Supreme Court of India

SURESH CHANDRA BAHRI ETC. ETC.versusSTATE OF BIHAR

Citation: 1994 INSC 246
Decided: 13 July 1994
Disposal: Dismissed
Bench: A S ANANDFAIZAN UDDIN

Holding

The Court held that the approver's evidence, fully corroborated by material particulars, was reliable, the mandatory provisions of Section 306(4) were satisfied, and the conspiracy was proved by agreement alone, thereby upholding the convictions and modifying the sentences as stated.

Summary

The Supreme Court examined the murder of Urshia Bahri and her two children, for which Suresh Chandra Bahri, Gurbachan Singh and Raj Pal Sharma were convicted under Sections 302, 120B and 201 of the IPC. The prosecution relied on the testimony of an approver, Ram Sagar Vishwakarma, whose statement was found trustworthy and corroborated by circumstantial and forensic evidence, including recovered body parts and forensic reports. The Court held that criminal conspiracy is established by an agreement to commit the crime, without the need for each conspirator to perform an overt act. It ruled that mandatory provisions of Section 306(4) of the CrPC were complied with, and the release of the approver on bail did not vitiate the trial. Applying the "rarest of rare" doctrine, the Court affirmed the death sentence for Suresh Bahri, but commuted the death sentences of Gurbachan Singh and Raj Pal Sharma to life imprisonment, while upholding their convictions for murder and conspiracy.

Issues considered

The admissibility and credibility of the approver's testimony under Sections 27, 133 and illustration (b) of Section 114 of the Indian Evidence Act
Whether the mandatory provisions of Section 306(4)(a) and (b) of the CrPC were complied with and if any non‑compliance vitiated the trial
The requirement of overt acts for conviction under Section 120A/120B of the IPC
The applicability of the "rarest of rare" doctrine in sentencing for murder
The necessity of a test identification parade for the identification of the accused

Legislation cited

Code of Criminal Procedure, 1973s. 306(4)(a), s. 306(4)(b), s. 313, s. 354(3)
Indian Evidence Act, 1872s. 114, s. 133, s. 27
Indian Penal Code, 1860s. 120A, s. 120B, s. 201, s. 302

Subjects

murdercriminal conspiracyapprover testimonycircumstantial evidencedeath penaltyrarest of rare doctrineSection 306 CrPCIndian Evidence ActSection 120B IPC

Judgment

SURESH CHANDRA BAHRI ETC. ETC. A
v.
STATE OF BIHAR

JULY 13, 1994

(DR. A.S. ANAND AND FAIZAN UDDIN, JJ.] B

Indian Penal Code 1860, Ss.302, 201 r/w 120A-Husband and two
accomplices conspiring and committing murder of wife and two children--
Evidence of approver trustworthy and co"oborated in material particulars by
circumstantial and expert evidence-Held, proved beyond reasonable doubt C
that husband who master minded plan and co-accused hatched conspiracy
and in pursuance thereof committed murder and made efforts to screen the
offence
Indian Penal Code, S.120A-Criminal conspiracy-Husband and two
accomplices conspiring and killing wife and two children-Held, essential D
ingredient is agreement between conspirators to commit crime; not necessary
that each party to conspiracy must do some overt act.

Code of Criminal Procedure, 1973, S.306(4) (a )-Approver granted par-
don by CJM without recording statement-<:ase committed to Trial
Court-Thereafter records sent back to CJM for recording statement of ap- E
prover-Whether provision mandatory and whether failure to comply vitiates
the trial-Held, provision mandatory but on facts trial not vitiaied.

Code of Criminal Procedure, 1973, S.306(4)(b)-Approver in custody
at time of pardon-Later released on bail by High Court even before con- p
clusion of trial-Whether mandatory provision violated-Held, no; release of
approver on bail in the circumstances not illegal.

Code of Criminal Procedure, 1973, S.313--lncriminating circumstances
not put to the accused during examination-Held, does not vitiate trial unless
real prejudice caused to the accused. G
Indian Evidence Act, 1872, S27-Discovery of incriminating articles
pursuant to confessional statement of accused-Held, in the instant case
disclosure statement true and worthy of credence.

Indian Evidence Ac~ 1872, Ss.114 Illustration (b), S.133-Conviction H
483
484 SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.

A for offence of murder on basis of approver evidenc~vidence on broad and
material particulars scrutinised-Held, approver's evidence trustworthy and
corroborated in material particular,· deserves credence.

Criminal trial-Sentencing-Death sentence-Accused killing wife in
extremely brutal gruesome diabolical and dastardly manner-Body truncated
B into two parts in devilish style evincing total depravity to gain control over
property-Further killing two chUdren in cold blooded manner making them
believe about being taken on a pleasure tri~odies thrown into river after
infliction of severe injuries-Held, rarest of rare case with no mitigating
circumstances; death sentence justified-Code of Criminal Procedure 1973,
C S.354(3).
Criminal trial-Sentencing-Co-accused assisting main accused in kill-
ings but no evidence about part played and manner in which he acted in the
killings-Held, extreme penalty not warranted,· death sentence commuted to
life imprisonment-Code of Criminal Procedure 1973, S.354(3).
D
Criminal trial-Circumstantial evidence-Facts and circumstances
must be established beyond reasonable doubt-Should not only be consistent
with guilt of accused but must be entirely incompatible with innocence of
accused.

E Criminal trial-Corpus delec(;-{)iscovery of skull of deceased long
after occurrence-Identity established through forensic methods-Held, even
where dead body not recovered offence of murder could be established if there
is positive evidence to connect culprit.

Criminal trial-Test identification parade-Accused seen by witnesses
F in court without previous identification parade-Held, witnesses had seen
accused continuously for several days and recognised him before they made
their statements in Court; test identification parade not necessary-Indian
Evidence Act, 1872, S.9.

G Constitution of India, Article 13&-Trial Court and High Court after
giving concurrent finding of guilt of accused-Held, finding fully supported by
evidence on record; does not call for inteiference.

Accused SB was married to deceased U and bad two children R and
S. The relations between SB and U were strained and difference arose
H between them over a house at Ranchi which U wanted to dispose of with a
-~

S.C BAHRI v. STATE OF BIHAR 485

view to use the proceeds to migrate along with her children to America, A
where her parents lived. Accused SB not liking this, hatched a conspiracy
with the two co- accused RPS and GS to eliminate U and the two children.

On October 11, 1983 SB and RPS murdered U in SB's house at
Ranchi and served her head from the body. With the help of GS and his
assistant RSV who later turned approver, the headless body was wrapped B
in a blanket and dumped in a septic tank in the compound of the house.
SB and RPS later threw the head under a bush in the forest on the Ranchi
Patrautu Road. Later in January 1984 GS took the body out of the septic
tank carried it in a lorry and threw it in a dumping pit known as
Madhukam dump. SB then wrote two letters on October 29 and November C
3 to U's parents falsely_ stating that U was extremely busy at his Dhulli
farm house and that henceforth would not be able to writ letters to theni.

SB withdrew the two children R and S from the school at Delhi
Where they were studying. Later SB with RPS and the children left Delhi
by car and reached SB's Dhulli farm house near Ranchi on December 16, D
1983. SB and RPS committed the murder of R aud S in the intervening
night of December 16 and 17, took the bodies by car to Varansl and threw
them in the Varona river. While S's body was later discovered on December
20 the body of R was swept away never to be recovered.
E
U's parents suspecting foulplay asked their son B working at Libya
to go to India and make enquiries about U and the children. After making
frantic enquiries at Ranchi, Dhulli and Delhi B came to know the facts
leading to the murders and lodged FIRs at both Ranchi and Delhi. The
CBI took over the investigation of the case. On interrogating GS he made
a disclosure about throwing U's body in the Madhukam dump from where F
a blanket, piece of saree and rope were recovered. SB who bad gone into
hiding and was staying in different places including Nepal, was arre.ted
in Delhi on July 31, 1984. RPS who was arrested on August 8 made a
disclosure statement leading to the recovery U's skull, hair and jaw.

RSV who was arrested on December 3 made a confessional statement G
before the judicial Magistrate under S. 164 Cr. P.C. on December 19, 1984.
Thereafter on an application by RSV, the CJM accepted him as approver
and granted him pardon on January 9, 1985. RSV's statement as approver
was recorded on January 30, 1986 and he was granted bail by the High
Court on January 13, 1987. H
486 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A The Trial Court found SB, RPS and GS guilty of the offence causing
the murder of U,R and S and of criminal conspiracy to commit the
murders and sentenced each of them to death. The High Court, on refer-
ence confirmed. SB, RPS and GS appealed to this Court.

It was contended that no question relation to motive having been put
B to the Appellants while recording their statements under S.313 Cr.P.C., no
motive could be attributed to them. Further, the approver was not ex·
amined as a witness by the Magistrate at the stage of grant of pardon but
only later afier the matter was remitted to the committal Magistrate.
Further, in contravention of S.306(4)(b) which was mandatory, the ap·
C prover was released on bail even before the conclusion of the trial. The
approver's statement under S.164 Cr. P.C. was not voluntary and his
evidence, in the absence of corroboration of material particulars could not
form the basis of the convictions. The recovery of the blanket, piece of saree
and rope at the instance of appellant GS was not, in the absence of any
-
D disclosure statement, valid in law. Without there being any previous iden·
tification parade, the identification of RPS in the dock for the first lime
by witnesses was of no evidentiary value. There was no direct evidence
against the appellants for their involvement in the conspiracy and no
factual evidence of the actual participation of GS in tl1e crime. Finally it
was contended that the facts ahd circumstances did not warrant the
E extreme penalty of death sentence.

Dismissing the appeal of SB and partly allowing the appeals of RPS
and GS, this Court

F HELD : 1.1. On an overall independent consideration of the cir-
cumstantial and expert evidence as well as the evidence of the approver
adduced by the prosecution it is abundantly clear and satisfactorily estab-
lished that the evidence of the approver has received requisite corrobora-
tion on all material particulars and the totality of the surronnding
circumstances, antecedents and subsequent conduct amongst other factors
G established against the three appellants prove beyond all reasonable doubt
that at the instance of SB who masterminded the plan, the other two
appellants conjointly hatched a conspiracy to commit the murder of U and
that in prosecution of the common intention SB and RPS did commit the
murder ofU. Not only this but all the three appellants with a view to screen
H themselves from the commission of the offence made all out efforts for the
S.C. BAHRI v. STATE OF BIHAR 487

disappearance of the dead body of U. [534-C, DJ A
1.2. The totality of the circumstances complete the chain which lead
to the only irresistible conclusion that the appellants hatched the con-
spiracy to commit the murder of the two children and in prosecution of
their said plan executed it at Dhulli farm. [552-C)
B
2.1. 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 C
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 I.P.C.,
then in that event mere proof of an agreement between the accused for
commission or such a crime alone is enough to bring about a conviction
under Section 120-B and the proof of any oven act by the accused or by D
any one of them would not be necessary. The provisions in such a situation
do not require that each and every person who is party to the conspiracy
must do some oven act towards the fulfilment of the object or conspiracy,
the essential ingredient being an agreement between the conspirators to
commit the crime and if these requirements and ingredients are estab- E
lished the act would fall within the trapping of the provisions contained
Section 120- B since from its very nature a conspiracy must be conceived
and batched In complete secrecy, because otherwise the whole purpose may
frustrate and it is common experience and goes without saying that only
in very rare cases one may come across direct evidence or a criminal
conspiracy to commit any crime and in most of the cases it is only the F
circumstantial evidence which is available from which· an inference giving
rise to the conclusion of an agreement between two or more persons to
commit offence may be legitimately drawn. [552-H, 553-A to DJ

N.M.M. Y. Momin v. State of Maharashtra, AIR (1971) SC 885 and G
State (Delhi Admn.) v. V.C.Shukla, AIR (1980) SC 1382, referred to.

2.2. The facts and circumstances fully establish the offence under
Section 302/120-B of the Penal Code against the appellants GS and RPS
also and there Is hardly anything deserving interference with the view
taken by the two cout1s below after a· detailed and elaborate discussion of H
488 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A the evidence and material on record. The conclusions recorded by the two
courts below as well as the convictions of the appellants under Section 302,
302/120-B and 201 of the Penal Code are confirmed. [555-D, El

3.1. The examination of accomplice or an approver after accepting
the tender of pardon as a witness in the Court of the Magistrate taking
B cognizance of the offence is• a mandatory provision and cannot be dis·
pensed with and if this mandatory provisions is not complied with it
vitiates the trial. [508-C]

'3.2. Breach of the provisions contained in clause (a) of Sub-section
(4) of Section 306 is of a mandatory nature and not merely directory and,
c therefore, non-compliance of the same would render committal order
illegal. (508-E]

3.3. On remand by the Additional Judicial Commissioner the learned
Magistrate examined the approver as a witness on 31.1.86 and then again
D committed the case for trial to the Court of Additional Commissioner.
Thus in any case the provisions of clause (a) of sub-section (4) of Section
306 were ultimately complied with. No prejudice much less any disad·
vantage was caused to any of the accused. (509-F, G]

Kalu Khoda v. State, AIR (1962) Gujarat 283 F.B.; Re Ramaswamy,
E (1976) Cr. LJ. 770 Madras and V. Vijayaraj v. State, (1986) Cr\ LJ. 2104
A.P., discussed. ·

4.1. Even though the approver was not granted any bail by the
committal Magistrate or by the trial Judge yet his released by the High
Court would not in any way affect the validity of the pardon granted to the
F approver. [511·F]

4.2. The dominant objective of requiring an approver to be detained
in custody till the conclusion of the trial is not intended to punish the
approver for having come forward to give evidence but to protect him from
G possible indignation, rage and resentment of his associates in a crime as
well as with a view to prevent him from the temptation of saving his
one-time friends after he is granted pardon and released from custody.
, The provisions are based on statutory principles of public policy and
' public interest. (511-C, DJ

H 5.1. In the event of any inadvertent omission on the part of the Court
S.C. BAHRI v. STATE OF BIHAR 489

to question the accused on any incriminating circumstance appearing A
against him the same cannot ipso facto vitiate the trial unless it is shown
that some prejudice was caused to him. [504-H, 505-A]

Bijoy Chandra v. State of West Bengal, (1952) Criminal Law Journal
644 SC and Rama Shankar v. State of West Bengal, AIR (1962) SC 1239 B
para 14, referred to.

5.2. No such point was raised and no such objection seems to have
been advanced either before the Trial Court or the High Court. Appellant
being unable to show what in fact was the real prejudice caused by the
omission, it cannot be said that any prejudice was caused. [505-C] C

6.1. The confessional statement of the disclosure made by the appel-
lant GS is confirmed by the recovery of the incriminating articles 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. [532-F]
D
6.2. The provisions of Section 27 of the Evidence Act are based on
the view that if a fact is actually discovered in consequence of information
given some guarantee is afforded thereby that the information was true
and consequently the said information can safely be allowed to be given in
evidence because if such an information is further fortified and confirmed
by the discovery of articles or the instrument of crime and which leads to E
the belief that the information about the confession made as to the articles
of crime cannot be false. [532-D, E]

- Nari Santa v. Emperor, AIR-(1945) Patna 161 and Abdul Sattar v.
Union Territory, AIR (1986) SC 1438, distinguished.
F
7.1. Though a conviction can be based on uncorroborated evidence
of an accomplice but as a rule of prudence it is unsafe to place reliance on
the uncorroborated testimony of a approver as required by illustration (b)
Section 114 of the Evidence Act. [517-H]
G
Bhiva v. State of Maharashtra, AIR (1963) SC 599; Ram Narayan v.
State of Rajsthan, [1973] 3 SCC 805 and Ravinder Singh v. State of Haryana,
AIR (1975) SC 856, referred to.

7.2. The testimony of the approver remained consistent except for
minor and insignificant contradictions and omissions which are bound to H
490 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A occur in the statement of anyone. (p.59) The evidence of the approver has
received requisite corroboration on all material particulars. [523-A, 516-E)

73. The confession of the approver is free from all infirmities and
conforms to the requirements of S.164. [513-C]

B 8.1. As far as SB is concerned, the rule of rarest of rare cases has to
applied. There could be no other proper and adequate sentence except the
sentence of death as there are no mitigating circumstances whatsoever. The
murder of U was committed in an extremely hrntal, gruesome, diabolical,
revolting and dastardly manner so as to arouse intense and extreme lndig·
C nation of the society. The victim was subjected to inhuman acts of torture
and cruelty while causing her murder as her body was truncated Into two
parts in a devilish style evincing total depravity simply to gain control over
property. Having not been satisfied with the killing of his wife SB was
further determinated to kill his Innocent children at Dhulll farm making
them believe that they were being taken on a pleasure trip to the farm and
..
D after they were done to death by Inflicting severe injuries on the neck and
other parts of the body threw their dead bodies in the Varona river having
no consideration for human life and that too for bis own Resh and blood.
The cold blooded cruel murder of the innocent children by none else but
their own real father shows the enormous proportion with which it was
E committed eliminating almost all members of the family.
[560-B, 559-E, F, GI
H.2. Appellant GS does not deserve the extreme penalty of death but
· the adequate sentence for the part he played would be life sentence. Al-
though GS was an active member of the party who hatched the conspiracy
to kill U, he was not party to her actual murder. Similarly though be
F rendered assistance in sending the cots and chairs to Dbulli farm and
sharpening the dagger and batalies for the murder of the two children be
was not in fact present at Dhulli farm when the two children were done to
death. [560-H, 561-A, 560-G]

G 83. It would not be proper to inflict the extreme penalty of death to
RPS also but in the facts and circumstances of the case the sentence of life
imprisonment will be just and proper sentence. [561-D]

Bachan Singh v. State of Punjab, [1980] 2 SCC 684; Machhi Singh v.
S1'1f•' of Punjab, AIR (1983) SC 597 and Dhananjoy Chatterjee@ Dhana v.
H Swtc of West Bengal, JT (1994) 1 SC 33, followed.
S.C. BAHRI v. STAIB OF BIHAR 491

9. In a case or murder in which the evidence that is available is only A
circumstantial in nature then in that event the racts and circumstances
from which the conclusion or guilt is required to be drawn by the prosecu·
tion must be folly established beyond all reasonable doubt and the racts
and circumstances so established should not only be consistent with the
guilt or the accused but they also must entirely be incompatible with the
innocence or the accused and must exclude every reasonable hypothesis
B
consistent with bis innocence. [514-B, CJ

10: It could not be accepted that the prosecution has railed to estab·
lish that the skull which was recovered at the instance or RPS did not belong
to U. Most often and in certain cases even the dead body or the deceased C
person is not recovered or seized but irthere Is positive evidence to connect
the culprit, it cannot be said that the offence or murder is not established.
. [529-F, E]
11. Test identification parade was not necessary at all as the wit·
nesses bad seen the appellant RPS continuously ror several days and they D
had the opportunity or knowing and recognising him since before they had
made their statement in the Court. [542-H]

Kannan v. State of Kera/a, [1979] 3 SCC 319 and Mohan/a/ Ganga
Ram Gehani, [1982) 1 SCC 700, distinguished.
E
12. Since after going through the evidence and material on record the
racts and circumstances established by the Trial Court as well as by the
High Court are well founded and rully supportable by evidence on record,
the same do not call for interlerence by the Supceme Court under Article
136. Ordinarily the Supreme Court does not review and reappraise t.he
evidence under Article 136 or the Constitution. [541-A] F
CRIMINAL APPELLATE JURISDICTION : Criminal appeal No.
329 of 1992 etc. etc.

From the Judgment and Order dated 16.12.91 of. the Patna High
Court in Cr!. A. No. 152/90 (R). G
Sushi! Kumar, K.B. Sinha, Ashok Kumar Sharma and J.P. Sharma
for the Appellants.

A. Raghubir, Tara Chand Sharma, Ms. Neelam Sharma, B.B. Singh
and P. Parmeshwaran for the Respondent/State/C.B.I. H
492 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A The following judgment of the Court was delivered by

FAIZAN UDDIN, J.

1. In Sessions Trial No. 77/85 the appellants Suresh Bahri and Raj
Pal Sharma were convicted under Section 302 of the Penal Code for
B causing murder of Urshia Bahri and her two children, namely, Richa Bahri
and Saurabh Bahri. All the three appellants, Suresh Chandra Bahri, Gur-
bachan Singh and Raj Pal Sharma were also convicted under Section
302/120-B of the Penal Code for the offence of criminal conspiracy to
commit murder of Urshia Bahri and her twQ children named above. The
C appellal/ts Suresh Chandra Bahri and Raj Pal Sharma Were further con-
victed under Section 201 of Penal Code for causing dis-appearance of
evidence of murder of Saurabh Bahri and the appellants Suresh Chandra
Bahri. Gurbachan Singh and Raj Pal Sharma were also convicted under
Section 201 of the Penal Code for causing disappearance of evidence of
murder of Urshia Bahri by the Additional Judicial Commissioner, Ranchi
D by judgment dated 27.7.90 who awarded the sentence of death for the
offences under Section 302 and 302/120- B of the Penal Code and Rigorous
lmprisor.ment to all the three appellants for a period of seven years' for
the offec ce 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
E death and at the same time the three appellants also preferred separate
criminal appeals No. 142, 143 and 152 of 1990 challenging their convictions
under Sections 302/120-B and 201 of the !PC. The High Court of Patna
(Ranchi Bench) dismissed the three appeals preferred by the three appel-
lants affirming the sentences awarded to them and accepted the death
reference by judgment dated 16.12.91 against which these three appeals by
F 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
G appellants three other accused, namely, Y.D. Arya, the maternal uncle of
the appellant Suresh Bahri, Smt. Santosh Bahri the mother of the appellant
Suresh Bahri and one Mohd. Suhail, Truck driver, were also charged and
tried as co-accused for the offences punishable under Sections 302/120-B
and 201 of the Penal Code, but they were acquitted by the learned Trial
Judge giving them benefit of doubt. No appeals against their acquittal are
H preferred.
S.C. BAHRI v. STATE OF B!HAR [FAIZAN U!JIJIN. J.j 493

3. Admittedly, al the relevant time the appellant Sur"h Chandra A
Bahri (hereinafter referred to as Surcsh Bahri) resided along \Vith hi-.
deceased wife Urshia Bahri, at south Ranchi, House No. 936 on the Station
Road within the jurisdiction ol Chutia Police Station. He also had a farm
and house attached thereto at Du!li, a place situated at a distance of about
40 kilometers from Ranchi, towards Khelari within the jurisdiction of
Police Station Khelari, District Ranchi. Surcsh Bahri was married to the B
deceased Urisha Bahri in 1971 and out of their wed-lock deceased Kumari
·I
Richa Bahri and Saurabh Bahri were born. Kumari Richa Bahri was a
student of class VI in Father Aqnel School, New Delhi in the year 1983,
while Saurabh Bahri was a student of class IV in the same school. The
acquitted accused Smt. Santosh Bahri is the mother of Suresh and the C
acquitted accused Y.D. Arya is the maternal uncle of appellant Suresh
Bahri and real brother of Smt. Santosh Bahri. There is no dispute that the
parents of deceased Urshia Bahri were living in America having settled
down there and the first informant of the incident Bineet Singh Sarang,
PW 69 the brother of the deceased Urshia Bahri was employed as an
Engineer in Libya. The deceased Urshia used to write letters from time to D
time to her parents in America and also used to talk to them on telephone.

4. This case has a chequered story and the prosecution case unfolds
a pathetic chilling and sinister phenomenon whereby the three innocent
lives who were the heirs of the properties of appellant Suresh Bahri, were E
eliminated from this worldly scene and consigned to their heavenly abode
by putting an untimely end to their innocent lives simply in a bid to avoid
interference and intermeddling in the property belonging to the appellant
Suresh Bahri and thwart the accomplishment and foil the wishes of Urshia
from migrating to America with her children with the sale proceeds of
Ranchi house and settle down at America. F

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 G
they received two letters in America from the appellant Suresh Bahri, one
dated 29.10.83 and another dated 3.11.83 which are marked Ext. 23/6 and
23/7, intimating them that henceforth his wife Urshia will not be in a
position to address 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 s•rious suspicion in the mind of the parents of deceased H
SUPRFME ('(JlJRT RFl'OltTS jl'!94J SUPP. I S.C.R.

A Ur.'hia and they suspected sonic foul pl<Jy. Consequently. the parents of
Ur~hia directed their son Bineet Singh Sarang. PW 69 \\'Orking in Libya
lo proceed lo India v.:ith a \·ie\v to find out the \Vclfare and whereabouts
of LI rshia and her children.

6. Further prosecution case is that acting on the ad\ice of his parents
B Binect Singh Sarang, (hereinafter referred to as Bineet) landed in India on
Iti.1.84 and reached to the house of his brother-in-law, the appellant Suresh
al Delhi. But to his uttar surprise he found the house locked. Bineet was
informed by some of the tenants living in the first floor of the house that
the acquitted accused Sml. Santosh Bahri the mother of appellant Suresh
c would be coming to Delhi on 21.1.~4. Finding no one in Delhi house Bineet
visiting the business premises of the appellant Suresh at Bajaj House,
Nehru Place, New Delhi, where he met one Dhar, an employee of appellant
Suresh who informed Bineet that the appellant Suresh was at Ranchi. In
the mean-while Smt. Santosh, mother of appellant Suresh returned to Delhi
and when Bineet met her and enquired about the whereabouts of his sister
D and her children, she informed him that they had gone to Rarichi. Bineet,
therefore, rushed to Ranchi on 25.1.84 where he met the appellant Gur-
bachan Singh Proprietor of Sir.gh Furniture Works, Main Road. Ranchi as
telephone number of Gurbachan Singh was found recorded in the records
kept in the business premises of appellant Suresh at Delhi as his contact
address of Ranchi. Bineet enquired from the appellant Gurbachan Singh
E the whereabouts of his sister and her children. Gurbachan Singh took
Bineet to the farm house of appellant Suresh at Dhulli but there they found
neither Urshia Bahri nor her children, namely, Richa and Saurabh nor the
appellant Suresh. However, at Dhulli farm Bineet. PW 69, w_as informed
by Gopi Mistry, (PW 29) the Caretaker of the farm-house of appellant
F Suresh that he had not seen Urshia for the last about 5-6 months and
further he disclosed that the appellant Suresh had visited Dhulli farm in
mid December along with his two children and one unknown person and
that during that period the appellant Gurbachan Singh had also 'isited the
said farn1.

G 7. When Bineet did not find the appellant Suresh, his sister Urshia
and her children at Dhulli farm also he again came back to Station Road
Ranchi House No. 936 of the appellant Suresh but again he did not find
any one there. He, however, met one Murari, PW 1. the next door neigh-
bour of House No. 936 of appellant Suresh situated at the Station Road,
H Ranchi, who used to keep the keys of the house of accused/appellant
S.C. BAHRI v. STATE OFBll!AR [fAlZAN UDDIN,J.] 4•J)

Suresh. On enquiry by the informant Bineet, Murari, PW l told him that A
he had seen Urshia at the house of appellant Suresh Bahri on 11.10.83 but
the children of Urshia Bahri had not come to the Ranchi house. The
witness Murari, PWl, further told him that in the morning of 12.10.83 the
appellant Surcsh Bahri told him that Urshia Bahri had left Ranchi for
Delhi by aeroplane that v~ry morning and Sur.:sh remained at Ranchi till
end of October 1983. Witness Murari Lal also told him that therc•fler he B
did not U rshia and her two children at Ranchi. The information Bincet
also met one B.N. Mishra. PW2. another neighh,1ur of appellant Suresh at
Ranchi who told him that his sister U rshia 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 C
dis-appearance 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 11.10.83 to meet lJrshia Bahri but he did not find
her there. He, however, met Suresh Bahri there who was sitting in the
varandah 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 D
Misra also told to Bineet that when he was ascending the varandah of the
house the appellant Suresh Bahri caught hold him and led him away from
the house saying that Urshia had gone to the house of the appellant
Gurbachan Singh in a party and she will proceed to Delhi direct from the
house of Gurbachan S.ingh by next morning flight.
E
8. Later when the informant Bineet. PW 69 again has a talk with the
witness Murari, PW 1 about the whereabouts of his sister Urshia and her
children, it is said Murari told him that there was rumour that his sister
Urshia has been murdered. Thereafter, Bineet, PW69 went to the Police
Station Chutia were he made a written report that his sister and her F
children were missing. On the basis of this report P.S. case No. 27/84 was
registered at Chutia Police Station. Bineet then left Ranchi on 26.1.84 and
reached Delhi same day by plane and went to the house of Urshia Bahri
at C-70. South Extension - II. New Delhi where he met the acquitted
accused Mrs. Santosh Bahri and enquired from her the whereabouts of his
sister Urshia. It is said that Mrs. Santosh Bahri told Bineet that she had G
no information about Urshia. Bineet further gathered information that
Urshia was never seen at New Delhi after 30.9.83 though the appellant
Suresh had come to New Delhi in the month of December, 1983. He also
learnt that in December, 1983 the appellant Suresh Bahri had left Delhi
along with his mother Mrs. Santosh Bahri and the two children Richa and H
496 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A Saurabh in Ambassador Car No. OLE 3179 and the appellant Suresh Bahri
came back to Delhi in January, 1984. When appellant Suresh Bahri learnt
about the arrival of the informant Bineet at New Delhi he disappeared.

9. Further prosecution case is that sometimes in the month of Sep-
tember, 1983 the appellant Suresh Bahri had sent his associate appellant
B
Raj Pal Sharma to Ranchi who stayed in the Station Road House No. 936
at Ranchi but when the appellant Suresh Bahri along with his deceased
wife Urshia arrived at Ranchi on 1.10.83 the appellant Raj Pal Sharma left
the house. Deceased Urshia Bahri had come to Ranchi to sell the said
House No. 936 and had contacted several persons in that connection
C including Murari Lal. PW 1, Badri Narayan Misra, PW 2 and Laxmi
Narayan, PW 21 who in fact had agreed to purchase the said house and
the deal was almost settled and the sale-deed was likely to be executed very
soon. It is said that as the appellant Suresh Bahri was not agreeable for
sale of the said house. Suresh Bahri and the appellant Raj Pal Sharma
murdered her in the night of 11.10.83 in a room of the said house. The
D head--0f 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 septic tank situated within the
E compound of the said house. Later on in the morning of 13.10.83 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
Patrautu Road. It is also alleged that sometimes in the month of January.
1984 the appellant Suresh Bahri and Gurbachan Singh managed to take
F out the body of Urshia from the septic 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
G children Richa Bahri and Saurabh Bahri is that they were studying in
Father Agne! School. South Extension-II. Saurabh was a student of class
IV and Richa was a student of class VI in the said school. It is said that
on 5.12.83 the appellant Suresh Bahri, the father of the two children filed
two separate applications before the Principal of the school for withdrawal
of both the children from the school. These applications are Ext. 40 and
H 40/1. Both the children were, thus withdrawn from the school on 5.12.83.
S.C. BAHRI v. STATE OF BIHAR [FAIZAN UDDIN, J.] 497

It is said that the appellant Suresh Bahri left his New Delhi house No. C-70 A
for going to Ranchi by his Ambassador Car No. OLE 3179 along with his
two children, his mother, acquitted accused Mrs. Santosh Bahri, one
maid-servant and the appellant Raj Pal Sharma. On his way to Ranchi.
Suresh Bahri dropped him mother Mrs. Santosh Bahri and a maid-servant
at Basti in Uttar Pradesh and having stop-overs at Varansi. Uttar Pradesh
and Daltonganj (Bihar) he reached his Dhulli farm house on 16.12.83 B
where he along with the appellant Raj Pal Sharma and the two children
stayed on 16/17. 12.83. During the aforesaid stay the appellant Gurbachan
Singh also visited Dhulli farm house. It is said that a few days earlier
appellant Gurbachan Singh had sent some cots and chair at the Dhulli farm
house and according to the prosecution in the intervening night of l 7/18-
12-83 the appellants Suresh Bahri and Raj Pal Sharma Committed the
c
murder of Richa Bahri and Saurabh Bahri in Dhulli farm house of the
appellant Suresh Bahri. They took the body of Richa Bahri and Saurabh
Bahri in the Ambassador Car No. OLE 3179 to Varanasi where they threw
their dead bodies in Varuna River, a tributary of Gangas.
D
11. On 20.12.83 at about 8.30 AM dead body of a boy aged about 12
Years' was found floating at the bank of river Varuna near the bridge of
village Puratepur which was noticed by otie Hiralal PW 36. The naked body
was packed in a gunny bag. Report about it Ext. 11 was made by Hirala~
PW 36 in the Police Station, Sarnath where P.S. Case No. 100/83 was
registered. Atma Nand Singh. PW 46. Police Officer. Sarnath on receiving E
the report reached at the bank of Varuna river, inspected the dead body
and having found marks of injury on the neck of the dead body prepared
inquest report in the presence of witnesses. The gunny bag in which the
dead body was packed was seized as per seizure memo Ext. 5/8. He also
received information that one gadda, one guilt and one bed-sheet were F
lying at the dumpling place of Panchkoshi - Varansi Road. The Police
Officer, Atma Nand Singh, PW 46 seized the said articles by sei=e Memo
Ext. 5/9 as also two bed-sheets which were also found on the same road
near the forest department nursery vide seizure memo Ext. 5/10.

G
12. Dr. B.K. Bhatnagar, PW 27. District Hospital. Varanasi per-
formed an autopsy on the dead body of the boy on 21.12.83 at about 4.15
PM. He found that it was 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 H
498 SUPREME COURT REPORTS (1994] SUPP.1 S.C.R.

A 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
B disposed of the same after preparing a panchnama to that effect. Conse-
quently, the Police Officer, Sarnath closed the investigation of P.S. Case
No. 100/8> by making a final report.

14. By a notification dated 18.6.84 the Government of India, Ministry
of Home Affairs entrusted the investigation of Chutia Police Case No. 27
c to the C.B.J. with the consent of the Government of Bihar. The C.B.I. on
the basis of the written report dated 1.2.84 made by Bineet, PW 69
registered the case No. RC-2/84 on 28.6.84 under Section 120-B read with
0

Sections 302/364/201 of the Penal Code. Shri Madanlal PW 85. Senior
Inspector of C.B.I. New Delhi was the Investigating Officer of this case. By
D another notification dated 14.9.84 the Central Government. Ministry of
Home Affairs entrusted the investigation of Sarnath P.S. Case No. 100/83
also to the C.B.I. with the consent of the Government of Uttar Pradesh
and the investigation of this case was entrusted to the C.B.I. Inspector,
Rajendra Singh, PW 82.

E 1.5. The Investigating Officer, Madanlal, PW 85 and Rajendra Singh,
PW 82 seized the entire records of Chutia P.S. Case No. 27/84 as well as
the records of Sarnath P.S. Case No. 100/83. Both these Investigating
·Officers visited and inspected the Ranchi House No. 936 of appellant
Suresh Bahri Situated at Station Road, along with some experts where
murder of Urshia Bahri is said to have been committed. A steel trunk
F containing blood-stains and some scrapings of the blood stains of the wall
of the room were seized which were examined by the Serol0gist and found
it to be stained with human blood. A sketch map of the alleged placed of
occurrence was prepared. The photographs of the dead body taken by the
photographer. Ashok Kumar, PW 48 in Sarnath P.S. Case No. 100/83 were
G identified by the witnesses who had seen Saurabh Bahri during his life time
and stated that the photographs were of Saurabh Bahri, indicating that it
was the body of Saurabh who was murdered. The articles Gadda, guilt and
bed-sheets seized from Panchkoshi Road. Varanasi were also identified as
helonging to the appellant. Suresh Bahri.

H J6. The appellant Gurbachan Singh was already arrested earlier by
S.C. BAHR!v. STATEOFBIHAR [FAIZAN UDDIN,J.] 499

Rajeshwar Singh (PW 59), incharge. Police Station. Chutia (Ranchi) before A
22.4.1984 when chargesheet by Chutia Police was filed, though further
investigation continued by CBI, in pursuance of notification issued by the
Govt. of India. During the course of investigation. Rajeshwar Singh. PW
59, interrogated Gurbachan Singh wb made disclosure statement that he
had thrown the dead body of Urshia Bahri in Madhukam dump known as
"Khad-Gaddha". On digging the said dumping pit no dead-body was B
1 ecovered 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 6.3.84 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 C
the dead body of Urshia Bahri on 11.10.83.

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 C.B.I: Officer on 8.8.84. He was produced before the Metropolitan
Magistrate, New Delhi on 8.8.84 and Police remand for 10 days was D
obtained. On 12.8.84 while in Police custody, Raj Pal Sharma made a
disclosure statement. Ext. 32 to the C.B.I. 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-Patratu Road. The skull some hairs and pieces of cotton were E
recovered from the bushes of the forest at the instance of the appellant.
Raj Pal Sharma which were seized as per seizure memo Ext. 33 dated
12.8.84. The said skull was sent to Dr. Barish Chandra, Director, Medico
Legal Institute and Head of the Forensic Science Gandhi Medical College,
Bhopal for examination. Dr. Barish along with some other experts ex-
amined the said skull and found that it was of a female aged about 33 years F
with a margin of plus minus five years' on either side. Dr. Barish for want
of certain information could not definitely opine that the said skull was that
of Urshia Bahri.

18. The Investigating Officers detected that one Ram Sagar Vish- G
wakarma, an employee of the appellant Gurbachan Singh was also as-
sociated in hatching the conspiracy to commit the murder of Urshia and
her two children. They , therefore, arrested Ram Sagar Vishwakarma on
3.12.84 and produced him before the Chief Judicial Magistrate, Ranchi on
4.12.84 who remanded him to police custody till 17.12.84. On 17.12.84 Ram
Sagar Vishwakarma filed a petition Ext. 3 before the Chief Judicial H
500 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A Magistrate for recording his confessional statement. The Judicial
Magistrate Shri Bhuneshwar Ram, PW 76 recorded the confessional state-
ment Ext. 28/1, under Section 164 Criminal Procedure Code of Ram Sagar
Vishwakarma on 19.12.84, 20.12.84 and 21.12.84. Thereafter on 8.1.85 Ram
Sagar Vishwakarma made a petition to the Chief Judicial Magistrate,
Ranchi that he may be granted pardon and he be made a prosecution
B witness. The Chief Judicial Magistrate granted pardon to Ram Sagar
Vishwakarma by order dated 9.1.85 and accepted him as an approver and
recorded the statement of Ram Sagar Vishwakarma on 30.1.86 as approver
under Section 306 of the Code of Criminal Procedure. Thereafter; Ram
Sagar Vishwakarma was granted bail by the order of the High Court dated
13.1.87 and he was released from custody on 21.1.87.
c
19. All the accused persons were charged and tried as said in the
earlier part of this judgment. All the accused persons including the three
appellants denied their guilt and pleaded false implication. The appellant
Suresh Bahri in his statement under Section 313. Cr. P.C. stated that his
D wife Urshia Bahri and his two children were not murdered at all and they
were still alive. The appellants took the defence that the prosecution has
failed to prove factum of death of Urshia 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.
E
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 consistently only with the hypothesis of the guilt of the appel-
lants convicted and sentenced them as said above. The said conclusions
F and findings found favour with the High Court also in appeals and, there-
fore, the High Court dismissed all the three appeals affirming the convic-
tion and sentence awarded by the Trial Court.

21. At the very outset we may mention that sometimes motive plays
G an important role and becomes a compelling force to commit a crime and
therefore motive behin~ 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
illegal means with a view to achieve that intention. In a case where there
is clear proof of motive for the commission of the crime it affords added
H support to the finding of the Court that the accused was guilty for the
S.C. BAHRI v. STATE OF BIHAR [FAIZAN UDDIN.J.j 501

offence charged with. But it has to be remembered that the absence of A
proof of motive does not render the evidence bearing on the guilt of the
accused nonetheless untrustworthy or unreliable because most often it is
only the perpetrator of the crime alone who knows as to what circumstan-
ces prompted him to a certain course of action leading to the commission
of the crime. In the present case before us the prosecution has adduced
evidence that the appellant Suresh Bahri had strong motive to eliminate B
his wife and two children from his way which evidence has been accepted
by both the courts below. We shall, therefore, have a look to the said
evidence to see whether the two courts are justified or not in taking the
view that the appellant Suresh Bahri had a strong motive to hatch a
conspiracy with the assistance of the other two appellants, namely, Rajpal
Sharma and Gurbachan Singh to commit the murder of his wife and the
c
two children.

22. According to the prosecution the motive behind the murder of
Urshia Bahri and her two children is said to be the strained relations and
differences between the deceased Urshia and her husband, the appellant D
Suresh Bahri and her mother-in-law, Smt. Santosh Bahri (since acquitted)
which had developed on account of the firm determination of the deceased
Urshia Bahri to dispose of the house No. 936 situated on the Station Road
Ranchi and migrate along with her two children to America where her
parents were already settled because her life and that of her two children
had become miserable due to the mental and physical tortures caused by E
Suresh Bahri, his mother Santosh and Maternal uncle Y.D. Arya (since
acquitted). It is said that the acquitted accused Smt. Santosh Bahri had
started causing harassment to her daughter-in-law, the deceased Urshia in
diverse ways after her marriage with the appellant Suresh who maintained
a quiescence and never intervened in the maLreatment meted out to her.
It is said that the systematic course of ill- treatment meted ont to Urshia F
was communicated by her to some of her relatives and parents orally and
through letters. Admittedly at the time when Urshia was wedded to the
appellant Suresh, 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 G
which Suresh had suffered great setback and loss to his property and
business assets at Calcutta. Consequently UlShia had developed disliking
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
H
502 SUPREME COURT REPORTS 11994] SUPP. 1 S.C.R.

A 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 fulfill 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
B and settled 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 appellant Suresh Bahri hatched a con-
spiracy with the two convicted associates Raj Pal Sharma and Sardar
Gurbachan Singh to eliminate his wife and two children from his way once
C for all and to achieve this objective all the three appellants are said to have
systematically executed their scheme in a planned way in the commission
of murders of Urshia and her two children on two different dates at Ranchi
and Dhulli Farm House of appellant Suresh Bahri. This part of the
prosecution story is said to be established by the documentary as well as
the oral evidence which we shall refer to briefly hereinafter.
D
23. Murarilal Sharma, PWl is the next door neighbour of the appel-
lant Suresh Bahri, his house-cum-grocery shop being just adjacent to the
Station Road house of Suresh at Ranchi. He deposed in para 3 of his
deposition that the appellant Suresh Bahri used to tell him that there were
frequent family squabbles between him and his wife deceased Urshia and
E his mother Smt. Santosh Bahri on account of his maternal uncle Y.D. Arya
and the insistence of his 1vife for sale of their house at Ranchi and go to
America with her children with the sale proceeds. The witness also
deposed that Suresh Bahri told him that in fact he did not want to dispose
of the said house and was very much disturbed on account of the frequent
F quarrels. The witness also stated that Suresh had also told him that his
children were spoiled due to the encouragement by Urshia and they had
no respect for his mother by reason of which he was fed up with this world
and most often thought to put an end of the entire family along with his
own life.

G 24. Dinanath Sharma, PW 6 is the witness who has been the class-
mate of the appellant Suresh Bahri and the entire family of Suresh is known
to him. He was on visiting terms also. This witness has also deposed that
the relations between the appellant Suresh Bahri and his deceased wife
Urshia were strained since after about two years from their marriage. He
H deposed that as and when he met Urshia she always complained against

I
S.C. BAHRI v. STATEOFBIHAR [FAIZAN UDDIN,J.] 503

the behaviour of Suresh towards her. Almost similar is the statement of A
Moolchand. PW 24 who worked as Mali at the Ranchi house of appellant
Suresh. Smt. Surina Narula, PW 66 is the sister. Bineet Singh Sarang, PW
69 is the brother and informant and Smt. Rohtas Sarang, PW 79 is the
mother of the deceased Urshia Bahri. They all deposed that the relations
between the appellant Suresh Bahri and his deceased wife Urshia were not
cordial but strained as Urshia used to complain against her husband,
B
mother-in-law and the maternal uncle of her husband. According to the
evidence of Badri Narayan Mishra, PW 2 through whom Laxtni Narayan,
PW 21 has negotiated for purchase of the Ranchi house, it turns out that
the deal was almost finalised for purpose of the house by him but for the
sudden disappearance of Smt. Urshia on 11.10.83, the same could not take C
place.

25. Besides the afore-mentioned oral evidence the prosecution has
produced documentary evidence also to support the allegation that the
relations of the appellant Suresh, his mother and material uncle were not
cordial with the deceased Urshia Bahri and that the deceased Urshia was D
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 para-
graphs 25 to 28 of its judgment not only discussed but has reproduced E
variou; letters written by deceased U rshia to her parents in America to
show the sufferings and state of mind of Urshia on account to the be-
haviour meted out to her by her husband Suresh Bahri and her mother-in-
law and her determination to sell out the house and shift to America and
arrived at the conclusion that the appellant Suresh had a strong motive to
commit the murder of his wife Urshia and her two children in conspiracy F
with the other two appellants. It is, therefore, not necessary for us to
discuss the entire evidence again which has been evaluated by the two
courts below. On a close scrutiny of the evidence on this point we find
ourselves in complete agreement with the view expressed by the learned
Trial Judge and the High Court. The argument of the learned counsel for
the appellant that even if it is accepted that there were strained relations G
and serious differences betweei. the deceased Urshia and the appellant
Suresh Bahri his mother Santosh and maternal uncle Y.D. Arya, yet Suresh
would not go to the extent of hatching a conspiracy and actually killing his
wife and the two children does not appeal to us and we are not at all
convinced by this argument because different persons react differently under H
504 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A given circumstances. It is difficult to lay down a hard and fast rule as to how
and in what manner a person would react and to achieve his motive could
go to what extent in the commission of crime under a particular circumstance.
It is not possible to measure up to extent of his feeling, sentiments and desire
and say as to what compelled him to commit a particular crime. There may
be persons who under frustration and on mere trifling domestic matters take
B decision to commit a sen·aus crime, while others may approach it with cool
and calm mind and think more dispassionately before taking any hazardous
and serious steps. It all depends as to how a person reacts in a given
circumstance and it is he alone who best knows his intention and motive to
commit a crime and the extent thereof In the present case, it appears that
C the appellant Suresh Bahri was under the misguided apprehension that
the murder of his wife Urshia alone would not be safe as the survival of
the two children may ultimately expose him of the murder of his wife
Urshia and therefore, he was left with no option but to wipe of the entire
family and clear the deck for smooth sail in life as a free lancer which to
his misfortune proved to be too expensive as he had not only to pay the
D price of 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 Sushi! 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
E 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. Cr. P.C. is to
enable the accused to explain any circumstance appearing against him in
F the evidence and this object is based on the maxim audi altrem 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
G to question the accused on the evidence and circumstance appearing
against him so as to apprise him the exact case which he is required to
meet. But it would not be enough for the accused to show that he has not
been questioned or examined on a particular circumstance but he must
also show that such non-examination has actually and materially prejudiced
him and has resulted in failure of justice. In other words in the event of
H any inadvertent omission on the part of the Court to question the accused
S.C. BAHRI v. STATE OF BIHAR [FAIZAN UDDIN, J.] 505

on any incriminating circumstance appearing against him the same cannot A
ipso facto vitiate the trial unless it is shown that same prejudice was caused
to him. In Bijoy Chandra v. State of West Bengal, (1952) Criminal Law
Journal 644 SC this Court took the view that it is not sufficient for the
accused merely to show that he has not been fully examined as required
by section 342 of the Criminal Procedure Code (now Section 313 in the
new Code) but he must also show that such examination has materially B
prejudiced him. The same view was again reiterated by this Court in Rama
Shankar v. State of West Bengal, AIR (1962) SC 1239 - para 14. In the
present case before us it may be noted that no such point was raised and
no such objection seems to have been advanced either before the Trial
Court or the High Court and it is being raised for the first time before this C
Court which appears to us to be an after thought. Secondly, learned
counsel appearing for the appellants was unable to place before us as to
what in fact was the real prejudice cause to the appellants by omission to
question the accused/appellant Suresh Bahri on the point of his motive for
the crime. No material was also placed before us to show as to what and
in what manner the prejudice, if any, was caused to the appellants or any D
of them.

27. Apart from what has been stated above, it may be pointed out
that it cannot be said that the appellants were totally unaware of the
substance of the accusation against them with regard to the motive part.
In this regard a reference may be made to question Nos. 5, 6 and 7 which E
were put to the appellant Suresh Bahri in the course of his statement
recorded under Section 313, Cr. P.C. The sum and substance of these
questions is that from the prosecution evidence it turns out that the
acquitted accused Y.D. Arya, the maternal uncle of the appellant. Suresh
Bahri was living in a portion of the upper storey of his house at Delhi. He
with the consent of Santosh Bahri, the mother of Suresh Bahri, was F
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 G
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 circumstan-
ces discussed above it cannot be said that any prejudice was caused to the
506 SUPREME COURT REPORTS (1994] SUPP.1 S.C.R.

A appellant. The contention of the learned counsel for the appellants in this
behalf therefore has no merit.

28. Learned counsel for the appellant 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 in as much as that after
B recording the statement of the approver Ram Sagar Vishwa Karma under
Section 164 of the Code of Criminal Procedure and after tendering him
pardon, the approver was not examined as witness by the learned
Magistrate who took cognizance of the offence, as required by clause (a)
of Sub-section (4) of Section 306, Cr. P.C. but he was examined as a witness
by the committing Magistrate only after the Court of Sessions remitted the
C case back to the con1mittal l\fagistrat:e. for examining the approver as a
witness in aecordance with Section 306(4)(a) Cr. P.C. Secondly clause (b) ·
o( Section 300( 4) mandates that the approver shall be detained in custody
until the termination of the trial unless he is already on bail but contrary
to that the approver was enlarged on bail after he was granted pardon and
D as such the trial was vitiated. Reliance was placed on the decisions in Ka/u
Khoda v. State, AIR (1962) Gujarat 283 F.B.; re Ramaswamy, 1976 Cr. L.J.
770 Madras and V. Vijayaraj v. State, (1986) Cr. LJ. 2104 A.P., in support
of his above submissions.

29. Section 306 of the Code of Criminal Procedure (hereinafter
.E referred to as the Code) relates to the tender of pardon to an accomplice
and the procedure of committing the case for trial. It would be appropriate
. to reproduce Section 306 of the Code which reads as under :

"306. Tender of pardon to accomplice :
F
(1) With a '1ew to obtaining the evidence of any person supposed
to have been Jirectly or indirl'.t:tly concerned in or privy to an
offence to which this section applies, the Chief Judicial :Vfagistrate
or an ,'\1ctropolitan h1agistrate at any stage of the investigation or
inquiry into, or the trial of, the offence, and the Magistrate of the
G first class inquiring into or trying offence, at any stage of the inquiry
or trial, may tender a pardon to such person on condition of his
making a full and true disclosure of the whole of the circumstances
within his knowledge relative to the offence and to every other
person concerned, \Vhcther as principal or abettors, in the com-
H mi~~,ion thereof.
S.C. BAHRI v. STATEOFBIHAR[FAIZAN UDDIN,J.] 507

(2) This section applies to : A

(a) any offence triable exclusively by the Court of Session or by
Court of a Special Judge appointed under the Criminal Law
Amendment Act. 1952 (46 of 1952) :

(b) any offence punishable with imprisonment which may extend B
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 : c
(b) whether the tender was or was not accepted by the person
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- D
section (1)-

(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 E
the termination of the trial.

(5) Where a person has accepted a tender of pardon made under
sub-section (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 : F
(a) commit it for trial -

(i) to the court Session it the offence is triable exclusively by that
Court if the Magistrate taking cognizance is the C::hief Judicial
Magistrate; G
(ii) to a Court of Special Judge appointed under the Criminal Law
Amendment Act. 1952 (46 of 1952). if the offence is triable ex-
clusively by that Court;

(b) in any other case, make over the case to the Chief Judicial H
508 SUPREME COURT REPORTS 11994) SUPP. 1 S.CR.

A Magistrate who shall try the case himself.

30. A bare reading of clause (a) of sub-section (4) of Section 306 of
the Code will go to show that every person accepting the tender of pardon
made under sub-section (1) has to be examined as a witness in the Court
of the Magistrate taking cognizance of the offence and in the subsequent
B trial, if any. Sub-section (5) further provides that the Magistrate taking
cognizance of the offence shall, without making any further enquiry in the
case commit it for trial to any one of the Courts mentioned in clause (i) or
(ii) of clause (a) of sub-section (5), as the case may be. Section 209 of the
Code deals v.ith the commitment of cases to the Court of Session when
C offence is tried exclusively by that Court. The examination of accomplice
or an approver after accepting the tender of pardon, as a witness in the
Court of the Magistrate taking cognizance of the offence is thus a man-
datory provision and cannot be dispensed with and if this mandatory
pro\ision is not complied with it vitiates the trial. As envisaged in sub-
section (1) of Section 306, the tender of pardon is made on the condition
D that the approver shall make a full and true disclosure of the whole of the
circumstances within his knowledge relating to the offence. Consequently,
the failure to examine the approver as a witness before the committing
Magistrate would not only mount to breach of the mandatory provisions
contained in clause (a) of Sub-section (4) of Section 306 but it would also
be inconsistent with and in violation of the duty to make a full and frank
E disclosure of the case at all stages, the breach of the provisions contained
in clause (a) of Sub-section (4) of Section 306 is of a mandatory nature and
not merely directory and, therefore, non-compliance of the same would
render committal order illegal. The object and purpose in enacting this
mandatory provision is obviously intended to provide a safeguard to the
F accused in as much as the approver has to make a statement disclosing his
evidence at the preliminary stage before the committal order is made and
the accused not only becomes aware of the evidence against him but he is
also afforded an opportunity to meet with the evidence of an approver
before the committing Court itself at the very threshold so that he may take
steps lo show that the approver's evidence at the trial was untrustworthy
G 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 pro•ided 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
H justice as he will lose the opportunity of showing the approver's evidence
S.C. BAHRI v. STATE OF B!HAR [FAIZAN UDDIN. J.J 509

as un-reliable. Further clause (b) of sub-section (4) of Section 306 of the A
code will also go to show that it mandatory 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?
B

31. It may be noted that the approver Ram Sagar Vishwakarma
hereinafter referred to as Ram Sagar was arrested on 3.12.84 and was
under police remand till 17.12.84. He made an application Ext. 3 on
17.12.84 for recording his confessional statement under Section 164 of the C
Code and his confessional statement Ext.28/1 was recorded on December
19th to 21st, 1984 by the Magistrate Shri Bhuneshwar Nath, PW 76.
Thereafter on 7.1.85 CBI Investigating Officer made an application that
Ram Sagar be granted pardon and his statement be recorded under
Section 306 of the Code. The approver Ram Sagar also made an applica-
tion Ext.1 for grant of pardon on 8.1.85 stating that he wanted to become D
a prosecution witness and make disclosure of true facts of the case.
Learned Chief Judicial magistrate tendered pardon to Ram Sagar by his
order dated 9.1.85 stating that he was directly concerned with the commis-
sion of the crime relating to the offence of murders in question. The
learned Chief Judicial Magistrate committed the case to the Court of E
Session for trial without examining the approver Ram Sagar as a witness
in his Court. But the learned Additional Judicial Commissioner, Ranchi to
whom the case was committed for trial noticed this defect that the approver
was not examined as a witness in the Court of Magistrate taking cognizance
of the offence and committed it for trial before him and, therefore, learned
Additional Judicial Commissioner remanded the case back to the Court of F
Chief Judicial Magistrate with a direction to record the Statement of the
approver Ram Sagar as required by clause (a) of sub-section (4) of Section
306 of the Code. After receiving the records with the aforesaid directions
learned Magistrate examined the approver Ram Sagar as a witness on
31.1.86 and then again committed him for trial to the Court of Additional G
Commissioner. Thus in any case the provisions of clause (a) of sub-section
( 4) of Section 306 were ultimately complied with. That being so with no
stretch of any amount of arguments it can be said that any prejudice much
less in dis-advantage was caused to any of the accused/appellants. The
order of the Additional Judicial Commissioner remanding the case back to
the Court of Magistrate directing him to examine the approver as a witness H
510 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A was challenged by the accused persons in the High Court of Patna. Ranchi
Bench but the High Court maintained the order of the Additional Judicial
Commissioner in Criminal Revision No. 2347/85. This order of the High
Court was not challenged further by any of the appellants and same
attained finally and, therefore, it cannot be 'questioned now.

B 32. It may be noticed that similar question arose for consideration
of Madras High Court in Re Ramaswamy (supra) and relied on by the
learned counsel for appellants, wherein the learned Magistrate has com-
mitted the case for trial to the Court sessions without examined the
approver as a witness in his Court before coming the case. But Pandian, J.
(as he then was) took the view that the action of the Magistrate in
C committing the case to the Court of Session without examining· the ap-
prover was a clear violation of the mandatory provisions of Section 306 of
sub-sections (4) and (5) of the new Code and as such be committed
irregularity. The learned Judge, therefore, quashed the committal order
and directed the Magistrate to comply wiih the provisions of Section 306
D 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. Vijayaraj
(supra) and in this case als.o the Magistrate was directed to examine the
approver as required by sub-section (4) of Section 306 of the Code by
giving an opportunity to the accused to cross-examine the approver and
E then pass the appropriate orders in accordance with law.
33. In Ka/u Khoda (supra) similar question came for consideration·
before the Full Bench of ~he Gujarat High Court wherein the committing
Magistrate committed the accused to the Court of Session without examin-.
ing the person who had been tendered pardon and who had accepted the
F same. The Full Bench set aside the committal order and directed the
committing Magistrate to hold a fresh enquiry in accordance with law. The
ultimate result of the aforesaid discussion is that if the said defect of not
examining the approver at the committal stage by the committing
Magistrate is rectified later, no prejudice can be said to be caused to an
G accused person and therefore the trial can not be said to be vitiated on
that account. Since in the present case, as noticed above the defect was
rectified, the argument that the trial was vitiated can not be accepted.

34. As regards the contention that the trial was vitiated by reason of
the approver Ram Sagar being released on bail contrary to the provisions
H contained in clause (b) of sub-section (4) of Section 306 of the code, it may
S.C. BAHRI v. STATE OF BIHAR IFAIZAN UDDIN, J .] 511

be pointed out that Ram Sagar after he was granted pardon by the learned A
Magistrate by his order dated 9.1.85, he was not granted bail either by the
committing Magistrate or by the learned Additional Judicial Commis,i0ner
to whose Court the case was committed for trial. The approver, Vishwakar-
ma was, however granted bail by an order passed by the High Court of
Patna, Ranchi Bench in Criminal Misc. Case No. 4735/86 in pursuance of B
which he was released on bail on 21.1.87 while he was already examined
as a witness by the committing Magistrate on 30.1.86 and 31.1.86 and his
statement in Session trial was also recorded from 6.9.86 to 19.11.86. It is
no doubt true that clause (b) of Section 306(4) directs that the approver
shall not be set at liberty till the termination of the trial against the accused
persons and the detention of the approver in custody must end with the C
trial. The dominant object of requiring an approver to be detained in
custody until the termination of the trial is not intended to punish the
approver for having come forward to give evidence in support of the
prosecution but to protect him from the possible indignation, rage and
resentment of his associates in a crime who he has chosen to expose as well D
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 the
custody. It is for these reasons that clause (b) of Section 306(4) casts a duty
on the Court to"kecp the approver under detention till the termination of
the trial and thus the provisions arc based on statutory principles of public
policy and public interest, violation of which could not be tolerated. But E
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 effect 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 F
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 Sagar Vishwakarma who
turned as an approver recorded under Section 164 of the Code after about G
16 days of his arrest cannot be said to be voluntary confession particularly
when the Magistrate did not inform him that he would not be remanded
to police custody after the statement. It was further submitted that in any
case the statement of the approver made under Section 164 was made
under constant fear and with a promise of immunity because he was given
to understand by the C.B.I. officials that he would be set at liberty in case H
512 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A in made the confessional statement.
36. After the perusal of the Statement of Ram Sagar PW 3 as well
as the statement of learned Magistrate Shri Bhuneshwar Ram. P.W. 76,
who recorded the statement of Ram Sagar under Section 164 of the Code
we find that there is absolutely no substance in these submissions.
B
37. Ram Sagar Vishwakarma was arrested on 3.12.84. A persual of the
statement of Ram Sagar made under Section 164 of the Code will go to show
that he himself made an application Ext. 3 before the Magistrate requesting
him to record his confessional statement and according to Ram Sagar it was
C at his instance and request that his confessional statement Ext.28/1, was
recorded by the Magistrate PW 76, from 19.12.84 to 21.12.84 in which he had
confessed the guilt. Ram Sagar PW 3. stated that the Magistrate had told him
that it was his own choice and volition to make or not to make the confes-
sional statement and that he made the statement on his free will. He denied
the suggestion that while making the. statement under Se.ction 164.any police
D officer was present there and deposed thatlie was notgiven.any.as&urance by
the C.B.I. officials that:if.he would, become approver.· he would'.be sett at:
liberty or discharged: from the case. He, however; stated: that he llimsem
thought that if he made correct statement before the Magistrate he may. be
set at liberty. He asserted that the made a true disclosure of.the.circumstan•·
, . E ces reh.ting to the offence before the Magistrate in, his statement: unden
Section 164 irrespective of the fact whether he would be released:or not, Ram.
Sagar was subjected to a very lengthy and searching cross examination in.tffis,
regard but nothing could be elicited from him to suggestthat that.he did.not.
make true disclosure of.the facts ofthe case or that.he·made the confession:
under threat or pressure or on any assurances from the prosecuting agency
F or from any official in authority. The statement that the made gives an.im,
pression 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,
G on the order passed by Chief Judicial Magistrate, Ranchi, recorded the
confessional statement of Ram Sagar, PW 3 as stated earlier from 19.12.84'
to 21.12.84 which was marked as Ext. 28/1. Shri Bhuneshwar:Ram deposed'
that before recording the statement of Ram Sagar under Section.164.hc
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
H confessional statement Ext. 28/1 before he proceeded to record the con-
S.C. BAHR!v. STATEOFBIHAR[FAIZANUDDIN,J.] 513

fession. This is indicative of the fact that he did caution Ram Sagar and A
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 voluntary on his own
volition. He deposed that Ram Sagar did not tell him that he made his
confessional statement under any threat or fear or on any promise. In view
of this positive evidence on record it is difficult to accept that the confes- B
sional statement made by the approver Ram Sagar under Section 164. Cr.
P.C. was not voluntary or under any fear or promise or assurance. On the
contrary we find that the confession is free from all infirmities and con-
forms to the requirements of Section 164.

39. The prosecution case, for the sake of scrutiny of the evidence and
c
discussion may be bifurcated into two parts, one relating to the murder of
Urshia Bahri in the evidence of 11th October 1983 and the other relating
to the murder of the two children, namely Richa and Saurabh in the
intervening night of 17th and 18th December, 1983 although all the three
murders stem out of one and the same conspiracy to do away with the D
lives of all the three deceased persons and both the acts on two different
dates are so connected that they form the same transaction. It is true that
there is no eye witness to eiiher of the two incidents and the prosecution
case rests on the evidence of the approver Ram Sagar (PW 3) and the
circumstantial evidence advanced by the prosecution. We shall therefore E
deal with the evidence of each of the two incidents one after the other.

40. Learned counsel appearing for the appellant Raj Pal Sharma next
contended that there is no direct evidence or ocular testimony with regard
to the alleged murder either of Urshia Bahri or that of her two children
Richa and Saurabh and the conviction of the appellants has been founded F
on the approver's evidence and other circumstantial evidence adduced by
the prosecution. Learned counsel submitted that the two Court below are
not justified in relying on the evidence of accomplice/approver Ram Sagar,
PW 3 whose evidence is not free from serious doubt particularly in view of
the fact that he was examined as a witness by the committing Magistrate G
on 30.1.1985 after about on~ year and two months of the occurrence. It was
urged that in the absence of corroboration of material particulars no
conviction can be based on the testimony of an accomplice and since the
circumstances alleged against the appellants are not proved to the hilt the
same cannot be regarded as complete chain of circumstances established
against the appellants so as to base their convictions on the same. Similar H
514 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A arguments were advanced by the learned counsel appearing for the appel·
lants 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 cir·
B cumstantial in nature then in the 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
C of the accused and must exclude every reasonably 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
D 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 of which apply to any offence triable exclusively by the Court of
Speciol Judge to any offence punishable with imprisonment extending to
E seven years or with a more serious sentence. Section 306 of the Code lays
down a clear exception to the principle that no inducement shall be offered
to a person to disclose what he knows about the procedure. Si.nee many a
·times, the crime is committed in a manner for which no clue or any trace
is available for its detection and, tLrefore, pardon is granted for apprehen-
sion of the other offenders for the recovery of the incriminating objects
F and the production of the evidence which otherwise is unobtainable. The
'inant object is that the offenders of the heinous and grave offences do
nt.t go unpunished, the Legisiature in its wisdom considered it necessary
to introduce this Section and confine its operation to cases mentlo~ed in
Section 306 of the Code. The object of Section 306 therefore is to allow
G I'"rdc ..1 in cases where heinous offence is alleged to have been committed
by several persons so that with the aid of the evidence of the person
granted pardon the offence may be brought home to the rest. The basis of
the tender of pardon is not the extent of the culpability of the person to
whom pardon is granted, but the principle is to prevent the escape of the
offenders from punishment in heinous offences for lack of evidence. There
H "'n therefore be no objection against tender of pardon to an accomplice
. S.C.BAHR!v.STATEOFBIHAR[FAIZANUDDIN,J.] 515

simply because in his confession, he does not implicate himself to the same A
extent as the other accused because all that Section 306 requires is that
pardon may be tendered to any person believed to be involved directly or
indirectly in or privy to an offence.

43. The evidence of an approver· does not differ from the evidence
of any other witness except that his evidence is looked upon with great B
suspicion. Consequently in the event the suspicion which is attached to the
evidence <;>f an accomplice is not removed his evidence could not be acted
upon unless corroborated in material particulars. But where the suspicion
is removed and the evidence of an approver is found to be trustworthy and
acceptable then that evidence may be acted upon even without corrobora- C
tion and the conviction may be founded on such a witness. Here in this
connection it would be appropriate to make reference to the provisions of
Section 133 of the Evidence Act which deal with the testimony of ari
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. D
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 E
it may lead to certain amount of ronfusion 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 F
Act go to show that it was considered necessary to place the law of
accomplice evidence on a better footing by stating in unambigous terms
that according to Section 133 a conviction is 'not illegal or in other words
not unlawful' merely because it is founded on the uncorroborated tes-
timony of an accomplice while accepting that an accomplice·is a competent G
witness. But at the same time the Legisiatu.re intended to invite attention
to the illustration (b) of Section 114 of the Evidence Act witlMr-view to
emphasis that the rule contained therein as well as in section.f3J. are parts
of one and the same object and neither can be ignored in the exercise of
judicial discretion except in cases of very exceptional nature. However, the
difficulty in understanding the combined effect of the aforementioned two H
516 SUPREME COURT REPORTS (1994) SUPP.1 S.C.R.

A provisions arises largely due to their placement at two different places of
the same Act. It may be noticed that illustration (b) attached to Section
114 is placed in chapter VII of Evidence Act while Section 133 is inserted
in chapter IX of the Act. The better course was to insert the illustration
(b) to Section 114 as an explanation or in any case as a proviso to Section
133 of the Act instead of their insertion at two different places and that
B too in different chapters of Evidence Act. In any case since an approver is
guilty companion in crime and, therefore, illustration (b) to Section 114
provides a rule of caution to which the Courts should have regard. It is
now well s_ettled by a long series of decisions that except in circumstances
of special nature it is the duty of the Court to raise the presumption in
C Section 114 illustration (b) and the Legislature requires that the Courts
should make the natural presumption in that Section as would be clear
from the decisions which we shall discuss hereinafter.

44. In Bhiva v. State of Maharashtra, AIR (1963) SC 599 this Court
took the view that the combined effect of Sections 133 and 114, illustration
D (b) may be stated as follows: According to the former, which is a rule of
law, an accomplice is competent to give evidence and according to the
latter which is a rule of practice it is almost always unsafe to convict upon
his testimony alone. Therefore, though the conviction of an accused on the
testimony of an accomplice cannot be said to be illegal yet the Courts will
as a matter of practice, not accept the evidence of such a witness without
E corroboration in material particulars. There should be corroboration of the
approver. in material particulars and qua each accused. Similar observa-
tions were made by this Court in Ram Narayan v. State of Rajasthan, [1973)
3 sec 805, in the following words :

F "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 alongwith illustration (b) to Section 114.
The latter section empowers the court to presume the existence of
G 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 given case before it. Illustration (b) in
express terms says that an accomplice is unworthy of credit unless
H he is corroborated in material particulars. The statute permits the
S.C. BAHRI v. STATE OFBIHAR IFAIZAN UDDIN. l.! 517

conviction of an accused person on the basis of uncorroborated A
testimony of an accomplice but the rule of prudence embodied in
illustration (b) of Section 114 strikes a note of warning cautioning
the court that an accomplice does not generally deserve to be
believed unless corroborated in material particulars. In other
. words, the rule is that the necessity of corroboration as a matter
of prudence except when it is safe to dispense with such corrobora- B
tion must be clearly present to the mind of the Judge."

45. Further in Ravinder Singh v. State of Haryana, AIR (1975) SC 856,
this Court while considering the approver's testimony within the meaning
of section 133 of the Evidence Act made the following observations : C

"An approver is a most unworthy friend, if at all, and he, having
... bargained for his immunity, must prove his worthiness for
credibility in Court. This test is fulfilled, firstly, if the story he
relates involves him in the crime and appears intrinsically to be a
natural and probable catalogue of events that had taken place. The D
story if given of minute details according with reality is likely to
save it from being rejected brevi manu. Secondly, once that hurdle
is crossed, the story given by an approver so far as the accused on
trial is concerned, must implicate him in such a manner as to give
rise to a conclusion of guil: beyond reasonable doubt. In a rare E
case, taking into consideration all the factors, circumstances and
situations governing a particular case, conviction based on the
uncorroborated evidence of an approver confidently held to be
true and reliable by the Court may be permissible. Ordinarily.
However, an approver's statement has to be corroborated in
material particulars bridging closely the distance between the F
crime and the criminal. Certain clinching features of involvement
disclosed by an approver appertaining directly to an accused, if
reliable, by the touchstone of other independent credible evidence,
would give the needed assurance for acceptance on his testimony
on which a conviction may be based. 11
G
Thus it is clear that a definite rule has been cry"1allized to the effect
that though a conviction can be based on uncorroborated evidence of an
accomplice but as a rule of prudence it is unsafe to place reliance on the
uncorroborated testimony of an approver as required by illustration (b) of
Section 114 of the Evidence Act. H
518 SUPREMECOURTREilORTS (1994JSUPP.1S.C.R.

A 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
B for itself and the conclusions of the High Court on questions of fact or
appreciation of e\;dence are considered to be final. It is, therefore, not
necessary for us to scrutinize the evidence of approver tread-bare again.
We shall, however, scrutinize his evidence on board and material par-
ticulars to satisfy ourselves whether the two Courts below were justified in
recording conclusion that the testimony of the approver deserved credence.
c

D
47. The examination of the approver Ram Sagar Vishwakarma com-
menced in the trial Court on 6.1.86 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 relev.ant period..
-
He stated that the appellant Suresh Bahri was known to him as he used to
visit the shop of S. Gurbachan Singh quite often and wife and the children
of Suresh also visited the shop. He stated that on 4.10.83 while he was going
from the shop after the work was over the appellant Gurbachan Singh
stopped him and said that he had some important work with him. Gur-
E bachan Singh then took him into confidence and enquired him whether he
knew anyone who could commit the murder of the wife of his friend. When
the witness Ram Sagar PW 3 enquired him as to which friend, the appellant
Gurbachan Singh told that the wife of Suresh Bahri is to be murdered on
account of the family dispute. Ram Sagar further stated that next day when
he again went to the shop, Gurbachan Singh again in the presence of
F appellant Suresh Bahri pursuaded him for the same thing attracting him
with an allurement that he will not be required to pay back the money taken
by him as an advance and on the contrary he will ask Suresh also to give
him some more money for the assistance rendered by him. Ram Sagar then
asked them as to what he had to do. The appellant Suresh told him that
G he has to prepare and bring a Danda (Baton) to his bungalow and hide it
in the Shrubs of the Bungalow. He was further advised by Suresh that while
they would be busy" in taking tea he should strike the Baton on the head
of his wife and make her unconscious and rest of the work will be done by
himself and S. Gurbachan Singh. Ram Sagar further deposed that he
prepared a Baton as advised and he along with S. Gurbachan Singh went
H to the house of Suresh Bahri on scooter at 7.30 PM an kept the Baton
I •
S.C. BAHRI i-. STATE OFBIHAR [FAIZAN UDDIN,l.] 519 '

under the shrubs of a flower plant as directed by Gurbachan Singh and sat A
at the place where scooter was parked by Gurbachan Singh. At that time
Suresh Bahri and two others were taking tea in the varandah of the house
of Suresh Bahri. After five minutes those two persons went away from
there. Meanwhile the wife of Suresh Bahri came in the varandah from
inside and pointing towards him, enquired from Suresh as to who was
sitting in the dark near the scooter. Suresh told that he was labour of S.
B
Gurbachan Singh. After some time S. Gurbachan Singh took him on the
scooter and came back saying that since there is frequency of visitors, it is
not possible to execute the work.

48. Ram Sagar PW 3 further stated that next day when he again C
attended the shop Gurbachan Singh for work as usual the appellant Suresh
came there at about 10.00 AM 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 PM same day, but he stopped the
scooter on the way and Ram Sagar declined to go with him saying they it D
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 E
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., 11.10.83 at about 4.30 PM 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 11.10.83 Gur- F
bachan Singh took him to the house of Suresh Bahri. Gurbachan Singh met
Suresh in the varandah of his house. After having some talk in the varandah
both Gurbachan Singh and Suresh Bahri went inside the house. But imme-
diately Gurbachan Singh came out and called the witness Ram Sagar. On
being asked by S. Gurbachan Singh he went inside but remained standing G
dump-founded at the door of the small room connecting a big room.
Gurbachan Singh called him inside but he ignored as his body began to
tremble and Gurbachan Singh made him sit on the sofa and served him a
glass of water. Ram Sagar goes on to state that when he was standing near
the door of the room he saw the dead body of the wife of Suresh Bahri in
the small room. He saw her head totally severed and separated from the H
520 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A body placed on a cotton in the corner of the room. The appellant Raj Pal
Sharma was also present there putting on only underwear and was seen
collecting the blood with the cotton. He stated that at that time a lamp was
burning in the drawing room and a candle stick was burning in the small
room and that there was no other person except Suresh Bahri, Raj Pal
Sharma, S. Gurbachan Singh and Ram Sagar himself.
B
49. Ram Sagar, PW 3 further deposed that a saree was kept by the
side of the dead body which was stained with blood and a long knife was
kept near the head which was given by S. Gurbachan Singh a few days prior
to the occurrence to Rameshwar Thakur, PW 4 an employee of the shop
C for sharpening. A short while later there came a sound of opening the gate
of the compound of Suresh Bahri indicating that someone was coming. A
person came and as soon as he stepped forward to go to the varandah the
appellant Suresh Bahri went out caught hold that person by his hand and
took him down the varandah. That man enquired from Suresh about his
wife saying 'where is Mem Saheb' meaning thereby the wife of Suresh.
D Suresh Bahri told him that his wife had gone to the house of S. Gurbachan
Singh for dinner and from there she will proceed to Delhi by the next
morning flight. Suresh then took that man out of the compound of his
house and returned back. Then Suresh Bahri went out on a motor cycle
along with Gurbachan Singh directing the appellant Raj Pal Sharma to
clean all stains properly and that they will be returning shortly. Both of
E them returned within 10 minutes with a liquor bottle. Since no glasses were
available in the house Suresh Bahri went out to bring 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 say
F 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 torn half of the saree already kept there and wrapped the dead
body with it. S. Gurbachan Singh torn a piece of rope from the cot, Suresh
G 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
H Suresh Bahri asked Gurbachan Singh to prepare a box with a view to put
S.C. BAHR!v. STATEOFBIHAR(FA!ZANUDDIN,J.] 521

the dead body in the box and leave the box in any train. But later on A
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
house itself and to throw the head in some jungle. Suresh asked Gurbachan
Singh to come to his bungalow at about 7.30 PM same day for purposes of
dropping the dead body in the sceptic tank. He, therefore, alongwith
Gurbachan Singh went to the house of Suresh Bahri where Suresh Bahri B
and appellant Raj Pal were already present there. Suresh Bahri and
Gurbachan Singh asked the witness Ram Sagar and appellant Raj Pal to
take out the dead body from the house to dump it in the sceptic tank.
Appellant Raj Pal attempted to lift the body but could not and then
Gurbachan Singh brought a bamboo ladder and with the help of ladder C
they dumped the dead body in the sceptic tank situated on the southern
side of the bungalow compound of Suresh. The appellant Suresh then
asked the appellant Gurbachan to bring some salt for putting it in sceptic
tank. The witness Ram Sagar and Gurbachan Singh then brought 20 kg.
salt after purchasing it and the witness Ram Sagar and Raj Pal dropped
the salt in the tank. The approver Ram Sagar, PW 3 further deposed that D
Suresh came to the furniture shop of his master the following day at about
10 AM and reported that the head of U rshia has been thrown in a forest.

51. The approver Ram Sagar went on to state that on 21.10.83 Suresh
told Gurbachan Singh that he was going to Delhi to attend some court case E
and would return upto 26/27th October. But when Suresh did not return
on 27.10.83 Gurbachan Singh sent him to Delhi but he could not meet
Suresh Bahri there. He was told by the Manager that he had gone to
Ranchi. He therefore went to Ranchi on 4th November. There Gurbachan
told him that Suresh had come to Ranchi and was staying in Blue Heaven
Hotel, Ranchi. He met Suresh Bahri in the said hotel. After a few days F
Gurbachan Singh told the witness that the Police Inspector. Chutia Police
Station was searching Suresh Bahri in connection with murder of Urshia
and, therefore, Gurbachan Singh sent him to Delhi to tell Suresh about it.
The witness Ram Sagar came to Delhi and Informed Suresh accordingly
and Suresh sent message to Gurbachan Singh to handle the matter care-
fully. Ram Sagar also stated that Suresh had asked him to send four chairs G
and one cot to his farm house at Dhulli.

52. Ram Sagar further stated that he again came back from Delhi to
Ranchi on 20/21-11-83 where Suresh Bahri told to Gurbachan that there is
a red coloured attachee kept in the almirah of his house in which there is H
522 SUPREME COURT REPORTS 11994] SUPP.1 S.C.R.

A a'chhuri'. Suresh asked Gurbachan to get the chhuri sharpened and keep
the three kataries and chhuri in that very attachee again. Ram Sagar also
desposed that he had fixed the handles in the three kataries and Gurbachan
Singh had given him Rs. 20 for purchasing the katari. The witness Ram
Sagar was shown the katari, Ext. 5 which he identified to be the same. Ram
Sagar goes on to state that he went to Dhulli farm alongwith Gurbachan
B Singh with the said attachee and the bag in which chhuri and katari 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 attachee to the
gardener of Suresh Bahri and asked him to keep the attachee and give it
C 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
D Gurbachan Singh and told him that the appellant Suresh baa come to
Dhulli farm with his children and he has called Gurbachan Singh. There·
after Raj Pal Sharma and Gurbachan Singh went towards Dhulli on a
motor·cycle. A few days later Gurbachan Singh said to Ram Sagar PW 3
that the dead body has to be taken out from sceptic tank and in this
· E connection he may take the help of John Linda PW 31 and Manohar the
employees of his shop. Ram Sagar further stated that he went to the
bungalow of Suresh along with John Linda PW 31 and Manohar. After
t.aking out some mud from the tank the dead body became visible. Ram
Sagar told to John Linda that the dead body was dropped in the tank and
he should not tell to S. Gurbachan Singh that I had told this fact to him.
F At this Join refused to take out the dead body. Ram Sagar, therefore, along
with John Linda and Manohar came back to his shop as both of them had
refused to clean the tank and take out the dead body. At this appellant
Gurbachan Singh went on a scooter saying that he will have to do the work
himself. Ram Sagar further stated that Gurbachan Singh told to a truck
driver at the shop that he had purchased a piece of land where he had to
G drop some soil and if he finds any dead body there the driver should throw
it away. As stated earlier the confessional statement of approver Ram
Sagar. PW 3 was recorded by the learned Magistrate on 19.12.84 to 21.12.84
and he was examined on 31.1.85 as witness in the Court of Magistrate under
Section 306(4)(a) of the Code. While his statement as PW 3 as recorded
H by the learned trial Judge on 6.9.86 which continued for several days and
S.C. BAHRI v. STATE OFBIHAR [FAIZAN UDDIN, J.] 523

concluded on 19.11.86 as he was thoroughly cross examined by several A
learned counsel appearing for the appellants as well as for the three
acquitted accused. But we find that the testimony of the approver remained
consistent except for minor and insignificant contradictions and omissions
which are bound to occur in the statement of any one.

54. The only question that now remains to be considered is whether B
the evidence given by the approver has received corroboration in material
particulars from independent sources . We shall now first advert to the
witness connected with murder of Urshia and the circumstantial evidence
relating thereto.
c
55. As stated earlier Murari Lal. PW 1 had a grocery shop just
adjacent to the house of appellant Suresh Bahri in Ranchi. He was not only
the next door 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
Care Taker of the Bungalow No. 936. Murari Lal, PW 1. stated that the D
appellant Raj Pal Sharma met him for the first time on 26th. or 27th
September, 1983 when he came with a letter of Suresh stating therein th.at
he should hand over the keys of the house to Raj Pal Sharma. Murari Lal,
therefore, directed the gardener Moel Chand Mali, PW 24 to allow Raj
Pal to stay in the house where Raj Pal stayed till 1.10.83. Murari Lal also
stated that on 1.10.83 when Suresh came to Ranchi accompanied with his E
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 11.10.83 at about 5.00 PM Suresh and his
wife Urshia came to his shop when he was told by Urshia that both of them F
would be leaving next day for Delhi and, therefore, he should not give the
bill of the articles purchased by them from his shop on credit, Murari Lal
further deposed that Badri Narayan Mishra. PW 2 also came to his shop
at about 7.00 PM and told him that he had gone to the house of Suresh
Bahri to meet Suresh and his wife but he could not meet his wife and was G
told by Suresh that his wife had gone in a party to the house of S.
Gurbachan Singh and she would be going to Delhi next morning by air
direct from his house. Murari Lal PW 1. went on to state that on 10.11.83
itself at about 8.00 PM he went to the house of Suresh Bahri with the bills
as required by them and handed over the bills to Suresh in the drawing
room where he found Gurbachan Singh and the approver Ram Sagar, PW H
524 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A 3 also sitting on a sofa. He noticed that a kerosene lamp was lighted in the
room and he saw Raj Pal Sharma with a blood stained chhura. Suresh
asked him for four empty glasses which he supplied from his shop and
came back to his shop. Suresh told him that payment of the bills would be
made next day.

B 56. Next morning when Murari Lal. PW 1. noticed Suresh standing
outside his house, he told him that he had returned back from airport after
seeing off his wife. Murari Lal also stated that he purchased some land
from Suresh out of his Ranchi house and one Arjun Sharma and another
person also purchase some land. He further stated that on 6.1.84 Bhola
C Nath Choubey, Rajan Sharma and appellant Gurbachan Singh had also
purchased land out of the Ranchi property of Suresh when Suresh was
staying in Amber Hotel, Ranchi. From the evidence of S. Ranjit Singh, PW
18 the Manager of Amber Hotel, Ranchi, it is evident that though the
appellant Surcsh had his own house at Ranchi yet he prepared to stay in
Amber Hotel from 5.1.84 to 9.1.84, in the name of S. Chander and the
D handwriting expert S.C. Mittal, PW 65 established that the entries in the
Amber Hotel register were in the handwriting of appellant Suresh.

57. Murari Lal, PW 1 further deposed that the appellant Suresh had
asked Bhola Nath, one of the purchasers of the land to demolish the sceptic
E tank which existed in the land purchased by him and on questioning by
Bhola Nath the reason for so doing, the appellant Suresh said that he
should speak to Gurbachan Singh in this connection. Murari Lal stated that
in his presence Bhola Nath asked Gurbachan Singh the reason for demoli·
tion of the sceptic tank but Gurbachan Sin5h did not disclose the same.
Murari Lal stated that on 7.1.84 Gurbachan Singh came to his house and
F 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 tlie
sceptic tank by dumping red soil in it. At this Bhola Nath said that he would
G like to take neat and clean land to which Gurbachan Singh agreed but at
the same time gave a thre~t 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 PM Gurbachan
H Singh again came to him and asked him to call Choubey. He called Bhola
S.C. BAHRI v. STATE OF BIHAR iFAIZAN UDDIN,J.J 525

Nath Choubey when Gurbachan Singh told him that MALL has been A
removed from the sceptic tank (meaning thereby that the dead body has
been removed from the sceptic tank). When the witness Murari Lal. PW 1
enquired from Gurbachan Singh as to where has he disposed of the same
the later replied that it has been thrown behind the hillock.

58. Badri Narayan, PW 2 is yet another neighbour of Suresh at B
Ranchi. who is fully known to his family for the last several years. Badri
Narayan worked as an intermediary in the deal of the house between
Urshia Bahri and Laxmi Narayan. PW 21. who wanted to purchase Ranchi
house from Urshia. He deposed that the deal was almost finalised. He also
stated that Suresh and his wife Urshia had come to Ranchi on 1.10.83 and C
Laxmi Narayan. PW 21 came to him on 10th October and expressed the
desire of his family members to see the house of Suresh on 11.10.83. Badri
Narayan, therefore, conveyed this information to Suresh and informed
Laxmi Narayan also that the house can be seen in the afternoon of ll.10 83
At about 7.30 PM when he want to the house of Suresh, he noticed no light
in the house though there was electric light in the adjoining houses. Badri D
Narayan stated that when he reached near the door of the drawing room
the appellant Suresh rushed out and took him out of the varandah. But
while going out Badri Narayan saw Gurbachan Singh and one another man
sitting on the sofa of the drawing room to whom he identified as Ram
Sagar, PW 3. Badri Narayan also saw while going away that a kerosene
lamp was lighted in the drawing room and a person was moving about from E
one room to another wearing only an underwear. While he was taken out
of the varandah Badri Narayan enquired about Urshia and Suresh told him
that she had gone in a party to the house of Gurbachan Singh where she
would be staying in the night and proceed to Delhi by the morning flight.
Badri Narayan also stated that after a few days Laxmi Narayan. PW 21 told '
him foat although the deal was fmalised but he noticed that other persons F
were digging earth for laying foundation on the property and when they
met Suresh he told that he would not sell the property but a memorial of
his father would be constructed there. Laxmi Narayan, PW 21 got suspi-
cious and, therefore, he made enquires from Airlines Booking Office,
Ranchi and learnt that no person named as U rshia had travelled by air on
12.10.83 from Ranchi to Delhi. The prospective purchaser Laxmi Narayan, G
PW 21 corroborated the statement of Badri Narayan, PW 2 so far as it
relates to the negotiations with regard to the purchase of the house is
concerned.

59. Rameshwar Thakur, PW 4 was also at the relevant time an H
526 SUPREME COURT REPORTS [1994} SUPP. 1 S.C.R.

A 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 sometimes in the month
of October, 1983 Suresh visited the shop of Gurbachan Singh when Gur-
bachan Singh handed over a dagger lo the Witness to sharpen it. Ramesh-
war further stated that after a couple of days he returned the dagger to
B 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 J anuray 1984
for taking out soil from the septic tank but when he along with othe.rs after
c 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.

D 60. Moolchand, Mali, PW 24 was the gardener at the relevant time
. in Ranchi house No. 936 of Suresh Bahri and lived in a servant quarter
behind the bungalow. He knew the family of Suresh Bahri very well.
Moolchand stated that there used to be frequent dispute between Suresh
Bahr~ his mother and the deceased wife of Suresh in connection with the
sale of the bungalow, as Urshia insisted for sale but Suresh and his mother
E were opposed to it. He stated that one day in the month of Chaitra 1983
(much before the murder of Urshia) Suresh Bahri took him behind the
bungalow and told that a person has to be murdered and if he helped him
in doirig so, he will make him wealthy. The witness replied to Suresh that
he would not be able to do it. Suresh then asked him to call someone else
for this purpose and the witness replied that he does not known any such
F person for this purpose. At this Suresh asked him to make his arrangement
else where. The witness Moolchand deposed. that thereafter he managed
his employment with Jogda Math and started working there but he con-
tinued to live in the servant quarter in the bungalow of Suresh. He also
stated that Suresh came to Ranchi along with his wife sometimes after the
G summer vacations and one day he asked him to take him to one Ojha
known as Lal Saheb. He took Suresh to that Ojha who lived in Chutia.
Suresh Bahri spoke to that Ojha that his wife was mad and was a nuisance
for him and hence he wanted to bring an end to her life. At this Ojha
demanded Rs. 250 saying that his work would be done and Suresh com-
plied with the directions given to him by that Ojha Moolchand further
H stated that next day the appellant Suresh again took him to that Ojha and
S.C. BAHRI v. STATEOFBIHAR [FAJZAN UDDIN,J.] 527

complained that the work could not be done though he had paid the A
desired amount of Rs. 250. At this that Ojha said to Suresh that he will not
be able to do his work and he may get it done from someone else.

61. Witness Moolchand Mali, PW 24 corroborated the statement of
Murari Lal, PW 1 stating that he was called by Murari Lal who told him
that Suresh had sent a man (Raj Pal Sharma) from Delhi who will stay in B
the bungalow. Murari Lal gave him the key and directed him to open the
bungalow. Moolchand further stated that he opened the bungalow for that
man who was tall and thin and he identified Raj Pal Sharma to be tha.t
person who had stayed in the bungalow. Moolchand further stated that
Murari Lal Sharma had given Rs. 10 for the meals of Raj Pal Sharma and C
therefore he took him to the hotel where be took his meals. Moolchand
also stated that Raj Pal continued to stay in the bungalow till 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.
D
62. Shambhu Tiwari, PW 7 who at the relevant time was running a
tea stall opposite Chutia Police Station. Ranchi stated that sometimes
towards the end of September 1983 Raj Pal Sharma had ·come to his tea
shop for taking tea and cuntinued 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 be demanded the money he told him that he was a man of Suresb E
and had come to Ranchi to look after the house of Suresh which was going
to be sold. He further stated that Murari Lal, PW 1 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 F
the conspiracy hatched by the appellant Suresh along with his two associates,
.namely, Raj pal Sharma and S. Gurbachan Singh for the murder of Urshia
and in pursuance of which Urshia was murdered, there is some other
evidence also which connects the appellants with the crime in question.
G
64. Rohtas Sarang, PW 79 is the mother of Urshia who deposed that
she had received last letter from Urshia in America in the month of
September, 1983 as a result of which she was very much upset. When she
received two unusual letter dated 29.10.83 and 3.11.83 i.e. after the murder
of Urshia which ~e Ext. 23/6 and Ext. 23nfrom Suresh Bahri that Urshia
was very much busy and henceforth he would be writing them and also H
528 SUPREME COURT REPORTS [1994] SUPP.1 S.C.R.

A asked them that in future correspondence they should use the address of
S. Gurbachan Singh who is a good friend of Suresh at Ranchi her suspicion
increased exceedingly. A persual of the letters will go to show that Suresh
mentioned therein that Urshia had given up the idea of divorce. Ranchi
house has been sold away and as Urshia would be busy for quite a long
time, the two children will be shifted to Ranchi for their study and,
B therefore, they should not worry about them. A reading of the two letters
reproduced by the High Court in its judgment, evidently go to show that
Suresh was. conscious of the fact that Urshia was in regular contact with
her parents in America and as the contact had come to an end with her
murder, something had to be done to explain her silence by misguiding her
C parents that there exist no dispute between them. Urshia having given up
the idea of divorce and they were living in harmony and a happy life and
as the Ranchi house has been sold away they should not worry about them
at all.

65. This brings us to the evidence relating to the disclosure statement
D said to have been made by Raj·PaJ Sharma about the skull of Urshia and
the recovery thereof. After his arrest on 12.8.84 appellant Raj Pal Sharma
made the disclosure statement Ext.32 which was drawn up by C.B.I.
Inspector Madan la!, PW 85 assisted by Inspector Rajendra Singh PW 32,
in the presence of two witnesses, namely, Satya Dev Tiwari, PW 73 and
Dev Nandan, PW 74. Satya Dev Tiwari and Dev Nandan stated that in
E pursuance of disclosure statement a skull hair and some other articles were
seized as per seizure memo Ext. 33 at the instance of appellant Raj Pal
Sharma from a forest on Ranchi Patrutru Road. Similar is the statement
of C.B.I. Inspector, Madan 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
F 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 of its Direc-
G tor, Dr. Harish Chander. Dr. Harish Chander, the Director of the Institute-
cum-Legal Advisor to the Government of M.P. sent his report Ext. 2/81
after examination with his opinion that the skull belonged to a female
human being whose aged was 33 years plus minus 5 years. Dr. Harish in
his report had also asked for some other information and photograph
clothings of the deceased in order of foe up the identity of the person to
H whom the skull belonged to but the prosecution could not furnish the
S.C. BAHRI v. STATE OF BIHAR [FAIZAN UDDIN, J.] 529

required information. Dr. Barish submitted another report giving his A
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 deceased Dr. Barish could not be
examined by the prosecution as a witness due to his illness but an expert
of his department Dr. S.C. Jain, PW 80 had appeared an stated that prof.
Barish Chander was suffering from paralysis and, therefore, could not B
appear as a witness. He further proved the aforesaid two reports sent by
Prof. Barish Chander. He stated that he had examined the skull and other
materials after discussion with prof. Barish Chander for which he prepared
a note Ext. 30.

67. On the basis of the two reports sent by Prof. Barish Chander and c
the statement made by Dr. S.C. Jain, PW 80 Shri Sushi! Kumar, Learned
counsel appearing for the appellant Raj Pal Sharma contended that the
·identity of the skull alleged to be of the deceased Urshia Bahri is doubtful
and remained unestablished and, therefore, the conviction for the charge
of murder and/or conspiracy to murder Urshia Bahri cannot be said to be D
established by the prosecution particularly when there is no positive proof
of the hair said to have been recovered alongwith the skull belonging to a
woman or the head of the deceased Urshia. In our considered opinion
there is no substance in these submissions as most often and in certain
cases even the dead body of the deceased person is not recovered or seized
but if there is positive evidence to connect the culprit, it cannot be said E
that the offence of murder is not established. In the present case it is no
doubt true that prof. Barish could not give his opinion with certainly with
regard to the identity of the skull, but in view of the evidence on record
which has been discussed by us in detail it could not be accepted that the
prosecution has failed to establish that the skull which was recovered at
the instance of the appellant Raj Pal Sharma did not belong to the F
deceased Urshia. The very fact that Raj pal Sharma made the disclosure
statement that after severing the neck from her body the skull was thrown
in the jungle which was seized only at the instance of the appellant Raj Pal
Sharma who searched out the skull in the forest and produced to the
investigating agency in the presence of independent witness coupled with G
the report of Prof. Barish Chander that it was the skull of a female whose
age was about 33 years plus minus 5 years on either side which in fact was
the age of deceased Urshia, there is no difficulty in recording the con-
clusion that the skull belonged to none-else but Urshia.

68. There is yet another piece of circumstantial evidence to connect H
530 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A 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 Khadgraha 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
B Singh, PW 69 P.S. Case No. 27/84 with regard to murder of Urshia was
registered in Lower Bazar Police Station as at that time Chutia Police
Station was under Lower Bazar Police Station and the case was handed
over to C.B.I. by notifications of the Central and State Governments.
Rajeshwar Singh PW 59 investigated the case. During the course of inves-
C tigation as stated earlier, PW 59 baa arrested the appellant Gurbachan
Singh. He deposed that during the course of investigation the appellant
Gurbachan Singh took him near Khadgraha hillock where the waste of
Ranchi city is dumped. He deposed that at the instance of Gurbachan
Singh he got the place unearth by labourers to discover the dead body of
D Urshia which could not be found but a piece of blanket, piece of saree and
a rope were found which were seized at the instance of Gurbachan Singh
by seizure Memo. Ext. 5 dated 2.2.84which was prepared by ASI Rangnath
Singh on his direction. These articles were put to Test Identification. Shri
Atulya Kumar Bara, PW 83 an Executive Magistrate on the order of C.J.M.
Ranchi held T.I. parade of the articles in the varandah of the Chutia Police
E Station. An old piece of light green blanket, three pieces of sky blue-black
cheque saree and rope were identified by Murari Lal PW 1 and Badri Nath.
Mishra, PW 2 as per identification memo Ext.36 prepared by Atulya
Kumar Bara, PW 83.

69. He deposed that no person was present at the place where
F identification of these articles was !cold. Murari Lal, PW 1 was one of the
witness who identified the blanket piece, saree pieces and the rope in T.I.
parade and had signed the T.I. memo. He deposed in para 17 that Urshia
Bahri was wearing that saree when she came to his shop in the evening of
11.10.83 and he had seen in the sceptic tank the blanket and the rope with
G which the dead body was wrapped and tied. Similar is the statement of
Badri Narayan Mishra, PW 2 who stated in para 9 of his deposition that
he had identified the aforementioned articles in the T.I. parade held in
Chutia Police Station and had signe.d the memo. He stated that when he
met Urshia Bahri at her house in the morning of 11.10.83 she was wearing
the saree of which the pieces were identified by him in the T.I. parade and
H he had seen the blanket kept on the Takht in the house of Suresh Bahri
S.C. BAHRI v. STATEOFBIHAR [FAIZANUDDIN,J.] 531

when he visited the house. He also stated that rope was a part of the rope A
of the cot which was kept in the varandah of the house of Suresh Bahri.
This part of the prosecution evidence also could not be demolished by the
defence although the witnesses were cross-examined thoroughly and by
several counsel appearing for the accused persons. There is nothing on
record to disc~edit their testimony.
B
70. However, learned counsel appe\lfing for the appellants relying on
the decision in the case of Nari Santa v. Emperor, AIR (1945) Patna 161
and Abdul Sattar v. Uni<>n Territory, AIR (1986) SC 1438 vehemently urged
that the alleged recovery of blanket, piece of saree and rope said to have
been made by the Investigating Agency at the instance of the appellant C
Gur.bachan 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 D
of Khadgarha dumping ground was recorded but there is positive statement
of Rajeshwar Singh, PW 59. Station House Officer of Chlitia Police Station
who deposed that during the course of investigation Gurbachan Singh led
him to Khadgarha Hillock along with an Inspector Rangnath Singh and on
pointing out the place by Gurbachan Singh he got that place unearthed by E
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 Nand Kishore who is said to be present at tlie F
time of recovery and seizure of the articles as well as with regard to the
identity of the articles seized vide paragraphs 18, 21 and 22 of his deposi-
tion but it may be pointed out that no cross-eJCllmination was directed with
regard to the disclosure statement made by the appellant Gurbachan Singh
or on the point that he led the police party and others to the hillock where
on his pointing out, the place was unearthed where the aforesaid articles G
were found and seized. It is true that no public witness was examined by
the prosecution in this behalf but the evidence of Rajeshwar Singh, PW 59
does not suffer from any doubt or infirmity with regard to the seizure of
these articles at the instance of the appellant Gurbachan Singh which on
T .I. parade were found to be the articles used in wrapping the dead body H
532 SUPREME COURT REPORTS (1994] SUPP.1 S.C.R.

A of Urshia. According to the evidence of PW 1 and PW 2 as said earlier
the saree pieces were part of the saree of Urshia that she was seen wearing
by these witness the blanket piece was a part of the blanket which was seen
on the Takht in the house of the appellant Suresh Bahri and the piece of
rope was the part of the rope said to be taken out from the cot kept in the
varandah of the house of Suresh.
B
71. The two essential requirement for the Application of Section 27
of the evidence Act are that ( 1) the person giving information must be an
accusaj,of any offence and (2) he must also be in police custody. In the
present ~ase it cannot be disputed that although these essential require-
C ments existed on the date when Gurbachan Singh led PW 59 and others to
the hillock where according to him he had thrown the dead body of Urshia
but instead of the dead body the articles by which her body was wrapped
were found. The provisions of Section 27 of the Evidence Act are based
on the view that if a fact is actually discovered in consequence of informa-
D tion given, some guarantee is afforded thereby that the information was
true and consequently the said information can safely be allowed to be
given in evidence because if such an information is further fortified and
confirmed by the discovery of articles or the instrument of crime and which
leads to the belief that the information about the confession made as to
the articles of crime cannot be false. In the present case as discussed above
E the confessional statement of the disclosure made by the appellant Gur-
bachan 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.
F
72. In the light of the facts stated above we are afraid that 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 Santa (supra) the ac-
G cosed 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
H already discovered having been produced by the accused. Similarly the
S.C. BAHRI v. STATE OF BIHAR (FAIZAN UDDIN, J.J 533

decision rendered in Abdul Sattar (supra) also does not help the appellants A
in the present case. In the case of Abdul Sattar (supra) recovery of wearing
apparels of the deceased is said to have been made at the instance of the
accused of that case more than three weeks after the occurrence from a
public place accessible to the people of the locality and, therefore, no
reliance was placed on the disclosure statement and recovery of the wear-
B
ing apparels of the deceased. But in the present case it was soon after the
arrest of appellant Gurbachan Singh that he took the Police Officer while
in custody to the place where according to him he had thrown the dead
.,. body of Urshia wrapped by the incriminating articles. Those articles were
not found laying on the surface of the ground but they were found after
unearthing the Khadgarha dumping ground under the hillock. Those ar- c
ticles were neither visible nor accessible to the people but were hidden
under the ground. They were discovered only after the place was pointed
out and it was unearthed by the labourer. No fault therefore could be found
with regard to the discovery and seizure of the incriminating articles.
D
73. Now we come to the evidence of the experts examined by the
· prosecution, and the expert opinion rendered by them touching upon the
crime in question. K.K. Arora, PW 51 at the relevant time was working as
the senior Scientist in Chemistry branch of the Central Forensic Science
Laboratory, Delhi having 24 years experience. He had examined the gunny
. bag which was used for carrying salt for the dropping in the septic tank E
after the dead body of U rshia was thrown in the said tank. K.K. Arora is
his report Ext. 20 found salt in the said bag. Dr. G.B. Gupta, PW 53 Senior
Scientist has examined the wall scrappings of the blood from the room of
the Ranchi house of Suresh and scrappings from the steel trunk seized
from the room of the said house of Suresh and found human blood stains
F
in the same. Dr. R.P. Bhatnagar .another Senior Scientist, Head of Surgery
Division-cum-Assistant Chemical Examiner to the Govt. of India (CBI)
New Delhi has examined the scrapping of the blood taken from the Ranchi
house of Suresh Bahri and he as per his report Ext. 20/40 found human
blood of 'B' group in the same.
G
74. The prosecution had also examined about 20 employees
Managers and Proprietors of different hotels which have been catalogued
by the High Court in para 69 of its judgment in which the appellants Suresh
and Raj Pal Sharma had stayed on different dates by concealing their real
names and giving out different names and addresses under the fear of H
534 SUPREME COURT REPORTS [1994) SUPP. l S.CR.

A 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 Bahri 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
B
Station.

75. Thus on an overall independent consideration of the circumstan-
tial 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
C abundantly clear had satisfactorily established that the evidence of the
approver Ram Sagar Vishwakarma, PW 3 has received requisite corrobora-
tion on all material particulars and the totality of the surrounding cir-
cumstances, 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 master minded the plan, the other
-
D two appellants conjointly hatched a conspiracy to. commit the murder of
Urshia Bahri and that in prosecution of the common intention Suresh Bahri
and ·Raj Pal Sharma did commit the murder of Urshia Bahri. Not only this
but all the three appellants which a view to screen themselves from the
commission of the offence made all out efforts for the disappearance of
E the dead body of Urshia.

76. The High Court affirming the findings recorded by the trial Court
and on taking stock of the entire prosecution evidence on record by itself
came to the conclusion that the following circumstances were fully estab-
lished beyond all reasonable doubt against the three appellants and on that
F basis found them guilty for the aforesaid offences :

"(1) Deceased Urshia whose parents and brother were living aboard ·
was married to the appellant Suresh in the year 1972.

(2) Appellant Suresh was the only issue of his parents, having busi-
G ness and a farm house in village Dhulli, 40 kms. from Ranchi.

(3) Out of their wedlock of Sriresh and Urshia two children were
born, a girl by name Richa and a boy Saurabh.

(4) A couple of years after the marriage the relations between Suresh
H and Urshia became strained on account of constant interference by Y.D.
S.C. BAHRI v. STATE OFBIHAR [FAIZAN UDD!N,J.] 535

Arya. maternal uncle of Suresh in the domestic as well as business affairs. A

(5) Deceased Urshia was extremely unhappy with her husband
Suresh and mother-in-law Santosh, the acquitted accused on account of
their mal-treatment and undesirable attitude towards her and her children.
The stay of Y.D. Arya in the house of the couple was not acceptable to
Urshia because of his undesirable interference in _their business and domes- B
tic affairs. Deceased Urshia realised that her status in the family was just
like undesirable person.

(7) Urshia became highly despaired and disappointed on account of
incapability of her husband to manage the family business having fallen into C
bad company and became addict excess drinking and had disposed of the
Calcutta properties and she did not receive a single penny out of it.

(8) Constant efforts of Urshia to associate he_rself with family busi-
ness to improve its condition was frustrated by her mother-in-law who
poisoned the mind of her husband Suresh against her. D
(9) The removal of Y.D. Arya at the instance of Urshia from occupa-
tion of a portion of the house had further annoyed her mother-in-law and
husband Suresh.

(10} Her mother-in-law had once tried to kill her by administering E
poison in the grab of medicine as deposed by her sister PW66 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 far want of citizenship and ready money. F

(12} In order to overcome this problem Urshia pursuaded 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. .
G
(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 H
536 SUPREME COURT REPORTS (1994) SUPP. I S.L 1.

A 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
B a conspiracy with the appellants Raj Pal Sharma and Gurbachan Singh.

(16) It was for this reason that he had first tried to take the assistance
of his Mali, Moolchand, PW 24 to commit her murder and when he
declined to do so he was turned out from the out-house.
c (17) Suresh also tried to persuade the approve Ram Sagar, PW 3
through his employer Gurbachan Singh for the murder of Urshia in pur-
suance of which appellant Gurbachan Singh gave him allurement in the
presence of Suresh that not only the advance taken by him would be set
off but some amount will also be given to him by Suresh.
D
(18) Though the approver Ram Sagar, PW 3 did not accept the offer
but extended full cooperation in that regard to his employer Gurbachan
and Suresh Bahri.

(19) While Urshia was negotiating with Laxmi Narayan PW21
'E through Badri Naryan Mishra. PW2 to dispose of Ranchi house No. 936,
her husband Suresh was busy in hatching a conspiracy with Raj Pal Sharma
and Gurbachan Singh and approver Ram Sagar, PW 3 to do away with her
life and for that purpose he started making preparations.

(20) Having found that the negotiation to disposed of Ranchi house
F have been finalised by Urshia. Suresh became desperate and sought for the
help of Raj Pal Sharma and Gurbachan Singh for committing the murder
of his wife at the earliest.

· (21) The appellant Raj Pal Sharma, a resident of Masjid Moth, Delhi
G was quite close to Suresh as both were seen together on different occasions
and Suresh was also paying for the tea and articles consumed by Raj Pal
Sharma (vide PWl and PW?)

(22) On 1.10.83 Suresh along with Urshia came to Ranchi and stayed
in house No. 936 but before their arrival Raj Pal Sharma had already
H arrived in the last week of September, 1983 to take stock of overall
S.C. BAHR!v. STATEOFBIHAR[FAIZANUDDIN,J.] 537

situation. A
(23) Before leaving Delhi Urshia had informed her parents through
a letter that she would be shifting to America after disposing of the house
in October.

(24) Appellant Suresh with the help of Gurbachan Singh got a dagger B
sharpened by Rameshwar Thakur PW 4 an employee of Gurbachan Singh
and also got a danda prepared by Ram Sagar, PW 3 another employee of
Gurbachan a few day before 11.10.83.

(25) As per settled programme Ram ·sagar PW3 was taken by
Gurbachan Singh to the house of Suresh three days before 11.10.83 with a C
danda, but on account of arrival of some outsiders that plan could not be
executed.

(26) A similar plan was again 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 D
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 11.10.83 when Urshia told him to bring the Income tax clearance E
certificate so that document could be executed and thereafter she would
return to Delhi on 12.10.83.

(28) The appellant Suresh purchased two railway tickets in the
waiting list in his name and his wife Urshia name for Delhi to give a colour
that the couple would be leaving on 12.10.83 but in fact none of them F
travelled on 12.10.83 as per the reservation chart and evidence of the then
Chief Reservation Supervisor of Ranchi Railway Station.

(29) On 10.11.83 electric light of the house of Suresh was deliberately
put off though there was light in the vicinity so that in the darkness murder G
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 the
house soon after the ghastly crime and as PW 3 became nervous on
witnessing the qhastly crime, his employer Gurbachan Singh patted him H
538 SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A and offered water.

(31) Murari Lal, PWl also happen to come to the house soon after
the murder with the bill of the articles purchased from his shop on credit
as required by Urshia and found no electric light in the house but a
kerosene lamp was lighted, appellant Gurbachan Singh and PW 3 were
B sitting on a sofa, the appellant Suresh was in the drawing room and Raj
Pal wearing an underwear was seen moving 7om one room to another with
the dagger stained with blood .. The appellaat Suresh asked Murari Lal. PW
1 to supply four empty glasses as they wanted to enjoy liquor. Murari Lal
brought the glasses and then went away.
c (32) A middleman Badri Narayan Mishra. PW 2 also happened to
arrive at about the same to meet U rshia but he was driven out from the
varandah of the house by Suresh saying that Urshia had gone in the party
to the house of the appellant Gurbachan Singh and from there she would
be leaving for Delhi by next morning flight, which was later found to be
D false by verification from the airlines office, vide PW 9.

(33) After PWl and PW 2 were virtually driven out as aforesaid all
the three appellants with the help of Ram Sagar Vishwakarma, PW3
wrapped the body with a saree which Urshia was wearing, a blanket and
E then tied with a rope and wrapped the severed skull separately in polythene
bag.

(34) The next ·morning the skull was taken to a jungle down the hill
on Ranchi-Patratru Raod by Raj Pal and Suresh in a motor-cycle and
thrown there. This fact was communicated to Gurbachan Singh also.
F
(35) The trunk portion of the body of Urshia with the help of
appellant Gurbachan, Raj Pal Sharma and Ram Sagar, PW3 was concealed
in a sceptic. tank within the compound of the house of Suresh in the
following evening with the help of a bamboo ladder and the appellant
G Gurbachan and approver Ram Sagar, PW J brought 20 kgs of salt on the
direction of Raj Pal Sharma and poured the same in sceptic the tank for
speedy decomposition of the body.

(36) Suresh l1ad earlier decided to place her truck portion in the box
and keep it in some train for which a box was prepared by Gurbachan
H Singh with the help of approver PW 3 but that plan was given up as there
S.C. BAHR!v. STATEOFBIHAR [FAIZANUDDIN,J.] 539

were changes of detection. A
(37) Appellant Suresh gave false information to his in-laws even after
Urshia was murdered by sending two letters dated 29.10.83 and 3.11.83 Ext.
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. B

(38) In letter dated 31.11.83 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 2.11.83 and departure on 5.11.83 giving his address as 409 C
Defence Coloney though he had no house in Defence Coloney (vide Ext.
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 improbably story. D
The said letters also indicated the pre-planned idea of Suresh in commit-
ting the murder of his two issues subsequently by informing them that
Urshia was staying at Ranchi for about one had a half years and the
children were to shift there for studies. This unusual information given by
Suresh created a serious suspicion in the mind of his in-laws and, therefore, E
they directed their son Bineet Singh. PW 69 to go to India and find out the
welfare and whereabouts of Urshia and her children. The conduct of
Suresh and Gurbachan after the arrival of informant Bineet Singh, PW 69
from Libya to make an enquiry about his sister and children was not only
misleading but their activities at every stage were conflicting and suspicious
which directly suggested that Suresh was deliberately avoiding to divulge F
the truth. The informant Bineet Singh, PW 69 made frantic enquiries about
his sister at Delhi, Ranchi and Dhulli farm and from different sources came
to known all the facts leading to the murder of his sister and, therefore, he
lodged the reports both at Ranchi and Delhi.

(40) When the investigation by Chutia Police was found to be un- G
satisfactory, CBI took over the charge by virtue of Government notifica-
tions and during the course of investigation Raj Pal was arrested on 8.8.84
who made disclosure statement Ext. 32 as to how Urshia was killed in one
of the rooms of the Ranchi house No. 936 and her head was severed and
thrown in the jungle. H
540 SUPREME COURT REPORTS [1994/ SUPP. 1 S.C.R.

A (41) Prior to Raj Pal,Ram Sagar, PW 3 was arrested and made
confessional statement leading to unearthing of the murders.

(42) On the disclosure statement made by appellant Raj Pal the head
of Urshia, hair and jaw, etc. Vi'erc seized at his instance from the forest as
per seizure Ext. 33.
B
(43) The expert Dr. Harish Chander on examination found a skull of I
a female aged 33 years plus minus 5 years on either side which fitted the
age of Urshia as it appears in her passport. Ext. 25.

(44) From the evidence on record the friendship between Suresh and
c Gurbachan Singh is fully established. Suresh was a regular visitor of the
shop of Gurbachan Singh and he took the help of his employees in
preparing Dandas. Dagger for killing Urshia.

(45) The active participation of Gurbachan Singh in executing the
D plan of murder by extending all sorts of help at each and every stage prove
that he was an active partner. in the criminal conspiracy.

(46) The removal of truck portion of dead body of Urshia by Gur-
bachan to a hillock known as Khadgraha and filling up the sceptic tank
with morum, for disappearance of the evidence of murder is an added
E circumstances to establish that he had all through taken active part.

( 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
p public and police in that sequence, Gurbachan Singh had sent the approver
PW 3 to Delhi meet Suresh and inform him that suspicion has 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
G otherwise he would not have taken the leading part in the murder of
Urshia. Raj Pal also went under ground forcing Chutia Police to move the
C.J.M. Ranchi on 23.8.84 for issuance of warrant against him leading to his
arrest on 8.8.84 by C.B.I. in a Boarder village of Delhi and Haryana."

H 77. After going through the evidence and material on record we are
S.C. BAHRI v. STATE OFBIHAR [FAil.AN UDDIN, l.J 541

also satisfied that the aforementioned facts and circumstances found to be A
established by the Trial Court as wrll as by the High Court are well
founded and fully supportable by evidence on record. Since we find our-
selves iii agreement with the said conclusion the same do not call for any
interference by this Court in exercise of our jurisdiction under Article 136
of the Constitution. B
78. Learned counsel for the appellants, however, contended that in
a case where a witness identifies an accused who is not known to him, in
the Court for the first time, his statement is not of any evidentiary value
without their being a previous identification parade and as in the present
case the appellant Raj Pal Sharma was quite stranger to the witnesses who
c
for the first time identified him in the dock, without their being any
previous identification parade, their evidence should not have been ac-
cepted with regard to the factum that he was the person who came and
stayed in the house of Suresh Bahri and took part in the alleged murder
of Urshia and her two children. While advancing these arguments support D
was sought to be taken from the decisions iIJ Kannan v. State of Kera/a,
[1979] 3 SCC 319 and Mohan/a/ Ganga Ram Gehani - [1982] 1 SCC 700.
There can be no dispute with regard to the principles as to the evidence
relation to identification of a stranger accused involved in any crime. It is
well settled that substantive evidence of the witness is his evidence in the E
Court but when the accused person is not previously known to the witness
concerned then identification of the accused by the witness soon after his
arrest is of great importance because it furnishes an assurance that the
investigation is proceeding on right lines in addition to furnishing cor-
roboration of the evidence to be given by the witness later in Court at the F
trial. Form this point of view it is a matter of great importance both for
the Investigating agency and for the accused and a foltiori for the proper
administration of justice that such identification is held without avoidable
and unreasonable delay alter the arrest of the accused and that all the
necessary precautions and saleguards were effectively taken so that the G
investigation proceeds on correct lines for punishing the real culprit. It
would, in addition, be fair to the witness concerned also who was a stranger
to the accused because in that even the changes of his memory fading away
are reduced and he is required to identify the alleged culprit at the earliest
possible opportunity alter the occurrence. It is in adopting this course H
542 SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.

A alone that justice and fair play can be assured 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 the
necessity of T.l. parade. In the present case as stated earlier the appellant
B Raj Pal Sharma approached Murari Lal, PW 1 with a letter of Suresh in
pursuance of which Murari 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 1.10.83 when Suresh
C alongwith Urshia arrived and stayed there. Thus Murari Lal, PW. 1 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
D Raj Pal Sharma used take tea and other eatable articles for a number of
days and had no money to pay the charges but continued to se.Ve him with
tea, etc. on the assurance of Murari Lal, PW 1 that the dues would be
cleared by Suresh Bahri as Raj Pal was a man of Suresh. Moolchand Mali,
PW 24 also had on opportunity to see Raj Pal living in Chutia house,
Ranchi for several days. Similar is the case with other witnesses who had
E identified Raj Pal to be the person who had stayed in the house of Suresh
Bahri. Thus in view of this evidence it cannot be said that the witnesses
who identified Raj Pal in the Court had seen him only once for a short
while by reason of which their evidence should not be accepted. In the case
of Kannan (supra) relied on by the learned counsel for the appellants the
F accused of that case was seen by the identifying witness only once in the
Court and, therefore, in the absence of T.I. Parade the evidence was not
accepted which is not the case before us. Similar was the position in
Mohan/al Ganga Singh Gehani (supra) wherein the witness who identified
the accused for the first time in Court did not know him before and
G therefore in the absence of T.I. Parade the evidence of that witness was
held valueless and unreliable. In the present case and in the facts and
circumstances discussed above T.I. parade was not necessary at all as the
witnesses had seen the appellant Raj Pal Sharma Continuously for several
days and they had the opportunity of knowing and recognising him since
H before the made their statement in the Court.
S.C. BAHR!i·. STATE OFB!HAR [FAIZAN UDDIN. J.) 543

79. This brings us to the second leg of prosecution case relating to A
the murder of two children, namely, Richa and Saurabh who are alleged
to be murdered in the intervening night of 17/18th December, 1983 at
Dhulli farm house of Suresh Bahri in conspiracy with the other two
appellants, namely Raj Pal Sharma and S. Gurbachan Singh. This episode
of their plan commenced with two applications Ext. 40 and Ext. 40/J made B
by the appellant Suresh on 5.12.83 to the Principal, Father Agnel's School.
South Extension, New Delhi, stating that his children Richa and Saurabh
will not be atttending the classes from 5.12.83 till the end of February, 1984.
To establish this fact the prosecution had examined the Principal of the
said school Shri M. Cawlih, PW 33. He deposed that he knew well Richa C
and Saurabh who were the students of his school. Saurabh was in 4th
standard and Richa was in 6th standard. He further deposed that the
aforesaid two applications were made by Suresh Chandra Bahri, father of
the two children named above. The application about Richa Bahri was
received by her class teacher named Sonia and the other aplication relating D
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 CR-! 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 I, 2, 23 and 36 of the said copy book. He. also indentified E
Richa in the photograph Ext. 1 and Suarabh 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
Agne! 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 F
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 and
23. PW 34 also identified Saurabh in the photograph Ext.1 and 1/3. She G
also identified Richa in the photograph Ext. 1/1. The evidence of these two
witnesses was half heartedly sought to be challenged by the counsel for the
appellants as unreliable, a mention of which is made only to be rejected a·
both of them are independent witnesses having no animus against any of
the accused/appellants. Their evidence does not suffer from any infirmities H
544 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A and we find their version as fully truthful.

80. The prosecution in order to establish further chain of circumstan-
ces in the murder of two children examined Dina Nath Sharma PW 6 who
knew Suresh Bahri since 1%5 and both were class- mates. He deposed that
he frequently visited the Delhi house of Suresh Bahri and also used to stay
B with him. He knew all the family members of Suresh Bahri including his
wife and children. Dina Nath stated that when he visited Delhi house of
Suresh in the first week of December, 1983 he saw the two children of
Suresh in Delhi house when Suresh had told him that he will take his
children to Ranchi to get them admitted in any school there so that the
C children and their mother may Jive together. PW 6 further deposed that
Suresh Bahri left for Ranchi house in the morning of 8.12.83 in the
Ambassedor car along with his mother Santosh Bahri and a maid-servant
and one more person (identifying Raj Pal in the court to be that person).
Suresh told him that his mother and maid servant would be going upto
D Basti (UP}. On asking about the other man Suresh told him that he was a
Motor Machanic whom he had taken by way of precaution as he had to
cover a long journey. He also stated that he had taken 3-4 beddings besides
other articles in the car.
~~.
· 81. Witness Gopi Krishna, PW 11 Manager of the Tourist Dak
E Bungalow, V aransi added further link to the incident. He deposed that
Suresh Bahri and Raj Pal Sharma along with the two children had stayed
at his bung.tlow on two days i.e., 13/14-12-83. The Guest House Register
Ext. 8 contained the entry about their stay on the aforesaid dates. Gopi
Krishna identified the appellants Suresh and Raj Pal Sharma in the court
p and stated that Suresh had made the said entry in the Guest register. It
was shown in the said entry that they were coming from Basti and were
going to Ranchi which fact lend support to the statement of Dina Nath.
PW 6 that his mother and the maid servant would travel only upto Basti
and it was for this reason that only the appellants Suresh, Raj Pal and the
G two children had stayed in the Guest House on 13/14-12-83. 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 Varansi in the evening of 14.12.83 the appellant Suresh, Raj
Pal along with the two children proceeded further by car to Ranchi and
H before reaching Ranchi stayed in New Punjab Rest House at Daltonganj,
S.C.BAHR!v. STATEOFBIHAR[FAIZANUDDIN,J.] 545

as testified by its Proprietor S. Gurbax Singh, PW 19 who deposed that in A
1983-34 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 15.12.83 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
B
Bahri which was also signed by Suresh. The number of passengers as given
in the entry was shown as four coming from Delhi and going to Ranchi.
CBI Inspector, Rajendra Singh, PW 82 seized the register of his hotel. The
entries in the said register made in the writing of Richa Bahri and in her
copy book were compared by the expert S.C. Mittal, PW 65 who opined
that the writings and signature of Richa in the Guest House Register fully C
tallied with her writing in the copy book of Father Angel School as proved
by her class teacher, PW 34.

82. The party of four i.e., Suresh, Raj Pal and the two children
ultimately landed at Dhulli farm in the afternoon on 16.12.83 as testified D
by Caretaker. Gopi Mistry, PW 29 of Suresh on his Dhulli farm house and
his son Shiv Nandan Lohare, PW 60. Both of them stated that their master
Suresh along with Raj Pal and the two children had arrived at Dhulli farm
house in the afternoon of 16.12.83 and stayed there till the morning of
18.12.83. Both the witnesses also stated that about a fortnight before the
arrival of Suresh and party, the appellant Gurbachan Singh had also come E
to Dhulli farm to make arrangement for some cots and chairs which were
sent by him from Ranchi in a bus. Gopi Mistry also deposed that Raj Pal
Sharma and two Children stayed at Dhulli in the night following 16.12.83
and next day on 17.12.83 Raj Pal went to Ranchi and came back with
appellant Gurbachan Singh on a .motorcycle but Gurbachan went away F
after about an hour. In the night of 17.12.83 all the four took food prepared
by the wife of Gopi Mistry and then all the four slept in one room at Dhulli
farm. Gopi Mistry proceeded further to state that on 11.12.83 at about
dawn Suresh gave a call to him and on hearing the call he, his wife and his
son Shiv Nandan woke up. He came out and noticed the two children in
the rear seat of the car in the sleeping position fully covered with a guilt G
and only some parts of their legs alone were visible. Suresh Bahri and Raj
Pal were sitting in the front seat of the car and Suresh told him that they
were going and if any one enquired about him they be told that he was not
there and then left Dhulli farm. Shiv Nandan, PW 60 the son of Caretaker.
Gopi Mistry also made similar statement but further added that when H
546 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A Suresh and party was ready to leave at dawn on 18.12.83 he came and tried
to look inside the car through the glasses, but the appellant Raj Pal shouted
at him commanding him to go away.

83. The evidence of these two witnesses PW 29 and PW 60 was
sought to be assailed by the learned counsel for the appellants by pointing
B 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 hard-
c ly 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
D examined Vijay Kumar Asthana, PW 12 who was the Manager of Hotel
India, Varansi at the relevant time. Asthana deposed that Suresh had
stayed his hotel on 18.12.83 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 hand writing was compared
E with the specimen writing and signature of Suresh by the expert S.C. Mittal,
PW 65 who found the two writings ha\1ng been made by the same person
in other words by Suresh. The purpose of this evidence is to show that after
leaving Dhulli farm at dawn on 18.12.83 when on their return journey
Suresh stayed in Hotel India al Varansi on 18.12.83 there were only 2
persons i.e., Suresh himself and the appellant Raj Pal Sharma and the two
F children were no longe1 in their company whose bodies were disposed of
somewhere on the way which would be clear from the evidence discussed
hereinafter.

85. H iralal, PW 36 is a businessman of Sarna th. District Banaras who
G had gone to the bank of Varuna river on 20.12.83 at about 8.00 AM to ease
himself when he noticed crowd there. He went and saw a gunny bag was
floating in the water of Varuna river which was taken out and opened in
the presence of persons present there. In the said bag dead body of a
Hindu boy aged about 12/13 years ~its found having incised wounds in the
neck. In the meanwhile one Dr. Mahendra Prasad, PW 35 also arrived
H there who at his instance wrote a report which he took and lodged in
S.C. BAHRI v. STATE OF BIHAR [FAIZAN UDDIN, J.] 547

Sarnath Police Station in respect of the dead body. On the basis of his A
report the First Information Report, Ext. 13 was recorded in the Police
Station and Atma Nand Singh. PW 46. Incharge, P.S. Sarnath went to the
bank of Varuna river, prepared the panchnama of the dead body Ext. 14
and seized the gunny bag as per seizure memo Ext. 12. Investigating
Officer, PW 46 then called a photographer, Ashok Kapoor, PW 48 and
took the photographs of the dead body of the boy for purpose of identifica- B
tion later. Dr. Bhargav, PW 27 performed an autopsy over the dead body
of the boy 9n 21.12.83 and found two incised wounds on the neck. There
was also contusion on the chest and various other injuries on his person
which were ante-mortem in nature caused by sharp object.

86. Here it may be mentioned that next door neighbour Murari Lal,
c
PW 1, a family friend Dina Nath Sharma, PW 6 Gopi Krishna Asthana,
PW 11, Manager of Tourist Dak Bungalow, Varansi. Gopal Mistry, PW 29,
the caretaker of Suresh at Dhulli farm. Mrs. George, PW 34, a teacher of
Father Agne! School where the two children studied. Satvender Kaur, PW
41, a close relative of Urshia Bahri and the informant Bineet Singh, PW 69 D
the brother of the deceased have all identified from the photographs that
were taken by the photographer Ashok Kapoor, PW 48 to be the
photographs 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.
E

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 17/18-12-83
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 F
was found at about 8.00 AM on 20.12.83 but without any sign of decom-
position and only rigour morlrous was present while putrefaction starts after
about 24 hours of the death but the same was not found at the time of
post ·mortem which was performed after 60 hours of the alleged time of
murder. On the basis, therefore, it was submitted that the dead body G
recovered was either not the dead body of Saurabh or the murder was not
committed in the intervening night of 17/18-12-83. 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 his son Shiv Nandan Lahore, PW 60 the two children had slept
after taking their meals in the meals in the night of 17-12-83. These H
·-
548 SUPREME COURT REPORTS [1994) SUPP. 1 S.C.R.

A arguLents were advanced on the basis of some stray sentences here and
there from the evidence of Dr. Bhargav in isol".tion. A reading of the full
statement of Dr. Bhargav, PW 27 will go to show that there is absolutely
no substance in the aforementioned submissions.

88. So far as the identity of the dead body is concerned, we have
B already discussed above that there is over-whelming evidence to show that
it was the dead body of Saurabh as stated by a large number of witnesses
after seeing the photographs. So far as the question of putrefaction and
decomposition of the dead body is concerned, it depends on various factors
such as the season, place and the manner in which the dead body was kept
C besides other relative considerations. A perusal of evidence of Dr. Bhargav,
PW 27 would reveal that he clearly stated that putrefaction may take place
even after 3 to 5 days if the dead body remained submerged in water.
Admittedly the dead body of Saurabh was found floating in Varuna river
in the morning of 20.12.83. Consequently according to the evidence of Dr.
Bhargav the progress of putrefaction or decomposition could not have
D commenced at the time when the dead body was recovered and post-mor-
tem was conducted. This circumstance, therefore, does not render the
prosecution story improbable or unreliable. The absence of food at the
time post-mortem of Saurabh is also not of much significance to render the
prosecution story doubtful. The presence or absence of food at the time of
E post-mortem in relation to the time of death is based on various factors
and circumstances such as the type and nature of the food consumed, the
time of taking the meal, the age of the person concerned and power and
capacity of the person to digest the food. In the present case there is no
evidence about the exact time when the meals were taken by the children
on the night of 17.2.83 not about the type or nature of the food consumed
F by them. Saurabh was a young boy aged about 12 years and he being a
young and energetic boy, his power of digestion must be assumed to be
quick and strong, therefore, if the stomach at the time of post-mortem was
found to be empty it was but natural.

G 89. The prosecution story v.ith regard to the murder of the two
children proceeds further by adding come more links to the circumstantial
evidence against the appellants in the shape of recovery of some incriminat-
ing articles on Panchkoshi Road, near Nursery of Forest Deptt, and some
other places. The Investigation Officer, Sarnath, Atma Nand Singh, PW 46
stated that in the evening of 27.12.83 he received information from some
H persons that some articles stained with blood were lying at Panchkoshi
S.C. BAHR!v. STATEOFBIHARjFAIZAN UDDIN,!.] 549

Road near Palghambarpur village where the refuse is dumped. PW 46. A
therefore, rushed there and in the presence of witnesses seized bed-sheet
and a gadda which looked like a guilt by seizure memo Ext. 5/9. At the
sa~c 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 blood stained bed-sheets in the presence of
witnesses by seizure memo Ext. 5/10. All these articles seized under, seizure B
memo 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 guilt and its cover. These articles were
further sent for examination by Serologist Dr. P.K. Bhatnagar, PW 56 who
as per his report Ext. B/4 found that the aforesaid articles contained blood C
group 'B'.

90. It may be noticed that when Atma Nand Singh, PW 46 Police
Officer, Sarnath could not succeed in finding out the identity of the dead
body of the child he got his photographs published in police gazette as well
as various newspapers but still nobody came forward to claim the body or D
to identify the child and, therefore, he made a final report and closed the
case but it appears that during the investigation of the murder of Urshia
and her Children when the CBI Inspector Madan Lal. PW 85 arrested
Suresh Bahri on 31.7.84 at Delhi who appears to have made disclosure
about his children also and it was thereafter that the Government of India E
entrusted the Sarnath case also to CBI by another notification dated 14.9.84
on the basis of which R.C. Case No. 5/84 was registered by CBI and the
CBI Inspector Rajendra Singh, PW 82 was entrusted with its investigation
by him, a large number of witnesses were examined by him who identified
the photographs as that of Saurabh.
F
91. Though no·trace of the dead body of Richa could be made but
in view of the overwhelming circumstantial evidence which we shall discuss
hereinafter the same leads to the conclusion that she also met the same
fate as that of her brother Saurabh at Dhulli fl!"m in the intervening night G
of 17/18-12-83 at the hands of the appellants Suresh and Raj Pal Sharma.
It has already been discussed that the two children were withdrawn from
the Delhi school on the pretext that they would be· taken to Ranchi where
they would stay with their mother and prosecute their further studies as is
clear from the letters of Suresh written to his in-laws, but the two appellants
Suresh and Raj Pal took them to Dhulli farm and after a short stay of one H
550 SUPREME COURT REPORTS IJ994J SUPP. 1 S.C.R.

A and a half day there both the appellants proceeded back lo Delhi. No
plausible reason is discernible as to what \Vere the compelling reasons for
the two appellants that after a long journey from Delhi lo Dhulli farm. they
thought of to return back lo Delhi only after a very short slay at Dhulli and
\Vithout e\'en ,·isiting his house at Ranchi at a short distance of about 40
kms. from DJ,ulli. But the reason is nol far to seek, the purpose being to
B execute 'lteir plan to do away with the children in a lonely and secluded
place so that their dastardly and unholy act may not come to light and be
not detected or suspected by anyone. After their withdrawal from school
from 5.12.83 by the appellant Suresh he took them to his South Extension
residence, Delhi and thereafter Suresh left Delhi along with the children
c on 8.12.83 and reached Dhulli farm in the afternoon of 16.12.83 via Basti.
Varanasi and Daltongan, having their halls 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 two children were accompanying these two appellants is fully estab-
D lished 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 18.12.83 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
E dead or alive on their onward journey as is evident from the entries made
in different hotels in different names by these two appellants and entries
indicated that only two persons had stayed in those hotels on the return
journey and obviously so because the two children were already done to
·death and their bodies while proceeding to Delhi were thrown in Varona
F river, the body of Saurabh having been found floating while that of Rich a
appears to have been swept away unnoticed to some unknown destination.
The articles gadda, guilt and sheets stained with human blood which were
also thrown on the way and the Serologist on examination found blood
group 'B' on the same the evidence in respect of which has already been
discussed in detail earlier.
G
92. There is yet another circumstance which deserves notice. The two
children were shown to be fast asleep in the rear seat of the car with their
whole body covered except for a part of their legs which is something
against the normal conduct of children of that age. The two appellants had
H resumed their return journey after a short stay at Dhulli at dawn on
S.C. BAHRI 1-. STATE OF BIHAR [FAIZ/\N UDDIN.I.] 551

18.12.83 when the two children of the age they were, are not expected to A
sleep but would be excited to enjoy the trip in the company of their. father.
This leads to a legitimate conclusion that in fact they were ·not alive but
were dead whose throat were cut as noticed by Dr. Bhatnagar who con-
ducted post-mortem on the dead body of Saurabh. It is also surprising to
note that Suresh Bahri and Raj Pal Sharma left Dhulli farm early in the B
morning of 18.12.83 without any arrangement for the breakfast or tea even
for the children while all these facilities w~re available at Dhulli farm but
all this was not necessary because the children were no more alive.

93. It may also be pointed out that after the murders of Urshia and
thereafter the killings of the two children Suresh Bahri was running about C
place to place and staying in different hotels to avoid his apprehension.
From 9.5.84 to 17.5.84 Suresh was staying in a hotel at Ghaziabad in the
name of Mahesh Chand Gupta though Delhi is not even an hour's run from
Ghaziabad. When his mother withdrew an amount of Rs. 25.000 from the
State Bank, Delhi and Travellers cheque worth 25.000 was taken in the D
name of his maternal uncle, Y.D. Arya which was encashed at Ghaziabad
on 10.5.84 and this circuitous method was adopted to mislead the prosecu-
tion and at the same time provide money to Suresh who was wandering
from place to place in different hotels and needed money to go to Nepal
according to his plan an create false evidence in support of his defence
plea which he had pre-planned in case he was apprehended by police. Here E
it may also be pointed out that the appellant Suresh went to Kathmandu
(Nepal} and firstly he stayed in Kozy hotel from 8.4.84 to 29.4.84 vide Ext.
4/34 and thereafter from 15.5.84 to 22.5.84 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 F
create false evidence for sudden dis-appearance of his children at Kath-
mandu 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 ha submitted a chargesheet .with regard to the murder of
Urshia against him in which he was shown absconding accused. In fur-
therance of his plan to create evidence for his defence the appellant Suresh G
made a false report Ext. 25/1 to Nepal Police on 10.8.84 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 17/18th December,
1983. This report on enquiry was found to be totally unfounded and false
as would be clear from the evidence of Basant Kumar Lama, PW 67, a H
552 SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.

A Police Officer of Nepal. There could be no reason to doubt the testimony
of Basant Kumar Lama, PW 67 as he is totally a stranger to the appellant
Suresh having no axe to grind against him with a view to falsely implicate
him. Though Suresh tried to be wiser by making the information with
Kathmandu Police about the missing of his children only after shifting in a
private house as giving such a false information from the hotel where the
B number of the guest/passenger is noted, would have exposed him because
in fact the children had not gone with him to Kathmandu. But he proved
himself only to be a wisest fool in doing so.

94. The totality of all the aforementioned circumstances complete the
C chain which lead to the only irresistible conclusion that the three appellants
before us had hatched the conspiracy to commit the murder of the two
children also in the same way as their mother urshia was killed and in
prosecution of their said plan they executed it at Dhulli farm.

95. Learned counsel appearing for the appellant Gurbachan Singh
D
and Raj Pal Sharma contended that there is no direct and legal evidence
against the appellants for their involvement in the alleged conspiracy and
that in any case there is no factual evidence against the appellant Gur-
bachan Singh about his actual participation in the crime and, therefore, the
conviction under Section 302/120-B of the Penal Code in his case is bad
E in law and unsustainable.

96. In the above context we may refer to the provisions of Section
120-A of the Indian Penal Code which defir.es criminal conspiracy. It
provides that when two or more persons agree to do, or cause to be done.
F (1) an illegal act or (2) an act which is not illegal by illegal means, such
agreement is designated a criminal conspiracy ; provided that no agree-
ment except an agreement to commit an offence shall amount to criminal
conspiracy unless some act beside the agreement is done by one or more
parties to such agreement in pursuance thereof. Thus, a cursory look to
G the provisions contained in Section 120-A reveal that a criminal conspiracy
envisages an agreement between two or more persons to commit an illegal
act 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
H an offence, then in that event no overt act is necessary to be proved by the
S.C. BAHRI v. STATE OF BIHAR [FAIZAN UDDIN, J.] 553

prosecution because in such a fact situation criminal conspiracy is estab- A
lished 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 J.P.C. then in that event mere proof of an agreement
between the accused for commission of such a crime alone is enough to B
bring about a conviction under Section 120-B and the proof of any overt
Act by the accused or by any one uf 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 to commit the crime and if these C
requirements and ingredients are established the act would fall within the
trapping of the provisions contained in Section 120-B since from its very
nature a conspiracy must be conceived and hatched in complete secrecy,
because otherwise the whole purpose may be frustrated and it is common
experience and goes without saying that only in very rare cases one may D
come across direct evidence of a criminal conspiracy to commit any crime
and in most of the cases it is only the circumstantial evidence which is
available from which an inference giving rise to the conclusion of an
agreement between two or more persons to commit an offence may be
legitimately drawn. The observations made by this Court in N.M.M. Y.
Momin v. State of Maharashtra, A.LR. (1971) SC 885 at 886 may be quoted E
with advantage which read as under :

"Criminal conspiracy differs from other offences in that mere
agreement is made an offence even if no step is taken to carry out
that agreement. Though there is close association of conspiracy F
with incitement and abatement the substantive offence of criminal
conspiracy is somewhat wider in amplitude than abatement by
conspiracy as contemplated by Section 107. !PC. A conspiracy
from its very nature if generally hatched in secret. It is, therefore,
extremely rare that direct evidence in proof of conspiracy can be
forthcoming from wholly disinterested quarters or from uttar G
strangers. But, like other offences, criminal conspiracy can be
proved by circumstantial evidence. Indeed, in most cases proof of
conspiracy is largely inferential though the inference must be
founded on solid facts. Surrounding circumstances and antecedent
and subsequent conduct, among other factors, constitute relevant H
554 SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.

A material in fact because of the difficulties in having direct evidence
of criminal conspiracy, once reasonable ground is shown for believ-
ing that two or more persons have conspired to commit an offence
then anything done by anyone of them in reference to their com-
mon intention after the same is entertained becomes, according to
the law of evidence, relevant for proving both conspiracy and the
B offences committed pursuant thereto."

Similar view was also reiterated by this Court in State (Delhi Admn.) v. V.C.
Shukla, AIR (1980) SC 1382.

c 97. Although we 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
D by the prosecution and discussed by us in the foregoing paras that the maib
brain behind the conspiracy who master minded the plan for the killin~
of the three innocent lives is the appellant Suresh Bahri, the unwortlJy
husband of Urshia and a brute cruel father of the two unfortunate children,
who approached the other appellants Gurbachan Singh and Raj Pal Shat-
ma for help in the commission of the said ghastly crime by winning over
E their favour on account of his friendship and close association with thetn
and as such it appears that they had no hesitation in extending their helpiqg
hands by constituting themselves as members of the criminal conspira¢y
hatched by Suresh Bahri. No doubt there is no direct evidence about ttie
conspiracy and as said earlier it is ~eldom available. But the trial Court hfs
F catalogued a large number of circumstances against the appellants which
have also been accepted by the High Court and in our opinion rightly sb.
The two courts below have noticed the movements and activities of app11-
lants Gurbachan Singh and Raj Pal Sharma at the instance of appellaµt
Suresh right from the beginning and long before the murder of Urshla,
there acts in arranging the preparation of a danda, sharpening of a dagg~r,
G preparation of batalies and wooden box, dumping of dead body of Ursqia
in sceptic tank and taking it out again and dumping it in a hillock 'at
Khadgraha. The appellant R_aj Pal arrives at Ranchi in the last \\{ee~ f,f
September, 1983 and stayed m Rancht house No. 936 of Suresh Bahn \ill
arrival of Suresh and his deceased wife Urshia on l.10.83 and thereafter
H his movements at Ranchi itself till she was done to death on 11.10.83 lin
S.C. BAHRI v. STATEOFBIHAR[FAIZAN UDDIN,J.] 555

one of the rooms of the house when appellant Raj Pal Sharma was also A
seen moving about from one room to another wearing only underwear and
having a blood staining dagger in his hand. Raj Pal accompanied Suresh
while he left Delhi in the ambassador car alongwith the two children for
Dhulli farm where the party stayed on 16-17-12-83 and left Dhulli farm at
dawn on 18.12.83 with the dead bodies of the two children, throwing the
B
dead bodies in Varuna river on their way back to Delhi. All these facts
clearly borne out mainly from the statement of PW 1, PW 2, PW4, PW 6,
PW 11, PW19, PW 29, PW 31 and PW 60 besides other evidence that there
was not only an agreement to commit the alleged murders but the appel-
lants in fact committed overt acts also for fulfilment of their object which
is eloguently evident from the evidence discussed above. All these facts and C
circumstances without the least hesitation lead to the only irresistible
conclusion that they were active members of the agreement ·who had
hatched a conspiracy to eliminate all the three members of the family of
Suresh and thus actually executed their plan.
D
98. The aforementioned facts and circumstances fully establish the
offence under Section 302/120-B of the Penal Code against the appellants
Gurbachan Singh and Raj Pal Sharma also and there is hardly anything
deserving interference with the view taken by the two courts below after a
detailed and elaborate discussion of the evidence and material on record.
We, therefore, confirm the conclusions recorded by the two courts below E
as well as the convictions of the appellants under Section303, 302.120-B
and 201 of the Penal Code.

99. Shri Sushi! Kumar, learned counsel lastly contended that the
prosecution kept away for reasons best known to it the disclosure statement F
running in 22 pages alleged to have been made by .the appellant Suresh
Bahri on 1.8.84 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 31.7.84- and on 1.8.84 produced before the Metropolitan
Magistrate he had made a statement running in 22 pages as mentioned in G
the remand order itself dated 1.8.84 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 H
SUPREME COURT REPORTS (1994] SUPP. 1 S.C.R.
,
556

A those alleged 22 pages but he did not divulge anything in this connection
in his statement recorded under Section 313. Cr. P.C. as to the nature of
that statement, when he was questioned whether had to say any thing else.
Yet learned counsel wants us to draw an adverse inference against the
prosecution. Learned counsel did not elaborate as to what adverse in-
ference ought to be drawn and how and in what manner withholding of the
B alleged statement could vitiate the trial. Not only this but the learned
counsel appearing for the accused appellant Suresh at the trial did not put
any question even to the Investigating Officer, Chutia Police Station,
Raghuvir Singh PW 59, Rajender Singh, PW 82 and Madanlal, PW 85, the
CBI Inspectors or any other prosecution witnesses about the alleged state-
c ment. A mere mention in the remand order or bail application does not by
itself prove the recording of any statement as alleged without any further
evidence and material being placed on record in support of it. In these
facts and circumstances it is difficult for us to hold that Suresh Bahri had
made any disclosure statement or if it was so made it would result in
D vitiating the whole trial.

100. Lastly all the learned counsel appearing for the three appellants •
made vigorous efforts to pursuade us that the evidence and circumstances
of the present case do not justify the extreme penalty of death sentence to
the three appellants or any of them as there is no evidence as to the manner
E in which the three persons where done to death.

101. It may be noticed that since about the last two decades there
has been throughout the civilized world, a great deal of anguished concern
about what sentences be given to those convicted of crimes. It is also felt
F that crime and punishment have a moral dimension of considerable com-
. plexity that must guide sentencing in any enlightened society. The criticism
of judicial sentencing has raised its head in various forms · that it is
inequitable as evidenced by desperate sentences: that it is ineffective; .or
that it is unfair being either imdequate or in some cases harsh. It has been
often expressed that there is a co!lsiderable disparity in sentencing an
G accused found to be guilty for some offence. This sentencing variation is
bound to occur because of the varying degrees of seriousness in the offence
and/or varying characteristics of the offender himself. Moreover, since no·
two offences or offenders can be identical the charge or label of variation
as disparity in sentencing necessarily involves a value based judgment. i.e.,
H disparity to one person may be a simply justified variation to another. It is
S.C. BAHRI v. STATE OF BIHAR [FAIZAN UDDIN. J.] . 557

only when such a variation takes the form of different sentences for similar A
'offen~eis co;,._mitting similar offences that it can be said to desperate
s~ntencing.

. 102. It.appears that it was to minimise these considerations indicating
the areas of i;,.position of penalties including the extreme penalty of death B
'ihat the Legislature introduced sub- sections (3) and (4) in Section 354 of
'the Code of Crimin~! Procedure in the new code of 1973. Sub-section (3)
contemplatesthat when conviction 1s for an offence punishable with death
or in the alternative, the imprisonment for life or imprisonment for a term
of years, tlie judgment shall state the reasons for the sentence awarded,
and, in the case of sentence of death, the special reasons for such sentence c
·(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 sentenc~. This gives an impression that in the new code of Criminal
Procedure the emphasis is that the life imprisonment for the offence of
murder is the rule and death sentence an exception to the resorted to for D
special reasons to be recorded in the judgment. For these reasons, there-
fore, as far as the extreme penalty of death is concerned the sentencing
discretion of the Court is circumscribed within the parameters of a formula
laid down by this Court in Bachan Singh' case as well as in some other
subsequent decisions that the extreme penalty should not be inflicted
except in rarest of the rare cases and on the four principles, namely, (1) E
the extreme penalty of death may not be inflicted except in cases of extreme
culpability, (2) before opting for the death penalty the circumstances of the
offender be also taken into consideration alongwith the circumstances of
the crime (3) life imprisonment is the rule and the death sentence is an
exception. In other words, death sentence has to be imposed only while life
F
imprisonment . appears to be altogether inadequate punishment having
regard to the relevant circumstances of the crime and (4) aggravating and
mitigating circumstances have to be given full weightage and the balance
has to be struck between the aggravating and mitigating circumstances
before the option of the punishment has to be exercised. The Supreme
Court affirmed the aforesaid principles laid down in Bachan Singh 's case G
(supra) in a subsequent decision also in Machhi Singh, AIR (1983) SC 597,
by maintaining the sentence of death imposed on Machhi Singh who had
killed Biban Bai and her three sons with fire-arm. .

103. In Dhananjoy Chatterjee @ Dhana v. State of West Bengal, JT H
SUPREME COURT REPORTS [1994] SUPP. 1 S.C.R.

A (1994) 1 SC 33 one of us (Dr. Anand, J.) who was a member of the .Bench
which delivered the judgment, speaking for the Court crystallised _the
principles governing the criminal sentencing by the Courts in view .of the
changed legislative policy contained in section 354 (3) Cr. P.C. and in para
14 of the report observed as follows :
- ;,-
. ' • ·-

B
• '· ' ,. r
,, �: .

"In reeent years, the rising crime rate pa.rticularly
. .vjol�nt criul�
., .
. ' · ).. ·� •'I . ' · • '.Y·

against women has made the criminal sentencing by the courts .a
·

.
subject of concern. Today there are admitted d.�partie�.. Some
. -
' . ; .,
-
� . �

criminals get very harsh sentences while many receive· grossly
different sentence for an assentially equivalent crime an!'! �'sh�ck'.
c ingly large number even go unpunished, thereby encouragillg'the
'
criminal and in the ultimate making justice suffer by w�akeriing
'
the syste�'s credibility. Of course, it is not possible -to lay dow'n
any cut and dry formula relating to imposition of sentenc6 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
D satisfaction that justice has been done to it. In imposiI1g sentences
in the absence of specific legislation, Judges must co�sider �arlety
of fa�tors and after considering all those factors and taking an
1
ov�rall vie\Y Of ihe situation, impose sentence 'which theY. consider
to be an appropriate one. Aggravating factors cannot b� ignored
E and similarly mitigating circumstances have also to be take!l i�\O
considerations." ·,

'
In ihe said report it has been further observed in para 15 as follows : ·
' '

"In our opinion, the measure of punishment in a given case·mu.St
F 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
respound to the society's cry for justice against the criminals.
Justice demands that courts should impose punishment ·fltting to'
the crime so that the court's reflect public abhorrence of .the crime.'
G
The courts must not only keep in view the rights of the 'criti'linal
but also rights of the victim of crime and the society at large wllile,
considering imposition of appropriate punishment." " '

• •;; ·l·;'..- 1,- ••
·

104. Having regard to the principles formulated by this Court dis
-·

H cussed above, we 'have
. given our anxious. �onsideratioI\.
• , . .
to the. -question of
. ." I
' •: '
- •. �-
S.C. BAHR!v. STATEOFBIHAR [FAIZAN UDDIN,J.) 559

sentence' to the appellants and have also examined in depth and with great A
concern the facts and circumstances of the present case and the reasons
assigned by the two courts below for awarding the extreme penalty of death
to the three appellants before· us. At the cost of repetition we may recall
that the appellant Suresh had strong motive and entertained some grievan-
ces against his wife U rshia because she had made up her mind to dispose B
of Ranchi house and migrate to America along with her children with the
sale proceeds against the wishes of Suresh and, therefore, to put an end to
her life. Suresh planned a long drawn plot and hatched a conspiracy with
the appellants Gurbachan Singh and Raj Pal Sharma for execution of this
plan. Urshia not even having an inkling of the evil designs and hidden
'Uhholy intentions of her husband accompanied him from Delhi to Ranchi C
on 1.10.83 with a view to finalise the deal of house and execute the sale
deed. But according to the pre-plan she was done to death in the interven-
ing night of 10th of and 11th October, 1983 and she could not see the light
of 11th October, 1983 when sale deed was to be executed. The evidence
discussed above shows that her murder was committed in an extremely, D
brutal, gruesome, diabolical, revolting and dastardly manner so as to arouse
intense and extreme indignation of the society. The victim was subjected
to inhuman acts of torture and cruelty while causing her murder as her
body was truncated into two parts in a devilish style evincing total depravity
simply to gain control over the property. Having been not satisfied with the
wife
killing of his Suresh Bahri was further determined to kill his innocent E
two children at Dhulli farm making them believe that they were being taken
on a pleasure trip of the farm and then after they were done to death by
inflicting severe injuries on neck and other parts of the body threw their
dead 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 F
differences wiih 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.
G
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
oursi;lves whether there could be still a worse case than this where a H
560 SUPREME COURT REPORTS (1994) SUPP. 1 S.C.R.

A husband could hatch a conspiracy .and kill his wife in a most callous and
ghastly fashion as in the present case only on a triffling matter which could
have been sorted oui 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 own children for absolutely no fault of
theirs. In the facts and circumstances discussed above, in our opinion, so
B far as Suresh Bahri is concerned, the rule of the rarest of rare cases has
to be applied as the present case falls within the category of the rarest of
rare case& and for the perpetration of the crime of the nature discussed
above there could be no other proper and adequate sentence except the
sentence of death as there are no mitigating circumstances whatsoever.
C Having regard to all the facts and circumstances of the present case as far
as Suresh Bahri is concerned there is no cause for any interference in the
view taken by the two Courts below in awarding the death sentence to him.
We, therefore, affirm conviction and sentence of death awarded to Suresh
by the High Court. In the event of the execution of death sentence, the
D sentence awarded under Section 201 of the !PC shall remain only of
academic interest.

106. As far as the question of sentence to the appellants Gurbachan
Singh and Raj Pal Sharma is concerned, we may state that there· is con-
vincing and conclusive evidence for their involvement and active participa-
E tion in the criminal conspiracy with Suresh to do away with the three
members of his family. But from the evidence on record as discussed by us
in the earlier part of this judgment it is clear that Gurbachan Singh had
reached the house of Suresh at Ranchi in the fateful evening of 10th
October, 1983 when Urshia was already done to death by the appellant
F Suresh Bahri and Raj Pal Sharma, when Raj Pal Sharma was seen wearing
an underwear holding a dagger in his hand and cleaning the blood in the
room with cotton. From the evidence it is, therefore, clear that Gurbachan
was not a party to the actual murder of Urshia although he was an active
member of the party who hatched the conspiracy to kill her. Similarly it is
also clear from the evidence that we have discussed in the earlier part of
G this judgment that though Gurbachan Singh rendered assistance in sending
the cot and chairs to Dhulli farm and sharpening the dagger and batalies
for the murder of two children but he in fact was not present on 17/18-12-83
at Dhulli farm when the two children were done to death by the appellants
Suresh and Raj Pal Sharma. In these facts and circumstances, in our
H opinion, the appellant Gurbachan Singh does not deserve the extreme
S.C. BAHRI v. STATE OF BIHAR [FAIZAN UDDIN, J.] 561

penalty of death but the adequate sentence for the part he played would A
be life sentence. We, therefore commute his sentence of death into that of
life sentence and modify the judgment of the two Courts below accordingly
to that extent.

107. This brings us to the question of sentence to be awarded to the
appellant Raj Pal Sharma. There is no doubt that there is ample evidence B
for his active participation in the murder of Urshia as well as in the murder
of two children but the prosecution evidence is silent about the actual part
that he played in the two murders and the manner in which he acted in the
said killings. It is difficult to take a definite view that the part he played in
said killings was cruel and callous or it was the appellant Suresh alone who C
took the leading part and did the whole thing by himself, while the
appellant Raj Pal Sharma assisted him in one or the other manner. Jn such
a situation, in our opinion, it would not be proper to inflict the extreme
penalty of death to Raj Pal Sharma also but in the facts and circumstances
of the case the sentence of life imprisonment will be just and proper
sentence. We, therefore, commute his sentence of death also into a sen- D
tence for life imprisonment and modify the judgments of the two Courts
below accordingly.

108. Jn the result Criminal Appeal No. 329/92 - Suresh Chandra
Bahri v. State of Bihar, fails and is hereby dismissed. The conviction and E
sentences awarded to him by the two Courts below are affirmed. The
Criminal Appeal No. 159/92 entitled Gurbachan Singh v. State of Bihar, and
Criminal Appeal No. 160/92 entitled Raj Pal Sharma v. State of Bihar, are
hereby partly allowed to the extent indicated above. The conviction of the
appellants Gurbachan Singh under Section 302/120-B and 201 as well as
conviction of appellant and Raj Pal Sharma under Sections 302, 302/120-B F
and 201 of the Penal Code are maintained but the sentence of death
awarded to both of them under Section 302, 302/120-B is set aside and
instead they are sentenced to life imprisonment. Their sentence under
Section 201 is maintained. All the sentences shall run concurrently.

S.M. Cd. A.No. 329/92 dismissed.
Cr!. A. No. 159/92 partly allowed.

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