BADRU RAM & ORS.versusSTATE OF RAJASTHAN

                    [2015] 2 S.C.R. 678


                   BADRU RAM & ORS.                             A
                             v.
                 STATE OF RAJASTHAN

             (Criminal Appeal No. 806 of 2009)                  B

                   FEBRUARY 26, 2015.

     [SUDHANSU JYOTI MUKHOPADHAYA AND
              R.F. NARIMAN, JJ.]                                C

Penal Code, 1860 - s. 302 - Prosecution under - Ten
accused convicted by trial court - High Court acquitted six
of the accused and convicted the appellants-accused - On
appeal, held: conviction of appellants-accused was justified    o
- The evidence of two injured eye-witnesses is reliable - The
accused also cannot be acquitted on parity with the six
acquitted accused.

Motive -Absence -Affect of- Held: Mere absence of motive        E
does not bring lesser charge.

       Dismissing the appeal, the Court

       HELD: 1. The two injured eye witnesses i.e. PW3
and PW4 not only corroborated their respective F
accounts but were not shaken in cross-examination. It
is clear from a reading of the examination-in-chief as well
as the cross-examination that short of PW.3 not being
able to tell the Court as to how many injuries were G
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 Doctor PW.8 - testified that the deaths were homicidal H
                            678
679         SUPREME COURT REPORTS                [2015] 2 S.C.R.


 A in nature. PW. 7 ~nd the Investigating Officer deposed as
   to the recovery of the weapons that were used in the
   incident. [Paras 5 and 7] [683-H; 685-C-E]

   2. The appellants-accused also cannot be acquitted on
 B the Doctrine of parity. The reasons for acquittal of the
   six other accused by the High Court was only because
   they were not named by PW3 the injured eye-witness.
   The Doctrine of parity cannot replace the substantive
   evidence of the two injured eye-witnesses namely PW3
 C and PW4, who have been believed concurrently by the
   courts below. [Para 9] [687-8-D]

   3. It is not correct to say that this is a case which ought
   to be converted into a case of culpable homicide not
 D amounting to m~rder under Section 304 (Part-II) IPC on
   the ground that the incident might have occurred on
   sudden provocation, there being no reason or motive.
   The evidence of the two injured eye-witnesses is clear-
   this is not a case of sudden provocation and the mere
 E absence of motive does not bring home the lesser
   charge. [Para 1O] [686-E-F]

      CRIMINALAPPELLATE JURISDICTION : Criminal Appeal
      No. 806 of 2009
 F
      From the Judgment and Order dated 29.11.2007 of the High
      Court of Rajasthan at Jaipur in DBCRL No. 833 of 2006.

      Vidya DharGaur (A.C.), GS. Mani (A.C.) for the Appellants.
 G
      Shovan Mishra, Milind Kumar, George Thomas, Harsha Vinoy
      for the Respondent.

            The Judgment of the Court was delivered by

 H
   BADRU RAM & ORS. v. STATE OF RAJASTHAN                   680



        R. F. NARIMAN, J. 1. This is an appeal by four persons A
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 B
which took place on 11th November, 1999. 11 persons were
charge-sheeted, one of whom, Shiv Lal, died during trial. The
learned Additional Sessions Judge (Fast Track) No. 2
Jhunjhunu convicted the other 10 accused of the murder of C
Kamal Kumar and Om Prakash and sentenced all of them to
life imprisonment. In the judgment impugned in this appeal,
six persons were acquitted as they were not named. by the
star witness Radhey Shyam - PW.3 in the pancha bayan. 4
persons, namely, Badru Ram, Sita Ram, Ramavtar and              o
Lakshman were, however, found guilty by the High Court and
were sentenced under Section 302 IPC to life im"prisonment.

2. Heard Mr. Vidya Dhar Gaur and Mr. G.S. Mani, learned
Amicus Curiae for the appellants and Mr. Shovan Mishra,         E
learned counsel for the State.

3. The complainant Rad hey Shyam - PW.3, made a complaint
on 12th November, 1999 that he was one offour brothers, two
of whom were murdered in the incident which took place at       F
11.15 p.m. on the previous day, i.e., on 11th November, 1999.
In his evidence, he stated:

   "It was around 11.15 pm on 11th November 1999. We
   were four brothers, I Radhey Shyam was the eldest, Om
                                                                G
   Prakash was younger to me, Kamal Kumar was
   younger to Om Prakash and Matu Ram was the
   youngest. Bhagwana Ram is my elder Uncle. Bhagwana
   Ram has agricultural land and electric well near our
   Dhani. We have taken the land of Bhagwana for                H
681      SUPREME COURT REPORTS                     [2015) 2 S.C.R.


 A     cultivation on half-sharing basis. On the date of incident,
       at 11.15 pm I was sitting near the well and was looking
      after the electricity. We had sown gobhi (vegetable) in
      the field and my brothers Kamal Kumar and Om Prakash
      were watering the fields. From the side of Mandrella
 B     Road near the pyao, loud noises were heard. I came
      out and saw that my brothers Kamal and Om Prakash.
      were shouting "Bhai, hamare ko bachao. Hamare ko
       Badru Ram, uske ladke Shiv Lal, Sita Ram, Ramavtar,
      Lakshman, Shish Ram Mahesh aur unki aurate Nanchi,
 c
      Nanadi, Jamuna aur Lalita hume mar rahe hain. Aakar
      ke hame jaldi bachao." Then I started calling for Rakesh,
      Chaju Ram, Gopi Ram, Babu Lal, Ram Singh that "my
      brothers are being beaten. Come fast" and reached my
 D    brothers at the spot of incidence. On reaching there I
      saw that Badru had lathi in his hand, Shiv Lal had lathi
      in his hand, Sita Ram had lathi in his hand, Ramavtar
      had barchi-like axe in his hand, Lakshman had gandasi
      in his hand, Mahesh and Shish Ram had lathis in their
 E    hands and all the four women Nanchi, Nanadi, Yamuna,
      Lalita had lath is in their hands. All these were beating
      my brothers. Ramavtar and Lakshman were
      continuously hitting with barchi-like gandasi and axe. I
      said that "why are you beating them. Leave them." Shiv
 F    Lal, Badru Ram, Nanchi Devi, Sita Ram then left Kamal
      and Om Prakash and stated attacking me. I received
      several injuries on my head and my hand was broken.
      They also made several attacks to kill me. When my
      brother's son Rakesh came there to our rescue then
 G
      these persons started to hit him too. In the meantime,
      Gopi Ram, Chaju Ram, Babu Lal, Ram Singh reached
      the spot of incident. On seeing them, the accused
      persons left us and ran away. Then Gopi Lal, Babu Ram
 H    etc. brought the vehicle of Mahinder and took me, Om
       BADRU RAM & ORS. v. STATE OF RAJASTHAN                         682
                  [R. F. NARIMAN, J.]

       Prakash, Kamal and Rakesh to the B.D. Hospital in               A
       the jeep. My brothers Kamal Kumar and Om Prakash
       died on the way due to their injuries. I and Rakesh were
       admitted to the Khaitan Hospital, Jhunjhunu. Accused
       persons had beaten us on the Mandrella Road nearthe
       well and pyao. At about 2.30 am police came to B. D.            B
       Hospital, Jhunjhunu. My statement was recorded and
       the same is exhibit P-9. When the statement was read
       out to the witness he himself stated that this was the
       statement which he had given to the Police. Due to
       injuries caused during the incident, I was not in a position
                                                                       c
       to put my signatures therefore I put my thumb impression
       on my statement exhibit P-9 and also on the police
,      proceeding related documents I had put my thumb
       impression. My medical examination and X-ray was                D
       done. Police seized and sealed and marked my blood
       stained clothes one pant and one shjrt vide furd exhibit
       P-10 on which my thumb impression is at point 'X'.
       Accused wanted to grab the land of our uncle Bhagwana
       Ram and were unhappy with us. Therefore, they beat              E
       me and my brothers. I know the accused persons out of
       which Jamuna and Lalita are present in the Court. I also
       know the rest of the accused persons."

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

      "The incident happened on 11.11.99. It was 11.15 pm              G
      at night and I was studying at home. My father and
      uncles and my baba Radhey Shyam had gone to the
      well to water the field because the electricity used to
      come there at night. On hearing "Mar diya, bach~o
                                                                       H
683         SUPREME COURT REPORTS                  [2015] 2 S.C.R.


 A       bachao'; I ran towards the well. These cries of bachao,
         bachao were of Om Prakash, Kamal and Radhey
         Shyam and then I ran towards the well. When I ran and
         reached near pyao near Mandrella Road, I saw that
         Badru Ram, Badru Ram's sons - Shiv Lal, Sita Ram,
 8       Ramavtar, Lakshman, Mahesh, Shish Ram and their
         womenfolk Nanchi, Lalita, Jamuna were there. Among
         these persons, Ramavtar had barchi-like axe in his
         hand, Lakshman had gandasi in his hand, and all the
         accused had lathis in their hands. All the accused
 c       persons were assaulting my father Om Prakash, my
         uncles Kamal Kumar and Radhey Shyam with sharp
         weapons and lathis.

         I also shouted "Bachao, bachao" and that the accused
 D
         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
 E       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
 F       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
 G       hospital."

      5. These two injured eye witnesses not only corroborated their
      respective accounts but were not shaken in cross-examination.
      PW.3 - Radhey Shyam, stated in cross-examination:-
 H
                                                                      •

  BADRU RAM & ORS. v. STATE OF RAJASTHAN                        684
             [R. F. NARIMAN, J.]

  "I cannot tell as to how many injuries were received by        A
  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          B
  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
                                                                 c
  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."                                                     D
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
                                                                 E
  fell asleep and I do not know upto what time the police
  remained there. I woke up in the morning. I was awake
  till 2 am. My statement was recorded at 2 am and
  thereafter the police did not come to me. Yamuna was
                                                                  F
  married at Sikar. I do not know how as to many days
  prior to the incident she was !llarried. ·In the police
  statement exhibit D-3, I did not mention about studying
  at home, I do not know why police had written this. In
  exhibit D-3 I got it written that I had heard the noises       G
  coming from Mandrella Road pyao and then I reached
  there, I do not know why this is not written in the Polite
  statement exhibit D-3. I had stated about accused
  persons carrying different weapons, but I do not know
                                                                  H



                                                '
685         SUPREME COURT REPORTS                    [2015] 2 S.C.R.


 A       why this is not written in exhibit D-3. I had told about
         separate assaults on my father and uncles with sharp
         weapons, I do not know why this is not written in exhibit
         0"3. I had stated in exhibit D-3 about my making noises
         in which we had told about assault. It is wrong to state
 8       that I am deposing falsely because my uncle and father
         were injured. I did not see any injury on the accused
         persons in this incident. It is wrong to suggest that I am
         deposing falsely."

 C 7. It is clear from q reading of the examination-in-chief as well
   as the cross-examination that short of PW.3 not being able to
   tell the Court as to how many injuries were received by the
   deceased and with what weapons, the factum of their being
   beaten up by the persons who were named is not shaken. It is
 0
   obvious that in the night it is very difficult to make out who hit
   whOl\l 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 -
 E who testified that the deaths were homicidal in nature. PW. 7
   and the Investigating Officer deposed as to the recovery of the
   weapons that were used in the incident. The Investigating
   Officer PW.13 stated that according to the voluntary information
   of the accused Ramavtar one axe was seized and sealed.
 F 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
   gandasifrom the statement of accused Lakshman from a field
   where brinjals were planted. The same is with respect to the
 G lathi recovered at the instance of accused Sita Ram.

      8. The courts below have painstakingly gone through the
      evidence and have relied heavily upon the evidence of two
      injured eye witnesses and the Investigating Officer together
 H
    BADRU RAM & ORS. v. STATE OF RAJASTHAN                          686
               [R. F. NARIMAN, J.]

with the opinion of Dr. J.P. Bugaliya - PW.8 stating that the        A
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 B
six persons, on the Doctrine of parity the appellants before us
should also be acquitted. We find from the High Court judgment
that the reasons for acquittal of the six other accused is only
because they were not named by Rad hey Shyam in the Parcha ·
Bayan. The State is not in appeal before us on this finding of C
the High Court. The Doctrine of parity cannot replace the
substantive eviderice of the two injured eye-witnesses
mentioned above, who have been believed concurrently by the
courts below.
                                                                     D
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 304Part-ll IPC because according to
learned Amicus Curiae seeing the overall circumstances of            E
the case, the incident might have occurred on sudden
provocation, there being no reason or motive. This contention
has only to be stated to be rejected. The evidence of the two
injured eye-witnesses is clear - this is not a case of sudden        F
provocation and the mere absence of motive does not bring
home the lesser cha.rge.

 11. We find no infirmity in either of the judgments below and
·confirm them. The appearis, accordingly, dismissed.
                                                                     G
Kalpana K. Tripathy                             Appeal dismissed.




                                                                     H