PETITIONER: SURESH CHANDRA BAHRI Vs. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT13/07/1994 BENCH: FAIZAN UDDIN (J) BENCH: FAIZAN UDDIN (J) ANAND, A.S. (J) CITATION: 1994 AIR 2420 1995 SCC Supl. (1) 80 JT 1994 (4) 309 1994 SCALE (3)197 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
FAIZAN UDDIN, J.- In Sessions Trial No. 77 of 1985 the
appellants Suresh Bahri and Raj Pal Sharma were convicted
under Section 302 of the Penal Code for causing murder of
Urshia Bahri and her two children, namely, Richa Bahri and
Saurabh Bahri. All the three appellants, Suresh Chandra
Bahri, Gurbachan singh and Raj Pal Sharma were also
convicted under Sections 302/120-B of the penal Code for the
offence of criminal conspiracy to commit murder of Urshia
Bahri and her two children named above. The appellants
Suresh Chandra Bahri and Raj Pal Sharma were further
convicted under Section 201 of the Penal Code for causing
disappearance of evidence of murder of Saurabh Bahri and the
appellants Suresh Chandra Bahri, Gurbachan Singh and Raj Pal
Sharma were also convicted under Section 201 of the Penal
Code for causing disappearance of evidence of murder of
Urshia Bahri by the Additional Judicial Commissioner, anchi
by judgment dated 27-7-1990 who awarded the sentence of
death for the offences under Sections 302 and 302/120-B of
the Penal Code and rigorous imprisonment to all the three
appellants for a period of seven years for the offence under
Section 201 of the Penal Code. The learned trial Judge made
a reference to the High Court of Patna, Ranchi Bench under
Section 366 of the Code of Criminal Procedure for
confirmation of the sentence of death and at the same time
the three appellants also preferred separate Criminal Appeal
Nos. 142, 143 and 152 of 1990 challenging their convictions
under Sections 302/120B and 201 of the IPC. The High Court
of Patna (Ranchi Bench) dismissed the three appeals
preferred by the three appellants affirming the sentences
awarded to them and accepted the death reference by judgment
dated 16-12-1991 against which these three appeals by leave
of this Court have been preferred. Since all these appeals
arise out of the common judgment of the High Court, they are
being disposed of together.
2.It may be pointed out that along with the above named
three appellants three other accused, namely, Y.D. Arya, the
maternal uncle of the appellant Suresh Bahri, Smt Santosh
Bahri, the mother of the appellant Suresh Bahri and one
Mohd. Suhail, truck driver, were also charged and tried as
co-accused for the offences punishable under Sections
302/120-B and 201 of the Penal Code, out they were acquitted
by the learned trial Judge giving them benefit of doubt. No
appeals against their acquittal are preferred.
3.Admittedly, at the relevant time the appellant Suresh
Chandra Bahri (hereinafter referred to as Suresh Bahri)
resided along with his deceased wife Urshia Bahri at South
Ranchi, House No. 936 on the Station Road within the
jurisdiction of Chutia Police Station. He also had a farm
and house attached thereto at Dulli, a place situated at a
distance of about 40 kilometres from Ranchi towards Khelari
within the jurisdiction of Police Station Khelari, District
Ranchi. Suresh Bahri was married to the deceased Urshia
Bahri in 1971 and out of their wedlock deceased Kumari Richa
Bahri and Saurabh Bahri were born.Kmari Richa Bahri was a
student of Class VI in Father Agnel School, New
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Delhi in the year 1983 while Saurabh Bahri was a student of
Class IV in the same school. The acquitted accused Smt
Santosh Bahri is the mother of the appellant Suresh Bahri
and the acquitted accused Y.D. Arya is the maternal uncle of
appellant Suresh Bahri and real brother of Smt Santosh
Bahri. There is no dispute that the parents of deceased
Urshia Bahri were living in America having settled down
there and the first informant of the incident Bineet Singh
Sarang, PW 69, the brother of the deceased Urshia Bahri was
employed as an Engineer in Libya. The deceased Urshia used
to write letters from time to time to her parents in America
and also used to talk to them on telephone.
4.This case has a chequered story and the prosecution case
unfolds a pathetic, chilling and sinister phenomenon whereby
the three innocent lives who were the heirs of the
properties of appellant Suresh Bahri, were eliminated from
this worldly scene and consigned to their heavenly abode by
putting an untimely end to their innocent lives simply in a
bid to avoid interference and intermeddling in the property
belonging to the appellant Suresh Bahri and thwart the
accomplishment and foil the wishes of Urshia of migrating to
America with her children with the sale proceeds of Ranchi
house and settle down at America.
5.The prosecution case is that the parents of deceased
Urshia Bahri have settled down in America and their deceased
daughter Urshia used to write letters to her parents from
time to time but they did not receive any letters from
Urshia in America for quite some time and on the contrary
they received two letters in America from the appellant
Suresh Bahri, one dated 29-10-1983 and another dated 3-11-
1983 which are marked Exts. 23/6 and 23/7, intimating them
that henceforth his wife Urshia will not be in a position to
address to them any letter as she was engaged in urgent work
and, therefore, in her place he himself would be writing
letters to them. This gave rise to a serious suspicion in
the mind of the parents of deceased Urshia and they
suspected some foul play. Consequently, the parents of
Urshia directed their son Bineet Singh Sarang, PW 69,
working in Libya to proceed to India with a view to find out
the welfare and whereabouts of Urshia and her children.
6.Further prosecution case is that acting on the advice of
his parents Bineet Singh Sarang (hereinafter referred to as
Bineet) landed in India on 16-1-1984 and reached the house
of his brother-in-law, the appellant Suresh at Delhi. But
to his utter surprise he found the house locked. Bineet was
informed by some of the tenants living on the first floor of
the house that the acquitted accused Smt Santosh Bahri the
mother of appellant Suresh would be coming to Delhi on 21-1-
1984. Finding no one in Delhi house Bineet visited the
business premises of the appellant Suresh at Bajaj House,
Nehru Place, New Delhi, where he met one Dhar, an employee
of appellant Suresh who informed Bineet that the appellant
Suresh was at Ranchi. In the meanwhile Smt Santosh, mother
of appellant Suresh returned to Delhi and when Bineet met
her and enquired about the whereabouts of his sister and her
children, she informed him that they had gone to Ranchi.
Bineet, therefore, rushed to Ranchi on 25-1-1984 where he
met the appellant Gurbachan Singh, Proprietor of Singh
Furniture Works, Main Road, Ranchi as telephone number of
Gurbachan Singh was found recorded in the records kept in
the business premises of appellant Suresh at Delhi as his
contact address of Ranchi. Bineet enquired from the
appellant Gurbachan Singh
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the whereabouts of his sister and her children. Gurbachan
Singh took Bineet to the farmhouse of appellant Suresh at
Dhulli but there they found neither Urshia Bahri nor her
children, namely, Richa and Saurabh nor the appellant
Suresh. However, at Dhulli farm Bineet, PW 69, was informed
by Gopi Mistry, PW 29, the caretaker of the farmhouse of
appellant Suresh that he had not seen Urshia for the last
about 5-6 months and further he disclosed that the appellant
Suresh had visited Dhulli farm in mid-December along with
his two children and one unknown person and that during that
period the appellant Gurbachan Singh had also visited the
said farm.
7.When Bineet did not find the appellant Suresh, his sister
Urshia and her children at Dhulli farm also he again came
back to Station Road, Ranchi House No. 936 of the appellant
Suresh but again he did not find anyone there. He, however,
met one Murari, PW 1, the next door neighbour of House No.
936 of appellant Suresh situated at the Station Road,
Ranchi, who used to keep the keys of the house of
accused/appellant Suresh. On enquiry by the informant
Bineet, Murari, PW 1, told him that he had seen Urshia Bahri
at the house of appellant Suresh Bahri on 11-10-1983 but the
children of Urshia Bahri had not come to the Ranchi house.
The witness Murari, PW 1, further told him that in the
morning of 12-10-1983 the appellant Suresh Bahri told him
that Urshia Bahri had left Ranchi for Delhi by aeroplane
that very morning and Suresh remained at Ranchi till end of
October 1983. Witness Murari Lal also told him that
thereafter he did not see Urshia and her two children at
Ranchi. The informant Bineet also met one B.N. Mishra, PW
2, another neighbour of appellant Suresh at Ranchi who told
him that his sister Urshia Bahri was known to him because he
was negotiating with her for purchase of the House No. 936,
Station Road, Ranchi and the sale would have completed but
for the sudden disappearance of Urshia Bahri, the sale could
not take place. B.N. Mishra, PW 2, also told him that he
had gone to the house of Suresh Bahri at Ranchi in the
evening of 11-10-1983 to meet Urshia Bahri but he did not
find her there. He, however, met Suresh Bahri there who was
sitting in the verandah of the house and there was no
electric light in the house of Suresh Bahri though there was
light in the other neighbouring houses. The witness Mishra
also told to Bineet that when he was ascending the verandah
of the house the appellant Suresh Bahri caught hold of him
and led him away from the house saying that Urshia had gone
to the house of the appellant Gurbachan Singh to a party and
she will proceed to Delhi direct from the house of Gurbachan
Singh by next morning flight.
8.Later when the informant Bineet, PW 69 again had a talk
with the witness Murari, PW 1 about the whereabouts of his
sister Urshia and her children, it is said Murari told him
that there was rumour that his sister Urshia has been
murdered. Thereafter, Bineet PW 69 went to the Police
Station Chutia where he made a written report that his
sister and her children were missing. On the basis of this
report P.S. Case No. 27/84 was registered at Chutia Police
Station. Bineet then left Ranchi on 26-1-1984 and reached
Delhi same day by plane and went to the house of Urshia
Bahri at C-70, South Extension-II, New Delhi where he met
the acquitted accused Mrs Santosh Bahri and enquired from
her the whereabouts of his sister Urshia. It is said that
Mrs Santosh Bahri told Bineet that she had no information
about Urshia. Bineet further gathered information that
Urshia was never seen at New Delhi after 30-9-1983 though
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the appellant Suresh had come to New Delhi in the month of
December 1983. He also learnt that in December 1983 the
appellant Suresh Bahri had left Delhi along with his mother
Mrs Santosh Bahri and the two children Richa and Saurabh in
Ambassador Car No. DLE 3179 and the appellant Suresh Bahri
came back to Delhi in January 1984. When appellant Suresh
Bahri learnt about the arrival of the informant Bineet at
New Delhi he disappeared.
9.Further prosecution case is that sometime in the month
of September 1983 the appellant Suresh Bahri had sent his
associate appellant Raj Pal Sharma to Ranchi who stayed in
the Station Road House No. 936 at Ranchi but when the
appellant Suresh Bahri along with his deceased wife Urshia
arrived at Ranchi on 1-10-1983 the appellant Raj Pal Sharma
left the house. Deceased Urshia Bahri had come to Ranchi to
sell the said House No. 936 and had contacted several
persons in that connection including Murari Lal, PW 1, Badri
Narayan Mishra, PW 2 and Laxmi Narayan, PW 21 who in fact
had agreed to purchase the said house and the deal was
almost settled and the sale deed was likely to be executed
very soon. It is said that as the appellant Suresh Bahri
was not agreeable for sale of the said house, Suresh Bahri
and the appellant Raj Pal Sharma murdered her in the night
of 11-10-1983 in a room of the said house. The head of
Urshia Bahri was truncated and severed from her body. At or
about the same time the appellant Gurbachan Singh also
arrived along with his servant Ram Sagar Vishwakarma who was
also arrayed as an accused but later turned approver and was
examined as PW 3. It is said that the headless body of
Urshia Bahri was wrapped in a blanket and saree piece and
tied with rope was dumped in a sceptic tank situated within
the compound of the said house. Later on in the morning of
13-10-1983 it is said that the appellant Raj Pal Sharma and
Suresh Bahri took the head of Urshia Bahri and threw the
same under a bush in the forest on the Ranchi-Patratru Road.
It is also alleged that sometime in the month of January
1984 the appellant Suresh Bahri and Gurbachan Singh managed
to take out the body of Urshia from the sceptic tank and
took the body in Truck No. BHM 5879 driven by the acquitted
accused Mohd. Suhail and threw it in a dumping pit known as
Madhukam dump.
10.Further prosecution case with regard to the murder of
the two children Richa Bahri and Saurabh Bahri is that they
were studying in Father Agnel School, South Extension-II,
New Delhi. Saurabh was a student of Class IV and Richa was
a student of Class VI in the said school. It is said that
on 5-12-1983 the appellant Suresh Bahri, the father of the
two children filed two separate applications before the
Principal of the school for withdrawal of both the children
from the school. These applications are Exts. 40 and 40/1.
Both the children were, thus, withdrawn from the school on
5-12-1983. It is said that the appellant Suresh Bahri left
his New Delhi House No. C-70 for going to Ranchi by his
Ambassador Car No. DLE 3179 along with his two children, his
mother, acquitted accused Mrs Santosh Bahri, one maidservant
and the appellant Raj Pal Sharma. On his way to Ranchi,
Suresh Bahri dropped his mother Mrs Santosh Bahri and a
maidservant at Basti in Uttar Pradesh and having stopovers
at Varanasi (Uttar Pradesh) and Daltonganj (Bihar) he
reached his Dhulli farmhouse on 16-12-1983 where he along
with the appellant Raj Pal Sharma and the two children
stayed on 16-12-1983 and 17-12-1983. During the aforesaid
stay the appellant Gurbachan Singh also visited Dhulli
farmhouse. It is
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said that a few days earlier appellant Gurbachan Singh had
sent some cots and chairs at the Dhulli farmhouse and
according to the prosecution in the intervening night of 17-
12-1983 and 18-12-1983 the appellants Suresh Bahri and Raj
Pal Sharma committed the murder of Richa Bahri and Saurabh
Bahri in Dhulli farmhouse of the appellant Suresh Bahri.
They took the bodies of Richa Bahri and Saurabh Bahri in the
Ambassador Car No. DLE 3179 to Varanasi where they threw
their dead bodies in Varuna River, a tributary of Ganges.
11.On 20-12-1983 at about 8.30 a.m. dead body of a boy aged
about 12 years was found floating at the bank of River
Varuna near the bridge of Village Puratepur which was
noticed by one Hiralal, PW 36. The naked body was packed in
a gunny bag. Report about it Ext. 11 was made by Hiralal,
PW 36 in the Police Station Sarnath where P.S. Case No.
100/83 was registered. Atma Nand Singh, PW 46, Police
Officer, Sarnath on receiving the report reached at the bank
of Varuna River, inspected the dead body and having found
marks of injury on the neck of the dead body prepared
inquest report in the presence of witnesses. The gunny bag
in which the dead body was packed was seized as per seizure
memo Ext. 5/8. He also received information that one gadda,
one quilt and one bedsheet were lying at the dumping place
of Panchkoshi-Varanasi Road. The Police Officer, Atma Nand
Singh, PW 46 seized the said articles by seizure memo Ext.
5/9 as also two bedsheets which were also found on the same
road near the Forest Department Nursery vide seizure memo
Ext. 5/ 10.
12.Dr B.K. Bhatnagar, PW 27, District Hospital, Varanasi
performed an autopsy on the dead body of the boy on 21-12-
1983 at about 4.15 p.m. He found that it was a dead body of
a male child aged about 12 years. The doctor noticed two
incised wounds in the neck. The trachea and blood vessels
and larynx were cut. There was also a contusion on the
chest. There were various other injuries found on his
person which were ante-mortem in nature caused by sharp
object.
13.Police Officer, Sarnath, Atma Nand Singh, PW 46 got the
photographs of the dead body taken by the photographer Ashok
Kumar PW 48 and published the same in newspapers to collect
information about the identity of the dead child but as
nobody claimed the dead body he disposed of the same after
preparing a panchnama to that effect. Consequently, the
Police Officer, Sarnath closed the investigation of P.S.
Case No. 100/83 by making a final report.
14.By a notification dated 18-6-1984 the Government of
India, Ministry of Home Affairs entrusted the investigation
of Chutia Police Case No. 27 to the CBI with the consent of
the Government of Bihar. The CBI on the basis of the
written report dated 1-2-1984 made by Bineet, PW 69
registered the case No. RC-2/84 on 28-6-1984 under Section
120-B read with Sections 302/364/201 of the Penal Code.
Shri Madanlal, PW 85, Senior Inspector of CBI, New Delhi was
the Investigating Officer of this case. By another
notification dated 14-9-1984 the Central Government,
Ministry of Home Affairs entrusted the investigation of
Sarnath P.S. Case No. 100/83 also to the CBI with the
consent of the Government of Uttar Pradesh and the
investigation of this case was entrusted to the CBI
Inspector Rajendra Singh, PW 82.
15.The Investigating Officers Madanlal PW 85 and Rajendra
Singh PW 82 seized the entire records of Chutia P.S. Case
No. 27/84 as well as the records of Samath P.S. Case No.
100/83. Both these Investigating Officers visited and
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inspected the Ranchi House No. 936 of appellant Suresh Bahri
situated at Station Road, along with some experts where
murder of Urshia Bahri is said to have been committed. A
steel trunk containing bloodstains and some scrapings of the
bloodstains of the wall of the room were seized which were
examined by the Serologist and found it to be stained with
human blood. A sketch map of the alleged place of
occurrence was prepared. The photographs of the dead body
taken by the photographer, Ashok Kumar, PW 48 in Sarnath
P.S. Case No. 100/83 were identified by the witnesses who
had seen Saurabh Bahri during his lifetime and stated that
the photographs were of Saurabh Bahri, indicating that it
was the body of Saurabh who was murdered. The articles
gadda, quilt and bedsheets seized from Panchkoshi Road,
Varanasi were also identified as belonging to the appellant
Suresh Bahri.
16.The appellant Gurbachan Singh was already arrested
earlier by Rajeshwar Singh (PW 59), In-charge, Police
Station Chutia (Ranchi) before 22-4-1984 when charge-sheet
by Chutia Police was filed, though further investigation
continued by CBI, in pursuance of notification issued by the
Government of India. During the course of investigation,
Rajeshwar Singh, PW 59, interrogated Gurbachan Singh who
made disclosure statement that he had thrown the dead body
of Urshia Bahri in Madhukam dump known as “Khad gaddha”. On
digging of the said dumping pit no dead body was recovered
but a piece of blanket, saree and rope were recovered from
there which were seized as per seizure memo Ext. 5/12.
These articles were put on the test identification parade on
6-3-1984 in which the witnesses Murari Lal Sharma PW 1 and
B.N. Mishra PW 2 had identified the said articles of piece
of blanket, saree and rope to be the materials used in
wrapping the dead body of Urshia Bahri on 11-10-1983.
17.The appellant Suresh Bahri was absconding but he was
arrested on 31-7-1984 at Delhi. The appellant Raj Pal
Sharma was arrested at Delhi by CBI Officer on 8-8-1984. He
was produced before the Metropolitan Magistrate, New Delhi
on 8-8-1984 and police remand for 10 days was obtained. On
12-8-1984 while in police custody, Raj Pal Sharma made a
disclosure statement, Ext. 32 to the CBI Investigating
Officer Madanlal, PW 85. In pursuance of the disclosure
statement the appellant Raj Pal Sharma took the
Investigating Officer and witnesses to the said forest on
Ranchi-Patratru Road. The skull, some hairs and pieces of
cotton were recovered from the bushes of the forest at the
instance of the appellant Raj Pal Sharma which were seized
as per seizure memo Ext. 33 dated 12-8-1984. The said skull
was sent to Dr Harish Chander, Director, Medico-Legal
Institute and Head of the Forensic Science, Gandhi Medical
College, Bhopal for examination. Dr Harish along with some
other experts examined the said skull and found that it was
of a female aged about 33 years with a margin of plus minus
five years on either side. Dr Harish for want of certain
information could not definitely opine that the said skull
was that of Urshia Bahri.
18.The Investigating Officers detected that one Ram Sagar
Vishwakarma, an employee of the appellant Gurbachan Singh
was also associated in hatching the conspiracy to commit the
murder of Urshia and her two children. They, therefore,
arrested Ram Sagar Vishwakarma on 3-12-1984 and produced him
before the Chief Judicial Magistrate, Ranchi on 4-12-1984
who remanded him
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to police custody till 17-12-1984. On 17-12-1984 Ram Sagar
Vishwakarma filed a petition Ext. 3 before the Chief
Judicial Magistrate for recording his confessional
statement. The Judicial Magistrate, Shri Bhuneshwar Ram PW
76 recorded the confessional statement Ext. 28/1 under
Section 164 Criminal Procedure Code of Ram Sagar Vishwakarma
on 19-12-1984, 20-12-1984 and 21-12-1984. Thereafter on
8-1-1985 Ram Sagar Vishwakarma made a petition to tile Chief
Judicial Magistrate, Ranchi that he may be granted pardon
and he be made a prosecution witness. The Chief Judicial
Magistrate granted pardon to Ram Sagar Vishwakarma by order
dated 9-1-1985 and accepted him as an approver and recorded
the statement of Ram Sagar Vishwakarma on 30-1-1986 as
approver under Section 306 of the Code of Criminal
Procedure. Thereafter, Ram Sagar Vishwakarma was granted
bail by the order of the High Court dated 13-1-1987 and he
was released from custody on 21-1-1987.
19.All the accused persons were charged and tried as said in
the earlier part of this judgment. All the accused persons
including the three appellants denied their guilt and
pleaded false implication. The appellant Suresh Bahri in
his statement under Section 313 CrPC stated that his wife
Urshia Bahri and his two children were not murdered at all
and that they were still alive. The appellants took the
defence that the prosecution has failed to prove factum of
death of Urshia Bahri and her two children and that in any
case the prosecution has failed to bring home the guilt
against any of the appellants for alleged murders and they
have been implicated only on the basis of suspicion.
20.On evaluation of the evidence adduced by the prosecution
and relying on various circumstances found to be established
against the three appellants which according to the learned
trial Judge are of conclusive nature and consistent only
with the hypothesis of the guilt of the appellants convicted
and sentenced them as said above. The said conclusions and
findings found favour with the High Court also in appeals
and, therefore, the High Court dismissed all the three
appeals affirming the conviction and sentence awarded by the
trial court.
21.At the very outset we may mention that sometimes motive
plays an important role and becomes a compelling force to
commit a crime and therefore motive behind the crime is a
relevant factor for which evidence may be adduced. A motive
is something which prompts a person to form an opinion or
intention to do certain illegal act or even a legal act but
with illegal means with a view to achieve that intention.
In a case where there is clear proof of motive for the
commission of the crime it affords added support to the
finding of the court that the accused was guilty of the
offence charged with. But it has to be remembered that the
absence of proof of motive does not render the evidence
bearing on the guilt of the accused nonetheless
untrustworthy or unreliable because most often it is only
the perpetrator of the crime alone who knows as to what
circumstances prompted him to a certain course of action
leading to the commission of the crime. In the present case
before us the prosecution has adduced evidence that the
appellant Suresh Bahri had strong motive to eliminate his
wife and two children from his way which evidence has been
accepted by both the courts below. We shall, therefore,
have a look at the said evidence to see whether the two
courts are justified or not in taking the view that the
appellant Suresh Bahri had a strong motive to hatch a
conspiracy with the
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assistance of the other two appellants, namely, Raj Pal
Sharma and Gurbachan Singh to commit the murder of his wife
and the two children.
22.According to the prosecution the motive behind the
murder of Urshia Bahri and her two children is said to be
the strained relations and differences between the deceased
Urshia and her husband, the appellant Suresh Bahri and her
mother-in-law, Smt Santosh Bahri (since acquitted) which had
developed on account of the firm determination of the
deceased Urshia Bahri to dispose of House No. 936 situated
on the Station Road, Ranchi and migrate along with her two
children to America where her parents were already settled
because her life and that of her two children had become
miserable due to the mental and physical tortures caused by
Suresh Bahri, his mother Santosh and maternal uncle Y.D.
Arya (since acquitted). It is said that the acquitted
accused Smt Santosh Bahri had started causing harassment to
her daughter-in-law the deceased Urshia in diverse ways
after her marriage with the appellant Suresh who maintained
a quiescence and never intervened in the maltreatment meted
out to her. It is said that the systematic course of ill-
treatment meted out to Urshia was communicated by her to
some of her relatives and parents orally and through
letters. Admittedly at the time when Urshia was wedded to
the appellant Suresh, his maternal uncle Y.D. Arya (since
acquitted) was also living with Suresh and his mother in the
same house and used to interfere not only in the family
matters but in the business affairs also by reason of which
Suresh had suffered great setback and loss to his property
and business assets at Calcutta. Consequently Urshia had
developed a dislike towards Y.D. Arya and ultimately Arya
was made to leave Delhi house at the instance of the
deceased. It is also said that the acquitted accused Smt
Santosh Bahri mother-in-law of deceased Urshia had no love
and affection either for Urshia or for her two children,
namely, Richa and Saurabh and for that reason she never kept
the children with her. According to the prosecution it is
in this background that the deceased Urshia was forced to
take the decision in her own interest and to fulfil her
dreams of a better future of her two children, to dispose of
the Ranchi house and migrate to America along with her two
children with the sale proceeds of the property and settle
down there. But the idea of migration with the sale
proceeds of the house entertained by late Urshia could not
be cherished by appellant Suresh Bahri and, therefore, the
appellant Suresh Bahri hatched a conspiracy with the two
convicted associates Raj Pal Sharma and Sardar Gurbachan
Singh to eliminate his wife and two children from his way
once for all and to achieve this objective all the three
appellants are said to have systematically executed their
scheme in a planned way in the commission of murders of
Urshia and her two children on two different dates at Ranchi
and Dhulli farmhouse of appellant Suresh Bahri. This part
of the prosecution story is said to be established by the
documentary as well as the oral evidence which we shall
refer to briefly hereinafter.
23.Murarilal Sharma PW 1 is the next door neighbour of the
appellant Suresh Bahri, his house-cum-grocery shop being
just adjacent to the Station Road house of Suresh at Ranchi.
He deposed in para 3 of his deposition that the appellant
Suresh Bahri used to tell him that there were frequent
family squabbles between him and his wife deceased Urshia
and his mother Smt Santosh Bahri on account of his maternal
uncle Y.D. Arya and the insistence of
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his wife for sale of their house at Ranchi and go to America
with her children with the sale proceeds. The witness also
deposed that Suresh Bahri told him that in fact he did not
want to dispose of the said house and was very much
disturbed on account of the frequent quarrels. The witness
also stated that Suresh had also told him that his children
were spoilt due to the encouragement by Urshia and they had
no respect for his mother by reason of which he was fed up
with this world and most often thought to put an end of the
entire family along with his own life.
24.Dinanath Sharma, PW 6 is the witness who has been the
classmate of the appellant Suresh Bahri and the entire
family of Suresh Bahri is known to him. He was on visiting
terms also. This witness has also deposed that the
relations between the appellant Suresh Bahri and his
deceased wife Urshia were strained since after about two
years of their marriage. He deposed that as and when he met
Urshia she always complained against the behaviour of Suresh
towards her. Almost similar is the statement of Moolchand
PW 24 who worked as mali at the Ranchi house of appellant
Suresh. Smt Surina Narula PW 66 is the sister, Bineet Singh
Sarang PW 69 is the brother and informant and Smt Rohtas
Sarang PW 79 is the mother of the deceased Urshia Bahri.
They all deposed that the relations between the appellant
Suresh Bahri and his deceased wife Urshia were not cordial
but strained as Urshia used to complain against her husband,
mother-in-law and the maternal uncle of her husband.
According to the evidence of Badri Narayan Mishra PW 2
through whom Laxmi Narayan PW 21 had negotiated for purchase
of the Ranchi house, it turns out that the deal was almost
finalised for purchase of the house by him but for the
sudden disappearance of Smt Urshia on 11-10-1983, the same
could not take place.
25.Besides the aforementioned oral evidence the prosecution
has produced documentary evidence also to support the
allegation that the relations of the appellant Suresh, his
mother and maternal uncle were not cordial with the deceased
Urshia Babri and that the deceased Urshia was determined to
sell out the Ranchi house and migrate to America with her
children and the sale proceeds against the wishes of the
appellant Suresh Bahri and his mother. The trial court has
elaborately dealt with the documentary evidence in this
behalf. The High Court has also in paragraphs 25 to 28 of
its judgment not only discussed but has reproduced various
letters written by deceased Urshia to her parents in America
to show the sufferings and state of mind of Urshia on
account of the behaviour meted out to her by her husband
Suresh Bahri and her mother-in-law and her determination to
sell out the house and shift to America and arrived at the
conclusion that the appellant Suresh had a strong motive to
commit the murder of his wife Urshia and her two children in
conspiracy with the other two appellants. It is, therefore,
not necessary for us to discuss the entire evidence again
which has been evaluated by the two courts below. On a
close scrutiny of the evidence on this point we find
ourselves in complete agreement with the view expressed by
the learned trial Judge and the High Court. The argument of
the learned counsel for the appellant that even if it is
accepted that there were strained relations and serious
differences between the deceased Urshia and the appellant
Suresh Bahri, his mother Santosh and maternal uncle Y.D.
Arya, yet Suresh would not go to the extent of hatching a
conspiracy and actually killing his wife and the two
children does not appeal to
98
us and we are not at all convinced by this argument because
different persons react differently under given
circumstances. It is difficult to lay down a hard and fast
rule as to how and in what manner a person would react and
to achieve his motive could go to what extent in the
commission of crime under a particular circumstance. It is
not possible to measure up the extent of his feelings,
sentiments and desire and say as to what compelled him to
commit a particular crime. There may be persons who under
frustration and on mere trifling domestic matters take
decision to commit a serious crime, while others may
approach it with cool and calm mind and think more
dispassionately before taking any hazardous and serious
steps. It all depends as to how a person reacts in a given
circumstance and it is he alone who best knows his intention
and motive to commit a crime and the extent thereof. In the
present case, it appears that the appellant Suresh Bahri was
under the misguided apprehension that the murder of his wife
Urshia alone would not be safe as the survival of the two
children may ultimately expose him of the murder of his wife
Urshia and therefore, he was left with no option but to wipe
of the entire family and clear the deck for smooth sail in
life as a freelancer which to his misfortune proved to be
too expensive as he had not only to pay the price with his
own life but also the lives of his two associates who helped
him actively in the commission of the crime in question.
26.Learned Senior Counsel Shri Sushil Kumar appearing for
the appellant Raj Pal Sharma submitted that in view of the
fact that no question relating to motive having been put to
the appellants on the point of motive under Section 313 of
the Code of Criminal Procedure, no motive for the commission
of the crime can be attributed to the appellants nor the
same can be reckoned as circumstance against the appellants.
It is no doubt true that the underlying object behind
Section 313 CrPC is to enable the accused to explain any
circumstance appearing against him in the evidence and this
object is based on the maxim audi alteram partem which is
one of the principles of natural justice. It has always
been regarded unfair to rely upon any incriminating
circumstance without affording the accused an opportunity of
explaining the said incriminating circumstance. The
provisions in Section 313, therefore, make it obligatory on
the court to question the accused on the evidence and
circumstance appearing against him so as to apprise him the
exact case which he is required to meet. But it would not
be enough for the accused to show that he has not been
questioned or examined on a particular circumstance but he
must also show that such non-examination has actually and
materially prejudiced him and has resulted in failure of
justice. In other words in the event of any inadvertent
omission on the part of the court to question the accused on
any incriminating circumstance appearing against him the
same cannot ipso facto vitiates the trial unless it is shown
that some prejudice was caused to him. In Bejoy Chand Patra
v. State of W.B. 1 this Court took the view that it is not
sufficient for the accused merely to show that he has not
been fully examined as required by Section 342 of the
Criminal Procedure Code (now Section 313 in the new Code)
but he must also show that such examination has materially
prejudiced him. The same view was again reiterated by this
Court in Rama
1 1952 Cri LJ 644: AIR 1952 SC 105 : 1952 SCR 202
99
Shankar Singh v. State of W.B.2 In the present case before
us it may be noted that no such point was raised and no such
objection seems to have been advanced either before the
trial court or the High Court and it is being raised for the
first time before this Court which appears to us to be an
afterthought. Secondly, learned counsel appearing for the
appellants was unable to place before us as to what in fact
was the real prejudice caused to the appellants by omission
to question the accused/appellant Suresh Bahri on the point
of his motive for the crime. No material was also placed
before us to show as to what and in what manner the
prejudice, if any, was caused to the appellants or any of
them.
27.Apart from what has been stated above, it may be pointed
out that it cannot be said that the appellants were totally
unaware of the substance of the accusation against them with
regard to the motive part. In this regard a reference may
be made to Question Nos. 5, 6 and 7 which were put to the
appellant Suresh Bahri in the course of his statement
recorded under Section 313 CrPC. The sum and substance of
these questions is that from the prosecution evidence it
turns out that the acquitted accused Y.D. Arya the maternal
uncle of the appellant Suresh Bahri was living in a portion
of the upper storey of his house at Delhi. He with the
consent of Santosh Bahri the mother of Suresh Bahri, was
interfering in the family affairs as well as in business
matters by reason of which the maternal uncle had to leave
the house and that having regard to the future of her
children Urshia Bahri not only wanted to manage the property
but also to dispose of the same which was not liked by
Suresh Bahri and with a view to remove Urshia Bahri from his
way the appellant Suresh Bahri wanted to commit her murder.
In view of these questions and examination of Suresh Bahri,
it cannot be said that he was totally unaware of the
substance of the accusation and charge against him or that
he was not examined on the question of motive at all. In
the facts and circumstances discussed above it cannot be
said that any prejudice was caused to the appellant. The
contention of the learned counsel for the appellants in this
behalf therefore has no merit.
28.Learned counsel for the appellants strenuously urged that
there was utter non-compliance of clauses (a) and (b) of
sub-section (4) of Section 306 of the Code of Criminal
Procedure inasmuch as that after recording the statement of
the approver Ram Sagar Vishwakarma under Section 164 of the
Code of Criminal Procedure and after tendering him pardon,
the approver was not examined as witness by the learned
Magistrate who took cognizance of the offence, as required
by clause (a) of sub-section (4) of Section 306 CrPC but he
was examined as a witness by the committal Magistrate only
after the Court of Sessions remitted the case back to the
committal Magistrate for examining the approver as a witness
in accordance with Section 306(4)(a) CrPC. Secondly clause
(b) of Section 306(4) mandates that the approver shall be
detained in custody until the termination of the trial
unless he is already on bail but contrary to that the
approver was enlarged on bail after he was granted pardon
and as such the trial was vitiated. Reliance was placed on
the decisions in Kalu Khoda
2 AIR 1962 SC 1239, para 14: (1962) 2 Cri LJ 296: 1962 Supp
(1) SCR 49
100
V. State3; Ramasamy, Re4 and Uravakonda Vijayaraj Paul v.
State5 in support of his above submissions.
29. Section 306 of the Code of Criminal Procedure
(hereinafter referred to as ‘the Code’) relates to the
tender of pardon to an accomplice and the procedure of
committing the case for trial. It would be appropriate to
reproduce Section 306 of the Code which reads as under:
“306. Tender of pardon to accomplice.- (1)
With a view to obtaining the evidence of any
person supposed to have been directly or
indirectly concerned in or privy to an offence
to which this section applies, the Chief
Judicial Magistrate or a Metropolitan
Magistrate at any stage of the investigation
or inquiry into, or the trial of, the offence,
and the Magistrate of the first class
inquiring into or trying the offence, at any
stage of the inquiry or trial, may tender a
pardon to such person on condition of his
making a full and true disclosure of the whole
of the circumstances within his knowledge
relative to the offence and to every other
person concerned, whether as principal or
abettor, in the commission thereof.
(2) This section applies to-
(a) any offence triable exclusively by the
Court of Session or by the Court of a Special
Judge appointed under the Criminal Law
Amendment Act, 1952 (46 of 1952);
(b) any offence punishable with imprisonment
which may extend to seven years or with a more
severe sentence.
(3)Every Magistrate who tenders a pardon
under sub-section (1) shall record-
(a) his reasons for so doing;
(b) whether the tender was or was not
accepted by the person to whom it was made,
and shall, on application made by the accused,
furnish him with a copy of such record free of
cost.
(4) Every person accepting a tender of
pardon made under sub-section
(a) shall be examined as a witness in the
Court of the Magistrate taking cognizance of
the offence and in the subsequent trial, if
any;
(b) shall, unless he is already on bail, be
detained in custody until the termination of
the trial.
(5)Where a person has accepted a tender of
pardon made under subsection (1) and has been
examined under sub-section (4), the Magistrate
taking cognizance of the offence shall,
without making any further inquiry in the
case,-
(a) commit it for trial-
(i) to the Court of Session if the offence
is triable exclusively by that Court or if the
Magistrate taking cognizance is the Chief
Judicial Magistrate;
3 AIR 1962 Guj 283, FB :(1962) 2 Cri U 604:
(1962) 3 Guj LR 654
4 1976 Cri LJ 770 : 1976 Mad LJ (Cri) 111:
1976 Mad LW (Cri) 36 (Mad)
6 1986 Cri LJ 2104: (1986) 1 Andh LT 364:
(1986) 2 APLJ (HC) 19 (AP)
101
(ii)to a Court of Special Judge appointed
under the Criminal Law Amendment Act, 1952 (46
of 1952), if the offence is triable
exclusively by that Court;
(b) in any other case, make over the case to
the Chief Judicial Magistrate who shall try
the case himself.
30. A bare reading of clause (a) of sub-section (4) of
Section 306 of the Code will go to show that every person
accepting the tender of pardon made under sub-section (1)
has to be examined as a witness in the Court of the
Magistrate taking cognizance of the offence and in the
subsequent trial, if any. Sub-section (5) further provides
that the Magistrate taking cognizance of the offence shall,
without making any further enquiry in the case commit it for
trial to any one of the courts mentioned in clauses (i) or
(ii) of clause (a) of subsection (5), as the case may be.
Section 209 of the Code deals with the commitment of cases
to the Court of Session when offence is tried exclusively by
that court. The examination of accomplice or an approver
after accepting the tender of pardon as a witness in the
Court of the Magistrate taking cognizance of the offence is
thus a mandatory provision and cannot be dispensed with and
if this mandatory provision is not complied with it vitiates
the trial. As envisaged in sub-section (1) of Section 306,
the tender of pardon is made on the condition that an
approver shall make a full and true disclosure of the whole
of the circumstances within his knowledge relating to the
offence. Consequently, the failure to examine the approver
as a witness before the committing Magistrate would not only
amount to breach of the mandatory provisions contained in
clause (a) of sub- section (4) of Section 306 but it would
also be inconsistent with and in violation of the duty to
make a full and frank disclosure of the case at all stages.
The breach of the provisions contained in clause (a) of sub-
section (4) of Section 306 is of a mandatory nature and not
merely directory and, therefore, non-compliance of the same
would render committal order illegal. The object and
purpose in enacting this mandatory provision is obviously
intended to provide a safeguard to the accused inasmuch as
the approver has to make a statement disclosing his evidence
at the preliminary stage before the committal order is made
and the accused not only becomes aware of the evidence
against him but he is also afforded an opportunity to meet
with the evidence of an approver before the committing court
itself at the very threshold so that he may take steps to
show that the approver’s evidence at the trial was
untrustworthy in case there are any contradictions or
improvements made by him during his evidence at the trial.
It is for this reason that the examination of the approver
at two stages has been provided for and if the said
mandatory provision is not complied with, the accused would
be deprived of the said benefit. This may cause serious
prejudice to him resulting in failure of justice as he will
lose the opportunity of showing the approver’s evidence as
unreliable. Further clause (b) of sub-section (4) of
Section 306 of the Code will also go to show that it
mandates that a person who has accepted a tender of pardon
shall, unless he is already on bail be detained in custody
until the termination of the trial. We have, therefore,
also to see whether in the instant case these two mandatory
provisions were complied with or not and if the same were
not complied with, what is the effect of such a non-
compliance on the trial?
102
31. It may be noted that the approver Ram Sagar Vishwakarma
hereinafter referred to as Ram Sagar was arrested on 3-12-
1984 and was under police remand till 17-12-1984. He made
an application Ext. 3 on 17-12-1984 for recording his
confessional statement under Section 164 of the Code and his
confessional statement Ext. 28/1 was recorded on 19-12-1984
to 21-12-1984 by the Magistrate Shri Bhuneshwar Nath PW 76.
Thereafter on 7-1-1985 CBI Investigating Officer made an
application that Ram Sagar be granted pardon and his
statement be recorded under Section 306 of the Code. The
approver Ram Sagar also made an application Ext.1 for grant
of pardon on 8-1-1985 stating that he wanted to become a
prosecution witness and make disclosure of true facts of the
case. Learned Chief Judicial Magistrate tendered pardon to
Ram Sagar by his order dated 9-1-1985 stating that he was
directly concerned with the commission of the crime relating
to the offence of murders in question. The learned Chief
Judicial Magistrate committed the case to the Court of
Session for trial without examining the approver Ram Sagar
as a witness in his court. But the learned Additional
Judicial Commissioner, Ranchi to whom the case was committed
for trial noticed this defect that the approver was not
examined as a witness in the Court of Magistrate taking
cognizance of the offence and committed him for trial before
him and, therefore, learned Additional Judicial Commissioner
remanded the case back to the Court of Chief Judicial
Magistrate with a direction to record the statement of the
approver Ram Sagar as required by clause (a) of sub-section
(4) of Section 306 of the Code. After receiving the records
with the aforesaid directions learned Magistrate examined
the approver Ram Sagar as a witness on 31-1-1986 and then
again committed him for trial to the Court of Additional
Commissioner. Thus in any case the provisions of clause (a)
of sub-section (4) of Section 306 were ultimately complied
with. That being so, with no stretch of any amount of
arguments can it be said that any prejudice much less in
disadvantage was caused to any of the accused/appellants.
The order of the Additional Judicial Commissioner remanding
the case back to the Court of Magistrate directing him to
examine the approver as a witness was challenged by the
accused persons in the High Court of Patna, Ranchi Bench but
the High Court maintained the order of the Additional
Judicial Commissioner in Criminal Revision No. 2347 of 1985.
This order of the High Court was not challenged further by
any of the appellants and same attained finality and,
therefore, it cannot be questioned now.
32. It may be noticed that similar question arose for
consideration of Madras High Court in Ramasamy, Re4 and
relied on by the learned counsel for appellants, wherein the
learned Magistrate had committed the case for trial to the
Court of Sessions without examining the approver as a
witness in his court before committing the case. But
Pandian, J. (as he then was) took the view that the action
of the Magistrate in committing the case to the Court of
Session without examining the approver was a clear violation
of the mandatory provisions of Section 306 of sub-sections
(4) and (5) of the new Code and as such he committed
irregularity. The learned Judge, therefore, quashed the
committal order and directed the Magistrate to comply with
the provisions of Section 306 of the Code by examining the
approver and then again pass fresh order of committal, if
called for. In almost similar circumstances similar view
103
was taken by the High Court of Andhra Pradesh in the case of
U. Vijayaraj5 and in this case also the Magistrate was
directed to examine the approver as required by sub-section
(4) of Section 306 of the Code by giving an opportunity to
the accused to cross-examine the approver and then pass the
appropriate orders in accordance with law.
33. In Kalu Khoda3 similar question came for consideration
before the Full Bench of the Gujarat High Court wherein the
committing Magistrate committed the accused to the Court of
Session without examining the person who had been tendered
pardon and who had accepted the same. The Full Bench set
aside the committal order and directed the committing
Magistrate to hold a fresh enquiry in accordance with law.
The ultimate result of the aforesaid discussion is that if
the said defect of not examining the approver at the
committal stage by the committing Magistrate is rectified
later, no prejudice can be said to be caused to an accused
person and therefore the trial cannot be said to be vitiated
on that account. Since in the present case, as noticed
above the defect was rectified, the argument that the trial
was vitiated cannot be accepted.
34. As regards the contention that the trial was vitiated
by reason of the approver Ram Sagar being released on bail
contrary to the provisions contained in clause (b) of sub-
section (4) of Section 306 of the Code. It may be pointed
out that Ram Sagar after he was granted pardon by the
learned Magistrate by his order dated 9-1-1985, was not
granted bail either by the committing Magistrate or by the
learned Additional Judicial Commissioner to whose court the
case was committed for trial. The approver Ram Sagar was,
however, granted bail by an order passed by the High Court
of Patna, Ranchi Bench in Criminal Miscellaneous Case No.
4735 of 1986 in pursuance of which he was released on bail
on 21-1-1987 while he was already examined as a witness by
the committing Magistrate on 30-1-1986 and 31-1-1986 and his
statement in sessions trial was also recorded from 6-9-1986
to 19-11-1986. It is no doubt true that clause (b) of
Section 306(4) directs that the approver shall not be set at
liberty till the termination of the trial against the
accused persons and the detention of the approver in custody
must end with the trial. The dominant object of requiring
an approver to be detained in custody until the termination
of the trial is not intended to punish the approver for
having come forward to give evidence in support of the
prosecution but to protect him from the possible
indignation, rage and resentment of his associates in a
crime whom he has chosen to expose as well as with a view to
prevent him from the temptation of saving his one time
friends and companions after he is granted pardon and
released from custody. It is for these reasons that clause
(b) of Section 306(4) casts a duty on the court to keep the
approver under detention till the termination of the trial
and thus the provisions are based on statutory principles of
public policy and public interest, violation of which could
not be tolerated. But one thing is clear that the release
of an approver on bail may be illegal which can be set aside
by a superior court, but such a release would not have any
affect on the validity of the pardon once validly granted to
an approver. In these circumstances even though the
approver was not granted any bail by the committal
Magistrate or by the trial Judge yet his release by the High
Court would not in any way affect the validity of the pardon
granted to the approver Ram Sagar.
104
35.Learned counsel for the appellants next contended that
the statement Ext. 28/1 of the co-accused Ram Sagar
Vishwakarma who turned as an approver recorded under Section
164 of the Code after about 16 days of his arrest cannot be
said to be voluntary confession particularly when the
Magistrate did not inform him that he would not be remanded
to police custody after the statement. It was further
submitted that in any case the statement of the approver
made under Section 164 was made under constant fear and with
a promise of immunity because he was given to understand by
the CBI officials that he would be set at liberty in case he
made the confessional statement.
36.After the perusal of the statement of Ram Sagar PW 3 as
well as the statement of learned Magistrate Shri Bhuneshwar
Ram PW 76 who recorded the statement of Ram Sagar under
Section 164 of the Code we find that there is absolutely no
substance in these submissions.
37.Ram Sagar Vishwakarma was arrested on 3-12-1984. A
perusal of the statement of Ram Sagar made under Section 164
of the Code will go to show that he himself made an
application Ext. 3 before the Magistrate requesting him to
record his confessional statement and according to Ram Sagar
it was at his instance and request that his confessional
statement Ext. 28/1 was recorded by the Magistrate PW 76
from 19-12-1984 to 21-12-1984 in which he had confessed the
guilt. Ram Sagar PW 3 stated that the Magistrate had told
him that it was his own choice and volition to make or not
to make the confessional statement and that he made the
statement on his free will. He denied the suggestion that
while making the statement under Section 164 any police
officer was present there and deposed that he was not given
any assurance by the CBI officials that if he would become
approver he would be set at liberty or discharged from the
case. He, however, stated that he himself thought that if
he made correct statement before the Magistrate he may be
set at liberty. He asserted that he made a true disclosure
of the circumstances relating to the offence before the
Magistrate in his statement under Section 164 irrespective
of the fact whether he would be released or not. Ram Sagar
was subjected to a very lengthy and searching cross-
examination in this regard but nothing could be elicited
from him to suggest that he did not make true disclosure of
the facts of the case or that he made the confession under
threat or pressure or on any assurances from the prosecuting
agency or from any official in authority. The statement
that he made gives an impression that it was made on his own
volition which fact is further fortified from the statement
of the Judicial Magistrate who recorded his statement.
38.The Judicial Magistrate, Ranchi, Shri Bhuneshwar Ram PW
76, on the order passed by Chief Judicial Magistrate,
Ranchi, recorded the confessional statement of Ram Sagar PW
3 as stated earlier from 19-12-1984 to 21-12-1984 which was
marked as Ext. 28/1. Shri Bhuneshwar Ram deposed that
before recording the statement of Ram Sagar under Section
164 he had given the necessary warning to him as required by
law and this fact is borne out from the certificate Ext.
‘A’ appended to that effect in the confessional statement
Ext. 28/1 before he proceeded to record the confession.
This is indicative of the fact that he did caution Ram Sagar
and sounded a note of warning that he is not bound to make
the confessional statement and if he chooses to make any the
same may be used against him and it was thereafter that he
made the confession
105
voluntarily on his own volition. He deposed that Ram Sagar
did not tell him that he made his confessional statement
under any threat or fear or on any promise. In view of this
positive evidence on record it is difficult to accept that
the confessional statement made by the approver Ram Sagar
under Section 164 CrPC was not voluntary or under any fear
or promise or assurance. On the contrary we find that the
confession is free from all infirmities and conforms to the
requirements of Section 164.
39.The prosecution case, for the sake of scrutiny of the
evidence and discussion may be bifurcated into two parts,
one relating to the murder of Urshia Bahri in the evening of
11-10-1983 and the other relating to the murder of the two
children, namely, Richa and Saurabh in the intervening night
of 17-12-1983 and 18-12-1983 although all the three murders
stem out of one and the same conspiracy to do away with the
lives of all the three deceased persons and both the acts on
two different dates are so connected that they form the same
transaction. It is true that there is no eyewitness to
either of the two incidents and the prosecution case rests
on the evidence of the approver Ram Sagar (PW 3) and the
circumstantial evidence advanced by the prosecution. We
shall therefore deal with the evidence of each of the two
incidents one after the other.
40.Learned counsel appearing for the appellant Raj Pal
Sharma next contended that there is no direct evidence or
ocular testimony with regard to the alleged murder either of
Urshia Bahri or that of her two children Richa and Saurabh
and the conviction of the appellants has been founded on the
approver’s evidence and other circumstantial evidence
adduced by the prosecution. Learned counsel submitted that
the two courts below are not justified in relying on the
evidence of accomplice/approver Ram Sagar PW 3 whose
evidence is not free from serious doubt particularly in view
of the fact that he was examined as a witness by the
committing Magistrate on 30-1-1985 after about one year and
two months of the occurrence. It was urged that in the
absence of corroboration of material particulars no
conviction can be based on the testimony of an accomplice
and since the circumstances alleged against the appellants
are not proved to the hilt, the same cannot be regarded as
complete chain of circumstances established against the
appellants so as to base their convictions on the same.
Similar arguments were advanced by the learned counsel
appearing for the appellants Suresh Bahri and Gurbachan
Singh. Before we discuss the merits or demerits of the
aforesaid submissions we would like to state that the law
relating to conviction based on circumstantial evidence is
well settled and it hardly requires a detailed discussion on
this aspect. Suffice to say that in a case of murder in
which the evidence that is available is only circumstantial
in nature then in that event the facts and circumstances
from which the conclusion of guilt is required to be drawn
by the prosecution must be fully established beyond all
reasonable doubt and the facts and circumstances so
established should not only be consistent with the guilt of
the accused but they also must entirely be incompatible with
the innocence of the accused and must exclude every
reasonable hypothesis consistent with his innocence.
41.In order to meet the aforementioned arguments of the
learned counsel for the appellants, we shall now proceed to
state the law relating to the grant of pardon to an
accomplice/approver, the value of his evidence and the
extent of reliance that can be placed on his evidence.
106
42.We have already reproduced above Section 306 of the Code
the provisions of which apply to any offence triable
exclusively by the Court of Special Judge to any offence
punishable with imprisonment extending to seven years or
with a more serious sentence. Section 306 of the Code lays
down a clear exception to the principle that no inducement
shall be offered to a person to disclose what he knows about
the procedure (sic). Since many a times the crime is
committed in a manner for which no clue or any trace is
available for its detection and, therefore, pardon is
granted for apprehension of the other offenders for the
recovery of the incriminating objects and the production of
the evidence which otherwise is unobtainable. The dominant
object is that the offenders of the heinous and grave
offences do not go unpunished, the Legislature in its wisdom
considered it necessary to introduce this section and
confine its operation to cases mentioned in Section 306 of
the Code. The object of Section 306 therefore is to allow
pardon in cases where heinous offence is alleged to have
been committed by several persons so that with the aid of
the evidence of the person granted pardon the offence may be
brought home to the rest. The basis of the tender of pardon
is not the extent of the culpability of the person to whom
pardon is granted, but the principle is to prevent the
escape of the offenders from punishment in heinous offences
for lack of evidence. There can therefore be no objection
against tender of pardon to an accomplice simply because in
his confession, he does not implicate himself to the same
extent as the other accused because all that Section 306
requires is that pardon may be tendered to any person
believed to be involved directly or indirectly in or privy
to an offence.
43.The evidence of an approver does not differ from the
evidence of any other witness except that his evidence is
looked upon with great suspicion. Consequently in the event
the suspicion which is attached to the evidence of an
accomplice is not removed his evidence could not be acted
upon unless corroborated in material particulars. But where
the suspicion is removed and the evidence of an approver is
found to be trustworthy and acceptable then that evidence
may be acted upon even without corroboration and the
conviction may be founded on such a witness. Here in this
connection it would be appropriate to make reference to the
provisions of Section 133 of the Evidence Act which deal
with the testimony of an accomplice. It contemplates that
an accomplice shall be a competent witness against an
accused person; and a conviction is not illegal merely
because it proceeds upon the uncorroborated testimony of an
accomplice. The first part envisages that an accomplice, in
other words, a guilty companion in crime, shall be a
competent witness while the second part states that
conviction is not illegal merely because it is based on the
uncorroborated testimony of an accomplice. But if we read
Section 133 of the Evidence Act with illustration (b) of
Section 114 of the Evidence Act it may lead to certain
amount of confusion and misunderstanding as to the real and
true intention of the Legislature because quite contrary to
what is contained in Section 133 illustration (b) to Section
114 of the Evidence Act lays down “that an accomplice is
unworthy of credit, unless he is corroborated in material
particulars”. A combined reading of the two provisions that
is Section 133 and illustration (b) of Section 114 of
Evidence Act goes to show that it was considered necessary
to place the law of accomplice evidence on a better
107
footing by stating in unambiguous terms that according to
Section 133 a conviction is “not illegal or in other words
not unlawful” merely because it is founded on the
uncorroborated testimony of an accomplice while accepting
that an accomplice is a competent witness. But at the same
time the Legislature intended to invite attention to
illustration (b) of Section 114 of the Evidence Act with a
view to emphasise that the rule contained therein as well as
in Section 133 are parts of one and the same subject and
neither can be ignored in the exercise of judicial
discretion except in cases of very exceptional nature.
However, the difficulty in understanding the combined effect
of the aforementioned two provisions arises largely due to
their placement at two different places of the same Act. It
may be noticed that illustration (b) attached to Section 114
is placed in Chapter VII of Evidence Act while Section 133
is inserted in Chapter IX of the Act. The better course was
to insert illustration (b) to Section 114 as an explanation
or in any ease as a proviso to Section 133 of the Act
instead of their insertion at two different places and that
too in different chapters of the Evidence Act. In any case
since an approver is a guilty companion in crime and,
therefore, illustration (b) to Section 114 provides a rule
of caution to which the courts should have regard. It is
now well settled by a long series of decisions that except
in circumstances of special nature it is the duty of the
court to raise the presumption in Section 114 illustration
(b) and the Legislature requires that the courts should make
the natural presumption in that section as would be clear
from the decisions which we shall discuss hereinafter.
44. In Bhiva Doulu Patil v. State of Maharashtra6 this
Court took the view that the combined effect of Sections 133
and 114, illustration (b) may be stated as follows.
According to the former, which is a rule of law, an
accomplice is competent to give evidence and according to
the latter which is a rule of practice it is almost always
unsafe to convict upon his testimony alone. Therefore,
though the conviction of an accused on the testimony of an
accomplice cannot be said to be illegal yet the courts will
as a matter of practice, not accept the evidence of such a
witness without corroboration in material particulars.
There should be corroboration of the approver in material
particulars and qua each accused. Similar observations were
made by this Court in Ram Narain v. State of Rajasthan7 in
the following words: (SCC headnote)
“Section 133 expressly provides that an
accomplice is a competent witness and the
conviction is not illegal merely because it
proceeds on uncorroborated testimony of an
accomplice. In other words, this section
renders admissible such uncorroborated
testimony. But this section has to be read
along with illustration (b) to Section 114.
The latter section empowers the court to
presume the existence of certain facts and the
illustrations elucidate what the court may
presume and make clear by means of examples as
to what facts the court shall have regard in
considering whether or not the maxims
illustrated apply to a given case before it.
Illustration (b) in express terms says that an
accomplice is unworthy of credit unless he is
corroborated in material particulars. The
statute permits the conviction of an accused
person on the basis of uncorroborated
testimony of an accomplice but the rule of
prudence embodied in
6 AIR 1963 SC 599 :(1963) 1 Cri LJ 489 : 1963
All LJ 253
7 (1973) 3 SCC 805 : 1973 SCC (Cri) 545
108
illustration (b) of Section 114 strikes a note
of warning cautioning the court that an
accomplice does not generally deserve to be
believed unless corroborated in material
particulars. In other words, the rule is that
the necessity of corroboration as a matter of
prudence except when it is safe to dispense
with such corroboration must be clearly
present to the mind of the Judge.”
45. Further in Ravinder Singh v. State of Haryana8 this
Court while considering the approver’s testimony within the
meaning of Section 133 of the Evidence Act made the
following observations: (SCC headnote)
“An approver is a most unworthy friend, if at
all, and he, having bargained for his
immunity, must prove his worthiness for
credibility in court. This test is fulfilled,
firstly, if the story he relates involves him
in the crime and appears intrinsically to be a
natural and probable catalogue of events that
had taken place. The story if given of minute
details according with reality is likely to
save it from being rejected brevi manu.
Secondly, once that hurdle is crossed, the
story given by an approver so far as the
accused on trial is concerned, must implicate
him in such a manner as to give rise to a
conclusion of guilt beyond reasonable doubt.
In a rare case, taking into consideration all
the factors, circumstances and situations
governing a particular case, conviction based
on the uncorroborated evidence of an approver
confidently held to be true and reliable by
the court may be permissible. Ordinarily,
however, an approver’s statement has to be
corroborated in material particulars bridging
closely the distance between the crime and the
criminal. Certain clinching features of
involvement disclosed by an approver
appertaining directly to an accused, if
reliable, as determined by the touchstone of
other independent credible evidence, would
give the needed assurance for acceptance of
his testimony on which a conviction may be
based.”
Thus it is clear that a definite rule has been crystallized
to the effect that though a conviction can be based on
uncorroborated evidence of an accomplice but as a rule of
prudence it is unsafe to place reliance on the
uncorroborated testimony of an approver as required by
illustration (b) of Section 114 of the Evidence Act.
46. The two courts below after a thorough examination of
the statement of the approver Ram Sagar PW 3 took the view
that his testimony was corroborated on all material
particulars by the independent witnesses and, therefore, he
was worthy of reliance. Ordinarily this Court under Article
136 of the Constitution does not review and reappraise the
evidence for itself and the conclusions of the High Court on
questions of fact or appreciation of evidence are considered
to be final. It is, therefore, not necessary for us to
scrutinize the evidence of approver threadbare again. We
shall, however, scrutinize his evidence on broad and
material particulars to satisfy ourselves whether the two
courts below were justified in recording conclusion that the
testimony of the approver deserved credence.
47. The examination of the approver Ram Sagar Vishwakarma
commenced in the trial court on 6-1-1986 as PW 3 and
continued for several days in which he deposed that he
worked in the furniture shop of the appellant S. Gurbachan
8 (1975) 3 SCC 742: 1975 SCC (Cri) 202 : AIR 1975 SC 856
109
Singh from 1979 to 1984, which covers the relevant period.
He stated that the appellant Suresh Bahri was known to him
as he used to visit the shop of S. Gurbachan Singh quite
often and wife and the children of Suresh also visited the
shop. He stated that on 4-10-1983 while he was going from
the shop after the work was over the appellant Gurbachan
Singh stopped him and said that he had some important work
with him. Gurbachan Singh then took him into confidence and
enquired of him whether he knew anyone who could commit the
murder of the wife of his friend. When the witness Ram
Sagar PW 3 enquired of him as to which friend, the appellant
Gurbachan Singh told that the wife of Suresh Bahri is to be
murdered on account of the family dispute. Ram Sagar
further stated that next day when he again went to the shop,
Gurbachan Singh again in the presence of appellant Suresh
Bahri persuaded him for the same thing attracting him with
an allurement that he will not be required to pay back the
money taken by him as an advance and on the contrary he will
ask Suresh also to give him some more money for the
assistance rendered by him. Ram Sagar then asked them as to
what he had to do. The appellant Suresh told him that he
has to prepare and bring a danda (baton) to his bungalow and
hide it in the shrubs of the bungalow. He was further
advised by Suresh that while they would be busy in taking
tea he should strike the baton on the head of his wife and
make her unconscious and rest of the work will be done by
himself and S. Gurbachan Singh. Ram Sagar further deposed
that he prepared a baton as advised and he along with S.
Gurbachan Singh went to the house of Suresh Bahri on scooter
at 7.30 p.m. and kept the baton under the shrubs of a flower
plant as directed by Gurbachan Singh and sat at the place
where scooter was parked by Gurbachan Singh. At that time
Suresh Bahri and two others were taking tea in the verandah
of the house of Suresh Bahri. After five minutes those two
persons went away from there. Meanwhile the wife of Suresh
Bahri came in the verandah from inside and pointing towards
him, enquired from Suresh as to who was sitting in the dark
near the scooter. Suresh told that he was labour of S.
Gurbachan Singh. After some time S. Gurbachan Singh took
him on the scooter and came back saying that since there is
frequency of visitors, it is not possible to execute the
work.
48. Ram Sagar PW 3 further stated that next day when he
again attended the shop of Gurbachan Singh for work as usual
the appellant Suresh came there at about 10.00 a.m. and told
to Ram Sagar that the baton he had prepared will not work
being very thin and asked him to prepare a heavy baton.
Then he along with S. Gurbachan Singh proceeded to the house
of Suresh Bahri at about 7.30 p.m. same day, but he stopped
the scooter on the way and Ram Sagar declined to go with him
saying that it was the festival day and the police was
patrolling the area. S. Gurbachan Singh also did not go to
the house of Suresh that day as he too had to go to the
hospital. Next day the appellant Suresh Bahri came to the
shop of S. Gurbachan Singh and asked the reason for not
reaching his house the previous day. According to the
statement of Ram Sagar Suresh again approached Gurbachan
Singh at his shop next day saying that the work has to be
done urgently and if it could not be done that day
‘Machhiwala’ would come for registration of sale deed and
then Gurbachan Singh took him on a scooter that very day
i.e. 11-10-1983 at about 4.30 p.m. to a house in the Railway
Colony, Ranchi for taking measurements for fixing doors and
windows and while they
110
were returning at about dusk on 11-10- 1983 Gurbachan Singh
took him to the house of Suresh Bahri. Gurbachan Singh met
Suresh in the verandah of his house. After having some talk
in the verandah both Gurbachan Singh and Suresh Bahri went
inside the house. But immediately Gurbachan Singh came out
and called the witness Ram Sagar. On being asked by S.
Gurbachan Singh he went inside but remained standing
dumbfounded at the door of the small room connecting a big
room. Gurbachan Singh called him inside but he ignored as
his body began to tremble and Gurbachan Singh made him sit
on the sofa and served him a glass of water. Ram Sagar goes
on to state that when he was standing near the door of the
room he saw the dead body of the wife of Suresh Bahri in the
small room. He saw her head totally severed and separated
from the body placed on a cotton in the corner of the room.
The appellant Raj Pal Sharma was also present there putting
on only underwear and was seen collecting the blood with the
cotton. He stated that at that time a lamp was burning in
the drawing room and a candlestick was burning in the small
room and that there was no other person except Suresh Bahri,
Raj Pal Sharma, S. Gurbachan Singh and Ram Sagar himself.
49. Ram Sagar PW 3 further deposed that a saree was kept by
the side of the dead body which was stained with blood and a
long knife was kept near the head which was given by S.
Gurbachan Singh a few days prior to the occurrence to
Rameshwar Thakur PW 4 an employee of the shop for
sharpening. A short while later there came a sound of
opening the gate of the compound of Suresh Bahri indicating
that someone was coming. A person came and as soon as he
stepped forward to go to the verandah the appellant Suresh
Bahri went out caught hold of that person by his hand and
took him down the verandah. That man enquired from Suresh
about his wife saying ‘where is Mem Saheb’ meaning thereby
the wife of Suresh. Suresh Bahri told him that his wife had
gone to the house of S. Gurbachan Singh for dinner and from
there she will proceed to Delhi by the next morning flight.
Suresh then took that man out of the compound of his house
and returned back. Then Suresh Bahri went out on a
motorcycle along with Gurbachan Singh directing the
appellant Raj Pal Sharma to clean all stains properly and
that they will be returning shortly. Both of them returned
within 10 minutes with a liquor bottle. Since no glasses
were available in the house Suresh Bahri went out to bring
the glasses. Murari Lal PW 1 came with four glasses whose
house was situated adjacent to the house of Suresh and then
went back. All of them then consumed liquor. Thereafter
when Ram Sagar PW 3 wanted to go Suresh made him to stay in
order to help them in tying up the dead body. Suresh
brought a plastic sheet from inside the house. Raj Pal
Sharma spread the plastic sheet in the room in which the
dead body was laid and the witness Ram Sagar and Raj Pal
Sharma lifted the dead body and placed it on the plastic
sheet. Suresh Bahri then tore half of the saree already
kept there and wrapped the dead body with it. S. Gurbachan
Singh tore a piece of rope from the cot, Suresh Bahri
brought a blackish blanket and then the witness Ram Sagar
himself and the appellant Raj Pal Sharma wrapped the dead
body in the blanket and tied it with the rope.
50. The approver Ram Sagar PW 3 further stated that
appellant Suresh Bahri asked Gurbachan Singh to prepare a
box with a view to put the dead body in the box and leave
the box in any train. But later on changed the idea because
111
of the risk involved in carrying the dead body in the wooden
box and decided to dump the dead body in sceptic tank of the
house itself and to throw the head in some jungle. Suresh
asked Gurbachan Singh to come to his bungalow at about 7.30
p.m. same day for purposes of dropping the dead body in the
sceptic tank. He, therefore, along with Gurbachan Singh
went to the house of Suresh Bahri where Suresh Bahri and
appellant Raj Pal were already present there. Suresh Bahri
and Gurbachan Singh asked the witness Ram Sagar and
appellant Raj Pal to take out the dead body from the house
to dump it in the sceptic tank. Appellant Raj Pal attempted
to lift the body but could not and then Gurbachan Singh
brought a bamboo ladder and with the help of ladder they
dumped the dead body in the sceptic tank situated on the
southern side of the bungalow compound of Suresh. The
appellant Suresh then asked the appellant Gurbachan to bring
some salt for putting it in sceptic tank. The witness Ram
Sagar and Gurbachan Singh then brought 20 kg salt after
purchasing it and the witness Ram Sagar and Raj Pat dropped
the salt in the tank. The approver Ram Sagar PW 3 further
deposed that Suresh came to the furniture shop of his master
the following day at about 10 a.m. and reported that the
head of Urshia has been thrown in a forest.
51.The approver Ram Sagar went on to state that on 21-10-
1983 Suresh told Gurbachan Singh that he was going to Delhi
to attend some court case and would return up to 26/27th
October. But when Suresh did not return on 27-10-1983
Gurbachan Singh sent him to Delhi but he could not meet
Suresh Bahri there. He was told by the Manager that he had
gone to Ranchi. He therefore went to Ranchi on 4th
November. There Gurbachan told him that Suresh had come to
Ranchi and was staying in Blue Heaven Hotel, Ranchi. He met
Suresh Bahri in the said hotel. After a few days Gurbachan
Singh told the witness that the Police Inspector, Chutia
Police Station was searching Suresh Bahri in connection with
murder of Urshia and, therefore, Gurbachan Singh sent him to
Delhi to tell Suresh about it. The witness Ram Sagar came
to Delhi and informed Suresh accordingly and Suresh sent
message to Gurbachan Singh to handle the matter carefully.
Ram Sagar also stated that Suresh had asked him to send four
chairs and one cot to his farmhouse at Dhulli.
52. Ram Sagar further stated that he again came back from
Delhi to Ranchi on 20/21-11-1983 where Suresh Bahri told
Gurbachan that there is a red coloured attache kept in the
almirah of his house in which there is a ‘chhuri’. Suresh
asked Gurbachan to get the chhuri sharpened and keep the
three kataries and chhuri in that very attache again. Ram
Sagar also deposed that he had fixed the handles in the
three kataries and Gurbachan Singh had given him Rs 20 for
purchasing the kataries. The witness Ram Sagar was shown
the kataries, Ext. 5 which he identified to be the same.
Ram Sagar goes on to state that he went to Dhulli farm along
with Gurbachan Singh with the said attache and the bag in
which chhuri and kataries and some papers were kept. The
witness Ram Sagar was shown 13″-14″ long knife which he
identified as the one with which wife of Suresh Bahri was
murdered. At Dhulli farm Gurbachan Singh gave that attache
to the gardener of Suresh Bahri and asked him to keep the
attache and give it to Suresh who was due to come within 3-4
days. Ram Sagar further stated that he had sent four chairs
and one cot to Dhulli farm through the son of the gardener
of Suresh.
112
53.Further approver Ram Sagar PW 3 deposed that one
morning in the month of December appellant Raj Pal Sharma
came to the shop of Gurbachan Singh and told him that the
appellant Suresh had come to Dhulli farm with his children
and he has called Gurbachan Singh. Thereafter Raj Pal
Sharma and Gurbachan Singh went towards Dhulli on a
motorcycle. A few days later Gurbachan Singh said to Ram
Sagar PW 3 that the dead body has to be taken out from
sceptic tank and in this connection he may take the help of
John Linda PW 31 and Manohar the employees of his shop. Ram
Sagar further stated that he went to the bungalow of Suresh
along with John Linda PW 31 and Manohar. After taking out
some mud from the tank the dead body became visible. Ram
Sagar told to John Linda that the dead body was dropped in
the tank and he should not tell to S. Gurbachan Singh that
Ihad told this fact to him. At this John refused to take
out the dead body. Ram Sagar, therefore, along with John
Linda and Manohar came back to his shop as both of them had
refused to clean the tank and take out the dead body. At
this appellant Gurbachan Singh went on a scooter saying that
he will have to do the work himself. Ram Sagar further
stated that Gurbachan Singh told to a truck driver at the
shop that he had purchased a piece of land where he had to
drop some soil and if he finds any dead body there the
driver should throw it away. As stated earlier the
confessional statement of approver Ram Sagar, PW 3 was
recorded by the learned Magistrate on 19-12-1984 to 21-12-
1984 and he was examined on 30-1-1985 as witness in the
Court of Magistrate under Section 306(4)(a) of the Code.
While his statement as PW 3 as recorded by the learned trial
Judge on 6-9-1986 which continued for several days and
concluded on 19-11-1986 as he was thoroughly cross-examined
by several learned counsel appearing for the appellants as
well as for the three acquitted accused. But we find that
the testimony of the approver remained consistent except for
minor and insignificant contradictions and omissions which
are bound to occur in the statement of anyone.
54.The only question that now remains to be considered is
whether the evidence given by the approver has received
corroboration in material particulars from independent
sources. We shall now first advert to the witness connected
with the murder of Urshia and the circumstantial evidence
relating thereto.
55.As stated earlier Murari Lal, PW1 had a grocery shop
just adjacent to the house of appellant Suresh Bahri in
Ranchi. He was not only the next door neighbour but a
family friend of Suresh Bahri for the last about 15 to 20
years prior to the occurrence and in fact he also served as
caretaker of the Bungalow No. 936. Murari Lal PW1 stated
that the appellant Raj Pal Sharma met him for the first time
on 26-9-1983 or 27-9-1983 when he came with a letter of
Suresh stating therein that he should hand over the keys of
the house to Raj Pal Sharma. Murari Lal, therefore,
directed the gardener Mool Chand Mali PW 24 to allow Raj Pal
to stay in the house where Raj Pal stayed till 1-10-1983.
Murari Lal also stated that on 1-10-1983 when Suresh came to
Ranchi accompanied by his wife Urshia, Raj Pal Sharma could
not be seen in the house thereafter and that he saw Raj Pal
Sharma only after 5-6 days later on Chutia Road along with
Suresh. When Murari Lal enquired about Raj Pal Sharma,
Suresh told him that he had arranged a job to him in the
shop of S. Gurbachan Singh. Murari Lal further
113
stated that on 11-10-1983 at about 5.00 p.m. Suresh and his
wife Urshia came to his shop when he was told by Urshia that
both of them would be leaving next day for Delhi and,
therefore, he should not give the bill of the articles
purchased by them from his shop on credit. Murari Lal
further deposed that Badri Narayan Mishra PW 2 also came to
his shop at about 7.00 p.m. and told him that he had gone to
the house of Suresh Bahri to meet Suresh and his wife but he
could not meet his wife and was told by Suresh that his wife
had gone in a party to the house of S. Gurbachan Singh and
she would be going to Delhi next morning by air direct from
his house. Murari Lal PW1 went on to state that on 10-11-
1983 itself at about 8.00 p.m. he went to the house of
Suresh Bahri with the bills as required by them and handed
over the bills to Suresh in the drawing room where he found
Gurbachan Singh and the approver Ram Sagar PW 3 also sitting
on a sofa. He noticed that a kerosene lamp was lighted in
the room and he saw Raj Pal Sharma with a bloodstained
chhura. Suresh asked him for four empty glasses which he
supplied from his shop and came back to his shop. Suresh
told him that payment of the bills would be made next day.
56.Next morning when Murari Lal PW1 noticed Suresh
standing outside his house, he told him that he had returned
back from airport after seeing off his wife. Murari Lal
also stated that he purchased some land from Suresh out of
his Ranchi house and one Arjun Sharma and another person
also purchased some land. He further stated that on 6-1-
1984 Bhola Nath Choubey, Rajan Sharma and appellant
Gurbachan Singh had also purchased land out of the Ranchi
property of Suresh when Suresh was staying in Amber Hotel,
Ranchi. From the evidence of S. Ranjit Singh PW 18 the
Manager of Amber Hotel, Ranchi, it is evident that though
the appellant Suresh had his own house at Ranchi yet he
prepared to stay in Amber Hotel from 5-1-1984 to 9-1-1984,
in the name of S. Chander and the handwriting expert S.C.
Mittal PW 65 established that the entries in the Amber Hotel
register were in the handwriting of appellant Suresh.
57.Murari Lal PW1 further deposed that the appellant
Suresh had asked Bhola Nath, one of the purchasers of the
land to demolish the sceptic tank which existed in the land
purchased by him and on questioning by Bhola Nath the reason
for so doing, the appellant Suresh said that he should speak
to Gurbachan Singh in this connection. Murari Lal stated
that in his presence Bhola Nath asked Gurbachan Singh the
reason for demolition of the sceptic tank but Gurbachan
Singh did not disclose the same. Murari Lal stated that on
7-1-1984 Gurbachan Singh came to his house and told him that
he would himself demolish the sceptic tank and when Murari
PW 1, along with Bhola Nath went to the sceptic tank they
met Gurbachan Singh there who told that there was a headless
body in the sceptic tank tied with a blanket and rope.
Gurbachan Singh told them to fill up the sceptic tank by
dumping red soil in it. At this Bhola Nath said that he
would like to take neat and clean land to which Gurbachan
Singh agreed but at the same time gave a threat that if he
divulged these facts to anybody else he would kidnap the
only son of Bhola Nath and blow him with a bomb. Murari Lal
stated that same evening Gurbachan Singh brought truck load
of soil in the compound of the house of Suresh Bahri and
after half an hour the truck went back. He stated that same
day at about 9.00 p.m. Gurbachan Singh again came to him and
asked him to call Choubey. He called Bhola Nath Choubey
when Gurbachan Singh told him that mall has been removed
from the
114
sceptic tank (meaning thereby that the dead body has been
removed from the sceptic tank). When the witness Murari Lal
PW1 enquired from Gurbachan Singh as to where has he
disposed of the same the later replied that it has been
thrown behind the hillock.
58.Badri Narayan, PW 2 is yet another neighbour of Suresh at
Ranchi who is fully known to his family for the last several
years. Badri Narayan worked as an intermediary in the deal
of the house between Urshia Bahri and Laxmi Narayan, PW 21,
who wanted to purchase Ranchi house from Urshia. He deposed
that the deal was almost finalised. He also stated that
Suresh and his wife Urshia had come to Ranchi on 1-10-1983
and Laxmi Narayan, PW 21 came to him on 10th October and
expressed the desire of his family members to see the house
of Suresh on 11-10-1983. Badri Narayan, therefore, conveyed
this information to Suresh and informed Laxmi Narayan also
that the house can be seen in the afternoon of 11-10-1983 at
about 7.30 p.m. when he went to the house of Suresh, he
noticed no light in the house though there was electric
light in the adjoining houses. Badri Narayan stated that
when he reached near the door of the drawing room the
appellant Suresh rushed out and took him out of the
verandah. But while going out Badri Narayan saw Gurbachan
Singh and one another man sitting on the sofa of the drawing
room whom he identified as Ram Sagar PW 3. Badri Narayan
also saw while going away that a kerosene lamp was lighted
in the drawing room and a person was moving about from one
room to another wearing only an underwear. While he was
taken out of the verandah Badri Narayan enquired about
Urshia and Suresh told him that she had gone to a party to
the house of Gurbachan Singh where she would be staying in
the night and proceed to Delhi by the morning flight. Badri
Narayan also stated that after a few days Laxmi Narayan, PW
21 told him that although the deal was finalised but he
noticed that other persons were digging earth for laying
foundation on the property and when they met Suresh he told
that he would not sell the property but a memorial of his
father would be constructed there. Laxmi Narayan, PW 21 got
suspicious and, therefore, he made enquiries from Airlines
Booking Office, Ranchi and learnt that no person named
Urshia had travelled by air on 12-101983 from Ranchi to
Delhi. The prospective purchaser Laxmi Narayan PW 21
corroborated the statement of Badri Narayan PW 2 so far as
it relates to the negotiations with regard to the purchase
of the house is concerned.
59.Rameshwar Thakur, PW 4, was also at the relevant time an
employee of Gurbachan Singh in his furniture shop who stated
about his acquaintance with Suresh who was on friendly terms
with his master and was a frequent visitor to his shop. He
stated that sometime in the month of October 1983 Suresh
visited the shop of Gurbachan Singh when Gurbachan Singh
handed over a dagger to the witness to sharpen it.
Rameshwar further stated that after a couple of days he
returned the dagger to Gurbachan Singh after getting it
sharpened. As said John Linda, PW 31, was also an employee
of Gurbachan Singh in his furniture shop. Linda also stated
that he was acquainted with Suresh Bahri who made frequent
visits to his master’s shop. He deposed that Gurbachan
Singh called him along with Ram Sagar, PW 3, at the house of
Suresh in the month of January 1984 for taking out soil from
the sceptic tank but when he along with others after digging
the sceptic tank noticed a bundle of dead body tied with
blanket and rope, he became upset. He further deposed that
when Gurbachan
115
Singh asked them to take out the dead body, they refused to
comply the direction and he as well as other workers went
back to the shop.
60.Moolchand Mali PW 24 was the gardener at the relevant
time in Ranchi House No. 936 of Suresh Bahri and lived in a
servant quarter behind the bungalow. He knew the family of
Suresh Bahri very well. Moolchand stated that there used to
be frequent dispute between Suresh Bahri, his mother and the
deceased wife of Suresh in connection with the sale of the
bungalow, as Urshia insisted for sale but Suresh and his
mother were opposed to it. He stated that one day in the
month of Chaitra 1983 (much before the murder of Urshia)
Suresh Bahri took him behind the bungalow and told that a
person has to be murdered and if he helped him in doing so,
he will make him wealthy. The witness replied to Suresh
that he would not be able to do it. Suresh then asked him
to call someone else for this purpose and the witness
replied that he does not know any such person for this
purpose. At this Suresh asked him to make his arrangement
elsewhere. The witness Moolchand deposed that thereafter he
managed his employment with Jogda Math and started working
there but he continued to live in the servant quarter in the
bungalow of Suresh. He also stated that Suresh came to
Ranchi along with his wife sometime after the summer
vacations and one day he asked him to take him to one Ojha
known as Lal Saheb. He took Suresh to that Ojha who lived
in Chutia. Suresh Bahri spoke to that Ojha that his wife
was mad and was a nuisance for him and hence he wanted to
bring an end to her life. At this Ojha demanded Rs 250
saying that his work would be done and Suresh complied with
the directions given to him by that Ojha. Moolchand further
stated that next day the appellant Suresh again took him to
that Ojha and complained that the work could not be done
though he had paid the desired amount of Rs 250. At this
that Ojha said to Suresh that he will not be able to do his
work and he may get it done from someone else.
61.Witness Moolchand Mali, PW 24, corroborated the statement
of Murari Lal PW1 stating that he was called by Murari Lal
who told him that Suresh had sent a man (Raj Pal Sharma)
from Delhi who will stay in the bungalow. Murari Lal gave
him the key and directed him to open the bungalow.
Moolchand further stated that he opened the bungalow for
that man who was tall and thin and he identified Raj Pal
Sharma to be that person who had stayed in the bungalow.
Moolchand further stated that Murari Lal Sharma had given Rs
10 for the meals of Raj Pal Sharma and therefore he took him
to the hotel where he took his meals. Moolchand also stated
that Raj Pal continued to stay in the bungalow for about 4-5
days when Suresh Bahri also came to Ranchi along with his
wife and stayed in the bungalow. Suresh asked Moolchand to
vacate the quarter of the bungalow and therefore he vacated
and left the place.
62.Shambhu Tiwari, PW 7 who at the relevant time was running
a tea stall opposite Chutia Police Station, Ranchi stated
that sometime towards the end of September 1983 Raj Pal
Sharma had come to his tea shop for taking tea and continued
to take tea twice or thrice a day for about 10-12 days but
he had no money to make payment of tea for 5-6 days and when
he demanded the money he told him that he was a man of
Suresh and had come to Ranchi to look after the house of
Suresh which was going to be sold. He further stated that
Murari Lal PW1 confirmed that Raj Pal Sharma was a man of
Suresh and that Suresh will make payment of his dues.
Witness Tiwari PW 7 identified Suresh also.
116
63.In addition to what has been discussed above clearly
establishing the conspiracy hatched by the appellant Suresh
along with his two associates, namely, Raj Pal Sharma and S.
Gurbachan Singh for the murder of Urshia and in pursuance of
which Urshia was murdered, there is some other evidence also
which connects the appellants with the crime in question.
64.Rohtas Sarang PW 79 is the mother of Urshia who deposed
that she had received last letter from Urshia in America in
the month of September 1983 as a result of which she was
very much upset. When she received two unusual letters
dated 29-10-1983 and 3-11-1983 i.e. after the murder of
Urshia which are Ext. 23/6 and Ext. 23/7 from Suresh Bahri
that Urshia was very much busy and henceforth he would be
writing them and also asked them that in future
correspondence they should use the address of S. Gurbachan
Singh who is a good friend of Suresh at Ranchi her suspicion
increased exceedingly. A perusal of the letters will go to
show that Suresh mentioned therein that Urshia had given up
the idea of divorce, Ranchi house has been sold away and as
Urshia would be busy for quite a long time, the two children
will be shifted to Ranchi for their study and, therefore,
they should not worry about them. A reading of the two
letters reproduced by the High Court in its judgment
evidently goes to show that Suresh was conscious of the fact
that Urshia was in regular contact with her parents in
America and as the contact had come to an end with her
murder, something had to be done to explain her silence by
misguiding her parents that there existed no dispute between
them. Urshia having given up the idea of divorce and they
were living in harmony and a happy life and as the Ranchi
house has been sold away they should not worry about them at
all.
65.This brings us to the evidence relating to the disclosure
statement said to have been made by Raj Pal Sharma about the
skull of Urshia and the recovery thereof. After his arrest
on 12-8-1984 appellant Raj Pal Sharma made the disclosure
statement Ext. 32 which was drawn up by CBI Inspector Madan
Lal PW 85 assisted by Inspector Rajendra Singh PW 82 in the
presence of two witnesses, namely, Satya Dev Tiwari PW 73
and Dev Nandan PW 74. Satya Dev Tiwari and Dev Nandan
stated that in pursuance of disclosure statement a skull,
hair and some other articles were seized as per seizure memo
Ext. 33 at the instance of appellant Raj Pal Sharma from a
forest on Ranchi-Patratru Road. Similar is the statement of
CBI Inspector, Madan Lal, PW 85, and Rajendra Singh PW 82.
There is nothing on record to disbelieve or doubt their
testimony with regard to disclosure statement and the
recovery of a skull, hair and other articles at the instance
of the appellant Raj Pal Sharma.
66.The skull and other articles seized as per seizure memo,
Ext. 33 referred to above were sent to the Director, Medico-
Legal Institute, Gandhi Medical College, Bhopal for
examination and report by its Director, Dr Harish Chander.
Dr Harish Chander, the Director of the Institute-cum-Legal
Advisor to the Government of M.P. sent big report Ext. 2/81
after examination with his opinion that the skull belonged
to a female human being whose age was 33 years plus minus 5
years. Dr Harish in his report had also asked for some
other information and photograph and clothings of the
deceased in order to fix up the identity of the person to
whom the skull belonged to but the prosecution could not
furnish the required information. Dr Harish submitted
another report giving his opinion that in the absence of the
material required by him it cannot be said with
117
certainty that identity was established though there is
resemblance with the skull of the deceased. Dr Harish could
not be examined by the prosecution as a witness due to his
illness but an expert of his department Dr S.C. Jain PW 80
had appeared and stated that Prof. Harish Chander was
suffering from paralysis and, therefore, could not appear as
a witness. He further proved the aforesaid two reports sent
by Prof. Harish Chander. He stated that he had examined
the skull and other materials after discussion with Prof.
Harish Chander for which he prepared a note Ext. 30.
67.On the basis of the two reports sent by Prof. Harish
Chander and the statement made by Dr S.C. Jain, PW 80, Shri
Sushil Kumar learned counsel appearing for the appellant Raj
Pal Sharma contended that the identity of the skull alleged
to be of the deceased Urshia Baliri is doubtful and remained
unestablished and, therefore, the conviction for the charge
of murder and/or conspiracy to murder Urshia Bahri cannot be
said to be established by the prosecution particularly when
there is no positive proof of the hair said to have been
recovered along with the skull belonging to a woman or the
head of the deceased Urshia. In our considered opinion
there is no substance in these submissions as most often and
in certain cases even the dead body of the deceased person
is not recovered or seized but if there is positive evidence
to connect the culprit, it cannot be said that the offence
of murder is not established. In the present case it is no
doubt true that Prof. Harish could not give his opinion
with certainty with regard to the identity of the skull, but
in view of the evidence on record which has been discussed
by us in detail it could not be accepted that the
prosecution has failed to establish that the skull which was
recovered at the instance of the appellant Raj Pal Sharma
did not belong to the deceased Urshia. The very fact that
Raj Pal Sharma made the disclosure statement that after
severing the neck from her body the skull was thrown in the
jungle which was seized only at the instance of the
appellant Raj Pal Sharma who searched out the skull in the
forest and produced it before the investigating agency in
the presence of independent witness coupled with the report
of Prof. Harish Chander that it was the skull of a female
whose age was about 33 years plus minus 5 years on either
side which in fact was the age of deceased Urshia, there
isno difficulty in recording the conclusion that the skull
belonged to none else but Urshia.
68.There is yet another piece of circumstantial evidence to
connect the accused appellants with the conspiracy and
murder of Urshia in the shape of recovery of certain
articles which were used in wrapping the dead body while
throwing the same in the sceptic tank, and which were
recovered from a khad gaddha at Ranchi where the waste of
Ranchi was dumped. Rajeshwar Singh PW 59 was the Station
House Officer, Police Station Chutia at the relevant time,
stated that on the report of Bineet Singh PW 69 P.S. Case
No. 27/84 with regard to murder of Urshia was registered in
Lower Bazaar Police Station as at that time Chutia Police
Station was under Lower Bazaar Police Station and the case
was handed over to CBI by notifications of the Central and
State Governments. Rajeshwar Singh PW 59 investigated the
case. During the course of investigation as stated earlier
PW 59 had arrested the appellant Gurbachan Singh. He
deposed that during the course of investigation the
appellant Gurbachan Singh took him near Khad gaddha hillock
where the waste of Ranchi
118
city is dumped. He deposed that at the instance of
Gurbachan Singh he got the place unearthed by labourers to
discover the dead body of Urshia which could not be found
but a piece of blanket, piece of saree and a rope were found
which were seized at the instance of Gurbachan Singh by
seizure memo Ext. 5 dated 2-2-1984 which was prepared by ASI
Rangnath Singh on his direction. These articles were put to
test identification. Shri Atulya Kumar Bara PW 83 an
Executive Magistrate on the orders of CJM, Ranchi, held TI
parade of the articles in the verandah of the Chutia Police
Station. An old piece of light green blanket, three pieces
of sky blue-black checked saree and rope were identified by
Murari Lal PW1 and Badri Nath Mishra PW 2 as per
identification memo Ext. 36 prepared by Atulya Kumar Bara PW
83.
69.He deposed that no person was present at the place where
identification of these articles was held. Murari Lal PW1
was one of the witnesses who identified the blanket piece,
saree pieces and the rope in TI parade and had signed the TI
memo. He deposed in para 17 that Urshia Bahri was wearing
that saree when she came to his shop in the evening of
11-10-1983 and he had seen in the sceptic tank the blanket
and the rope with which the dead body was wrapped and tied.
Similar is the statement of Badri Narayan Mishra PW 2 who
stated in para 9 of his deposition that he had identified
the aforementioned articles in the TI parade held in Chutia
Police Station and had signed the memo. He stated that when
he met Urshia Bahri at her house in the morning of 11-101983
she was wearing the saree of which the pieces were
identified by him in the TI parade and he had seen the
blanket kept on the takht in the house of Suresh Bahri when
he visited the house. He also stated that rope was a part
of the rope of the cot which was kept in the verandah of the
house of Suresh Bahri. This part of the prosecution
evidence also could not be demolished by the defence
although the witnesses were cross-examined thoroughly and by
several counsel appearing for the accused persons. There is
nothing on record to discredit their testimony.
70.However, learned counsel appearing for the appellants
relying on the decision in the case of Nari Santa v.
Emperor9 and Abdul Sattar v. Union Territory, Chandigarh1O
vehemently urged that the alleged recovery of blanket, piece
of saree and rope said to have been made by the
investigating agency at the instance of the appellant
Gurbachan Singh in the absence of any disclosure statement
and without any pointing out memo of the place of recovery
and without the public witness to the alleged recovery could
not be treated as valid recovery in the eye of law within
the meaning of Section 27 of the Evidence Act. It is true
that no disclosure statement of Gurbachan Singh who is said
to have given information about the dumping of the dead body
under the hillock of Khad gaddha dumping ground was recorded
but there is positive statement of Rajeshwar Singh, PW 59,
Station House Officer of Chutia Police Station who deposed
that during the course of investigation Gurbachan Singh led
him to Khad gaddha hillock along with an Inspector Rangnath
Singh and on pointing out the place by Gurbachan Singh he
got that place unearthed by labourers where a piece of
blanket, pieces of saree and rassi were found which were
9 AIR 1945 Pat 161 : 46 Cri LJ 613 : 219 IC 391
10 1985 Supp SCC 599: 1985 SCC (Cri) 505 : AIR 1986 SC 1438
119
seized as per seizure memo Ext. 5. He further deposed that
he had taken two witnesses along with him to the place where
these articles were found. Rajeshwar Singh PW 59 was cross-
examined with regard to the identity of the witness Nand
Kishore who is said to be present at the time of recovery
and seizure of the articles as well as with regard to the
identity of the articles seized vide paragraphs 18, 21 and
22 of his deposition but it may be pointed out that no
cross-examination was directed with regard to the disclosure
statement made by the appellant Gurbachan Singh or on the
point that he led the police party and others to the hillock
where on his pointing out, the place was unearthed where the
aforesaid articles were found and seized. It is true that
no public witness was examined by the prosecution in this
behalf but the evidence of Rajeshwar Singh PW 59 does not
suffer from any doubt or infirmity with regard to the
seizure of these articles at the instance of the appellant
Gurbachan Singh which on TI parade were found to be the
articles used in wrapping the dead body of Urshia.
According to the evidence of PW1 and PW 2 as said earlier
the saree pieces were part of the saree of Urshia that she
was seen wearing by these witnesses, the blanket piece was a
part of the blanket which was seen on the takht in the house
of the appellant Suresh Bahri and the piece of rope was the
part of the rope said to be taken out from the cot kept in
the verandah of the house of Suresh.
71.The two essential requirements for the application of
Section 27 of the Evidence Act are that (1) the person
giving information must be an accused of any offence and (2)
he must also be in police custody. In the present case it
cannot be disputed that although these essential
requirements existed on the date when Gurbachan Singh led PW
59 and others to the hillock where according to him he had
thrown the dead body of Urshia but instead of the dead body
the articles by which her body was wrapped were found. The
provisions of Section 27 of the Evidence Act are based on
the view that if a fact is actually discovered in
consequence of information given, some guarantee is afforded
thereby that the information was true and consequently the
said information can safely be allowed to be given in
evidence because if such an information is further fortified
and confirmed by the discovery of articles or the instrument
of crime and which leads to the belief that the information
about the confession made as to the articles of crime cannot
be false. In the present case as discussed above the
confessional statement of the disclosure made by the
appellant Gurbachan Singh is confirmed by the recovery of
the incriminating articles as said above and, therefore,
there is reason to believe that the disclosure statement was
true and the evidence led in that behalf is also worthy of
credence.
72.In the light of the facts stated above we are afraid
the two decisions mentioned above and relied on by the
learned counsel for the appellants have no application to
the facts of the present case and do not advance the case of
the appellants challenging the discovery and seizure of the
incriminating articles discussed above. In Nari Santa9 the
accused of that case was charged for the theft and it is
said that in the course of investigation the accused
produced certain articles and thereafter made a confessional
statement and it was in these facts and circumstances it was
held that there was no disclosure statement within the
meaning of Section 27 as the confessional statement was made
only when the articles were already discovered having been
produced by the accused. Similarly the decision rendered in
Abdul Sattar10 also does not help the
120
appellants in the present case. In the case of Abdul
Sattar10 recovery of wearing apparels of the deceased is
said to have been made at the instance of the accused of
that case more than three weeks after the occurrence from a
public place accessible to the people of the locality and,
therefore, no reliance was placed on the disclosure
statement and recovery of the wearing apparels of the
deceased. But in the present case it was soon after the
arrest of appellant Gurbachan Singh that he took the Police
Officer while in custody to the place where according to him
he had thrown the dead body of Urshia wrapped by the
incriminating articles. Those articles were not found lying
on the surface of the ground but they were found after
unearthing the Khad gaddha dumping ground under the hillock.
Those articles were neither visible nor accessible to the
people but were hidden under the ground. They were
discovered only after the place was pointed out and it was
unearthed by the labourers. No fault therefore could be
found with regard to the discovery and seizure of the
incriminating articles.
73.Now we come to the evidence of the experts examined by
the prosecution, and the expert opinion rendered by them
touching upon the crime in question. K.K. Arora PW 51 at
the relevant time was working as the Senior Scientist in
Chemistry branch of the Central Forensic Science Laboratory,
Delhi having 24 years’ experience. He had examined the
gunny bag which was used for carrying salt for dropping in
the sceptic tank after the dead body of Urshia was thrown in
the said tank. K.K. Arora in his report Ext. 20 found salt
in the said bag. Dr G.B. Gupta PW 53 Senior Scientist had
examined the wall scrapings of the blood from the room of
the Ranchi house of Suresh and scrapings from the steel
trunk seized from the room of the said house of Suresh and
found human bloodstains in the same. Dr R.P. Bhatnagar
another Senior Scientist, Head of Surgery Division-cum-
Assistant Chemical Examiner to the Government of India
(CBI), New Delhi had examined the scrapping of the blood
taken from the Ranchi house of Suresh Bahri and he as per
his report Ext. 20/40 found human blood of ‘B’ group in the
same.
74.The prosecution had also examined about 20 employees,
Managers and Proprietors of different hotels which have been
catalogued by the High Court in para 69 of its judgment in
which the appellant Suresh Bahri and Raj Pal Sharma had
stayed on different dates by concealing their real names and
giving out different names and addresses under the fear of
being apprehended as they had received intimation that the
rumours were circulating about the murder of Urshia Bahri
and had also learnt about the arrival of Bineet Sarang PW 69
brother of Urshia in January 1984 at Delhi who was searching
and making enquiries about his sister and her children and
had visited the Delhi house, business premises and Ranchi
house of the appellant Suresh Bahri and made reports to the
Chutia Police Station.
75.Thus on an overall independent consideration of the
circumstantial and expert evidence as well as the evidence
of the approver adduced by the prosecution and discussed by
us in the foregoing paras it is abundantly clear and
satisfactorily established that the evidence of the approver
Ram Sagar Vishwakarma, PW 3 has received requisite
corroboration on all material particulars and the totality
of the surrounding circumstances, antecedents and subsequent
conduct amongst other factors established against the three
121
appellants prove beyond all reasonable doubt that at the
instance of Suresh Bahri who masterminded the plan, the
other two appellants conjointly hatched a conspiracy to
commit the murder of Urshia Bahri and that in prosecution of
the common intention Suresh Bahri and Raj Pal Sharma did
commit the murder of Urshia Bahri. Not only this but all
the three appellants with a view to screen themselves from
the commission of the offence made all-out efforts for the
disappearance of the dead body of Urshia.
76.The High Court affirming the findings recorded by the
trial court and on taking stock of the entire prosecution
evidence on record by itself came to the conclusion that the
following circumstances were fully established beyond all
reasonable doubt against the three appellants and on that
basis found them guilty for the aforesaid offences:
“(1)Deceased Urshia whose parents and
brother were living abroad was married to the
appellant Suresh in the year 1971.
(2) Appellant Suresh was the only issue of
his parents, having business and a farmhouse
in Village Dhulli, 40 kms from Ranchi.
(3) Out of the wedlock of Suresh and Urshia
two children were born, a girl by name Richa
and a boy, Saurabh.
(4) A couple of years after the marriage the
relations between Suresh and Urshia became
strained on account of constant interference
by Y.D. Arya, maternal uncle of Suresh in the
domestic as well as business affairs.
(5) Deceased Urshia was extremely unhappy
with her husband Suresh and mother-in-law
Santosh, the acquitted accused, on account of
their maltreatment and undesirable attitude
towards her and her children. The stay of
Y.D. Arya in the house of the couple was not
acceptable to Urshia because of his
undesirable interference in their business and
domestic affairs. Deceased Urshia realised
that her status in the family was just like
undesirable person.
(7) Urshia became highly despaired and
disappointed on account of incapability of her
husband to manage the family business, having
fallen in bad company and become addict to
excess drinking and had disposed of the
Calcutta properties and she did not receive a
single
penny out of it.
(8) Constant efforts of Urshia to associate
herself with family business to improve its
condition was frustrated by her mother-in-law
who poisoned the mind of her husband Suresh
against her.
(9) The removal of Y.D. Arya at the instance
of Urshia from occupation of a portion of the
house had further annoyed her mother-in-law
and
husband Suresh.
(10)Her mother-in-law had once tried to kill
her by administering poison in the garb of
medicine as deposed by her sister PW 66 and
her life was saved only by timely medical aid.
(11) For all the aforesaid reasons Urshia had
decided to shift to America to her parents for
the better future of her children but she was
helpless in doing so for want of citizenship
and ready money.
(12)In order to overcome this problem Urshia
persuaded her parents through letters to
immediately arrange for her citizenship and to
get
122
over the monetary problems she decided to
dispose of Ranchi House No. 936.
(13)With a view to shift to America
permanently she was even ready to take divorce
from her husband Suresh as is evident from her
letters addressed to parents.
(14)The appellant Suresh was not happy with
the decision of Urshia to shift to America
with children specially with the sale proceeds
of Ranchi house.
(15)Being convinced that Urshia had finally
decided to shift to America with children by
disposing of Ranchi house, appellant Suresh
decided to do away with her life at any cost
and to meet this end he hatched a conspiracy
with the appellants Raj Pal Sharma and
Gurbachan Singh.
(16)It was for this reason that he had first
tried to take the assistance of his mali
Moolchand PW 24 to commit her murder and when
he declined to do so he was turned out from
the outhouse.
(17)Suresh also tried to persuade the
approver Ram Sagar PW 3 through his employer
Gurbachan Singh for murder of Urshia in
pursuance of which appellant Gurbachan Singh
gave him allurement in the presence of Suresh
that not only the advance taken by him would
be set off but some amount will also be given
to him by Suresh.
(18)Though the approver Ram Sagar PW 3 did
not accept the offer but extended full
cooperation in that regard to his employer
Gurbachan and Suresh Bahri.
(19)While Urshia was negotiating with Laxmi
Narayan PW 21 through Badri Narayan Mishra PW
2 to dispose of Ranchi House No. 936, her
husband Suresh was busy in hatching a
conspiracy with Raj Pal Sharma and Gurbachan
Singh and approver Ram Sagar PW 3 to do away
with her life and for that purpose he started
making preparations.
(20)Having found that the negotiation to
dispose of Ranchi house had been finalised by
Urshia, Suresh became desperate and sought for
the help of Raj Pal Sharma and Gurbachan Singh
for committing the murder of his wife at the
earliest.
(21)The appellant Raj Pal Sharma, a resident
of Masjid Moth, Delhi was quite close to
Suresh as both were seen together on different
occasions and Suresh was also paying for the
tea and articles consumed by Raj Pal Sharma
(vide PW1 and PW 7).
(22)On 1-10-1983 Suresh along with Urshia
came to Ranchi and stayed in House No. 936 but
before their arrival Raj Pal Sharma had
already arrived in the last week of September
1983 to take stock of overall situation.
(23)Before leaving Delhi Urshia had informed
her parents through a letter that she would be
shifting to America after disposing of the
house in October.
(24)Appellant Suresh with the help of
Gurbachan Singh got a dagger sharpened by
Rameshwar Thakur PW 4 an employee of Gurbachan
and also got a danda prepared by Ram Sagar PW
3 another employee of Gurbachan a few days
before 11- 10-1983.
123
(25)As per settled programme Ram Sagar PW 3
was taken by Gurbachan Singh to the house of
Suresh three days before 11-10-1983 with a
danda, but on account of arrival of some
outsiders that plan could not be executed.
(26)A similar plan was again made on the
next day but as police was patrolling in the
area on the eve of festival, PW 3 declined to
do the work under apprehension of being
detected.
(27)After the deal with regard to sale of
Ranchi house was complete with Laxmi Narayan
PW 21 for a consideration of rupees five and a
half lakhs, Laxmi Narayan inspected the house
in the presence of Suresh and Urshia on 11-10-
1983 when Urshia told him to bring the income
tax clearance certificate so that document
could be executed and thereafter she would
return to Delhi on 12-10-1983.
(28)The appellant Suresh purchased two
railway tickets in the waiting list in his
name and his wife Urshia for Delhi to give a
colour that the couple would be leaving on 12-
10-1983 but in fact none of them travelled on
12-10-1983 as per the reservation chart and
evidence of the then Chief Reservation
Supervisor of Ranchi Railway Station.
(29)On 10-11-1983 electric light of the
house of Suresh was deliberately put off
though there was light in the vicinity so that
in the darkness murder of Urshia could be
committed by Suresh and Raj Pal in a room of
the house.
(30)As per plan appellant Gurbachan and PW 3
also arrived at the house soon after the
ghastly crime and as PW 3 became nervous on
witnessing the ghastly crime, his employer
Gurbachan Singh patted him and offered water.
(31)Murari Lal PW1 also happened to come to
the house soon after the murder with the bill
of the articles purchased from his shop on
credit as required by Urshia and found no
electric light in the house but a kerosene
lamp was lighted, appellant Gurbachan Singh
and PW 3were sitting on a sofa, the appellant
Suresh was in the drawing room and Raj Pal
wearing an underwear was seen moving from one
room to another with the dagger stained with
blood. The appellant Suresh asked Murari Lal
PW1 to supply four empty glasses as they
wanted to enjoy liquor. Murari Lal brought
the glasses and then went away.
(32)A middleman Badri Narayan Mishra PW 2
also happened to arrive at about the same time
to meet Urshia but he was driven out from the
verandah of the house by Suresh saying that
Urshia had gone to a party to the house of the
appellant Gurbachan Singh and from there she
would be leaving for Delhi by next morning
flight, which was later found to be false by
verification from the airlines office, vide PW
9.
(33)After PW1 and PW 2 were virtually driven
out as aforesaid all the three appellants with
the help of Ram Sagar Vishwakarma PW 3 wrapped
the body with a saree which Urshia was
wearing, a blanket and then tied with a rope
and wrapped the severed skull separately in
Polythene bag.
124
(34)The next morning skull was taken to a
jungle down the hill on Ranchi Patratru Road
by Raj Pal and Suresh on a motor-cycle and
thrown there. This fact was communicated to
Gurbachan Singh also.
(35)The trunk portion of the body of Urshia
with the help of appellant Gurbachan, Raj Pal
Sharma and Ram Sagar, PW 3, was concealed in a
sceptic tank within the compound of the house
of Suresh on the following evening with the
help of a bamboo ladder and the appellant
Gurbachan and approver Ram Sagar PW 3 brought
20 kgs of salt on the direction of Raj Pal
Sharma and poured the same in sceptic tank for
speedy decomposition of the body.
(36)Suresh had earlier decided to place her
trunk portion in the box and keep it in some
train for which a box was prepared by
Gurbachan Singh with the help of approver PW 3
but that plan was given up as there were
chances of detection.
(37)Appellant Suresh gave false information
to his in-laws even after Urshia was murdered
by sending two letters dated 29-10-1983 and 3-
11-1983 Exts. 23/6 and 23/7 stating that
henceforth only he would be writing letters to
them as Urshia was busy like a bee at Dhulli
farm and was not in a position to write
letters.
(38)In letter dated 3-11-1983 Ext. 23/7
purporting to have been written from Ranchi
house while in fact on that date Suresh was
staying in a hotel named Blue Heaven at Ranchi
in the name of S. Saxena mentioning his
arrival on 2-11-1983 and departure on 5-11-
1983 giving his address as 409, Defence Colony
though he had no house in Defence Colony (vide
Exts. 2/9 and 4/12).
(39)In the letters Suresh not only tried to
impress upon his in-laws that they were
leading a very happy life and at the same time
also made attempts to explain the sudden
silence of Urshia by a improbable story. The
said letters also indicated the pre-planned
idea of Suresh in committing the murder of his
two issues subsequently by informing them that
Urshia was staying at Ranchi for about one and
a half years and the children were to shift
there for studies. This unusual information
given by Suresh created a serious suspicion in
the mind of his in-laws and, therefore, they
directed their son Bineet Singh PW 69 to go to
India and find out the welfare and whereabouts
of Urshia and her children. The conduct of
Suresh and Gurbachan after the arrival of
informant Bineet Singh PW 69 from Libya to
make an enquiry about his sister and children
was not only misleading but their activities
at every stage were conflicting and suspicious
which directly suggested that Suresh was
deliberately avoiding to divulge the truth.
The informant Bineet Singh PW 69 made frantic
enquiries about his sister at Delhi, Ranchi
and Dhulli farm and from different sources
came to know all the facts leading to the
murder of his sister and, therefore, he lodge
d
the reports both at Ranchi and Delhi.
(40)When the investigation by Chutia Police
was found to be unsatisfactory, CBI took over
the charge by virtue of government
notifications and during the course of
investigation Raj Pal was arrested on 8-8-1984
who made disclosure statement Ext. 32 as to
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how Urshia was killed in one of the rooms of
the Ranchi House No. 936 and her head was
severed and thrown in the jungle.
(41)Prior to Raj Pal, Ram Sagar PW 3 was
arrested and made confessional statement
leading to unearthing of the murders.
(42)On the disclosure statement made by
appellant Raj Pal the head of Urshia, hair and
jaw, etc. were seized at his instance from the
forest as per seizure Ext. 33.
(43)The expert Dr Harish Chander on
examination found a skull of a female aged 33
years plus minus 5 years on either side which
fitted with the age of Urshia as it appears in
her passport Ext. 25.
(44)From the evidence on record the
friendship between Suresh and Gurbachan is
fully established. Suresh was a regular
visitor of the shop of Gurbachan Singh and he
took the help of his employees in preparing
dandas, dagger for killing Urshia.
(45)The active participation of Gurbachan
Singh in executing the plan of murder by
extending all sorts of help at each and every
stage prove that he was an active partner in
the criminal conspiracy.
(46)The removal of trunk portion of dead
body of Urshia by Gurbachan to a hillock known
as Khad gaddha and filling up the sceptic tank
with morum, for disappearance of the evidence
of murder is an added circumstance to
establish that he had all through taken active
part.
(47)The conspiratory acts of the appellants
are established by the fact that after the
murder of Urshia they were in contact with
each other for communicating developments of
offences committed and action of the public
and police in that sequence. Gurbachan had
sent the approver PW 3 to Delhi to meet Suresh
and inform him that suspicion had arisen in
the vicinity and Chutia police was searching
Suresh who was moving from hotel to hotel in
different names.
(48)Raj Pal Sharma was equally very close to
Suresh from before otherwise he would not have
taken the leading part in the murder of
Urshia. Raj Pal also went underground forcing
Chutia police to move the CJM, Ranchi, on
23-8-1984 for issuance of warrant against him
leading to his arrest on 28-8-1984 by CBI in a
border village of Delhi and Haryana.”
77. After going through the evidence and material on record
we are also satisfied that the aforementioned facts and
circumstances found to be established by the trial court as
well as by the High Court are well founded and fully
supportable by evidence on record. Since we find ourselves
in agreement with the said conclusions the same do not call
for any interference by this Court in exercise of our
jurisdiction under Article 136 of the Constitution.
78. Learned counsel for the appellants, however, contended
that in a case where a witness identifies an accused who is
not known to him in the court for the first time, his
statement is not of any evidentiary value without there
being a previous identification parade and as in the present
case the appellant Raj Pal Sharma was quite stranger to the
witnesses who for the first time identified him in the dock
without there being any previous identification parade,
their evidence should not have been accepted with regard to
the factum that he was the person who came and stayed in the
house of Suresh Babri and took part in
126
the alleged murder of Urshia and her two children. While
advancing these arguments support was sought to be taken
from the decisions in Kanan v. State of Kerala 11 and
Mohanlal Gangaram Gehani v. State of Maharashtra 12. There
can be no dispute with regard to the principles as to the
evidence relating to identification of a stranger accused
involved in any crime. It is well settled that substantive
evidence of the witness is his evidence in the court but
when the accused person is not previously known to the
witness concerned then identification of the accused by the
witness soon after his arrest is of great importance because
it furnishes an assurance that the investigation is
proceeding on right lines in addition to furnishing
corroboration of the evidence to be given by the witness
later in court at the trial. From this point of view it is
a matter of great importance both for the investigating
agency and for the accused and a fortiori for the proper
administration of justice that such identification is held
without avoidable and unreasonable delay after the arrest of
the accused and that all the necessary precautions and
safeguards were effectively taken so that the investigation
proceeds on correct lines for punishing the real culprit.
It would, in addition, be fair to the witness concerned also
who was a stranger to the accused because in that event the
chances of his memory fading away are reduced and he is
required to identify the alleged culprit at the earliest
possible opportunity after the occurrence. It is in
adopting this course alone that justice and fair play can be
assured both to the accused as well as to the prosecution.
But the position may be different when the accused or a
culprit who stands trial had been seen not once but for
quite a number of times at different point of time and
places which fact may do away with the necessity of TI
parade. In the present case as stated earlier the appellant
Raj Pal Sharma approached Murari Lal PW1 with a letter of
Suresh in pursuance of which Murri Lal had directed the
bungalow gardener Moolchand PW 24 to open the house and
permit Raj Pal Sharma to stay there. Raj Pal Sharma came
and stayed in the Ranchi house in the last week of September
and continued to live there till 1-10-1983 when Suresh along
with Urshia arrived and stayed there. Thus Murari Lal PW1
and Moolchand Mali PW 24 had an opportunity to see Raj Pal
for several days and it was not for the first time that they
saw him in the court when they identified him to be the one
who took active part in the crime. Similarly Shambhu Nath
Tiwari PW 7 who was running a tea stall at Chutia where Raj
Pal used to take tea and other eatable articles for a number
of days and had no money to pay the charges but continued to
serve him with tea, etc., on the assurance of Murari Lal PW
1 that the dues would be cleared by Suresh Bahri as Raj Pal
was a man of Suresh. Moolchand Mali PW 24 also had an
opportunity to see Raj Pal living in Chutia house, Ranchi
for several days. Similar is the case with other witnesses
who had identified Raj Pal to be the person who had stayed
in the house of Suresh Bahri. Thus in view of this evidence
it cannot be said that the witnesses who identified Raj Pal
in the court had seen him only once for a short while by
reason of which their evidence should not be accepted. In
the case of Kanan 11 relied on by the learned counsel for
the appellants the accused of that case was seen by the
identifying witness only once in the court and, therefore,
in the absence of TI
11 (1979) 3 SCC 319: 1979 SCC (Cri) 621
12 (1982) 1 SCC 700: 1982 SCC (Cri) 334
127
parade the evidence was not accepted which is not the case
before us. Similar was the position in Mohanlal Gangaram
Gehani12 wherein the witness who identified the accused for
the first time in court did not know him before and
therefore in the absence of TI parade the evidence of that
witness was held valueless and unreliable. In the present
case and in the facts and circumstances discussed above, TI
parade was not necessary at all as the witnesses had seen
the appellant Raj Pat Sharma continuously for several days
and they had the opportunity of knowing and recognising him
since before they made their statement in the court.
79. This brings us to the second leg of the prosecution
case relating to the murder of two children, namely, Richa
and Saurabh who are alleged to be murdered on the
intervening night of 17-12-1983 and 18-12-1983 at Dhulli
farmhouse of Suresh Bahri in conspiracy with the other two
appellants, namely, Raj Pal Sharma and S. Gurbachan Singh.
This episode of their plan commenced with two applications
Ext. 40 and Ext. 40/1 made by the appellant Suresh on 5-12-
1983 to the Principal, Father Agnel’s School, South
Extension, New Delhi, stating that his children Richa and
Saurabh will not be attending the classes from 5-12-1983
till the end of February 1984. To establish this fact the
prosecution had examined the Principal of the said school
Shri M. Cawlih PW 33. He deposed that he knew Richa and
Saurabh well who were the students of his school. Saurabh
was in 4th standard and Richa was in 6th standard. He
further deposed that the aforesaid two applications were
made by Suresh Chandra Bahri, father of the two children
named above. The application about Richa Bahri was received
by her class teacher named Sonia and the other application
relating to Saurabh Bahri was received by Mrs Randhawa and
he recognized the endorsement and signatures made by the two
class teachers on the aforesaid two applications. The
Principal of the school further deposed that both the
applications were seized by CBI officials. A copy book Ext.
1/2 of Richa Bahri was also seized by the CBI in his
presence and he had signed at pages 1, 2, 23 and 36 of the
said copy book. He also identified Richa in the photograph
Ext.1 and Saurabh in the photograph Ext. 1/3. He also
identified the father and mother of the two children Saurabh
and Richa in the photograph Ext. 1/2. Mrs George PW 34 a
teacher of Father Agnel School was also examined who was the
class teacher of Richa when she was in 4th and 5th standard
and claimed to be fully acquainted with her handwriting.
She identified the handwriting of Richa in her copy book
from pages 2 to 26 seized by CBI from the Principal of the
school as she had seen the writings when the copy book was
submitted to her for correction and she had signed the said
copy book at pages 5, 16, 20 and 23. PW 34 also identified
Saurabh in the photograph Ext.1 and 1/3. She also
identified Richa in the photograph Ext. 1/1. The evidence
of these two witnesses was halfheartedly sought to be
challenged by the counsel for the appellants as unreliable,
a mention of which is made only to be rejected as both of
them are independent witnesses having no animus against any
of the accused/appellants. Their evidence does not suffer
from any infirmities and we find their version as fully
truthful.
80. The prosecution in order to establish further chain of
circumstances in the murder of two children examined Dina
Nath Sharma, PW 6 who knew Suresh Bahri since 1965 and both
were classmates. He deposed that he
128
frequently visited the Delhi house of Suresh Bahri and also
used to stay with him. He knew all the family members of
Suresh Bahri including his wife and children. Dina Nath
stated that when he visited Delhi house of Suresh in the
first week of December 1983 he saw the two children of
Suresh in Delhi house when Suresh had told him that he will
take his children to Ranchi to get them admitted in any
school there so that the children and their mother may live
together. PW 6 further deposed that Suresh Bahri left for
Ranchi house in the morning of 8-12-1983 in the Ambassador
car along with his mother Santosh Bahri and a maidservant
and one more person (identifying Raj Pal in the court to be
that person). Suresh told him that his mother and
maidservant would be going up to Basti (U.P.). On asking
about the other man Suresh told him that he was a motor
mechanic whom he had taken by way of precaution as he had to
cover a long journey. He also stated that he had taken 3-4
beddings besides other articles in the car.
81. Witness Gopi Krishna PW 11 Manager of the Tourist Dak
Bungalow, Varanasi added further link to the incident. He
deposed that Suresh Bahri and Raj Pal Sharma along with the
two children had stayed at his bungalow on two days i.e. 13-
12-1983 and 14-12-1983. The Guest House Register Ext. 8
contained the entry about their stay on the aforesaid dates.
Gopi Krishna identified the appellants Suresh and Raj Pal
Sharma in the court and stated that Suresh had made the said
entry in the guest register. It was shown in the said entry
that they were coming from Basti and were going to Ranchi
which fact lends support to the statement of Dina Nath PW 6
that his mother and the maidservant would travel only up to
Basti and it was for this reason that only the appellants
Suresh, Raj Pal and the two children had stayed in the guest
house on 13-12-1983 and 14-12-1983. The entries made by
Suresh in his handwriting in the Guest House Register were
compared with his admitted writings by the handwriting
expert Shri S.C. Mittal PW 65 who found both the writings to
be in the hand of Suresh. After leaving Varanasi in the
evening of 14-12-1983 the appellant Suresh, Raj Pal along
with the two children proceeded further by car to Ranchi and
before reaching Ranchi stayed in New Punjab Rest House at
Daltonganj, as testified by its Proprietor S. Gurbax Singh
PW 19 who deposed that in 1983-1984 the hotel was known as
Punjab Rest House but the name was subsequently changed as
New Punjab Rest House. The witness stated that Suresh along
with the two children and another person came and stayed in
the hotel on 15-12-1983 in Room No. 4 as per entry at Serial
No. 576 of the Guest Register. The entries in the Guest
Register were made by Richa Bahri which was also signed by
Suresh. The number of passengers as given in the entry was
shown as four coming from Delhi and going to Ranchi. CBI
Inspector Rajendra Singh, PW 82, seized the register of his
hotel. The entries in the said register made in the writing
of Richa Bahri and her copy book were compared by the expert
S.C. Mittal PW 65 who opined that the writings and signature
of Richa in the Guest House Register fully tallied with her
writing in the copy book of Father Agnel School as proved by
her class teacher, PW 34.
82. The party of four i.e. Suresh, Raj Pal and the two
children ultimately landed at Dhulli farm in the afternoon
on 16-12-1983 as testified by caretaker Gopi Mistry, PW 29,
of Suresh on his Dhulli farmhouse and his son Shiv Nandan
Lohare PW 60. Both of them stated that their master Suresh
along with
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Raj Pal and the two children had arrived at Dhulli farmhouse
in the afternoon of 16-12-1983 and stayed there till the
morning of 18-12-1983. Both the witnesses also stated that
about a fortnight before the arrival of Suresh and party,
the appellant Gurbachan Singh had also come to Dhulli farm
to make arrangement for some cots and chairs which were sent
by him from Ranchi in a bus. Gopi Mistry also deposed that
Raj Pal Sharma and two children stayed at Dhulli in the
night following 16-12-1983 and next day on 17-12-1983 Raj
Pal went to Ranchi and came back with appellant Gurbachan
Singh on a motorcycle but Gurbachan went away after about an
hour. In the night of 17-12-1983 all the four took food
prepared by the wife of Gopi Mistry and then all the four
slept in one room at Dhulli farm. Gopi Mistry proceeded
further to state that on 11-12-1983 at about dawn Suresh
have a call to him and on hearing the call he, his wife and
his son Shiv Nandan woke up. He came out and noticed the
two children in the rear seat of the car in the sleeping
position fully covered with a quilt and only some parts of
their legs alone were visible. Suresh Bahri and Raj Pal
were sitting in the front seat of the car and Suresh told
him that they were going and if any one enquired about him
they be told that he was not there and then left Dhulli
farm. Shiv Nandan PW 60 the son of caretaker Gopi Mistry
also made similar statement but further added that when
Suresh and party was ready to leave at dawn on 18-12-1983 he
came and tried to look inside the car through the glasses
but the appellant Raj Pal shouted at him commanding him to
go away.
83. The evidence of these two witnesses PW 29 and PW 60 was
sought to be assailed by the learned counsel for the
appellants by pointing out some minor and insignificant
contradictions as also the statement of PW 60 that he tried
to look inside the car through the glasses when he was
shouted down and directed to be away by the appellant which
statement has not been made by his father PW 29. We are not
impressed at all by these arguments as the immaterial
omissions and contradictions have hardly any bearing on the
reliability of these two witnesses whose evidence is
consistent on all material aspects and there is no reason at
all to discredit their testimony.
84. In the series of circumstances connecting the appellant
Suresh Bahri and Raj Pal with the murder of the two children
the prosecution has examined Vijay Kumar Asthana PW 12 who
was the Manager of Hotel India, Varanasi at the relevant
time. Asthana deposed that Suresh had stayed in his hotel
on 18-121983 by making entry Ext. 4/2 in his presence in the
Guest Register Ext. 8/1 at SI. No. 1448 at Page No. 25 in
his handwriting in the name of Mahesh Chandra Gupta. The
said handwriting was compared with the specimen writing and
signature of Suresh by the expert S.C. Mittal PW 65 who
found the two writings having been made by the same person
in other words by Suresh. The purpose of this evidence is
to show that after leaving Dhulli farm at dawn on 18-12-1983
when on their return journey Suresh stayed in Hotel India at
Varanasi on 18-121983 there were only 2 persons i.e. Suresh
himself and the appellant Raj Pal Sharma and the two
children were no longer in their company whose bodies were
disposed of somewhere on the way which would be clear from
the evidence discussed hereinafter.
85.Hiralal PW 36 is a businessman of Samath, District
Banaras who had gone to the bank of Varuna River on 20-12-
1983 at about 8.00 a.m. to ease himself when he noticed
crowd there. He went and saw a gunny bag was
130
floating in the water of Varuna River which was taken out
and opened in the presence of persons present there. In the
said bag dead body of a Hindu boy aged about 12/13 years was
found having incised wounds in the neck. In the meanwhile
one Dr Mahendra Prasad PW 35 also arrived there who at his
instance wrote a report which he took and lodged in Sarnath
Police Station in respect of the dead body. On the basis of
his report the first information report, Ext. 13 was
recorded in the Police Station and Atma Nand Singh PW 46 In-
charge, P.S. Samath went to the bank of Varuna River,
prepared the panchnama of the dead body Ext. 14 and seized
the gunny bag as per seizure memo Ext. 12. Investigating
Officer, PW 46 then called a photographer Ashok Kapoor PW 48
and took the photographs of the dead body of the boy for
purpose of identification later. Dr Bhargav PW 27 performed
an autopsy over the dead body of the boy on 21-12-1983 and
found two incised wounds on the neck. There was also
contusion on the chest and various other injuries on his
person which were ante-mortem in nature caused by sharp
object.
86. Here it may be mentioned that next door neighbour
Murari Lal PW 1, a family friend Dina Nath Sharma PW 6, Gopi
Krishna Asthana PW 11, Manager of Tourist Dak Bungalow,
Varanasi, Gopi Mistry PW 29, the caretaker of Suresh at
Dhulli farm, Mrs George PW 34, a teacher of Father Agnel
School where the two children studied, Satvender Kant PW 41,
a close relative of Urshia Bahri and the informant Bineet
Singh PW 69 the brother of the deceased have all identified
from the photographs that were taken by the photographer
Ashok Kapoor PW 48 to be the photographs of none else but
Saurabh and thus there is overwhelming evidence to establish
that the dead body found floating in Varuna River was that
of Saurabh.
87. However, learned counsel for the appellants referring
to the statement of Dr Bhargav PW 27 contended that the
prosecution story that the two children were done to death
in the intervening night of 17-12-1983 and 18-12-1983 at
Dhulli farm is not consistent with the medical evidence and
on the contrary it is falsified by the medical evidence
inasmuch as the dead body was found at about 8.00 a.m. on
20-12-1983 but without any sign of decomposition and only
rigor mortis was present while putrefaction starts after
about 24 hours of the death but the same was not found at
the time of postmortem which was performed after 60 hours of
the alleged time of murder. On that basis, therefore, it
was submitted that the dead body recovered was either not
the dead body of Saurabh or the murder was not committed in
the intervening night of 17-12-1983 and 18-12-1983. Learned
counsel for the appellants further submitted that the doctor
had found that the stomach of the deceased was empty while
according to the evidence of Gopi Mistry PW 29 and his son
Shiv Nandan Lohare PW 60 the two children had slept after
taking their meals in the night of 17-12-1983. These
arguments were advanced on the basis of some stray sentences
here and there from the evidence of Dr Bhargav in isolation.
A reading of the full statement of Dr Bhargav PW 27 will go
to show that there is absolutely no substance in the
aforementioned submissions.
88. So far as the identity of the dead body is concerned,
we have already discussed above that there is overwhelming
evidence to show that it was the dead body of Saurabh as
stated by a large number of witnesses after seeing the
photographs. So far as the question of putrefaction and
decomposition of the
131
dead body is concerned, it depends on various factors such
as the season, place and the manner in which the dead body
was kept besides other relative considerations. A perusal
of evidence of Dr Bhargav PW 27 would reveal that he clearly
stated that putrefaction may take place even after 3 to 5
days if the dead body remained submerged in water.
Admittedly the dead body of Saurabh was found floating in
Varuna River in the morning of 20-12-1983. Consequently
according to the evidence of Dr Bhargav the progress of
putrefaction or decomposition could not have commenced at
the time when the dead body was recovered and postmortem was
conducted. This circumstance, therefore, does not render
the prosecution story improbable or unreliable. The absence
of food at the time of postmortem of Saurabh is also not of
much significance to render the prosecution story doubtful.
The presence or absence of food at the time of postmortem in
relation to the time of death is based on various factors
and circumstances such as the type and nature of the food
consumed, the time of taking the meal, the age of the person
concerned and power and capacity of the person to digest the
food. In the present case there is no evidence about the
exact time when the meals were taken by the children on the
night of 17-12-1983 nor about the type or nature of the food
consumed by them. Saurabh was a young boy aged about 12
years and he being a young and energetic boy, his power of
digestion must be assumed to be quick and strong, therefore,
if the stomach at the time of postmortem was found to be
empty it was but natural.
89. The prosecution story with regard to the murder of the
two children proceeds further by adding some more links to
the circumstantial evidence against the appellants in the
shape of recovery of some incriminating articles on
Panchkoshi Road, near Nursery of Forest Department and some
other places. The Investigating Officer, Sarnath, Atma Nand
Singh PW 46 stated that in the evening of 27-12-1983 he
received information from some persons that some articles
stained with blood were lying at Panchkoshi Road near
Paighambarpur Village where the refuse is dumped. PW 46,
therefore, rushed there and in the presence of witnesses
seized bed sheet and a gadda which looked like a quilt by
seizure memo Ext. 5/9. At the same time he also learnt that
some articles were also lying near a Nursery of the Forest
Department at Asapur Road crossing.He, therefore, visited
that place also and seized two bloodstained bedsheets in the
presence of witnesses by seizure memo Ext. 5110. All these
articles seized under seizure memo Exts. 5/9 and 5/10 were
sent to the Central Forensic Science Laboratory, Delhi which
were examined by Dr G.D. Gupta PW 53, a Senior Scientist who
found human blood on the quilt and its cover. These
articles were further sent for examination by Serologist Dr
P.K. Bhatnagar PW 56 who as per his report Ext. 8/4 found
that the aforesaid articles contained blood group ‘B’.
90. It may be noticed that when Atma Nand Singh, PW 46,
Police Officer Sarnath could not succeed in finding out the
identity of the dead body of the child he got his
photographs published in police gazette as well as in
various newspapers but still nobody came forward to claim
the body or to identify the child and, therefore, he made a
final report and closed the case but it appears at during
the investigation of the murder of Urshia and her children
when the CBI Inspector Madan Lal PW 85 arrested Suresh Bahri
on 31-7-1984 at Delhi
132
who appears to have made disclosure about his children also
and it was thereafter that the Government of India entrusted
the Sarnath case also to CBI by another notification dated
14-9-1984 on the basis of which R.C. Case No. 5/84 was
registered by CBI and the CBI Inspector Rajendra Singh PW 82
was entrusted with its investigation by him, a large number
of witnesses were examined by him who identified the
photographs as that of Saurabh.
91.Though no trace of the dead body of Richa could be made
but in view of the overwhelming circumstantial evidence
which we shall discuss hereinafter the same leads to the
conclusion that she also met the same fate as that of her
brother Saurabh at Dhulli farm in the intervening night of
17-12-1983 and 18-12-1983 at the hands of the appellants
Suresh and Raj Pal Sharma. It has already been discussed
that the two children were withdrawn from the Delhi school
on the pretext that they would be taken to Ranchi where they
would stay with their mother and prosecute their further
studies as is clear from the letters of Suresh written to
his in-laws, but the two appellants Suresh and Raj Pal took
them to Dhulli farm and after a short stay of one and a half
day there both the appellants proceeded back to Delhi. No
plausible reason is discernible as to what were the
compelling reasons for the two appellants that after a long
journey from Delhi to Dhulli farm, they thought of to return
back to Delhi only after a very short stay at Dhulli and
without even visiting his house at Ranchi at a short
distance of about 40 kms from Dhulli. But the reason is not
far to seek, the purpose being to execute their plan to do
away with the children in a lonely and secluded place so
that their dastardly and unholy act may not come to light
and be not detected or suspected by anyone. After their
withdrawal from school on 5-12-1983 by the appellant Suresh
he took them to his South Extension residence, Delhi and
thereafter Suresh left Delhi along with the children on
8-12-1983 and reached Dhulli farm in the afternoon of 16-12-
1983 via Basti, Varanasi and Daltonganj having their halts
in the hotels at two places as already discussed earlier.
The entries of the said hotels indicated that there were
four persons appellants Suresh and Raj Pal and the two
children. The fact that the two children were accompanying
these two appellants is fully established from the entries
in Daltonganj hotel which were made and signed by Richa and
Saurabh. The said entries are proved by the opinion and
evidence of the expert. The return journey of the
appellants Suresh and Raj Pal which commenced on 18-12-1983
tells a different story that though the two children were
shown to be fast asleep in the rear seat of the car but
thereafter the two children were not found accompanying them
either dead or alive on their onward journey as is evident
from the entries made in different hotels in different names
by these two appellants and entries indicated that only two
persons had stayed in those hotels on the return journey and
obviously so because the two children were already done to
death and their bodies while proceeding to Delhi were thrown
in Varuna River, the body of Saurabh having been found
floating while that of Richa appears to have been swept away
unnoticed to some unknown destination. The articles gadda,
quilt and sheets stained with human blood which were also
thrown on the way and the Serologist on examination found
blood group ‘B’ on the same the evidence in respect of which
has already been discussed in detail earlier.
92.There is yet another circumstance which deserves
notice. The two children were shown to be fast asleep in
the rear seat of the car with their whole
133
body covered except for a part of their legs which is
something against the normal conduct of children of that
age. The two appellants had resumed their return journey
after a short stay at Dhulli at dawn on 18-12-1983 when the
two children of the age they were, are not expected to sleep
but would be excited to enjoy the trip in the company of
their father. This leads to a legitimate conclusion that in
fact they were not alive but were dead whose throats were
cut as noticed by Dr Bhatnagar who conducted postmortem on
the dead body of Saurabh. It is also surprising to note
that Suresh Bahri and Raj Pal Sharma left Dhulli farm early
in the morning of 18-12-1983 without any arrangement for the
breakfast or tea even for the children while all these
facilities were available at Dhulli farm but all this was
not necessary because the children were no more alive.
93.It may also be pointed out that after the murder of
Urshia and thereafter the killings of the two children
Suresh Bahri was running about place to place and staying in
different hotels to avoid his apprehension. From 9-5-1984
to 17-5-1984 Suresh was staying in a hotel at Ghaziabad in
the name of Mahesh Chand Gupta though Delhi is not even an
hour’s run from Ghaziabad. When his mother withdrew an
amount of Rs 25,000 from the State Bank, Delhi and
Travellers cheque worth Rs 25,000 was taken in the name of
his maternal uncle, Y.D. Arya which was encashed at
Ghaziabad on 10-5-1984 and this circuitous method was
adopted to mislead the prosecution and at the same time
provide money to Suresh who was wandering from place to
place in different hotels and needed money to go to Nepal
according to his plan and create false evidence in support
of his defence plea which he had pre-planned in case he was
apprehended by police. Here it may also be pointed out that
the appellant Suresh went to Kathmandu (Nepal) and firstly
he stayed in Kozy Hotel from 8-4-1984 to 29-4-1984 vide Ext.
4/34 and thereafter from 15-5-1984 to 22-5-1984 vide Exts.
4/35 and 4/36. It is interesting to note that thereafter
Suresh left the hotel Kozy of Kathmandu and lodged himself
in a private house obtained on rent only with a view to
create false evidence for sudden disappearance of his
children at Kathmandu according to his plan with which he
had gone to Nepal because Suresh thought that his ultimate
apprehension would be unavoidable as the Chutia police had
submitted a charge-sheet with regard to the murder of Urshia
against him in which he was shown absconding accused. In
furtherance of his plan to create evidence for his defence
the appellant Suresh made a false report Ext. 25/1 to Nepal
Police on 10-8-1984 that his two children who came to
Kathmandu (Nepal) with him were missing while in fact they
were already done to death on the nights of 17-12-1983 and
18-12-1983. This report on enquiry was found to be totally
unfounded and false as would be clear from the evidence of
Basant Kumar Lama PW 67 a Police Officer of Nepal. There
could be no reason to doubt the testimony of Basant Kumar
Lama PW 67 as he is totally a stranger to the appellant
Suresh having no axe to grind against him with a view to
falsely implicate him. Though Suresh tried to be wiser by
making the information with Kathmandu Police about the
missing of his children only after shifting in a private
house as giving such a false information from the hotel
where the number of the guest/passenger is noted, would have
exposed him because in fact the children had not gone with
him to Kathmandu. But he proved himself only to be a wisest
fool in doing so.
134
94.The totality of all the aforementioned circumstances
complete the chain which lead to the only irresistible
conclusion that the three appellants before us had hatched
the conspiracy to commit the murder of the two children also
in the same way as their mother Urshia was killed and in
prosecution of their said plan they executed it at Dhulli
farm.
95.Learned counsel appearing for the appellants Gurbachan
Singh and Raj Pal Sharma contended that there is no direct
and legal evidence against the appellants for their
involvement in the alleged conspiracy and that in any case
there is no factual evidence against the appellant Gurbachan
Singh about his actual participation in the crime and,
therefore, the conviction under Sections 302/120-B of the
Penal Code in his case is bad in law and unsustainable.
96.In the above context we may refer to the provisions of
Section 120-A of the Indian Penal Code which defines
criminal conspiracy. It provides that when two or more
persons agree to do, or cause to be done, (1) an illegal act
or (2) an act which is not illegal by illegal means, such
agreement is designated a criminal conspiracy; provided that
no agreement except an agreement to commit an offence shall
amount to criminal conspiracy unless some act besides the
agreement is done by one or more parties to such agreement
in pursuance thereof. Thus, a cursory look to the
provisions contained in Section 120-A reveals that a
criminal conspiracy envisages an agreement between two or
more persons to commit an illegal act or an act which by
itself may not be illegal but the same is done or executed
by illegal means. Thus the essential ingredient of the
offence of criminal conspiracy is the agreement to commit an
offence. In a case where the agreement is for
accomplishment of an act which by itself constitutes an
offence, then in that event no overt act is necessary to be
proved by the prosecution because in such a fact situation
criminal conspiracy is established by proving such an
agreement. In other words, where the conspiracy alleged is
with regard to commission of a serious crime of the nature
as contemplated in Section 120-B read with the proviso to
sub-section (2) of Section 120-A of the IPC, then in that
event mere proof of an agreement between the accused for
commission of such a crime alone is enough to bring about a
conviction under Section 120-B and the proof of any overt
act by the accused or by any one of them would not be
necessary. The provisions in such a situation do not
require that each and every person who is a party to the
conspiracy must do some overt act towards the fulfilment of
the object of conspiracy, the essential ingredient being an
agreement between the conspirators to commit the crime and
if these requirements and ingredients are established the
act would fall within the trapping of the provisions
contained in Section 120-B since from its very nature a
conspiracy must be conceived and hatched in complete
secrecy, because otherwise the whole purpose may be
frustrated and it is common experience and goes without
saying that only in very rare cases one may come across
direct evidence of a criminal conspiracy to commit any crime
and in most of the cases it is only the circumstantial
evidence which is available from which an inference giving
rise to the conclusion of an agreement between two or more
persons to commit an offence may be legitimately drawn. The
observations made by this Court in Noor Mohd. Mohd
135
Yusuf Momin v. State of Maharashtra13 may be quoted with
advantage which read as under: (AIR headnote)
“Criminal conspiracy differs from other
offences in that mere agreement is made an
offence even if no step is taken to carry out
that agreement. Though there is close
association of conspiracy with incitement and
abetment the substantive offence of criminal
conspiracy is somewhat wider in amplitude than
abetment by conspiracy as contemplated by
Section 107 IPC. A conspiracy from its very
nature is generally hatched in secret. It is,
therefore, extremely rare that direct evidence
in proof of conspiracy can be forthcoming from
wholly disinterested quarters or from utter
strangers. But, like other offences, criminal
conspiracy can be proved by circumstantial
evidence. Indeed, in most cases proof of
conspiracy is largely inferential though the
inference must be founded on solid facts.
Surrounding circumstances and antecedent and
subsequent conduct, among other factors,
constitute relevant material. In fact because
of the difficulties in having direct evidence
of criminal conspiracy, once reasonable ground
is shown for believing that two or more
persons have conspired to commit an offence
then anything done by anyone of them in
reference to their common intention after the
same is entertained becomes, according to the
law of evidence, relevant for proving both
conspiracy and the offences committed pursuant
thereto.”
Similar view was also reiterated by this Court in V.C Shukla
v. State (Delhi Admn.)14.
97.Although we have already discussed the facts and
circumstances appearing against the appellants Gurbachan
Singh and Raj Pal Sharma indicating their direct involvement
in the conspiracy of murder of Urshia and her two children
yet at the risk of repetition we shall in brief re-state the
same. It is evidently clear from the series of
circumstances established by the prosecution and discussed
by us in the foregoing paras that the main brain behind the
conspiracy who masterminded the plan for the killings of the
three innocent lives is the appellant Suresh Bahri, the
unworthy husband of Urshia and a brute cruel father of the
two unfortunate children, who approached the other
appellants Gurbachan Singh and Raj Pal Sharma for help in
the commission of the said ghastly crime by winning over
their favour on account of his friendship and close
association with them and as such it appears that they had
no hesitation in extending their helping hands by
constituting themselves as members of the criminal
conspiracy hatched by Suresh Bahri. No doubt there is no
direct evidence about the conspiracy and as said earlier it
is seldom available. But the trial court has catalogued a
large number of circumstances against the appellants which
have also been accepted by the High Court and in our opinion
rightly so. The two courts below have noticed the movements
and activities of appellants Gurbachan Singh and Raj Pal
Sharma at the instance of appellant Suresh right from the
beginning and long before the murder of Urshia, their acts
in arranging the preparation of a danda, sharpening of a
dagger, preparation of batalies and wooden box, dumping of
dead body of Urshia in
13 (1970) 1 SCC 696, 699: 1970 SCC (Cri) 274: AIR 1971 SC
885, 886
14 (1980) 2 SCC 665: 1980 SCC (Cri) 561, sub bom State
(Delhi Admn.) v. VC Shukla, AIR 1980 SC 1382
136
sceptic tank and taking it out again and dumping it in a
hillock at Khad gaddha. The appellant Raj Pal arrives at
Ranchi in the last week of September 1983 and stayed in
Ranchi House No. 936 of Suresh Bahri till arrival of Suresh
and his deceased wife Urshia on 1-10-1983 and thereafter his
movements at Ranchi itself till she was done to death on 11
-10-1983 in one of the rooms of the house when appellant Raj
Pal Sharma was also seen moving about from one room to
another wearing only underwear and having a bloodstained
dagger in his hand. Raj Pal accompanied Suresh while he
left Delhi in the ambassador car along with the two children
for Dhulli farm where the party stayed on 16-12-1983 and 17-
12-1983 and left Dhulli farm at dawn on 18-12-1983 with the
dead bodies of the two children, throwing the dead bodies in
Varuna River on their way back to Delhi. All these facts
clearly borne out mainly from the statement of PW 1, PW 2,
PW 4, PW 6, PW 11, PW 19, PW 29, PW 31 and PW 60 besides
other evidence that there was not only an agreement to
commit the alleged murders but the appellants in fact
committed overt acts also for fulfilment of their object
which is eloquently evident from the evidence discussed
above. All these facts and circumstances without the least
hesitation lead to the only irresistible conclusion that
they were active members of the agreement who had hatched a
conspiracy to eliminate all the three members of the family
of Suresh and thus actually executed their plan.
98.The aforementioned facts and circumstances fully
establish the offence under Sections 302/120-B of the Penal
Code against the appellants Gurbachan Singh and Raj Pal
Sharma also and there is hardly anything deserving
interference with the view taken by the two courts below
after a detailed and elaborate discussion of the evidence
and material on record. We, therefore, confirm the
conclusions recorded by the two courts below as well as the
convictions of the appellants under Sections 302, 302/120-B
and 201 of the Penal Code.
99.Shri Sushil Kumar, learned senior counsel lastly
contended that the prosecution kept away for reasons best
known to it the disclosure statement running in 22 pages
alleged to have been made by the appellant Suresh Bahri on
1-8-1984 before Metropolitan Magistrate, Delhi for which not
only the adverse inference has to be drawn against the
prosecution but it vitiated the whole trial. He submitted
that when the appellant Suresh Bahri was arrested on 31-7-
1984 and on 1-8-1984 produced before the Metropolitan
Magistrate he had made a statement running in 22 pages as
mentioned in the remand order itself dated 1-8-1982 and also
in his application for grant of bail. That statement has
not been produced by the prosecution for reasons best known
to it. In our considered opinion there is no force in the
argument. If actually ;appellant Suresh Bahri had made any
disclosure statement it was within his special knowledge as
to what he had stated in those alleged 22 pages but he did
not divulge anything in this connection in his statement
recorded under Section 313 CrPC as to the nature of that
statement, when he was questioned whether he had to say
anything else. Yet learned counsel wants us to draw an
adverse inference against the prosecution. Learned counsel
did not elaborate as to what adverse inference ought to be
drawn and how and in what manner withholding of the alleged
statement could vitiate the trial. Not only this but the
learned counsel appearing for the accused appellant Suresh
at the trial did not put any question
137
even to the Investigating Officer, Chutia Police Station,
Raghuvir Singh, PW 59, Rajendra Singh, or to PW 82 and
Madanlal, PW 85, the CBI Inspectors or any other prosecution
witnesses about the alleged statement. A mere mention in
the remand order or bail application does not by itself
prove the recording of any statement as alleged without any
further evidence and material being placed on record in
support of it. In these facts and circumstances it is
difficult for us to hold that Suresh Bahri had made any
disclosure statement or if it was so made it would result in
vitiating the whole trial.
100. Lastly all the learned counsel appearing for the three
appellants made vigorous efforts to persuade us that the
evidence and circumstances of the present case do not
justify the extreme penalty of death sentence to the three
appellants or any of them as there is no evidence as to the
manner in which the three persons were done to death.
101. It may be noticed that since about the last two decades
there has been throughout the civilized world, a great deal
of anguished concern about what sentences be given to those
convicted of crimes. It is also felt that crime and
punishment have a moral dimension of considerable complexity
that must guide sentencing in any enlightened society. The
criticism of judicial sentencing has raised its head in
various forms that it is inequitable as evidenced by
desperate sentences; that it is ineffective; or that it is
unfair being either inadequate or in some cases harsh. It
has been often expressed that there is a considerable
disparity in sentencing an accused found to be guilty for
some offence. This sentencing variation is bound to occur
because of the varying degrees of seriousness in the offence
and/or varying characteristics of the offender himself.
Moreover, since no two offences or offenders can be
identical the charge or label of variation as disparity in
sentencing necessarily involves a value-based judgment,
i.e., disparity to one person may be a simply justified
variation to another. It is only when such a variation
takes the form of different sentences for similar offenders
committing similar offences that it can be said to be
disparate sentencing.
102.It appears that it was to minimise these considerations
indicating the areas of imposition of penalties including
the extreme penalty of death that the Legislature introduced
sub-sections (3) and (4) in Section 354 of the Code of
Criminal Procedure in the new Code of 1973. Sub-section (3)
contemplates that when conviction is for an offence
punishable with death or in the alternative, the
imprisonment for life or imprisonment for a term of years,
the judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the special
reasons for such sentence (emphasis supplied). Thus, sub-
section (3) of Section 354 lays down that in case of
sentence of death the judgment shall state special reasons
for such sentence. This gives an impression that in the new
Code of Criminal Procedure the emphasis is that the life
imprisonment for the offence of murder is the rule and death
sentence an exception to be resorted to for special reasons
to be recorded in the judgment. For these reasons,
therefore, as far as the extreme penalty of death is
concerned the sentencing discretion of the court is
circumscribed within the parameters of a formula laid down
by this Court in Bachan Singh case15 as well as in some
other subsequent decisions that
15 Bachan Singh v. State of Punjab, (1980) 2 SCC 684: 1980
SCC (Cri) 580
138
the extreme penalty should not be inflicted except in rarest
of the rare cases and on the four principles, namely, (1)
the extreme penalty of death may not be inflicted except in
cases of extreme culpability, (2) before opting for the
death penalty the circumstances of the offender be also
taken into consideration along with the circumstances of the
crime, (3) life imprisonment is the rule and the death
sentence is an exception. In other words, death sentence
has to be imposed only while life imprisonment appears to be
altogether inadequate punishment having regard to the
relevant circumstances of the crime and (4) aggravating and
mitigating circumstances have to be given full weightage and
the balance has to be struck between the aggravating and
mitigating circumstances before the option of the punishment
has to be exercised. The Supreme Court affirmed the
aforesaid principles laid down in Bachan Singh case15 in a
subsequent decision also in Machhi Singh v. State of
Punjab16 by maintaining the sentence of death imposed on
Machhi Singh who had killed Biban Bai and her three sons
with firearm.
103.In Dhananjoy Chatterjee v. State of W.B. 17 one of us
(Dr Anand, J.) who was a member of the Bench which delivered
the judgment, speaking for the Court crystallised the
principles governing the criminal sentencing by the courts
in view of the changed legislative policy contained in
Section 354(3) CrPC and in para 14 of the report observed as
follows: (SCC p. 239, para 14)
“In recent years, the rising crime rate
particularly violent crime against women has
made the criminal sentencing by the courts a
subject of concern. Today there are admitted
disparities. Some criminals get very harsh
sentences while many receive grossly different
sentence for an essentially equivalent crime
and a shockingly large number even go
unpunished, thereby encouraging the criminal
and in the ultimate making justice suffer by
weakening the system’s credibility. Of
course, it is not possible to lay down any cut
and dry formula relating to imposition of
sentence but the object of sentencing should
be to see that the crime does not go
unpunished and the victim of crime as also the
society has the satisfaction that justice has
been done to it. In imposing sentences in the
absence of specific legislation, Judges must
consider variety of factors and after
considering all those factors and taking an
overall view of the situation, impose sentence
which they consider to be an appropriate one.
Aggravating factors cannot be ignored and
similarly mitigating circumstances have also
to be taken into consideration.”
In the said report it has been further
observed in para 15 as follows: (SCC p. 239)
“In our opinion, the measure of punishment in
a given case must depend upon the atrocity of
the crime; the conduct of the criminal and the
defenceless and unprotected state of the
victim. Imposition of appropriate punishment
is the manner in which the courts respond to
the society’s cry for justice against the
criminals. Justice demands that courts should
impose punishment befitting the crime so that
the courts reflect public abhorrence of the
crime. The courts must not only keep in view
the rights of the
16 (1983) 3 SCC 470: 1983 SCC (Cri) 681 AIR
1983 SC 957
17 (1994) 2 SCC 220: 1994 SCC (Cri) 358 nJT
(1994) 1 SC 33
139
criminal but also rights of the victim of
crime and the society at large while
considering imposition of appropriate
punishment.”
104.Having regard to the principles formulated by this
Court discussed above, we have given our anxious
consideration to the question of sentence to the appellants
and have also examined in depth and with great concern the
facts and circumstances of the present case and the reasons
assigned by the two courts below for awarding the extreme
penalty of death to the three appellants before us. At the
cost of repetition we may recall that the appellant Suresh
had strong motive and entertained some grievances against
his wife Urshia because she had made up her mind to dispose
of Ranchi house and migrate to America along with her
children with the sale proceeds against the wishes of Suresh
and, therefore, to put an end to her life, Suresh planned a
long-drawn plot and hatched a conspiracy with the appellants
Gurbachan Singh and Raj Pal Sharma for execution of this
plan. Urshia not even having an inkling of the evil designs
and hidden unholy intentions of her husband accompanied him
from Delhi to Ranchi on 1-10-1983 with a view to finalise
the deal of house and execute the sale deed. But according
to the pre-plan she was done to death in the intervening
night of 10- 10- 1983 and 11-10-1983 and she could not see
the light of 11-10-1983 when sale deed was to be executed.
The evidence discussed above shows that her murder was
committed in an extremely, brutal, gruesome, diabolical,
revolting and dastardly manner so as to arouse intense and
extreme indignation of the society. The victim was
subjected to inhuman acts of torture and cruelty while
causing her murder as her body was truncated into two parts
in a devilish style evincing total depravity simply to gain
control over the property. Having been not satisfied with
the killing of his wife Suresh Bahri was further determined
to kill his innocent two children at Dhulli farm making them
believe that they were being taken on a pleasure trip to the
farm and then after they were done to death by inflicting
severe injuries on neck and other parts of the body threw
their dead bodies in the Varuna river having no
consideration for the human life and that too for his own
flesh and blood. Suresh Bahri may be having some
differences with his wife with regard to the sale of house
and her idea about settlement with the children at America
but he certainly had no grievance or even any remote cause
against his innocent minor children who could never conceive
that their father who was their guardian of the first degree
was taking them to Dhulli farm for committing their gruesome
murder.
105.The cold-blooded cruel murder of the innocent children
by none else but by their own real father shows the enormous
proportion with which it was committed eliminating almost
all members of the family. We have given our serious
thoughts and consideration and posed the question to
ourselves whether there could be still a worse case than
this where a husband could hatch a 7 conspiracy and kill
his wife in a most callous and ghastly fashion as in the
present case only on a trifling matter which could have been
sorted out in an amicable manner for which no effort appears
to have been made by Suresh. Not only this but the
appellant Suresh became thirsty of the blood of his own
children for absolutely no fault of theirs. In the facts
and circumstances discussed above, in our opinion, so far as
Suresh Bahri is concerned, the rule of the rarest of rare
cases has to be applied as the present case falls within the
category of the rarest of rare cases and for the
perpetration of the crime of the
140
nature discussed above there could be no other proper and
adequate sentence except the sentence of death as there are
no mitigating circumstances whatsoever. Having regard to
all the facts and circumstances of the present case as far
as Suresh Bahri is concerned there is no cause for any
interference in the view taken by the two courts below in
awarding the death sentence to him. We, therefore, affirm
the conviction and sentence of death awarded to Suresh by
the High Court. In the event of the execution of death
sentence, the sentence awarded under Section 201 of the IPC
shall remain only of academic interest.
106.As far as the question of sentence to the appellants
Gurbachan Singh and Raj Pal Sharma is concerned, we may
state that there is convincing and conclusive evidence for
their involvement and active participation in the criminal
conspiracy with Suresh to do away with the three members of
his family. But from the evidence on record as discussed by
us in the earlier part of this judgment it is clear that
Gurbachan Singh had reached the house of Suresh at Ranchi in
the fateful evening of 10- 10-1983 when Urshia was already
done to death by the appellant Suresh Bahri and Raj Pal
Sharma, when Raj Pal Sharma was seen wearing an underwear
holding a dagger in his hand and cleaning the blood in the
room with cotton. From the evidence it is, therefore, clear
that Gurbachan was not a party to the actual murder of
Urshia although he was an active member of the party who
hatched the conspiracy to kill her. Similarly it is also
clear from the evidence that we have discussed in the
earlier part of this judgment that though Gurbachan Singh
rendered assistance in sending the cot and chairs to Dhulli
farm and sharpening the dagger and batalies for the murder
of two children but he in fact was not present on 17-12-1983
and 18-12n-1983 at Dhulli farm when the two children were
done to death by the appellants Suresh and Raj Pal Sharma.
In these facts and circumstances, in our opinion, the
appellant Gurbachan Singh does not deserve the extreme
penalty of death but the adequate sentence for the part he
played would be life sentence. We, therefore, commute his
sentence of death into that of life sentence and modify the
judgment of the two courts below accordingly to that extent.
107.This brings us to the question of sentence to be
awarded to the appellant Raj Pal Sharma. There is no doubt
that there is ample evidence for his active participation in
the murder of Urshia as well as in the murder of two
children but the prosecution evidence is silent about the
actual part that he played in the two murders and the manner
in which he acted in the said killings. It is difficult to
take a definite view that the part he played in said
killings was cruel and callous or it was the appellant
Suresh alone who took the leading part and did the whole
thing by himself while the appellant Raj Pal Sharma assisted
him in one or the other manner. In such a situation, in our
opinion, it would not be proper to inflict the extreme
penalty of death to Raj Pal Sharma also but in the facts and
circumstances of the case the sentence of life imprisonment
will be just and proper sentence. We, therefore, commute
his sentence of death also into a sentence for life
imprisonment and modify the judgments of the two courts
below accordingly.
108.In the result Criminal Appeal No. 329 of 1992 entitled
Suresh Chandra Bahri v. State of Bihar fails and is hereby
dismissed. The conviction and sentences awarded to him by
the two courts below are affirmed. The Criminal Appeal No.
159 of 1992 entitled Gurbachan Singh v. State of Bihar and
141
Criminal Appeal No. 160 of 1992 entitled Raj Pal Sharma v.
State of Bihar are hereby partly allowed to the extent
indicated above. The conviction of the appellants Gurbachan
Singh under Sections 302/120-B and 201 as well as conviction
of appellant and Raj Pal Sharma under Sections 302, 302/120-
B and 201 of the Penal Code are maintained but the sentence
of death awarded to both of them under Sections 302,
302/120-B is set aside and instead they are sentenced to
life imprisonment. Their sentence under Section 201 is
maintained. All the sentences shall run concurrently.