 Page 2

JUDGMENT 3 Page 3

JUDGMENT 4. Similarly, Rakesh – PW.4, Radhey Shyam’s nephew and the son of the deceased Om Prakash who was the second injured eye witness also deposed, corroborating the statement of his uncle – PW.3. His statement is as follows:- 4 Page 4

I also shouted “ Bachao, bachao” and that the accused persons are assaulting and beating my father and uncles etc. On hearing my cries, Chaju Ram, Babu Lal, Sam Singh, Chandgi Ram and Gopi Ram came running. When I cried bachao bachao, all the accused persons started beating me too. All the above persons who came running on hearing my cries rescued us and the accused persons left us and went away. After that I, Radhey Shyam, Kamal and Om Prakash were taken in a jeep to the hospital. Kamal and Om Prakash died on the way as a result of the injuries. I and Radhey Shyam were admitted in the hospital. I know the assaulters among whom Lalita and Yamuna are present today in the Court and I know rest of the accused too. My medical examination and X-ray was done in the Jhunjhunu hospital.” JUDGMENT 5 Page 5 5. These two injured eye witnesses not only corroborated

examination:- “I cannot tell as to how many injuries were received by Kamal before I reached there and also cannot tell how many injuries were received by Om Prakash but both these persons were beaten up because I did not see as to who was beaten up with what weapons. Therefore I cannot say how many injuries were caused with barchi and axe. When I reached there fight was going on. I did not see the time and I cannot tell for how long the fight went on. I did not see the blood lying on the land. I do not know whether there was blood on the jeep or not. All the accused persons assaulted Rakesh and I cannot tell which accused caused how many injuries. It is wrong to suggest that I was not present on the spot and therefore I am not able to tell about the different injuries.” JUDGMENT 6. Similarly, PW.4 – Rakesh Kumar, stated in cross- examination:- “We reached the hospital at around 1.30 am. Police came to the hospital at around 2 am. After sometime I fell asleep and I do not know upto what time the police remained there. I woke up in the morning. I was awake till 2 am. My statement was recorded at 2 am and thereafter the police did not 6 Page 6

7. It is clear from a reading of the examination-in-chief as well as the cross-examination that short of PW.3 not being able JUDGMENT to tell the Court as to how many injuries were received by the deceased and with what weapons, the factum of their being beaten up by the persons who were named is not shaken. It is obvious that in the night it is very difficult to make out who hit whom and with what. The learned Additional Sessions Judge painstakingly went through the evidence of all 14 witnesses including the two injured eye witnesses and the Doctor PW.8 - 7 Page 7 who testified that the deaths were homicidal in nature. PW.7 and the Investigating Officer deposed as to the recovery of the weapons that were used in the incident. The Investigating

of the accused Ramavtar one axe was seized and sealed. Similarly, lathis were recovered from the others – from Badru Ram which was recovered from water behind his house, from Shiv Lal from plants and bushes behind his house and a gandasi from the statement of accused Lakshman from a field where brinjals were planted. The same is with respect to the lathi recovered at the instance of accused Sita Ram. 8. The courts below have painstakingly gone through the evidence and have relied heavily upon the evidence of two JUDGMENT injured eye witnesses and the Investigating Officer together with the opinion of Dr. J.P. Bugaliya – PW.8 stating that the cause of death was coma as a result of injury to the brain and shock due to internal and external hemorrhage. 9. Learned Amicus Curiae appearing on behalf of the appellants have argued that since the High Court has acquitted six persons, on the Doctrine of parity the appellants before us 8 Page 8 should also be acquitted. We find from the High Court judgment that the reasons for acquittal of the six other accused is only because they were not named by Radhey Shyam in the Parcha

the High Court. The Doctrine of parity cannot replace the substantive evidence of the two injured eye-witnesses mentioned above, who have been believed concurrently by the courts below. 10. The further argument by the learned Amicus Curiae on behalf of the appellants is that this is a case which ought to be converted into a case of culpable homicide not amounting to murder under Section 304 Part-II IPC because according to learned Amicus Curiae seeing the overall circumstances of the JUDGMENT case, the incident might have occurred on sudden provocation, there being no reason or motive. This contention has only to be stated to be rejected. The evidence of the two injured eye- witnesses is clear – this is not a case of sudden provocation and the mere absence of motive does not bring home the lesser charge. 9 Page 9 11. We find no infirmity in either of the judgments below and confirm them. The appeal is, accordingly, dismissed.

….…..…..………………………...J. (R.F. Nariman) New Delhi, February 26, 2015. JUDGMENT 10 Page 10