Court No. - 46/Reserved

Case :- CAPITAL CASES No. - 4505 of 2012

Appellant :- Ram Ashish Gaur & Others

Respondent :- State Of U.P.

Counsel for Appellant :- Amit Misra,Viresh Misra

Counsel for Respondent :- Govt. Advocate

Hon'ble Amar Saran,J.

Hon'ble Bachchoo Lal,J.

(Delivered by Hon'ble Amar Saran J)

We have heard Sri Viresh Mishra and Sri Amit Mishra for the appellants, and

Sri Akhilesh Singh, learned Government Advocate, and Sri Anand Tiwari for

the State of U.P., and perused the written submissions filed by the appellants

and the State.

This Capital Appeal along with the connected Criminal Reference under section

366 Cr.P.C. arises from the judgement passed by the First Additional Sessions

Judge, Chandauli dated 01.10.2012 awarding a sentence of death to the three

appellants under section 302 read with 34 IPC.

The prosecution case as mentioned in the F.I.R. lodged on 18.06.2005 at 10 p.m.

by P.W. 1 Onkar Nath Tiwari, P.W. 1, son of the deceased Raj Kumari Devi,

aged 70 years was that Ram Ashish Gond had become mentally unstable and he

used to roam about in the village. Chandradev Tiwari alias Tengari Tiwari,

Parmanand Tiwari and Chandra Shekhar Tiwari had told his brother the

appellant Ram Dheeraj Gond that if they made a sacrifice of some Brahmin,

then his brother Ram Ashish would recover. P.W. 7 Geeta Devi, daughter-in-

law of the deceased and P.W. 5 Chandrama Chauhan had over heard this

conversation. On 18.06.2005 the appellants Ram Ashish, Ram Dheeraj, Chandra

Dev Tiwari, alias Tengari Tiwari, Parmanand Tiwari and Chandra Shekhar

Tiwari sent Mangari, the mother of Ram Ashish and Ram Dheeraj to call the

deceased Raj Kumari Devi and they killed her in their house at 6.30 p.m. Vimla,

P.W. 3 saw Mangri taking away Raj Kumari Devi with her. Raj Kumari Devi's

NeutralhCitationhNo.h-h2013:AHC:92061-DB

corpse was found in the house of Ram Ashish. On the basis of the informant's

report at P.S. Dheena, a case was registered by P.W. 11 Head Moharrir Kislay

Mishra against the present three appellants Ram Ashish Gond, Ram Dheeraj

Gond and Smt. Mangari Devi and the co-accused Chandradev Tiwari alias

Tengari Tiwari, Parmanand Tiwari and Chandra Shekhar Tiwari.

P.W. 8 S.I. Ram Prasad Yadav started investigation of this case. He proceeded

to the village of incident, Sisaura. As light could not be arranged, the inquest

could not be carried out in the night. The dead body was seen in the morning in

the room in the house where the inquest was then conducted. After sealing the

dead body it was handed over to the Constables Raj Kumar Yadav and Kalika

Singh for carrying it for post-mortem.

P.W. 10 Dr. Arvind Singh conducted the post mortem on the body of Raj

Kumari Devi on 19.06.2005 at 4.40 p.m. He found the following ante-mortem

injuries:-

1.Lacerated wound 2 cm x ½ cm x bone deep over the outer aspect of right

side forehead between the right eye and ear. On opening the temporal

bone was found fractured.

2.Lacerated wound 3 cm x 1 cm x bone deep on the mid part of nose and

right lower eyes on opening nasal bone was fractured.

3.Multiple contusions in an area of 18 cm x 16 cm on both side forehead

and face.

4.Multiple contusions on the top of left shoulder, arm, elbow and hand on

the back and outer aspect.

5.Multiple contusions in an area of 18 cm x 12 cm on the outer and post

aspect of left side chest.

6.Multiple contusion all over the outer aspect of left upper hand.

The Investigating Officer also collected a blood stained wooden patari and

blood stained and plain mud from the spot and sealed the items and prepared the

recovery memos. He prepared the site plan (Ext. Ka-6). He returned to the

police station, where the appellants Ram Ashish and Mangari were present, who

gave confessional statements to him on 20.6.2005. He also sent Ram Ashish

Gond, Aarti Devi and Mangari on 19.6.2005 for medical examination. The

appellants Ram Ashish Gond, Aarti Devi and Smt. Mangari were medically

examined on the same day at 4.30 a.m., 4 a.m. and 4.45 a.m. respectively.

The injuries of Ram Ashish Gond were as follows:-

1.Lacerated wound 1.5 cm x 1 cm x muscle deep on the back of the head. It

was 15 cm above the nape of the neck.

2.Contusion of 12 cm x 4 cm upper outer part of right shoulder and right

arm. Red in colour.

3.Contusion of 2.5 cm 1.5 cm upper right side of the back of the chest. It is

7 cm below the right shoulder blade. Red in colour.

4.Contusion of 5 cm x 1.5 cm upper back of right chest. It was 10 cm below

the right shoulder blade. Red in colour.

5.Abrasion of 3cm x 1 cm upper back of right foot.

The injuries of Smt. Aarti Devi were as follows:-

1.Lacerated would of 8 cm x 3 cm x bone deep upper right side of the scalp

of the head. It is 11 cm above the right ear 3 cm above the right eye brow.

2.Lacerated wound of 4 cm x 1 cm x bone deep upper right side of the head.

It is 6 cm above the right ear and reaching up to hair margin.

3.Lacerated wound of 2 cm x 1 cm x bone deep upper right side of the face

2 cm below the right lower eye lid.

4.Contusion of 6 cm x 2.5 cm upon outer part of right forearm. Deformity

of the lines evident. Red in colour.

5.Contusion of 16 cm x 2.5 cm upon outer part of left arm. Red in colour.

6.Contusion of 5 cm x 3 cm upon outer part of (back of) left forearm in its

middle. Red in Colour.

7.Contusion of 3 cm x 1 cm upon back of left hand. Red in colour.

8.Contusion of 20 cm x 4 cm upon outer part of the shoulder and chest wall.

Red in colour.

9.Lacerated wound of 2 cm x 1 cm x muscle deep, 1 cm x 0.5 cm x skin

deep upon back of right index and middle

(10) Lacerated wound of 1 cm x 0.5 cm x bone deep upon front of right

leg in its middle.

(11) Lacerated wound of 3 cm x 1 cm x bone deep upon front of right leg

in its middle.

The injuries of Smt. Mangari were as follows:-

(1) Contusion of 5 cm x 1.5 cm upon back of right forearm. It was 5 cm

above the right wrist. Red in colour.

(2) Lacerated would of 2 cm x 0.5 cm x muscle deep upon outer surface

of left wrist.

(3) Contusion of 3 cm x 2 cm upon the prominence of the right cheek.

Red in colour.

On 26.6.2005 the investigation of this case was

taken over by P.W. 9 Station Officer Jagdhari

Chaudhari, who recorded the statements of

Geeta Devi and Chandrama Chauhan on

2.7.2005. He learnt that Ram Dheeraj had

surrendered before the Court on 16.7.2005. On

9.9.2005 he submitted the charge sheet against

the accused Ram Ashish Gond, Ram Dheeraj

Gond and Mangari Devi under section 302 IPC.

He did not find any material against Chandradev

Tiwari alias Tengari Tiwari, Parmanand Tiwari

and Chandra Shekhar Tiwari and excluded their

names from the charge sheet.

The witnesses of fact in this case are P.W. 1 Onkar Nath

Tiwari, P.W. 2, Ram Lakshan Tiwari, P.W. 3 Vimla Devi,

P.W. 4 Pancham Gond, P.W. 5 Chandrama, P.W. 6 Phagu

and P.W. 7 Geeta.

P.W. 1 Onkar Nath Tiwari is the informant and son of the deceased

Smt. Raj Kumari Devi. He used to know the appellants Ram Ashish

Gond, Ram Dheeraj Gond and their mother Mangari Devi because

they used to reside at a distance of 50 paces from his house. The

incident took place on 18.6.2005 at 7.30 p.m. Ram Ashish Gond

had recently returned from Punjab and he used to roam about in the

village saying that he had become a worshipper of Durga Maa and

was her carrier. This upset his brother Ram Dheeraj Gond. The co-

villagers Chandradev Tiwari alias Tengri Tiwari, Paramanand

Tiwari and Chandra Shekhar Tiwari had told him that if he made a

sacrifice of some Brahmin, then his brother would recover. He

learnt this fact from Geeta Devi and Chandrama Chauhan. On the

date and time of incident the six above named accused persons had

called Raj Kumari Devi through Mangari Devi to their house,

where they beat her and caused her death. Vimla Devi had seen

Mangari Devi taking away his mother to their house.

P.W. 2 Ram Lakshan Tiwari, the husband of Raj Kumari deposed that

Mangari Devi had called his wife from his house for the purpose of

making a sacrifice of her and had committed her murder. His wife's body

was found in the house of Ram Ashish on 19.6.2005. The inquest of the

dead body was conducted in his presence. There were a number of

injuries on the dead body.

P.W. 3 Vimla Devi has turned hostile and has not supported her earlier version.

She denied that in her 161 Cr. P.C. statement she had stated that she had met

Raj Kumari Devi at 2 p.m. and Raj Kumari had told her that she would go to the

house of Ram Ashish Gond and that she had not seen Raj Kumari going away

with Mangari Devi. She could not say as to how the Investigating Officer had

written these facts in her 161 Cr. P. C. statement. She denied colluding with the

accused. She stated in her examination-in-chief that she used to put on a

"ghooghat," when she used to go out and that she had heard the name of Ram

Ashish and her mother Mangari Devi only sometimes when she visited their

house.

P.W. 4 Pancham Gond, was a relation of the accused whose niece Aarti Devi

had married the appellant Ram Ashish. He has also turned hostile and

disclaimed any knowledge of the incident or of visiting the house of the accused

on the date of the incident. He denies giving any 161 Cr. P. C. statement to the

Investigating Officer. He also denies having given any such statement that he

had gone to meet his niece Aarti Devi in Kabir Chaura Hospital and she had told

him that on 18.6.2005 Ram Ashish's mother had brought the panditain "Raj

Kumari" and that Ram Ashish had put a garland on the neck of Raj Kumari and

then murdered her.

P.W. 5 Chandrama has again turned hostile and claimed that his house is at a

considerable distance from the house of the informant. He claims that 2½

months before the date of incident, he had met with an accident because of

which his left and right legs were fractured and he was bed ridden. He denies

having over heard Chandradev Tiwari alias Tengari Tiwari, Parmanand Tiwari

and Chandra Shekhar Tiwari telling Ram Dheeraj Gond that if he would make a

sacrifice of some Brahmin, then his brother, who had become mentally

deranged and who roamed about hither and thither, would become all right. He

denied making any such disclosure to Onkar Nath Tiwari.

P.W. 6 Phagoo, who is the father of Aarti is also a hostile witness. His daughter

Aarti was married to Ram Ashish. He was in jail in connection with a murder

case. About one week before the incident, his daughter Aarti was staying with

him and only one week prior to this incident, she had gone to Ram Ashish's

house. His son Jagjivan had accompanied Aarti to her sasural His son had told

him on his return that Ram Ashish was under the spell of Durga Maa. After one

week of the incident, he learnt that his daughter was admitted in Kabir Chaura

Hospital. He had visited her there and had seen that she was lying on the bed

with injuries on both of her hands. No one from her sasural was present. He did

not know how she had received the injuries. When his daughter had come home,

she had informed him that she did not know how she had received the injuries,

because she had fainted and when she became conscious, she found herself in

the hospital. His daughter had not told him that on 18.6.2005 Ram Ashish's

mother Mangari Devi had called Raj Kumari Panditain to her house or that Ram

Ashish had put a garland on her neck and after beating her to death made a

sacrifice of her. She denied giving any statement under 161 Cr. P. C. to the

investigating officer.

P.W. 7 Smt. Geeta Devi, who is the daughter-in-law of Raj Kumari deposed that

on the date of incident her mother-in-law Raj Kumari was at her home. At 12-1

O' clock she was present in the osara with her mother-in-law. Her co villager,

the appellant Mangari Devi had come and talked with her mother-in-law under

the neem tree near their door. At that time one Munna Pathak asked her for

water. At that time Mangari asked the deceased to accompany her. When Geeta

asked her mother-in-law where she is going, then Mangari had stopped, but after

sometime, she had left. At about 3-4 p.m. Mangari Devi again came to her

house and took her mother-in-law with her. On that day, her mother-in-law had

kept the fast of 'Ekadasi'. When she did not return up to 6 p.m. then the people

of the house made enquiries about her in the village and made a search for her.

Then they went to the house of Mangari. The house was bolted from inside. Her

elder brother-in-law Onkar Nath Tiwari opened the door. She saw that in the

house a mud worship place had been made and that there was a rope and a

garland on her neck and there were some other flowers, sweets and other prayer

items near her mother-in-law who was lying dead on the floor. Her mother-in-

law had been murdered by Mangari Devi, Ram Ashish and Ram Dheeraj. The

I.O. had interrogated her about the incident.

She denied the the suggestion that during the anushthan Raj Kumari Devi

had climbed up the bamboo ladder for placing the prayer material on the

roof for propitiating the gods and while climbing down from the ladder,

her legs slipped from the top rungs of the ladder and she fell on the

courtyard and died as a result of the injuries received.

According to the appellant Ram Dheeraj, he was in Alopur, Sultanpur

Lodhi, Jalandhar, Punjab, where he along with his father has taken some

fields on lease for growing vegetables. After the incident, his father had

returned and learnt that the local police were searching for him. Then he

returned back and surrendered in Court. He had no information about the

incident.

In his 313 Cr. P. C. statement, the appellant Ram Ashish has denied the

allegation against him and has pleaded that there was enmity between the

other named co-accused Chandradev Tiwari alias Tengari Tiwari,

Parmanand Tiwari and Chandra Shekhar Tiwari and the informant's

family over a land dispute and litigation was pending.

Ram Dheeraj also denied the allegations and pleaded ignorance in his 313

Cr. P. C. statement.

Smt. Mangari Devi aged 70 years also denied the allegations in her 313

Cr. P. C. statement. She mentions that her son Ram Ashish was ailing for

quite sometime. The deceased Raj Kumari had told them they should get

prayers arranged, then there would be happiness, peace and prosperity in

the house. The deceased had joined the prayers and on her directions,

prayers and havans were being conducted. On the completion of the

prayers, she climbed up the roof carrying a mug (lota with water) on the

ladder. When climbing down the top rungs, her legs slipped and she fell

down, because of which she received a number of injuries and died of the

same.

The defence has also examined Aarti Devi, wife of Ram Ashish as D.W.

1. She has deposed that she married Ram Ashish 3-6 years earlier. She

admits the presence of her husband Ram Ashish, her mother-in-law

Mangari Devi, at the time and place of incident. In her examination-in-

chief she stated that her Jeth Ram Dheeraj was not present and he was in

Punjab. But in her cross-examination by the prosecution she contradicted

this fact and stated that Ram Dheeraj had never gone outside the village

for the purpose of work. Her husband Ram Ashish was not keeping well

and he had been advised by the deceased Panditain Raj Kumari to get a

prayer ceremony conducted in her house. After the prayer was completed,

Raj Kumari Devi climbed up on a wooden ladder along with a mug with

water and prayer materials. When she was climbing down the upper rungs

of the ladder, she slipped and fell on the courtyard and died as a result of

the injuries received by the fall. After the incident, the co-villagers had

arrived at their house and had beaten her because of which she fainted.

When she regained consciousness she found herself at the Varanasi

Hospital. She did not know, who had beaten her and she did not know the

names of the people because she was a home staying daughter-in-law of

the house.

Learned counsel for the appellant submitted that the injuries on the

deceased, which were mainly contusions and lacerated wounds, and were

not the typical injuries that are received when a superstitious sacrifice of a

person is made, rather those injuries were due to a fall, which were caused

to the deceased whilst she was climbing down the bamboo ladder. There

were injuries on the appellants Ram Ashish Gond, Smt. Mangari and the

defence witness Aarti Devi. These injuries have not been explained in the

prosecution version. No exclusive liability could be assigned to the

appellants for this offence, as according to the initial prosecution case,

there were six accused persons viz. Chandradev Tiwari, Parmanand

Tiwari and Chandra Shekhar Tiwari, who were excluded from the charge

sheet after conclusion of the investigation. Even the application under

section 319 Cr. P.C. for summoning these accused persons was rejected.

Also from the evidence, it appears that there were three other persons who

resided in the house, i.e. Ram Ashish's wife Aarti Devi, one sister and one

nephew of the appellants Ram Ashish and Ram Dheeraj, who might have

committed this crime, but have not been implicated. Admittedly the

informant Onkar Nath Tiwari was not even a witness of last-seen and

Vimla Devi an aunt of the informant who was shown as a witness of last

seing the deceased along with the appellant Mangari Devi has turned

hostile and has not supported the prosecution case. Likewise P.W.4

Pancham Gond, who was a relation of the accused has denied that Aarti

Devi wife of Ram Ashish had disclosed to him at the Kabir Chaura

Hospital, where she was admitted on 18.6.2005, that the appellants had

murdered the deceased. P.W. 5, Chandrama, who is said to have

overheard the conversation of the deceased with the other accused

Chandradev Tiwari, Parmanand Tiwari and Chandra Shekhar Tiwari

regarding their exhortation to the appellants to sacrifice some Brahmin for

freeing Ram Ashish from the clutches of the spirit and for facilitating his

recovery has also turned hostile as he claims to have fractured his legs

and to being bed ridden at that time. The deceased, who was on visiting

terms in the house of the appellants could have gone to their house of her

own. There was no reliable evidence of last seen or any evidence of over

hearing the suggestion of sacrificing the deceased, who was a brahmin for

propitiating the gods for enabling the appellant Ram Ashish Gond

overcome his mental obsession, that he was the carrier of "Durga Maa".

The evidence of P.W. 7 Geeta Devi, whose 161 Cr. P. C. statement was

recorded after 15 days, also fails to provide any cogent evidence

regarding the deceased having gone along with the appellant Mangari

Devi to her house for the purpose of prayers. There was no evidence of

the presence of the appellant Ram Dheeraj. The record of this case had

got burnt out and the new record has not been properly reconstructed and

it consisted of fabricated documents. The alleged motive of this case has

not been substantiated. This is a case of circumstantial evidence and

circumstances are not cogently established and the chain is not complete,

so as to lead to the only inference of the guilt of the appellants. In any

case if at all, only life imprisonment should have been awarded to the

appellants and the award of sentence of death to the three appellants was

unwarranted.

Learned Government Advocate, on the other hand, argued that there is no

such universal rule that only a particular kind of injuries such as

beheading the deceased would be caused at the time of a superstitious

sacrifice. From their nature, it needs to be ruled out that the injuries on the

deceased could be due to a fall as there were a large number of injuries on

all sides of the body of the deceased including multiple contusions, which

could not have been caused by a fall. The dead body was also not lying in

the courtyard, but it was found lying in a room, where prayers were being

conducted. There was a wooden plank lying at the spot, which also had

some blood on it, which was inconsistent with the deceased having

received injuries by a fall. So far as the injuries of Ram Ashish Gond,

Smt. Mangari and Aarti Devi are concerned, no plea was taken that the

injuries had been received in self defence. In fact no argument had even

been advanced by the counsel for the accused before the lower Court that

the origin of the incident was shrouded in mystery, as the injuries on the

appellants and on Aarti Devi were unexplained. Furthermore, the defence

witness Aarti Devi has admitted that the injuries were caused to her by the

villagers, who had assembled after the incident because of which she had

even fainted and was taken to the hospital. The site plan does not show

any ladder, but in fact there was a pacca staircase, which has been

indicated in the site plan itself. There was no need for the 70 year old lady

Smt. Rajkumari to have climbed up the stairs carrying water in the mug

and prayer materials to the roof. The three other accused persons named

in the F.I.R. were excluded from the charge sheet because no evidence

was gathered against them. This was noted by the Investigating Officer.

Even the application under section 319 Cr. P. C. for summoning these

non-charge sheeted accused was dismissed by the Trial Court for this

reason. Even if, some witnesses have turned hostile, the informant P.W. 1

Onkar Nath Tiwari, P.W. 2 R.L. Tiwari, the husband of the deceased and

P.W. 7 Geeta Devi have spoken of the proposed sacrifice. The fact was

that the deceased was done to death for carrying out a sacrifice by the

appellants. So far as the other family members of the appellants are

concerned, as no one has furnished any evidence against them, hence they

have not been implicated in this crime. But so far as the three appellants

are concerned, cogent evidence was available against them right from the

initial stage. This crime could not have been committed only by the 70

year old lady Mangari Devi, the mother of the appellants Ram Ashish

Gond and Ram Dheeraj and also Ram Ashish Gond is said to have been

mentally disturbed. In such circumstances Ram Dheeraj Gond must also

have had a role in the crime. Because there was no evidence against three

other persons i.e. Ram Ashish's wife, sister, and nephew of the appellants

Ram Ashish and Ram Dheeraj, they were not made accused and their

exclusion would not confer any benefit on the present appellants. Even if,

for the sake of arguments, it was accepted that the motive for the crime

was not established, as some of witnesses for proving motive have not

been produced, but this fact was undeniable that the deceased had died a

homicidal death in the house of the appellants and the onus lay on them to

explain as to how the deceased had died in their house. Failure to

discharge this onus, or offering a patently false explanation was an

important circumstance for connecting the appellants with this crime.

Evidence has been led that Mangari Devi had taken away the deceased

Raj Kumari to her house. Geeta Devi, P.W.7, Raj Kumari's daughter-in-

law would have knowledge of this fact and if the house was only 20-30

paces away, it would have been apparent to her and the other witnesses,

and the informant that the deceased had gone to that house. In any case,

even if, there was some inconsistency about the time, when the deceased

had left for that house, or even if it is presumed that there was absence of

last seen evidence of the deceased going along with appellant Mangari

Devi to her house, at least this fact was indisputable that the deceased

appears to have voluntarily gone to the house of the appellants,

purportedly for carrying out prayers and thereafter, her dead body had

been found in that house with homicidal injuries, hence the appellants

could not have been absolved of the liability for the crime. The chain of

circumstances is clear and complete for showing that the appellants were

responsible for the crime of murdering the deceased in their house. After

the record was burnt, an order was passed by this Court in a Bail

Application to expedite the trial. Consequently, the record was

reconstructed and so far as other documents are concerned, it is pointed

out by the learned G.A., no objection was made questioning the

genuineness of the said documents by the counsel for the accused before

the trial Court and in fact he has admitted to their genuineness. The said

documents have been properly reconstructed and proved. The witnesses

have thereafter been re-examined. In these circumstances it is submitted

that the crime of killing of an old woman for carrying out her sacrifice

after inviting her to their house under false pretexts, calls for the death

penalty and the other option of awarding life sentences to the appellants

was unquestionably foreclosed on the facts of this case.

On an analysis of the evidence and on examination of the post-mortem

report, we find that there was a lacerated wound on the left side of the

forehead of the deceased between the right eye and ear under which the

temporal bone was fractured. There was also a lacerated wound on the

middle of the nose fracturing the nasal bone. More significantly, there

were multiple contusions on both sides of the forehead and face. In these

circumstances in our view it has rightly been submitted by the learned

Government Advocate that such multiple contusions could not be caused

by a fall, but were in all probability the result of blows by some blunt

object. Again, there were multiple contusions on the right side on the

shoulder and the hand and also on the back on the outer aspect and

multiple contusions in an area of 18 x 12 cm on the outer and posterior

aspect of the left side chest. There were multiple contusions all over the

outer aspect of the left upper hand. Such injuries were on the opposite

sides of the dead body of the deceased and the presence of multiple

contusions could never be caused due to fall and therefore it appears that

the said injuries were caused homicidally by assaulting the deceased with

some blunt object. Furthermore, if the deceased had fallen down from the

ladder, the body would not have been lying inside the room along side the

prayer material. The presence of a wooden plank i.e. a patari, which was

stained with human blood as per the report dated 10.5.2010 of the

Forensic Science Laboratory was also wholly inconsistent with the case

of the defence that the deceased had received injuries, while falling from

the ladder in the courtyard. According to the site plan blood was seen

only in the kothari, where the prayers were being conducted and the dead

body was lying. The wooden plank containing human blood was also seen

there. No blood was seen in the courtyard. The site plan also indicates that

no wooden bamboo ladder was seen anywhere, but a stair way going

upstairs has been shown in the site plan. The witness Geeta PW 7 may

have been confused when she mentioned in her cross-examination that

there were no stairs, and there was a bamboo ladder in the house of the

appellants, as this fact is inconsistent with the site plan. There was also no

rational reason why the old deceased lady would have wanted to climb a

bamboo ladder for putting the prayer water or prayer material on top of

the roof. For all these reasons, we think that the basic defence of the

appellants that the injuries received by the deceased were accidental in

nature cannot be accepted.

The contention that in matters of human sacrifice, usually the neck is amputated

or sacrifices are made in a particular manner appears to be a speculative

argument. If the deceased has died as a result of homicidal injuries in a house,

then whether the death was due to a superstitious sacrifice or for any other

reason, under section 106 of the Evidence Act the onus lay on the appellants

who are owners of the house, and who alone have special knowledge of the

facts, to explain the circumstances of the death of Smt. Raj Kumari.

So far as the injuries received by the appellants Ram Ashish Gond, Smt.

Mangari, and the defence witness Aarti Devi wife of Ram Ashish are concerned,

we are of the view that this is a novel argument advanced by Sri Viresh Mishra,

the appellants' learned counsel at this stage. Such a plea was not even raised

anywhere by cross examination of the witnesses, nor was a suggestion made in

the statement under section 313 Cr. P. C. that the injuries were unexplained and

hence some benefit should accrue to the appellants. It appears that the plea was

not raised, because the injured Aarti Devi, D.W. 1 herself stated that these

injuries were caused to her by the villagers after the incident. In these

circumstances we can easily appreciate that the villagers would naturally feel

enraged if the 70 year old lady with whom there was no enmity, would be

invited to the appellants' house and belaboured there probably for the purpose of

some irrational sacrifice. That is why no plea, whatsoever of trying to seek any

benefit from the injuries to the accused, had been raised before the Trial Court

by the appellants. We are therefore of the view that the said plea, which has now

been raised, is devoid of any substance, and must be immediately rejected.

From the mere fact that three of the accused persons, Chandradev Tiwari alias

Tengari Tiwari, Parmanand Tiwari and Chandra Shekhar Tiwari, who were

named in the F.I.R. by PW 1 Onkar Nath Tiwari, and against whom PW 1 also

gave evidence of their involvement in Court, but no charge sheets were

submitted, and the application for summoning them under section 319 Cr.P.C.

was also rejected by the Trial Judge (on account of the fact that the Investigating

Officer had found absolutely no evidence against them). This provides no

ground for discarding the entire the prosecution case or for disbelieving the case

against the present appellants. Also simply because there were some other

members such as the wife of Ram Ashish, a sister and nephew, of Ram Ashish

and Ram Dheeraj, who have not been implicated in this case because no one

made any allegation against them, provides no ground for concluding that the

appellants have also been falsely involved in this crime. In India the maxim

"falsus in uno falsus in omnibus" has not received general acceptance and the

Courts have always taken pains to separate the wheat from the chaff, and the

mere acquittal or finding of non-involvement of some accused or non-accused

family members or others in a crime provides no ground for disbelieving the

case against accused persons against whom the evidence exists showing their

complicity in a crime. This proposition of law has been laid down inter alia in

Dalbir Singh v. State of Haryana, AIR 2008 SC 2389, Nisar Ali v. State of U.P.,

1957 Cri.L.J. 550 (SC) and Gurcharan Singh and another v. State of Punjab,

1956 Cri.L.J 827.

Even if, it is conceded for the sake of argument that the motive set up for this

offence viz. conduct of a human sacrifice of a Brahmin lady in order to free the

appellant Ram Ashish from his mental disorder, because of which he was

claiming that he was carrying Durga Mata not been established to the hilt as the

witness, PW 5 Chandrama Chauhan, has denied that he had told the informant

that he had over heard the non-charge sheeted co-accused, Chandradev Tiwari,

Parmanand Tiwari and Chandra Shekhar Tiwari telling the appellant Ram

Dheeraj that if he got a sacrifice made of a Brahmin, then his brother, the

appellant Ram Ashish would recover, and has been declared hostile and has not

supported this version in Court. Also P.W.7 Geeta Devi has denied overhearing

this conversation between the non-charge sheeted accused and Ram Dhiraj, and

thus there was unsatisfactory proof by evidence led at the trial for establishing

the motive for this crime. But this fact in itself will not help exonerate the

appellants from this crime. The fact of the matter is that the deceased had gone

to the house of the appellants probably to attend some religious ceremony

(anushthan) for improving the health of the deceased, as was mentioned by the

supporting witnesses, and even the appellant Mangari Devi in her 313 Cr.P.C.

statement and in the evidence of DW 1 Smt. Aarti wife of Ram Ashish.

Thereafter the dead body of the deceased was found in that house, with what

appear to be blunt object injuries. Thereafter there was no reasonable

explanation for her injuries or the cause of her death in that house by the

appellants on whom the onus lay under section 106 of the Evidence Act to

explain these facts within their knowledge, as to how the deceased had suffered

the said injuries in their house which had proved fatal and resulted in her death.

Rather they appear to have raised a false defence that the deceased had fallen

down from some ladder, which had caused injuries to her, which as we have

shown above is a completely false and unacceptable explanation. This failure to

give any explanation as to how the deceased had received homicidal injuries in

their house and then furnishing a false explanation that the deceased had died

accidentally by falling off a ladder were the most important circumstances for

connecting the appellants with this crime. In Trimukh Maroti Kirkan v. State of

Maharashtra, (2006) 10 SCC 681 where there were some demands for money

and the wife had died due to strangulation, in her marital home, but it was

falsely claimed by the inmates that she had died due to snake bite, the Apex

Court held that in such cases it is well nigh impossible for the prosecution to

furnish evidence as to how the crime had been committed, and as these are facts

within the special knowledge of the accused, it was the burden of the accused to

explain how the deceased had died in view of section 106 of the Evidence Act.

Pargraphs 14 and 15 of the law report may be usefully perused:

"14. If an offence takes place inside the privacy of a house and in such

circumstances where the assailants have all the opportunity to plan and commit

the offence at the time and in circumstances of their choice, it will be extremely

difficult for the prosecution to lead evidence to establish the guilt of the accused

if the strict principle of circumstantial evidence, as noticed above, is insisted

upon by the courts. A judge does not preside over a criminal trial merely to see

that no innocent man is punished. A judge also presides to see that a guilty man

does not escape. Both are public duties. (See Stirland v. Director of Public

Prosecutions, (1944) 2 ALL ER 13(HC) — quoted with approval by Arijit

Pasayat, J. in State of Punjab v. Karnail Singh, (2003) 11 SCC 271) The law

does not enjoin a duty on the prosecution to lead evidence of such character

which is almost impossible to be led or at any rate extremely difficult to be led.

The duty on the prosecution is to lead such evidence which it is capable of

leading, having regard to the facts and circumstances of the case. Here it is

necessary to keep in mind Section 106 of the Evidence Act which says that when

any fact is especially within the knowledge of any person, the burden of proving

that fact is upon him. Illustration (b) appended to this section throws some light

on the content and scope of this provision and it reads:

"(b) A is charged with travelling on a railway without ticket. The burden of proving

that he had a ticket is on him."

15. Where an offence like murder is committed in secrecy inside a house, the

initial burden to establish the case would undoubtedly be upon the prosecution,

but the nature and amount of evidence to be led by it to establish the charge

cannot be of the same degree as is required in other cases of circumstantial

evidence. The burden would be of a comparatively lighter character. In view of

Section 106 of the Evidence Act there will be a corresponding burden on the

inmates of the house to give a cogent explanation as to how the crime was

committed. The inmates of the house cannot get away by simply keeping quiet

and offering no explanation on the supposed premise that the burden to

establish its case lies entirely upon the prosecution and there is no duty at all

on an accused to offer any explanation."

Even so far as the last seen evidence of the deceased having been taken to the

house of the appellants by the appellant Mangari Devi is based only on the

testimony of P.W. 7 Geeta Devi and some minor inconsistencies about the time

when the deceased left with the appellant Mangari Devi for the house of the

appellant are pointed out in the testimony of P.W. 7 Geeta Devi as to whether

the deceased had gone at 3 or 4 p.m. with Mangari Devi as mentioned in the

examination-in-chief of Geeta Devi or whether as the informant Onkar Nath

Tiwari, informant has stated in the F.I.R. that the deceased Raj Kumari had gone

at about 6.30 p.m. with Mangari Devi to her house when Vimla Devi, P.W. 3

had seen the deceased and Mangari departing together. Even though Vimla Devi

has turned hostile and disclaims having seen the deceased Raj Kumari and

Mangari going together and even denies freely roaming around in the village as

she says that she used to wear a ghooghat (veil). The fact of the matter is that as

the deceased was residing hardly a few paces from the house of the appellants,

and the witness Geet Devi, who is the wife of Anil Tiwari and the daughter-in-

law of the deceased and resident of the same house would certainly be having

knowledge about the movements of her old mother-in-law Raj Kumari. At any

rate, as it cannot be denied that Geeta Devi's mother-in-law had gone to the

house of the appellants as her dead body was found in that house, hence these

minor discrepancies, regarding the persons who had seen the deceased going to

the appellants' house and the time of her departure and whether at that time she

had gone with Mangari Devi or by herself to that house loses any importance.

There can be no denial of the fact that the deceased had gone to the house of the

appellants, where her dead body was found, with ante mortem injuries which as

we have held above were homicidal in nature and which could not have been

accidentally caused by a fall as pleaded by the defence.

Learned counsel for the appellants raised some doubt regarding the presence of

Ram Dheeraj. As we are not inclined to think that this crime could have been

committed by the appellant Ram Ashish alone, who used to roam around the

village saying non nonsensical things such as his having the blessings of Mata

Durga, or even that this crime could have been committed by Ram Ashish and

his mother, the 70 year old Managari Devi. The kind of planning that took place

for this offence, the fact that prayers were taking place in the house of the

appellants for the past 7 days as deposed to by P.W. 7 Geeta Devi and from the

number of injuries that the deceased had received, the said injuries could not be

caused only by Managri Devi and Ram Ashish and we think that there is

sufficient reason to hold that Ram Dheeraj was also fully involved in this crime,

who has been nominated for this crime in the FIR and by the witnesses to the

exclusion of his brother Ram Ashish's wife Aarti, sister and nephew who were

also admittedly residents of the same house at that time. Also DW 1 Aarti has

admitted in her cross-examination, that Ram Dheeraj used to reside and work in

the village at that time and had never gone outside to work, hence his claim that

he was working at Punjab at that time appears to be false.

It is not disputed that the record of this case had got burnt, but on a close perusal

of the documents and records, we find that the documents could be retrieved

only after orders were passed by the High Court on 22.4.2010 in a bail

application for concluding the trial in six months and directing the District

Judge to take steps for reconstruction of the records as soon as possible.

Thereafter efforts were made for reconstructing the record. The documents,

which were available from the police station were placed on the record and on

those documents, no objections to their reception have been endorsed on behalf

of the accused. We have carefully perused the endorsement and also noted that

the charge was again framed and the witnesses were examined. Even when the

charge under section 302/34 IPC was framed on 27.9.2012, full opportunity was

given to the accused for cross examining the witnesses, but they declined to

avail of the opportunity. All the necessary papers (16 Ka) are on record.

Learned counsel submitted that the record could only be reconstructed if a

separate order was passed pursuant to some High Court Circular. In our view it

is always expected that all efforts shall be made even by the District Judge even

by issuing suo motu orders for reconstructing a lost or destroyed record. Much

less can there be any objection to the admissibility of a record that was

reconstructed pursuant to the High Court's directions in a bail application which

also called for concluding the trial expeditiously. We also find that the accused

through their counsel have admitted the genuineness of the papers. We,

therefore find no substance whatsoever in these objections.

On an examination of the totality of the circumstances of this case and

especially in the light of the the predominant fact that the body of the deceased

was recovered from the room in the house of the appellants, with a large number

of homicidal (and not accidental) injuries, which were present on all the sides of

the body of the deceased, and there were also multiple contusions. The failure to

discharge the burden under section 106 of the Evidence Act for explaining how

the deceased had died in their house with the homicidal injuries, which was a

fact especially within their knowledge, the adoption of a patently false defence

by the appellants that the deceased had died as a result of fall from a bamboo

ladder. The I.O. had found no such bamboo ladder in their house, but a brick

staircase. There was also no reason for the old deceased lady to climb up any

ladder for taking prayer materials to the roof. A blood stained patari, which

contained human blood as per the forensic science laboratory report was found

in the prayer room. The body of the deceased was not found in the courtyard,

nor was any blood found there which might have lend some assurance to the

defence version. Even if, some witnesses have been won over by the defence

and have not supported the conversation between the other accused Chandradev

Tiwari, Parmanand Tiwari and Chandra Shekhar Tiwari with the appellant Ram

Dheeraj that they should make a sacrifice of a Brahmin, so that his brother Ram

Ashish could be exorcised of the spirit which had afflicted him, and had caused

his apparently mentally unbalanced behaviour. Likewise even if some witnesses

of last seen such as Vimla Devi, P.W. 3 have not supported the last-seen

evidence of the deceased having gone along with Mangari Devi to her place,

there was adequate material for showing that the deceased must have gone to

the appellants' house, where the body was found, the circumstance that prayer

material etc., were collected in the house of the appellants and the prayer was

carried out for the past few days, for which the deceased had been invited, has

also been established by the prosecution. However, the main circumstance

against the appellants that they did not explain as to how the deceased had

received homicidal injuries in their house, how her body was lying there and in

fact had given a false explanation that the deceased had died by falling from a

ladder are sufficient for completing the chain of circumstances for establishing

the complicity of the appellants for this offence. For all these reasons, we are of

the view that the prosecution has succeeded in establishing the complicity of the

appellants in this offence beyond any shadow of doubt .

One last question, however, remains to be decided as to what would be the appropriate

sentence in this case, whether the death sentence awarded by Trial Judge be confirmed or

whether it be substituted by a sentence of imprisonment for life.

In Sushil Murmu v. State of Jharkhand, 2004 (2) SCC 338 death sentence was

confirmed in a case of sacrificial killing of a nine year old boy by decapitating

his head for propitiating the diety because he imagined that he could thus

enhance his fortunes. The Apex Court law report in paragraphs 22 and 23 reads

thus:

"22. A bare look at the fact situation of this case shows that the appellant

was not possessed of the basic humanness and he completely lacks the psyche

or mindset which can be amenable for any reformation. He had at the time of

occurrence a child of the same age as the victim and yet he diabolically

designed in a most dastardly and revolting manner to sacrifice a very hapless

and helpless child of another for personal gain and to promote his fortunes by

pretending to appease the deity. The brutality of the act is amplified by the

grotesque and revolting manner in which the helpless child's head was severed.

Even if the helpless and imploring face and voice of the innocent child did not

arouse any trace of kindness in the heart of the accused, the nonchalant way in

which he carried the severed head in a gunny bag and threw it in the pond

unerringly shows that the act was diabolic of the most superlative degree in

conception, and cruel in execution. The tendency in the accused and for that

matter in anyone who entertains such revolting ideas cannot be placed on a par

with even an intention to kill someone but really borders on a crime against

humanity indicative of the greatest depravity shocking the conscience of not

only any right-thinking person but of the courts of law, as well. The socially

abhorrent nature of the crime committed also ought not to be ignored in this

case. If this act is not revolting or dastardly, it is beyond comprehension as to

what other act can be so described, is the question. Superstition is a belief or

notion, not based on reason or knowledge, in or of the ominous significance of

a particular thing or circumstance, occurrence or the like but mainly triggered

by thoughts of self-aggrandizement and barbaric at times as in the present case.

Superstition cannot and does not provide justification for any killing, much less

a planned and deliberate one. No amount of superstitious colour can wash

away the sin and offence of an unprovoked killing, more so in the case of an

innocent and defenceless child.

23.Criminal propensities of the accused are clearly spelt out from the fact

that similar accusations involving human sacrifice existed at the time of

trial. Though the result could not be brought on record, yet the fact that

similar accusation was made against the accused-appellant for which he

was facing trial cannot also be lost sight of. In view of the above position,

we do not think this to be a fit case where any interference is called for

looking to the background facts highlighted above. This in our view is an

illustrative and most exemplary case to be treated as the "rarest of rare

cases" in which death sentence is and should be the rule, with no

exception whatsoever. Appeal fails and is dismissed."

However in another case of triple infanticide after abduction and

mutilation of the genitals of the two little boys and one girl in State of

Maharashtra v. Damu, (2000) 6 SCC 269, at page 285, because the

accused ignorantly and foolishly entertained a superstitious belief that the

sacrifices would enable unearthing a treasure (gold) that was buried in a

field, the Apex Court awarded a sentence of imprisonment of life in place

of the death sentence awarded by the trial Court observing as follows in

paragraph 47. "Now, we have to make up our mind regarding the sentence

to be imposed on the three accused. Learned counsel for the State pleaded

for restoration of the same sentence which the trial court has imposed,

i.e., death penalty. The question is whether this case can be regarded as

rarest of rare cases in which the lesser alternative is unquestionably

foreclosed. Looking at the horrendous acts committed by the accused, it

can doubtlessly be said that this is an extremely rare case. Nonetheless, a

factor which looms large in this case is that the accused genuinely

believed that a hidden treasure trove could be winched to the surface by

infantile sacrifice ceremonially performed. It is germane to note that none

of the children were abducted or killed for ransom or for vengeance or for

committing robbery. It was due to utter ignorance that these accused

became so gullible to such superstitious thinking. Of course, such

thinking was also motivated by greed for gold. Even so, we persuade

ourselves to choose the normal punishment prescribed for murder as for

these accused. Accordingly, while restoring the sentence passed by the

trial court in respect of other counts of offences, we order that the accused

shall undergo imprisonment for life for the offence under Section 302

read with Section 34 IPC."

The present case also cannot be regarded a case of such extreme brutality,

as there was no decapitating of the head of the deceased, but at the highest

on the prosecution allegations the deceased appears to have been

belaboured with some blunt objects to free the accused Ram Ashish from

the spirit which had afflicted him and for restoring his sanity. There was

no forcible abduction or quest for any financial gain. As the incident had

taken place in the house of the appellants, we are not sure about the roles

played by each of the accused persons in the assault. There is also no

consideration of the question whether the accused persons could have

repeated such a crime and were incapable of reformation, which also

needs to be considered before the extreme penalty of a death sentence can

be awarded.

In a recent decision dated 21.2.2013, State v. Jitender and Jitender v.

State, (reported in 2013 III AD(Delhi) 369: MANU/DE/0534/2013) the

Division Bench of the Delhi High Court has compared the two Apex

Court decisions Sushil Murmu and State of Maharashtra v. Damu. The

Delhi High Court has also referred to another Apex Court

decision:Kalpana Mazumdar v. State of Orissa: (2002) 6 SCC 536 where

the accused had kidnapped and murdered a 4 year old child to offer as

human sacrifice to appease the deities. The nails, the hair, and tongue of

the child had been cut and offered as sacrifice. The prosecution case was

that one Simanchal Padhi, a "tantrik" had told the other accused persons

that if they sacrificed a child they would get a pot of gold and one of the

appellants would get a son. The tantrik died during the trial. The Supreme

Court upheld the conviction of one of the accused, but held that the case

did not fall within the "rarest of rare" category to justify imposition of

death sentence. After referring to this decision the Delhi High Court has

given its reasons in paragraph 70 for preferring the view taken in Damu

and Kalpana's cases to the view taken in Sushil Murmu which are as

follows:

"70. It would therefore, be apparent that the question of imposition of

death sentence, even in cases where homicidal death, or murder, is

motivated by the desire to propitiate the gods or a deity, there is no

symmetrical approach; Sushil Murmu (supra), emphasizing the brutality

of the crime, resulted in capital punishment to the accused, whereas in

Damu S/o Gopinath Shinde (supra) and Kalpana Mazumdar (supra) a

contrarian approach was adopted. In any event, the Court, in Sushil

Murmu did not take into consideration any mitigating factor, such as the

possibility of reformation of the accused. On the other hand, it appears to

have taken into consideration allegations in some other case, for which

the accused had not been convicted."

We are inclined to agree with these observations of the Delhi High Court.

In the light of the aforesaid discussion we are of the view that the ends of

justice would be served if the sentence of death awarded to the appellants

for the offences for which they have been convicted be substituted with a

sentence of imprisonment for life, and it is ordered accordingly.

Subject to the aforesaid modification the Appeal is dismissed. The death

reference is rejected.

Order Date :- 8.7.2013

HSM