AFR

Court No. 44

1. Capital Crl. Appeal No. 8077 of 2008

Om Nath.........................................Appellant

vs

State of UP.....................................Respondent

2. Reference No 17 of 2008

3. Govt. Appeal No. 2314 of 2009

State of UP ......................................Appellant

Vs

(1) Vijay Laxmi

(2) Km. Uma

(3) Km. Baby ...........................................Accused-Respondents

4. Crl. Revision No. 3005 of 2010

Rakesh ................................................Revisionist

Vs

State of UP..........................................Respondents

HON'BLE YATINDRA SINGH, J

HON'BLE SURENDRA SINGH, J.

(Delivered by Hon'ble Yatindra Singh, J.)

1. It was difficult to imagine: brother trying to eliminate the family of his younger

brother. But such are the facts of this case; such is the World.

THE FACTS

2. An incident said to have taken place at about 7:30 hours on 9.4.2006 in village

Nirmani, district Muzaffarnagar (the Village). In this incident, three persons Smt.

Pervesh, her sons Akashay, and Sonu (jointly referred as the Deceased) were

killed. Her husband Lokesh (the Injured), was injured.

3. Rakesh (the Informant), brother of Smt. Parvesh, lodged the FIR at 8:50 hours

on the same day. In the FIR, Om Nath elder brother of the Injured and his family

members—wife Smt. Vijai Laxmi, two unmarried daughters Km. Baby alias Babita

and Km Uma, and son Deobrat—(all jointly referred as the Accused) were

named.

4. Om Nath (the Appellant) had three more daughters. They were married before

the incident and presumably were not living in the village: they were living with

their husbands.

XeutralPTitationPXoBPKPk-5-Iz{TIJ,5H5K_—

2

5. The pedigree of the parties is as follows:

________________________ _____________

| I I I

Vijay Laxmi = Om Nath Lokesh = Pravesh Rakesh

(lady-accused) | (Appellant) (Injured) I (Deceased) (Informant)

___________I_____________________ __|____________

I I | I I |

3 married Baby @ Babita Uma Deobrat Sonu Akshay @ Monu

daughters (lady- (lady- (accused) (Deceased) (Deceased)

accused) accused)

6. The allegations in the FIR are as follows:

•The Informant's sister Smt. Pervesh was married to the Injured. The

Informant was also married in the same Village. He had come to the Village;

•The Injured was having property dispute with the Appellant. At about 7:30

hours, the Informant was standing in front of Gher of his brother-in-law

(साला). He met the Injured, who was going to the temple for prayer as a daily

routine;

•At that time, the Accused {Om Nath and Deobrat (wielding firearms), Smt.

Vijay Laxmi and her daughters Km. Uma and Baby (wielding Tabal, Balkati

and spear respectively)} came;

•They fired shots at the Injured and he fell. Thinking him to be dead, they

went away saying that his entire family was to be finished;

•The Informant and his brother-in-law (साला) also followed them shouting for

help. On their shouting, Rajiv and Babloo came. They tried to stop the

Accused but were not successful;

•The Accused with their weapons attacked the Deceased and killed them.

They also tried to kill the Informant and others but somehow, they escaped;

•The Accused ran away firing shots in the air and shouting that in case

anyone gives evidence then he would also be killed;

•The Deceased died on the spot. Their dead bodies are lying on the spot.

The inured was seriously injured and has been taken to the hospital.

7. The police arrested the Accused from behind the shop of Rakesh Garg on the

same day at 12:45 hours.

8. At the time of arrest, many things were recovered. Their list is Appendix-1.

Apart from others, the following firearms were also said to be recovered:

•A 12 bore Gun and 3 live 12 bore cartridges from the Appellant. The gun

had the butt of 6 angul (अंगुल) and barrel of 1 balist (बािलसत) and 2 angul

3

(अंगुल). The gun had one cartridge loaded;

•A 315 bore gun and 2 live cartridges from Deobrat (the Juvenile). The gun

had body of 6 angul (अंगुल) and barrel of 8 angul (अंगुल). A part of it was said

to have fallen in the morning at the spot. A live cartridges loaded in the gun;

•A 315 bore gun, a pack with live cartridges, and 315 bore cartridges from

Vijay Laxmi. The gun had the barrel of 8 angul (अंगुल) and body of 6 angul

(अंगुल).

The aforesaid description and details are recorded in the recovery memo (Ex Ka-

43)

9. The other weapons namely, tabal, balkati, and spear were recovered at 19:15

hours the same day at pointing of the Appellant. The material exhibits of the

weapons recovered at the pointing of the Appellant and other items recovered at

the temple and the house is Appendix-2.

10. On the basis of the recovery of weapons, crime numbers 274 to 276 of 2006,

PS Budhana, district Muzaffarnagar were also registered under section 25 of the

Arms Act.

11. The District Magistrate granted permission for prosecuting the case under the

Arms Act on 1.6.2006.

12. The Accused Deobrat filed an application for separating his trial and sending

the same to the juvenile board. The CJM, Muzaffarnagar by his order dated

4.10.2006 separated his trial and submitted his case to the Juvenile Board,

Muzaffar Nagar (the Board) to be decided in accordance with law.

13. The Board by its order dated 14.2.2008 held Deobrat to be major on the date of

the incident and his case has been sent back. Deobrat has filed an appeal against

the same. His trial was separated by the order of the trial court dated 28.2.2008.

14. The police submitted the charge sheet on 13.11.2006 against Om Nath, Vijay

Laxmi, Baby @ Babita and Uma (referred to as the remaining-accused) and the

cases were committed to the sessions' court. They were numbered as ST No. 907

to 909 of 2006.

15. The Additional Sessions Judge, Court No. 7, Muzaffarnagar (the ASJ) framed

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the charges on 15.12.2006. The remaining-accused were charged under section

307, 302, read with section 149, 148 IPC and section 25 of the Arms Act.

16. The prosecution filed documents. Their list is Appendix-3.

17. The prosecution examined the following witnesses:

•Lokesh (PW-1): Injured eyewitness;

•Rakesh (PW-2): Informant and brother-in-law (साला) of the Injured, an

eyewitness;

•Dr. VP Singh (PW-3): Doctor at the District Hospital, Muzaffarnagar

examined the injuries of the Injured;

•Dr. Rajesh Singh (PW-4): Doctor, conducted the postmortem;

•Suresh Giri (PW-5): Head constable (the HC), recorded the FIR;

•Dr. Neeraj Goel (PW-6): Doctor at Chaurasiya Nursing Home, Meerut the

(the private nursing home), subsequently examined the injuries of the

Injured;

•Braj Raj Singh (PW-7): Investigation Officer (IO);

•Krishna Pal Singh (PW-8): Head constable, recorded the FIR under section

25 Arms Act;

•Jadish Singh (PW-9): Station Officer (the SO), arrested the Accused.

18. The remaining accused were examined under section 313 CrPC on 11.1.2008

and 27.8.2008. They denied their involvement in the crime and stated that:

•The incident did not happen at the time and place as alleged by the

prosecution;

•The real incident has been hidden by the prosecution;

•The Accused have been falsely implicated;

•They have been implicated so that real culprits may not be arrested.

19. Among others, the remaining-accused filed the following documents:

•Photocopy of the general diary entry (the GD) dated 9.4.2006 time 6.30 pm

(Ex Kha-1);

•Photocopy of the GD entry dated 9.4.2006 time 6.45pm (Ex Kha-2).

20. They also examined the following two witnesses:

•Rajvir Singh (DW-1): Constable, brought GD of 9.4.2006 and proved Ex

Kha-1 and Ex Kha-2;

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•Narendra Tyagi (DW-2): Scribe of the written report lodged by the Informant.

21. The ASJ by his judgment dated 10.11.08 acquitted Vijai Laxmi, Babita, and

Uma. (referred to as the lady-accused).

22. The Appellant was also acquitted under section 148 IPC and Section 25 of the

Arms Act. However, he was convicted under section 302 and 307 IPC. On

11.11.2008, he was sentenced to,

•Death penalty and fine of Rs. 20,000/- under section 302 IPC;

•Imprisonment for life and fine of Rs. 10,000/- with default stipulation of one

year rigorous imprisonment under section 307 IPC.

Hence the Criminal Appeal No. 8077 of 2008 by the Appellant.

23. The ASJ has sent reference no. 17 of 2008 for confirmation of death sentence.

The State has also filed Govt. Appeal no. 2314 of 2009 against the acquittal of

lady-accused. The Informant has also filed Criminal Revision no. 3005 of 2010

against acquittal of the lady-accused.

POINTS FOR DETERMINATION

24. We have heard Sri Gopal Chaturvedi, Sri Alok Ranjan Mishra, counsel for the

Appellant in Capital Criminal Appeal No. 8077 of 2008; Sri Jagdish Prasad Misra,

counsel for the lady-accused in Govt. Appeal No. 2314 of 2009 and Crl. Revision

No. 3005 of 2010; Sri Satish Trivedi and Sri AK Pandey, counsel for the Informant

in Crl. Revision No. 3005 of 2010; Sri Arunendra Kumar Singh, Sri Anand Tiwari,

AGAs for the State in all cases.

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25. The following points arise for determination in the case:

(i)Was there any motive for the crime?

(ii)Whether the Information was present at the time of the incident;

(iii)Whether the incident took place at the time and place as alleged by

the prosecution;

(iv)Whether the FIR was ante-timed;

(v)Whether the Appellant is guilty;

(vi)Whether the lady-accused are guilty;

(vii)In case the remaining-accused are guilty then, what punishment

1We are thankful to the counsel appearing in the case for correcting the part of the judgement

under the heading 'THE FACTS', 'POINTS FOR DETERMINATION' and 'Appendices'. However, If

there are any mistakes, they are ours.

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should be awarded.

1

st

POINT: THERE WAS MOTIVE

26. In the FIR, the motive was mentioned as property dispute. The Injured (PW-1)

and the Informant (PW-2) have deposed about the same. They deposed that:

•There was joint tube-well and there was the question of partition;

•The valuation of the tube-well was fixed Rs. 70,000/- and the Appellant was

to give Rs. 35,000/- to the Injured but the amount was not given to the

Injured;

•The Appellant had said that the Injured should get boring done and he

would pay the money afterwards. However, the money was not paid.

27. There was no other enmity, no other dispute, except the payment share

regarding tube-well between the two; atleast nothing has come on record. The

parties are real brothers. There appears to be no reason as to why the Injured

(PW-1) or his brother-in-law (साला) {the Informant (PW-2)} would falsely depose.

28. The Appellant had five daughters. Three were already married before the

incident and two were of marriageable age at the time of the incident. The marriage

of daughters is an expensive affair in our society. The Appellant may not want to

part with money; his hands may be tight.

29. There is no suggestion to the Injured or the Informant that Rs. 35,000/- for the

tube-well were already given or were not to be given.

30. In our opinion, the prosecution has proved the motive.

2

nd

POINT: INFORMANT WAS PRESENT

31. The informant (PW-2) deposed that:

•Smt. Pravesh wife of the injured (PW-1) was his sister;

•He was also married in the same village;

•His village was about 50-55 kilometres from the Village. He often used to

come to the village to meet the relations; and

•He had come on the day before the fateful day to meet the relations.

32. The counsel for the appellant submitted that:

•The allegation that the Informant had come to the Village, on the day before

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the fateful day, was not mentioned in the FIR rather it indicated that he had

come on the fateful day;

•The aforesaid fact was also not stated by the Informant in the statement

under section 161 CrPC;

•The Informant had neither come a day before nor was he present at the time

of the incident.

33. In the FIR, it was not mentioned that the Informant reached the previous day.

It was also not recorded in the Informant's statement under section 161 CrPC.

However, this is to be seen in the light of circumstances of the case.

34. On the fateful day, Informant's sister, his two nephews were killed and his

brother-in-law, was seriously injured; there was little hope of survival of the Injured.

No one in such a situation would be in a fit mental condition. The mind would be

disturbed.

35. In the written complaint as well as in the FIR it is not mentioned that the

Informant come to the village the previous day. The exact words mentioned are as

follows:

'

आज िदनांक ९

-४-

२००६ को मै अपनी ससुराल गाम िनरमानी मे आया हुआ था।

'

It means that the Informant was in his in-laws place in Village Nirmani on 9.4.2006.

It does not mean that he came to the Village on 9.4.2006. If the Informant wanted

to say that he had come to the Village on 9.4.2006 then he would have said,

'

आज िदनांक ९

-४-

२००६ को

,

मै अपनी ससुराल गाम िनरमानी आया।

'

The words '

हुआ था

' would not have been there.

36. The Informant did depose that:

•He had said that he had come the previous day;

•It appears that it was not recorded in the FIR;

•He had told the IO in the statement under section 161 CrPC about his

coming to the Village on the previous day;

• It is possible that the IO did not record it.

37. The Informant is a rustic villager. It is possible that he might not have dictated

the FIR with precision. Apart from it, he was disturbed. The FIR is supposed to be

an information about crime. This is what he had done.

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38. The IO might not have considered it necessary to record in the statement under

section 161 CrPC that the Informant had come the previous day. And he did not

record it. In our opinion, no adverse inference can be drawn on its basis.

39. The Informant (PW-2) has two relationships in the Village. His sister was

married to the Injured (PW-1). His in-laws were also in the same Village. PW-2

deposed that he had come on the previous day to meet them. This is not unusual.

40. The Informant deposed that:

•He was standing along with his brother-in-law (साला) in front of his gher in

the morning at about 7:15 or 7:30 hours;

•He met the Injured, who was going to temple to pray;

•They exchanged greetings;

This was also deposed by the Injured.

41. In our opinion, the Informant had come a day before and was present at the

time of the incident.

3

rd

POINT: PLACE AND TIME—SAME AS PROSECTUION CASE

42. According to the prosecution case, the incident happened at two places.

Initially the Injured was shot upon at the temple and thereafter the Deceased, the

family members of the Injured namely his wife and his two sons) were killed in the

house.

43. In the oral evidence, it has come that the house of the injured is about 150

yards west of the temple. This is not disputed.

44. The site plan (Ex Ka-32) of the temple indicates that the gher of Kunwar Sen

alias Bhola brother-in-law (साला) of the Informant is on the northern side of the

temple. This was also deposed by the Informant (PW-2). This is also not disputed.

45. The injured deposed that he was injured in the temple at about 7:30 hours.

The Informant who was present on the spot also deposed the same. The blood and

empty cartridges were recovered there (Ex ka-35). There is nothing to disbelieve

their statements.

46. The dead bodies of the Deceased were found in the house. The blood stained

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soil was also recovered from this place (Ex Ka-34). The empty cartridges were also

recovered from the house. The Informant also deposed that the Deceased were

killed in their house. It is fortified by the recovery of dead body and empty

cartridges from the house.

47. In our opinion, the first part of the incident namely shooting the injured took

place in the temple at about 7:30 hours; whereas the second part of the incident

namely killing the Deceased took place in their house immediately thereafter.

4

th

POINT: FIR NOT ANTE-TIMED

48. The Informant (PW-2) lodged a written report (Ex Ka-1). It is on its basis that

the FIR (Ex Ka-6) was recorded. This written report was not written by the

Informant but was scribed by one Narendra Tyagi (DW-2). He was produced on

behalf of the remaining-accused.

49. Narendra Tyagi (DW-2) deposed that:

•He (DW-2) had gone to Meerpur, district Ghaziabad at his in-laws house. He

came back round about 16:00 hours;

•He saw some of the villagers standing in front of the police station and was

informed that family members of the Injured have been killed;

•At the police station, the people were waiting for the Informant to come;

•The villagers asked him to write down the report and he was taken to the

SO. He scribed the report on the dictation of the SO. Thereafter, the

Informant came.

•The police first talked to the Informant and thereafter got his signatures on

the written report.

50. The counsel for the Appellant submitted that:

•The scribe himself came in the evening and deposed that the Informant

reached the police station after him;

•This shows that the FIR was ante-timed; and

•The entire case has been cooked up by the police.

51. Three persons were killed. The first inquest started at 10:00 hours. The last

inquest finished at 13:00 hours. Immediately thereafter, the dead bodies were sent

for postmortem. This was, much before the time given by Narendra Tyagi (DW-2).

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52. In the inquest reports (Ex Ka-17, Ka-22, Ka-27), the crime number, sections,

and the name of the Informant as well as time of lodging the FIR are mentioned.

53. The GD dated 9.4.2006 time 8:50 hours is on record (Ex Ka-7). It was proved

by the HC (PW-5). It shows that FIR was recorded at that time.

54. The Accused were arrested at 12:45 hours (arrest memo Ex Ka-43).

Thereafter, they were at the police station. In the cross examination, DW-2 stated

that he did not see the Accused at the police station. In case, he was at the police

station in the evening, writing the FIR, then he ought to have seen them. The fact

that he did not see them indicates that he was at the police station before their

arrest.

55. The remaining-accused have filed the GD entries dated 9.4.2006 time 18:30

and 18:45 hours (Ex Kha-1 and Ex Kha-2). They indicate as follows:

•Ex Kha-1 shows aamad (आमद) (entry) of lady constable Saroj Yadav and

handing over lady-accused under her supervision;

•Ex Kha-2 shows entry that the clothes of lady-accused were changed with

the help of lady constable.

The aforesaid documents do not indicate arrival of the Accused in the police station

at 18:30 hours.

56. In our opinion,

•The FIR was not ante timed;

•The statement given by Narendra Tyagi (DW-2) does not inspire confidence;

•It appears that he was won over.

5

th

POINT: APPELLANT IS GUILTY

Difference in Injury Reports—Not Material

57. The Injured was seriously injured in the incident. He was initially taken to the

District Hospital, Muzaffarnagar. His injuries were examined there. The injuries

according to report (Ex Ka-2) are Appendix-4. This injury report was proved by

Dr. VP Singh (PW-3).

58. Dr. VP Singh (PW-3) referred the Injured to the Medical College, Meerut. The

Injured was taken to Meerut. However, he was not admitted in the medical college,

but was admitted in the Private nursing home. His injuries were again examined.

11

The injuries according to this report (Ex Ka-8) are Appendix-5. This injury report

was proved by Dr. Neeraj Goel (PW-6).

59. There is a difference between the two injury reports. In the injury report at the

private nursing home (Ex Ka-8) two more injuries on the right side of the body are

recorded that were not recorded in the injury report (Ex Ka-2) of the district

hospital. They are injury numbers (ii) and (v) of the private nursing home report.

60. Dr. VN Singh (PW-3) was the doctor at the district hospital, Muzaffarnagar. He

deposed that general condition of the injured was bad and he referred him to

medical college.

61. A doctor normally does not examine all injuries, when the condition of injured

is critical. He merely examines those injuries that are critical, refers the matter to

the hospital that has better facilities. The reason is that delay involved in further

examination may worsen the condition of the accused. It appears that this was the

case here. It does not cause any doubt or aspersion on the prosecution case.

Guilty U/S 307 IPC

62. The counsel for the Appellant submitted that:

•The injuries on the injured are on the back side;

•This shows that he was hit from behind;

•The injuries were gunshot injuries and were serious;

•The injured must have fallen and could not have seen his assailants;

•His evidence regarding identity of the assailants, should be discarded.

63. The injuries of the Injured indicate that he was hit from behind. The injuries are

serious as well. He must have fallen. However, the Injured deposed that he was

conscious. It cannot be said that he could not recognise the assailants at that time.

64. The Injured is the younger brother of the Appellant. He deposed that the

Appellant and Deobrat were present and fired the shots at him. There is no reason

for him to falsely implicate his elder brother and his nephew Deobrat. There is no

reason to disbelieve him.

65. Apart from the Injured, the Informant also deposed that:

•After the injured went inside the temple, the Appellant alongwith his family

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members entered inside the temple;

•The Appellant and Juvenile fired shots at the Injured.

66. Two different kinds of empty cartridges were found in the temple: 12 bore and

315 bore. This indicates that two kinds of firearms were used.

67. In our opinion, the prosecution has proved its case beyond reasonable doubt

that the Appellant fired shot at the Injured. The Appellant is guilty under section

307 IPC.

Guilty U/S 302 IPC

68. The Injured also deposed that after injuring him, the Accused killed his wife and

his two sons.

69. The Injured fell in the temple. He was not present at the time when his family

members were killed. This part of the evidence is hearsay, and may not be

admissible. However, there is other evidence as well: the Informant has also

deposed about it.

70. The Informant (PW-2) deposed that:

•First the Injured was shot at the temple. Thereafter, the Accused went to his

house and killed the Deceased;

•The Informant and his brother-in-law (साला) had followed the Accused. They

had shouted for help;

•At the house, the Accused killed the Deceased.

71. At the temple (recovery memo Ka-37) and at the house (recovery memo Ex

Ka-38) shows that empty cartridges of 12 bore and 315 bore guns were found. This

indicates that two kinds of guns were used at both places.

72. The Informant is brother-in-law (साला) of the Injured. He has no enmity with the

Appellant. There is no reason as to why the Informant would leave out the real

culprits and would falsely depose or implicate the Appellant unless he was involved

in the crime.

73. In our opinion, the prosecution has proved its case beyond reasonable doubt

against the Appellant. He is guilty under section 302 IPC as well.

13

6

th

POINT: LADY ACCUSED—ENTITLED TO BENEFIT OF DOUBT

74. The AGA and counsel for the Informant submitted that:

•The lady-accused were wielding weapons that could cause some of the

injuries to the Deceased;

•The medical evidence is not inconsistent with the oral testimony;

•The trial court committed illegality in acquitting the lady-accused on the

ground that there is difference between oral testimony and the medical

evidence.

75. The appellate court while hearing a government appeal against an order of

acquittal is entitled to re-appreciate the evidence and to go into the question of fact.

However, it is not as wide as the trial court. An order of acquittal does add to

presumption of innocence in favour of the accused.

76. The Supreme Court has clarified

2

the powers of the appellate court while

hearing an appeal against an order of acquittal. In some cases, the principles had

been itemised. However, the thread running in all decisions is,

(i) If on the basis of the evidence on the record two reasonable conclusions

are possible and the one in favour of the accused has been taken by the trial

court then:

•The appellate court should not disturb the finding of acquittal

recorded by the trial court;

•In such a situation, the appellate court would not be justified in

interfering with the order of acquittal, even if in opinion of the

appellate court conviction was also a reasonable view.

(ii) The appellate court would be justified in reversing the judgement of

acquittal if:

•It was perverse or unreasonable; or

•The trial court had committed an error of law; or

•It had recorded its finding in ignorance of relevant material or on

inadmissible material.

2(i) State of Goa Vs. Sanjay Thakran; (2007) 3 Supreme Court Cases 755 (ii) Narayanamurthy Vs.

State of Karnataka and another; AIR 2008 SC 2377 (iii) Nepal Singh Vs. State of Haryana; AIR

2009 SC 2913 (iv) KA Vish Vs. State of Maharashtra; AIR 1971 SC 2256 (v)Dharmadeo Singh and

others Vs. The State of Bihar; (1976) 1 SCC 610;(vi) Muluwa Vs. State of MP; (1976) I Supreme

Court Cases 37 (vii) Labh Singh Vs. State of Punjab; (1976) 1 SCC 181 (viii) Suratlal and others

Vs. State of MP; (1982) 1 SCC 488 (ix) Solanki Chimanbhai Ukabhai Vs. State of Gujrat; (1983) 2

SCC 174.

14

77. The Appellant's family consisted of his wife, five daughters and a son (the

juvenile). Out of five daughters, three were married at the time of the incident.

There is no evidence, but normally they would be living with their husbands and not

with their parents. The family of the Appellant at the time of the incident in the

Village consisted of his wife, two unmarried daughters and his son Deobrat. The

entire family that was in the Village is accused in this case.

78. Vijay Laxmi, (wife of the Appellant), Baby and Uma (daughters of the Appellant

are said to be wielding tabal, balkati, and spear. Tabal and balkati are a kind of

sharp edged weapons, whereas, the spear is a pointed weapon. The lady accused

are said to have accompanied the Appellant and Deobrat, who were wielding

firearms not only at the temple but thereafter also at the house.

Injuries: The Injured

79. The injuries of the Injured are appended as Appendix-4 and 5. He did not have

any injuries that could be caused by weapons held by the lady-accused.

80. Dr. Rajesh Singh (PW-4) conducted the postmortem. He proved the

postmortem reports (Ex Ka-3 to Ka-5). He deposed about the antemortem injuries

as well. The injuries caused to the Deceased are appended as Appendix-6 to 8.

Injuries: Akshay alias Monu

81. Akshay alias Monu had firearm injuries only. He did not have any injuries that

might be caused by the weapons wielded by the lady-accused.

82. The Informant (PW-2) deposed that Akshay alias Monu was hit by tabal, balkati

and spear. He was hit with tabal when he was standing and by balkati and spear

when he had fallen. It is surprising that none of them could hit Akshay alias Monu.

He had no injury that could be caused by these weapons said to be wielded by the

lady-accused.

83. The other two deceased have some injuries that might be caused by the

weapons held by the lady-accused.

Injuries: Smt. Pravesh

84. All injuries except injury no. (iv) on the dead body of Smt. Pravesh are gunshot

wounds. Injury no. (iv) on her body is an incised wound. It could be caused by a

15

sharp edged weapon like tabal or balkati.

85. The Informant (PW-2) deposed that:

•Baby alias Babita (daughter of the Appellant) hit Smt. Pravesh with the

spear. This was done when she had fallen;

•Vijay Laxmi (wife of the Appellant) hit Smt. Pravesh by tabal one-two times;

•Uma (daughter of the Appellant) hit Smt. Pravesh by balkati one-two times;

•Vijai Laxmi and Uma had hit with the weapons raising their hands above the

head.

86. It is surprising that Baby hit Smt. Pravesh with the spear when she had fallen

yet she missed hitting her.

87. There should be at least two, if not four, incised wounds on the body of Smt.

Pravesh. And if the weapons were hit raising their hands above their heads than it

should not only be muscle deep: it should be deeper.

Injuries: Sonu

88. There are three injuries on the dead body of Sonu that are not gunshot

wounds. They are as follows:

•Injury no (i) of Sonu could be caused by blunt weapon. It could be caused

by a weapon wielded by the lady-accused if they hit with the blunt side;

•Injury no. (iii) and (iv) of Sonu are punctured wounds and could be caused

by the pointed weapon like a spear.

89. The Informant (PW-2) deposed that Sonu was hit with Tabal, Balkati, and

spear. According to the oral testimony there should be many more injuries by

tabal and balkati; they should be more severe too. However, they are neither in

that numbers nor are they severe.

90. The Informant (PW-2) deposed that Sonu was hit by tabal on the back of the

neck. However, there is no wound on the back of the neck.

91. Injury no. (i) of Sonu could normally be caused by blunt weapon. However

There is no evidence that he was hit with the blunt side of tabal or balkati. This

injury could also come if Sonu falls on a raised stone.

16

92. Injuries no. (iii) and (iv) are punctured wounds. They could come by spear.

However, looking into their size, it appears that they were caused by falling on a

pointed stone etc.

93. In view of our discussion, it cannot be said that the oral testimony is

inconsistent with the medical evidence: some injuries could have been caused by

the weapons said to be wielded by the lady-accused. However, according to oral

evidence the injuries said to be caused by weapons wielded by lady-accused

should be more severe and more in number than found on the dead bodies. The

oral evidence might not be inconsistent but it is in variance with the medical

evidence.

Other Factors

94. As previouslinjuries said to be caused by the lady-accused could come by

falling as well. Apart from this, the incident should be seen along with other factors

that are present in the case.

95. The Appellant, and Deobrat—the menfolk in the family—had carried the

firearms. It seems unusual for the lady-accused to accompany them when they

were carrying firearms. They were sufficient to kill anyone. They also had to cover

two places. They came to the temple first and went to house afterwards. It seems

improbable that all the womenfolk of the family would accompany them, when it

was not necessary.

96. The prosecution case and the oral testimony is that all of them attacked the

Deceased, suggesting that it was simultaneous. The weapons said to be wielded

by the lady-accused could cause injuries from the close quarter only. No person

would fire the shots at the time, when weapons held by lady-accused were being

used: lest the fire shots might hit them. The chances are that both the firearms and

other weapons were used at different times and by the same persons.

97. The accused were arrested together, while trying to run away at 12:45 hours

the same day. The Appellant and his son were involved in the incident and they

might have thought of taking everyone in the family, but merely for this reason,

adverse inference cannot be drawn against the lady-accused.

98. Women traditionally have softer emotions. They would be loathed to be

17

involved in such an incident; they are often moot spectators of the activities of their

menfolk; unable to register their opposition.

99. In the incident, real sister and two nephews of the Informant were brutally

killed, His brother-in-law seriously injured. The Appellant and his son were involved

in the crime: revenge and anger would in the mind of the Informant.

100. In such a situation, the normal reaction would be to involve everyone in the

family of the Appellant. In fact everyone in the family, who was in Village, was

involved. The possibility of false implication of lady-accused cannot be ruled out.

101. Considering the entire facts and circumstances, it cannot be said that the view

of the trial court is unreasonable or perverse or is not a reasonable view. The

government appeal is liable to be dismissed.

7

th

POINT: REFERENCE SHOULD BE ACCEPTED.

102. The counsel for the Appellant submitted that:

(i)There is no evidence to show as by whose fireshot resulted into fatal

injury;

(ii)The Appellant may be a motivator but he is not the author of death;

(iii)The reference should not be accepted and the death penalty should

not be confirmed.

103. The Appellant was wielding a gun. He fired shot at the Injured but he was

lucky: he survived the tragedy but is crippled for life. However the maximum

corporal punishment under section 307 is imprisonment of life and we award it to

the Appellant.

104. There has been three murders. The wife and two children of the Deceased.

The main reason of death of the Deceased are the firearm injuries.

105. In the house, where dead bodies were found, the empty cartridges of 12 bore

and 315 bore guns were found. This indicates that two kinds of firearms were used.

106. We have already held that the Appellant is guilty of 302 IPC. We have no

reason to doubt that shots fired by the Appellant also hit the Deceased. He was

also responsible for their deaths. Even if it is taken that shots fired by the Appellant

18

did not result into death of the Deceased; it does not matter: the facts are such.

107. The Appellant was head of the family. He was the elder brother. It was his

duty to see fair share was given to the younger brother. He instead of holding the

family together, spread hatred. He instead of paying Rs.35,000 that he was

supposed to pay, tried to eliminate the family of the younger brother.

108. The entire family of younger brother has been killed and the younger brother

was lucky to survive but is left to live a lonely and crippled life.

109. In our opinion, the reference should be accepted.

110. The trial court has imposed fine as well. Considering that:

•The reference is accepted and the death penalty is awarded to the

Appellant;

•The Appellant's wife and his two daughters are there. The daughters are to

be married;

•The fine would be realised from the property of the Appellant in the hands of

his wife,

It is not a fit case of imposition of any fine. The fine imposed by the court is set

aside.

CONCLUSIONS

111. Our conclusions are as follows:

(i) There was motive for committing the crime;

(ii) The Informant had come to the Village the previous day and was present at

the time of the incident;

(iii) The incident took place at the time and place as alleged by the prosecution;

(iv)The FIR was not ante-timed;

(v) The prosecution has proved its case beyond reasonable doubt against Om

Nath (the Appellant) under section 307 and 302 IPC;

(vi)It is case where reference should be accepted however fine may not be

imposed.

112. In view of our conclusions, Criminal Appeal No. 8077 of 2008, Government

Appeal No. 2314 of 2009, and Criminal Revision No.3005 of 2010 are dismissed.

The Reference no. 17 of 2008 is accepted.

19

113. The conviction dated 10.11.2008 in ST No. 907 of 2006 is maintained but fine

is not set aside. Om Nath (the Appellant) is sentenced to,

•Imprisonment for life under section 307 IPC;

•Death penalty under section 302 IPC. He shall be hanged by the neck till his

death.

With these observations, the reference is accepted; the appeal and revision are

dismissed. However, imposition of fine is set aside.

Date: 17.08.2010

SKS

20

Appendix-1

List of Material Exhibits recovered at the time of arrest of the Accused as per

judgement and statement of the prosecution witnesses.

Sr noMaterial

Exhibit no.

Description Related Document

exhibit

1 1 Blood stained Pajama from Om Nath Memo of arrest Ka-

43

2 2 Blood stained Baniyan from Om Nathdo

3 3 Blood stained Pant from Devbrat do

4 4 Blood stained Saree from Vijai LaxmiKa-44. Arrest

memo is Ka-43

5 5 Blood stained Suip (Upeer Apparel)

Baby @ Babita

do

6 6 Blood stained Salwar (Lower Apparel)

from Baby @ Babita

do

7 7 Country made pistol of 12 Bore from Om

Nath

Arrest memo is Ka-

43. (FIR under

section 25 Arms

Act Ka-45).

8 8,9 Two live cartridges of 12 bore from Om

Nath

do

9 10 One live Cartridge of 12 bore in the

Chamber of the Pistol from Om Nath

do

10 11 A country made pistol of 315 bore with

broken Butt from Deobrat

do

11 12, 13 Two live cartridges of 315 bore from

Deobrat

do

12 14 One live cartridges of 315 bore in the

Chamber of Pistol from Deobrat

do

13 17 One country made pistol of 315 bore

from Vijai Laxmi

do

14 18 to 27Ten Live Cartridges of 12 Bore from Vijai

Laxmi

do

15 28 to 29Two Live Cartridges of 315 Bore from

Vijai Laxmi

do

21

Appendix-2

List of Material Exhibits recovered on the pointing out of Appellant as per

judgement and statement of the prosecution witness.

Sr noMaterial

Exhibit no.

Description Related Document

exhibit

1. 42 Spear Ka-39.

2. 44 Tabal Do

3. 46 Balkati Do

List of Material Exhibits recovered from the Temple as per judgement and

statement of the prosecution witness

Sr noMaterial

Exhibit no.

Description Related Document

exhibit

1 31 Blood stained soil Ka-35

2 32 Plain soil. do

3 33 Piece of cement do

4 48 One empty cartridge of 12 bore Ka-37

5 49 One empty cartridges of 315 boreDo

List of Material Exhibits recovered from the house as per judgement and

statement of the prosecution witness.

Sr noMaterial

Exhibit no.

Description Related Document

exhibit

1 34 Plain soil where dead body of Sonu

was found

Ka-34

2 35 Blood stained soil from where dead

body of Sonu was found

3 38 Blood stained soil where dead

bodies of Monu and Smt. Pravesh

were found

4 40 Plane soil from where dead bodies of

Monu and Smt. Pravesh were found

5 50-52 Three empty cartridges of 12 boreKa-38

6 53-56 Four empty cartridges of 315 boreDo

7 57-58 Two Bullets each one bullet was

found under the body of deceased

Monu and Smt. Pravesh

Do

8 59-60 Two Pieces of broken Butt (Wooden)

of country made pistol

Do

22

Appendix-3

Among others, the following were Documents filed by the Prosecution:

Exhibits Description

Ka-1 Written Report of Crime.

Ka-2 Injury Report of Lokesh examined at District Hospital,

Muzaffarnagar.

Ka-3 Post Mortem Report of Smt. Pravesh

Ka-4 Post Mortem Report of Sonu

Ka-5 Post Mortem Report of Akshay alias Monu

Ka-6 First Information Report

Ka-7 General Diary

Ka-8 Injury Report of Lokesh (Chaunisiya Nursing Home).

Ka-9 Supplementary Report

Ka-10 Receipt of District Hospital

Ka-11 X-Ray Form

Ka-12 Admission Slip of Chaurasiya Nursing Home

Ka-13 Report of the Health Care Centre

Ka-14 Report of the Health Care Centre

Ka-15 Report of Health Care Centre

Ka-16 Discharge Card

Ka-17 Inquest report of Sonu

Ka-18 Photo Nash of Sonu

Ka-19 Letter sent to the RI (Sonu)

Ka-20 Letter sent to the CMO (Sonu)

Ka-21 Form-13 (Sonu)

Ka-22 Inquest report of Smt. Pravesh

Ka-23 Photo Nash of Smt. Pravesh

Ka-24 Letter sent to the RI (Smt. Pravesh)

Ka-25 Letter sent to the CMO (Smt. Pravesh)

Ka-26 Form-13 (Smt. Pravesh)

Ka-27 Inquest Report of Akshay @ Monu

Ka-28 Photo Nash of Akshay @ Monu

Ka-29 Letter sent to the RI (Akshay @ Monu)

Ka-30 Letter sent to the CMO (Akshay @ Monu)

Ka-31 Form – 13 (Akshay @ Monu)

Ka-32 Site Plan (Temple)

Ka-33 Site Plan (House).

23

Ka-34 Recovery memo of Bloodstained soil (House)

Ka-35 Recovery memo of Bloodstained soil (Temple).

Ka-36 Recovery memo of shoes and slippers near the house.

Ka-37 Recovery memo of one 12 Bore and one 315 Bore empty

Cartridges (Temple)

Ka-38 Recovery memo of one 12 Bore, 315 Bore empty Cartridges and 2

Bullets and broken butt of country Made pistol (House).

Ka-39 Recovery memo of Tabal, Balkati and spear.

Ka-40 Site Plan (where the Accused were arrested).

Ka-41 Site Plan (Recovery of balkati, tabal and spear)

Ka-42 Charge sheet

Ka-43 Memo of arrest and recovery

Ka-44 Memo of Bloodstained Sari from accused Smt. Vijay Laxmi

Ka-45 First Information Report 25 of Arms Act

Ka-46 General Diary of 25 of Arms Act.

Paper No.

14 Kha-1&2

Report of the chemical examination.

24

Appendix-4

Injuries in the injury Report of Lokesh Tyagi at the District Hospital,

Muzaffarnagar.

(i) Gunshot wound of entry on (Lt) side Back over (Lt) lumber region about 4

cm (sic) illace crest size 2.5 cm x 2 cm x pro found Bleeding present, cavity

deep x inverted margins, bleeding present around the wound.

(ii) Abrasion contusion (Lt) side back over iliace crest size 2.5 x 1 cm x

oozing blood present x Redish colour.

(iii) Gun shot wound entry on post surface of (Rt) forearm just below to (Rt)

Elbow size 4 cm x 3.25 cm x muscle (torn) & Bony pieces present in the

wound underlying bone fractured x margins inverted x bleeding present,

margins inverted, Blackening present.

(iv) Abraded contusion on post. Surface of (Lt) Elbow size 2.5 cm x 1 cm x

at pieces oozing blood present x redish colour.

GC-V Low, pulse – 110 /mt. Feeble Temp. fever presnaration present BP 80/60

Anaemic poor pregnosis.

Opinion : For inj. No. (1) & (iii) adv. X ray & for refer for medical college Meerut and

caused by discharge of firearm inj. no. (ii) & (iv) by blunt & (six) object and simple

in nature.

25

Appendix-5

Injuries in the injury Report of Lokesh at Dr. Chaurasiya Nursing Home,

Meerut.

(i)A large wound of about 2” x 2.5” dimensions present in left side of lumber

area about 5” left lateral to spine & about to 2" about the Iliac crest and

about 3” below the 15th rib. Margins are Irregular & bruised and blackened.

Wound is freshly bleeding and muscle deep. Underlying fractured bony

segments of spine palpable deeply in this wound.

(ii)A wound of about 2 cm length & 0.5 cm width present over right side of

lumber area about 2” above the Illic crest and about 6” right lateral to spine

margins are tatooed soft tissue deep, freshly bleeding.

(iii)Palpatory crepitations present over back of lumbar area.

(iv)Numbness present over soles.

(v)A wound of about 1” x o.5 elongated present in right axille lateral wall,

margins are tatooed and freshly bleeding, soft tissue deep.

(vi)A large wound of about 2.5” x 1.5” present over back of right elbow,

irregular, margins are contused, freshly bleeding underlying fractured bony

pieces are visible and palpable movements are restricted.

(vii)A small abrasion over right lateral aspect of chest present.

Type of Injury by fire arm

Nature of injuries Grievous.

26

Appendix-6

The antemortem injuries of Smt. Pravesh

(i)Firearm injury wound of entry size 06 cm x 03 cm on Rt. side neck . 04

cm below Rt. ear muscle deep all muscle of neck are ruptured and creat

vessels are ruptured. Margins are everted. No tattooing presents. (However,

Dr. Rajesh Singh (PW-4) deposed that it was inverted).

(ii)Firearm wound of exit. size 12 cm x 05 cm on left side face & neck upper

part left ear lobule present under lying mandible bone fracture present. All

muscles & great vessels are raptured. Injury no. 1 & 2 are corresponding to

each others & cervical vertebrae 5 & 6 are fractured.

(iii)Firearm injury of entry. Size 1.5 cm x 1.5 cm circular on left side chest, chest

cavity deep 15 cm below left nipple at 5 O'clock position margin are everted

tatooing present in an area of 21 cm x 14 cm wound goes to on dissection

stomach ruptured liver ruptured under lying left 9 & 8 rib fractured and a

yellow metall colour bullet recovered from the Rt. chest wall muscles 9 & 10.

internal muscle on ruptured.

(iv)Incised wound size 05.5 cm x 01 cm x muscle deep on left forearm back

side 10 cm below left elbow. Dead body & PM report after PM handed over

to constable.

27

Appendix-7

The antemortem injuries of Akshay alias Monu

(i) Firearm wound of entry size 2.5 cm x 1.5 cm x Rt chest cavity deep on

Rt. side chest 6.5 cm from Rt. nipple at 11 O' clock position. On dissection of

wound 3 Rt. rib fractured. Rt. lung ruptured. Rt. scapula fractured Margins

are inverted & irregular. The edges are contused.

(ii) Firearm wound of exit size 2.5 cm x 1.5 cm on left scapula back side 10

cm. below the tip of left shoulder. Margins are everted & irregular. Both

wound No. (1) & (2) are corresponding to each other.

(iii) Five arm injury of wound size 1.5 cm x 01 cm x abdominal cavity deep.

Margins are inverted circular in shape. Tatooing present in an area of 26 cm

x 23 cm in front of chest & abdomen. Abraded collar present under injury.

Liver ruptured.

(iv) Exit wound of firearm size 01 cm x 0.5 cm. on midline 11 cm on Rt side

back. A yellow coloured bullet recovered from the injury site. Margins are

everted. Injury no. 3 & 4 are corresponding to each other.

(v) Firearm injury - size 02.5 cm x 2.5 cm on left shoulder 03 cm from tip of

shoulder a plastic wad present 2 pieces of cardboard recovered from the

wound & underlying bone (sic) Fractured (fractured).

28

Appendix-8

The ante mortem injuries of Sonu

(i) Lacerated wound 1.5 cm x 01 cm left side head & Bone deep 06 cm

above from a left ear underlying parietal bone left fractured.

(ii) The Abraded contusion 05 cm x 2.5 cm left side forehead just above left

eyebrow.

(iii) Punctured wound circular 0.5 cm x 0.5 cm circular x muscle deep on Rt.

upper arm 07 cm below Rt. shoulder.

(iv) Punctured wound circular 0.5 cm x 0.5 cm x muscle deep circular on Rt.

side upper arm 04 cm. below injury no. (3).

(v) Firearm wound (Entry wound) size 01 cm x 0.5 cm x left chest cavity

deep. Margins are inverted. 03.5 cm away toward midline from a left nipple

at 9 O' clock position. Tattooing present in an area of 19 cm x 13 cm both

side front of chest. On dissection of wound underlying 4 & 5 left rib fractured.

Both lungs are ruptured & heart ruptured.

(vi) Exit wound of firearm size 1.5 cm x 1 cm on Rt. side back 13 cm below

Rt. scapula 06 cm. from midline. Margins are inverted. Wound No. (5) & (06)

are corresponding to each other.

(vii) Contusion 13 cm x 011 cm (eleven) on Rt. side back extended to left

side back.

29

1. Capital Crl. Appeal No. 8077 of 2008

2. Reference No 17 of 2008

3. Govt. Appeal No. 2314 of 2009

4. Crl. Revision No. 3005 of 2010.

HON'BLE YATINDRA SINGH, J

HON'BLE SURENDRA SINGH, J.

1. The reference is accepted. Criminal Appeal No. 8077 of 2008, Government

Appeal No. 2314 of 2009 and Criminal Revision No.3005 of 2010 are dismissed.

The conviction dated 10.11.2008 in ST No. 907 of 2006 is maintained but

imposition of fine is set aside.

2. Om Nath (the Appellant) is sentenced to,

•Imprisonment for life under section 307 IPC;

•Death penalty under section 302 IPC. He shall be hanged by the neck till his

death.

For orders, see our orders of the date on separate sheet of papers.

Date: 17.8.2010

SKS

30

Govt. Appeal No. 2314 of 2009

State of UP ......................................Appellant

Vs

(1) Vijay Laxmi

(2) Km. Uma

(3) Km. Baby ...........................................Accused-Respondents

Hon'ble Yatindra Singh, J

Hon'ble Surendra Singh, J

Government Appeal No. 2314 of 2009 is dismissed.

For order see our order on separate sheet of papers placed in the record of CCA

No. 8077 of 2008.

Date: 17.8.2010

SKS

31

Crl. Revision No. 3005 of 2010

Rakesh ................................................Revisionist

Vs

State of UP..........................................Respondents

Hon'ble Yatindra Singh, J

Hon'ble Surendra Singh, J

Criminal Revision No.3005 of 2010 is dismissed.

For order see our order on separate sheet of papers placed in the record of CCA

No. 8077 of 2008.

Date: 17.8.2010

SKS